The opinion of the court was delivered by: GERRY
On March 1, 1980, a strike commenced at defendant Mobil Oil Corporation's refinery in Paulsboro, New Jersey. On March 4, 1980, representatives of plaintiff Township of Greenwich inspected the refinery site in response to Mobil's submission of 12 applications for building or use permits seeking approval for the temporary installation of trailers, to be used as sleeping quarters, on the refinery site for the duration of the strike. Thereafter, based upon the inspection and pursuant to the Township Zoning Ordinance and to the State Uniform Construction Act, N.J.A.C. 5:2.3-2.5 and 5:2.3-2.7(a)(1), plaintiff issued Mobil: (1) a Notice of Zoning Violation and Order to Vacate and Remove Trailers and (2) a Notice of Violation and Order to Vacate and Disconnect Utilities. To enforce these notices, plaintiff filed an action in the Superior Court of New Jersey, Gloucester County, Chancery Division, seeking a temporary restraining order and permanent injunction prohibiting Mobil from using 17 trailers for occupancy and sleeping quarters in violation of certain requirements of the Township Zoning Ordinance and of the Plumbing and electrical requirements of the State Uniform Construction Code Act.
On the same date as the action was filed, March 17, 1980, defendant Mobil petitioned this court to remove the action on the basis of diversity jurisdiction. On March 19, 1980, Mobil amended its petition, asserting that the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. preempted the Township's action and claiming jurisdiction for this question under 28 U.S.C. § 1331. The Township did not oppose removal and, on March 21, 1980, filed an amended complaint in this court, alleging that its action arises under the Occupational Safety and Health Act, with consequent federal question jurisdiction. The Township added a claim for declaratory relief, as to its rights under the Occupational Safety and Health Act, to its prayer for injunctive relief. In addition, the Township named the United States as a party defendant.
Sometime in April, 1980, the strike at Mobil's Paulsboro refinery ended. Mobil then disconnected and removed from its premises the trailers and ceased using its buildings as temporary sleeping quarters.
Because of the changes brought about by the conclusion of the strike, plaintiff Township admits that the first three counts of its complaint, seeking injunctive relief, have been rendered moot. However, plaintiff continues to seek a declaratory judgment regarding its rights to enforce the alleged safety violations by Mobil in this action.
Presently before the court are Motions to Dismiss by Defendant United States and by Defendant Mobil and a Motion for Summary Judgment by Plaintiff Township of Greenwich.
1. The Motion to Dismiss of the United States.
The United States has moved to dismiss the complaint as to it, because the complaint fails to state a federal cause of action. Plaintiff Township has asserted that it seeks, by this action, to enforce its laws, not to pursue a cause of action under the Occupational Safety and Health Act. Thus, plaintiff concedes that its action does not involve a federal question. Defendant Mobil insists that the action does "arise under" a federal statute (Occupational Safety and Health Act), and relies upon certain allegations in the complaint in support of its position (see Amended Complaint at 2). Mobil also argues in its brief that statements in the complaint that the health and safety of its workforce was endangered by the use of the trailers set forth a cause of action under the Occupational Safety and Health Act.
We must disagree with the characterization of this action advanced by defendant Mobil. The controversy here involves simply an action to enforce local zoning ordinances and the state construction code, initially by way of injunction (now moot) and through a declaratory judgment. Plaintiff's right to enforce its ordinance and the state code does not derive from nor is it in any way dependent upon the Occupational Safety and Health Act. Moreover, the Occupational Safety and Health Act does not provide plaintiff with any remedies with respect to the enforcement of the ordinances. In addition, no direct and unavoidable conflict of local and federal law appears on the face of the complaint as amended.
Plaintiff's claim must itself present a federal question "unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose." Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S. Ct. 724, 58 L. Ed. 1218 (1914). In the instant case, however, federal law is not a direct element of plaintiff's claim, as required by § 1331. See Gully v. First National Bank, 299 U.S. 109, 113, 57 S. Ct. 96, 97, 81 L. Ed. 70 (1936); Oklahoma ex rel. Wilson v. Blankenship, 447 F.2d 687, 692 (10th Cir. 1971), cert. denied, 405 U.S. 918, 92 S. Ct. 942, 30 L. Ed. 2d 787 (1972). Plaintiff has not asserted a federally created cause of action, see Peyton v. Railway Express Agency, Inc., 316 U.S. 350, 62 S. Ct. 1171, 86 L. Ed. 1525 (1942), nor sought a remedy under federal law, see Wheeldin v. Wheeler, 373 U.S. 647, 83 S. Ct. 1441, 10 L. Ed. 2d 605. The federal question in this case has been raised not by plaintiff but by Mobil as a defense to the enforcement of the Township's Ordinance, and the State Uniform Construction Act. It is axiomatic that federal jurisdiction does not lie on the basis of the assertion of a federal defense. Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 94 S. Ct. 1002, 39 L. Ed. 2d 209 (1974); Gully v. First National Bank, 299 U.S. 109, 113, 57 S. Ct. 96, 97, 81 L. Ed. 70 (1936); Louisville and Nashville R.R. v. Mottley, 211 U.S. 149, 29 S. Ct. 42, 53 L. Ed. 126 (1908). Since the only conceivable federal question to be found in plaintiff's complaint arises in anticipation of Mobil's preemption defense, we find that the complaint constitutes an insufficient basis on which to ground federal question jurisdiction. We must, therefore, agree with the defendant United States that this court lacks jurisdiction of this action under 28 U.S.C. § 1331. Accordingly, we grant the motion of defendant United States to dismiss it from this action.
Our conclusion is not altered by the fact that there is diversity jurisdiction between the private party litigants. Such diversity jurisdiction does not empower us to exercise federal question jurisdiction over an action against the United States where no federal question is presented. In fact, it is simply irrelevant to the question of whether this action should be dismissed as to the United States. See Duignan v. United States, 274 U.S. 195, 197, 47 S. Ct. 566, 567, 71 L. Ed. 996 (1927).
2. Defendant Mobil's Motion to Dismiss.
Defendant Mobil moves the court to dismiss this action on the ground that the controversy is moot. In support of its motion, defendant Mobil asserts that the strike out of which the controversy arose is over and the offending trailers have been removed; therefore, there are no questions in dispute between Mobil and the Township.
As in the case of any motion to dismiss, we construe the complaint in the light most favorable to plaintiff and take its allegations as true. See Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S. Ct. 1843, 1848-49, 23 L. Ed. 2d 404 (1969); Curtis v. Everette, 489 F.2d 516 (3d Cir. 1973), cert. denied, 416 U.S. 995, 94 S. Ct. 2409, 40 L. Ed. 2d 774 (1974). While we agree with defendant Mobil that both Article III of the Constitution and the Declaratory Judgment Act require an "actual controversy," we disagree that such a controversy is missing from the instant set of facts. The allegations in plaintiff's complaint give rise to the question of whether plaintiff has a right to enforce its zoning ordinance, either by way of injunction, or by way of fines. Plaintiff admits that its claims relating to injunctive relief have become moot because of the conclusion of the strike and the removal of the trailers. However, plaintiff still asserts an interest in enforcing its ordinance and seeks a declaration that it may do so. We find that the interest asserted by plaintiff gives rise to a sufficiently live controversy.
We are mindful of the fact that the right to declaratory relief is not determined by whether the elements essential to relief exist when the action was initiated, but by whether the controversy requisite to relief under the Declaratory Judgment Act exists at the present moment. See Golden v. Zwickler, 394 U.S. 103, 108, 89 S. Ct. 956, 959, 22 L. Ed. 2d 113 (1969); Merced Rosa v. Herrero, 423 F.2d 591, 593 (1st Cir. 1970). We also note that whether particular facts are sufficiently immediate and real to make out an actual controversy is a question of degree, to be determined on a case by case basis. Golden v. Zwickler, 394 U.S. at 108, 89 S. Ct. at 959; Muller v. Olin Mathieson Chem. Corp., 404 F.2d 501, 504 (2d Cir. 1968). Applying these principles to the instant case, it is undisputed that a concrete dispute existed at the time the action was filed. In addition, the clashing interests which gave rise to the dispute plaintiff's right to enforce its ordinance and defendant Mobil's right to be free from compliance with the ordinance on account of the Occupational Safety and Health Act are still a matter of dispute. If plaintiff had no present right to enforce its ordinance, we would have to agree with defendant Mobil's contention that the controversy is moot. However, plaintiff does have a present right of ...