United States District Court, District of New Jersey
April 18, 1991
J & A REALTY, A NEW JERSEY PARTNERSHIP, PLAINTIFF,
CITY OF ASBURY PARK, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Lifland, District Judge.
Plaintiff, J & A Realty ("J & A"), moves to strike defenses.
Defendants oppose the motion.
In 1988, the City of Asbury Park ("the city") enacted an
ordinance which established the city sewer system as a
self-liquidating municipal utility. To fund its new sewer
plant, the city passed a sewer ordinance which established a
system for assessing property owners for sewer charges. Prior
to that time, the city provided its property owners with sewer
service which was billed as a part of the owner's municipal
property taxes. The new charges are based upon two factors: 1)
an annual flat charge based upon the size of the user's water
meter; and 2) a gallonage rate based upon the number of
gallons of water consumed by the property.
J & A owns property in Asbury Park, which it leases to a
corporation operating a commercial laundry on the site. J & A
failed to pay the sewer charges for the years 1988 through
1990. Pursuant to the ordinance, the delinquent payments
became a lien on the property. Due to J & A's failure to pay
its 1988 and 1989 sewer charges, the city imposed a lien upon
the property and sold the lien in a tax sale. J & A filed an
unsuccessful administrative appeal with the Sewer Utility
Board. In October of 1989, J & A filed a complaint in this
court, challenging the constitutionality of the ordinance. J
& A alleges that the ordinance fails to account for the
strength and volume of the user's wastewater, and that the
charges bear "no reasonable relation" to the amount of service
provided. See Complaint, Count 1. In Count 2, J & A alleges
that the ordinance denies equal protection of the laws in
violation of the federal and New Jersey Constitutions by
distinguishing between water meter sizes as a means to assess
sewer charges. In Count 3, J & A alleges that the sewer
rentals, the lien and the resultant tax sale constitute a
taking of private property for public use without just
compensation in violation of the 5th amendment and ¶ 20 of
Article 1 of the New Jersey Constitution. In Count 4, J & A
alleges that defendants' actions taken under color of state law
and or pursuant to governmental policy deprived J & A of its
rights to substantive and procedural due process, equal
protection and just compensation contrary to 42 U.S.C. § 1983.
J & A sues the following (hereinafter referred to as
"defendants"): the city of Asbury Park; William Black, the
city's "Director of the Sewer Tariff"; Helen Pride, the city's
tax collector; Garrett Giberson, the city's Deputy Director of
Public Maintenance; and Katherine Knox, the city's Sewer
Utility Collection Clerk. J & A seeks: to have the ordinance
declared null and void; a permanent injunction against the
enforcement of the ordinance; rescission of all sewer bills;
monitoring of the discharge from J & A's premises; a
declaration that all liens on its property are null and void; a
permanent injunction against the collection of sewer charges;
and damages, interest and costs.
J & A moves to strike the following defenses:
1st Defense — that J & A fails to state a cause of
action upon which relief can be granted;
2nd Defense — that the court lacks jurisdiction to
hear the case due to the Johnson Act;
3rd Defense — that defendants are entitled to
immunity pursuant to the New Jersey Tort Claims
5th Defense — that defendants did not proximately
cause any deprivation of plaintiff's rights;
6th Defense — that any damages were a result of
plaintiff's own unlawful actions;
7th Defense — that defendants lack willfulness;
8th Defense — that defendants acted reasonably and
without malice; and
9th Defense — that defendants' negligence was not
the proximate cause of plaintiff's damages.
Federal Rule of Civil Procedure 12(f) permits a court, upon
motion by a party, to strike an "insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter".
Rule 12(f) motions are disfavored, especially in the absence
of prejudice. Abrams v. Lightolier, Inc., 702 F. Supp. 509, 511
(D.N.J. 1988) (citations omitted). A motion to strike is not
granted unless the insufficiency of a defense is "clearly
apparent". Cipollone v. Liggett Group, Inc., 789 F.2d 181, 188
(3d Cir. 1986).
Defendants assert that J & A fails to state a cause of
action upon which relief can be granted. J & A argues that it
has stated a cause of action under 42 U.S.C. § 1983 by alleging
that defendants' conduct under color of state law violated
plaintiff's constitutional rights. Defendants reply that the
court should sustain any possible defenses.
J & A alleges that the ordinance violates numerous
provisions of the federal and state constitutions, as well as
§ 1983. Plaintiff has a heavy burden on this issue, and the
insufficiency of this defense is not "clearly apparent".
Therefore, the court will not strike defendants' first defense.
Defendants assert that the court lacks jurisdiction pursuant
to the Johnson Act, 28 U.S.C. § 1342, which provides:
The district courts shall not enjoin, suspend or
restrain the operation of, or compliance
with, any order affecting rates chargeable by a
public utility and made by a State administrative
agency or a rate-making body of a State political
(1) Jurisdiction is based solely on diversity of
citizenship or repugnance of the order to the
Federal Constitution; and,
(2) The order does not interfere with interstate
(3) The order has been made after reasonable
notice and hearing; and
(4) A plain, speedy and efficient remedy may be
had in the courts of such State.
Where all four requirements of the Johnson Act are satisfied
a court may not exercise jurisdiction over a claim for
injunctive relief against a municipal rate-making body.
Zucker v. Bell Telephone Co., 373 F. Supp. 748, 755 (E.D.Pa.
1974), aff'd without opinion, 510 F.2d 971 (3d Cir.), cert.
denied, 422 U.S. 1027
, 95 S.Ct. 2621
, 45 L.Ed.2d 684 (1975);
Louisiana Power & Light Co. v. Ackel, 616 F. Supp. 445 (M.D.La.
1985); Kalinsky v. Long Island Lighting Co., 484 F. Supp. 176
(E.D.N.Y. 1980). "The Johnson Act expresses Congress' intent
that, absent special circumstances, state utility rates are a
matter for state regulation." South Central Bell Telephone Co.
v. Public Service Comm'n, 420 F. Supp. 376, 378 (E.D.Ky.
1976). Those four requirements will now be considered.
Jurisdiction. J & A bases this court's jurisdiction upon
defendants' violations of J & A's constitutional rights, under
both the federal and state constitutions, and 42 U.S.C. § 1981,
1983. See complaint at ¶ 7. J & A argues that its
allegation that defendants have violated 42 U.S.C. § 1983
constitutes a "statutory" claim based on federal law which
precludes the application of the Johnson Act, since
jurisdiction is not based "solely" upon the ordinance's
repugnance to the Federal Constitution. The court disagrees. A
plaintiff may not use § 1983 as an "end run around the Johnson
Act". Peoples Nat'l Utility Co. v. Houston, 837 F.2d 1366, 1368
(5th Cir. 1988); Louisiana Power & Light, 616 F. Supp. at 447;
Kalinsky, 484 F. Supp. 176; South Central Bell Telephone Co.,
420 F. Supp. 376; Zucker, 373 F. Supp. 748; Tennyson v. Gas
Service Co., 367 F. Supp. 102, 104 (D.Kan. 1973), aff'd,
506 F.2d 1135 (10th Cir. 1974).
J & A argues that it does not challenge the rates charged by
the city. Instead, it argues that it challenges the
"components and application of the rate . . . and the City's
failure to distinguish between the types of users, as
explicitly provided by ordinance, when applying the rate". See
Plaintiff's reply brief at 4. Moreover, J & A asserts that no
entanglement into state regulated utilities will result from
its challenge to the ordinance, since it seeks relief "directly
from the municipality for a determination and function —
establishment of a rate structure as distinct from mere
adjustment of rates . . .". Id. The court fails to see the
import of this attempted distinction. The Johnson Act clearly
precludes a federal court from exercising jurisdiction over
challenges to rate-setting ordinances where injunctive relief
is sought. See Non-Resident Taxpayers Ass'n v. Philadelphia,
478 F.2d 456 (3d Cir. 1973).
Therefore, the first requirement for applicability of the
Johnson Act is satisfied, since J & A bases federal
jurisdiction solely upon the ordinance's alleged repugnance to
the Federal Constitution.
Interstate Commerce. The court concludes, and J & A does not
argue to the contrary, that the city's sewer ordinance does not
interfere with interstate commerce.
Notice and Hearing. The Johnson Act requires that the
ordinance be passed after reasonable notice and a hearing.
Since defendants assert that the ordinance was passed after
reasonable notice and a hearing, and J & A does not argue to
the contrary, the court concludes for the purposes of this
motion that this requirement is met.
State Court Remedy. The city argues that J & A could have
brought its claim for injunctive relief in state court,
particularly under the New Jersey Tort Claims Act, N.J.S.A.
59:1-1 et seq. State courts are capable of interpreting a
claims, which gives rise to doctrines by which federal courts
abstain from exercising jurisdiction in the interests of
comity. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27
L.Ed.2d 669 (1971); Ohio Civil Rights Comm'n v. Dayton
Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91
L.Ed.2d 512 (1986) (abstention where claims can be presented to
a state administrative agency). J & A had a speedy and
efficient remedy in state court, but chose to pursue its claims
in federal court.
The court finds that all four requirements of the Johnson
Act are satisfied and the court therefore lacks jurisdiction
over J & A's claim for injunctive relief. Moreover, the court
notes that, apart from the Johnson Act, federal courts may
abstain from local rate-setting issues in the interest of
comity. Zucker, 373 F. Supp. at 756. Therefore, the court will
deny J & A's motion to strike defendants' second defense.
Defendants assert that they are entitled to immunity from
liability pursuant to N.J.S.A. 59:2-1 et seq. and 59:3-1 et
seq., since J & A's state constitutional claims are within the
New Jersey Tort Claims Act. In response, J & A argues that
under N.J.S.A. 59:1-4 it has "the right to obtain relief other
than damages", and that state immunity does not apply, since J
& A seeks damages for the violation of its constitutional
rights only under § 1983. However, J & A requests inter alia,
damages, interest and costs as to the first three Counts of the
complaint, which allege violations of J & A's constitutional
rights under the federal and state constitutions. See ¶¶ 23(h),
26(h) and 30(h). Only Count four of the complaint alleges a
violation of J & A's rights under 42 U.S.C. § 1983.
State statutory immunity does not immunize individuals from
liability in a suit under 42 U.S.C. § 1983. Wade v. Pittsburgh,
765 F.2d 405, 407-08 (3d Cir. 1985). "The Supremacy Clause of
the Constitution prevents a state from immunizing entities or
individuals alleged to have violated federal law." Id. However,
the Wade court noted that state statutory immunity is effective
against a state tort claim. Id. J & A brings pendent claims
that defendants violated its state constitutional rights. While
a claim that a public entity is liable for violating a
plaintiff's constitutional rights constitutes an "injury" under
the New Jersey Tort Claims Act, Lloyd v. Stone Harbor, 179 N.J. Super. 496,
511-12, 432 A.2d 572 (App. Div. 1981), the Act bars
recovery against a public entity (although not against a public
employee). Id. at 511, 432 A.2d 572. The Lloyd court addressed
the issue of whether a municipality may be entitled to state
statutory immunity for claims of constitutional deprivations
under the New Jersey Constitution. The court noted "[i]t would
be anomalous to grant immunity to New Jersey municipalities
sued under our Constitution while they remain liable when sued
under federal law, particularly when our courts have concurrent
jurisdiction over the latter actions." 179 N.J.Super at 517,
432 A.2d 572. Thus, neither the city nor the public employees
sued in this action can claim immunity under the New Jersey
Torts Claims Act, and the court will grant J & A's motion to
strike the third defense.
Fifth, Sixth and Ninth Defenses
In their fifth defense defendants assert that their actions
were not the direct and proximate cause of any deprivation of
J & A's rights. Defendants' sixth defense asserts that any
damages J & A sustained were the result of its own unlawful
actions. J & A argues that it has stated a claim under § 1983
and that the aforementioned defenses are immaterial to that
claim. J & A states that the defendants have admitted that they
imposed the sewer charges on J & A pursuant to the sewer
ordinance and, notwithstanding their "authority" to adjust the
sewer charges, no adjustment was made. Thus, J & A argues that
there can be no evidence of intervening events, and no dispute
that defendants' conduct and inaction led directly to the
violation of J & A's rights. Finally, J & A notes that
defendants' ninth defense invokes the Tort
Claims Act, which does not apply to J & A's suit under § 1983.
Defendants do not respond to J & A's arguments with regard to
Since defendants have admitted that they passed and enforced
the ordinance (see Answer at ¶¶ 11-20), the fifth and sixth
defenses concerning proximate causation are inapplicable and
the court will grant J & A's motion to strike these defenses.
(The court notes that defendants have not admitted that they
possessed the authority to adjust the sewer charges at J & A's
Defendants' ninth defense states that defendants'
negligence, if any, was not the proximate cause of J & A's
injury. Since J & A does not allege negligence, the court will
grant its motion to strike the ninth defense.
Seventh and Eighth Defenses
In their seventh defense, defendants assert that their
conduct involved no willfulness. The eighth defense states
that defendants acted upon reasonable grounds and without
malice. Defendants state that these defenses are proper, since
malice and willfulness are elements of J & A's equal
protection claim, citing Ortega Cabrera v. Bayamon, 562 F.2d 91
(1st Cir. 1977); Chavez v. Tempe Union High School Dist.,
565 F.2d 1087 (9th Cir. 1977). J & A argues that these defenses are
irrelevant to an action under § 1983, citing Monell v. Dep't of
Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978) and Owen v. Independence, 445 U.S. 622, 100 S.Ct. 1398,
63 L.Ed.2d 673 (1980) (municipality is not entitled to immunity
from liability under § 1983 for acts by its agents which
implement an unconstitutional policy or custom). While Owen
does not alter the qualified immunity available to governmental
employees sued in their individual capacities, 445 U.S. at 638
n. 18, 100 S.Ct. at 1409 n. 18, J & A sues the individual
defendants only in their official capacities. So long as a
governmental entity has notice of the action, a suit against
officials in their official capacity is treated as a suit
against the entity. Kentucky v. Graham, 473 U.S. 159, 165-66,
105 S.Ct. 3099, 3104-05, 87 L.Ed.2d 114 (1985). Under Owen, the
municipality is not entitled to assert the good faith of its
officers as a defense under § 1983, and since J & A does not
sue the individual defendants in their individual capacities,
their good faith is not implicated by this suit.
Absent a suspect class or a fundamental right, an ordinance
violates equal protection under the fourteenth amendment if
the statutory classification is not rationally related to a
legitimate state interest. Cleburne v. Cleburne Living Center,
Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313
(1985); Deibler v. Rehoboth Beach, 790 F.2d 328, 333 (3d Cir.
1986) (challenge on equal protection grounds under § 1983 to an
ordinance requiring candidates for local office to be
nondelinquent taxpayers). Therefore, the municipality's malice
and willfulness are also not implicated by J & A's claim that
the ordinance violates its equal protection rights by treating
users of Asbury Park's sewer system differently, and the court
will grant J & A's motion to strike the seventh and eighth
There is a likelihood that J & A's claim that the ordinance
is unconstitutional is without merit. In Piscataway Apartment
Assoc. v. Piscataway, 66 N.J. 106, 328 A.2d 608 (1974), the New
Jersey Supreme Court held that an ordinance is valid unless it
is patently unreasonable. 328 A.2d at 609. The court upheld
general distinctions between ratepayers against the plaintiff's
challenge that the sewer charges should be based upon specific
sewerage flows of individual property owners. Likewise, in
Seton Co. v. Newark, 194 N.J. Super. 499, 477 A.2d 397
(App. Div.), certif. denied, 99 N.J. 152, 491 A.2d 667 (1984),
the court upheld Newark's sewer ordinance which fixed user
charges in direct proportion to the use of the system. Id. at
507, 477 A.2d 397. As in this case, the plaintiffs in Seton Co.
argued that the ordinance failed to include a differential in
charges based upon the quality or quantity of sewage
production. The court found that the ordinance was not
arbitrary or unreasonable even though it did not allocate
costs to individual users in proportion to the costs that user
imposed upon the system. Id. Nor did the ordinance deny due
process or equal protection or constitute a taking of property
without just compensation. Id. at 509, 477 A.2d 397. It is not
likely that federal constitutional analysis will differ from
the state constitutional analysis set forth in Piscataway and
Immediately after the final pretrial conference, the court
will entertain a summary judgment motion to consider whether
(assuming no material factual disputes) this case may be
decided under federal law in accordance with the
constitutional analysis set forth in Piscataway and Seton.
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