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Pascarella v. Swift Transportation Co.

July 14, 2009

MICHAEL PASCARELLA ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
SWIFT TRANSPORTATION COMPANY, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Simandle, District Judge

OPINION

I. INTRODUCTION

This matter is presently before the Court on Defendant Sharon Harrington's motion to dismiss Plaintiff's due process claim for lack of subject matter jurisdiction, as barred by the Eleventh Amendment, and for failure to allege a constitutional deprivation [Docket Item 13]. Plaintiff Michael Pascarella ("Plaintiff"), on behalf of himself and a putative class of former students of the Swift Driving Academy in Tennessee ("Defendant Swift") who received Commercial Drivers' Licences ("CDLs") in New Jersey, has brought suit against Defendants Swift, Sharon Harrington, Chief Administrator of the New Jersey Motor Vehicle Commission ("Defendant Harrington"), and David Mitchell, Commissioner of the Tennessee Department of Safety ("Defendant Mitchell"). Against Defendant Harrington, Plaintiff asserts that Harrington deprived him and the putative class of their recognized property right in their CDLs without sufficient notice or a hearing, thereby depriving them of due process required by the Fourteenth Amendment. Plaintiff brings his claims pursuant to 42 U.S.C. § 1983 and seeks only injunctive ("to enjoin the threatened revocation of . . . New Jersey CDLs") and declaratory relief against Defendant Harrington. Plaintiff maintains that this Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331.

The principal issue to be determined is whether the State of New Jersey, when proposing to revoke a driver's license, must give specific notice of the right to a pre-deprivation hearing, or whether due process is satisfied by the published availability of procedures for a pre-deprivation hearing in the New Jersey Administrative Code. Resolution of the issue in this case requires the Court to apply the Supreme Court's precedent in City of West Covina v. Perkins, 525 U.S. 234 (1999), which held that due process requirements of notice of the right to available remedies is satisfied by publishing administrative review procedures in generally available statutes and regulations.

For the reasons discussed below, the Court will grant Defendant Harrington's motion to dismiss for failure to state a constitutional due process claim without prejudice to Plaintiff pursuing any available State remedies. The Court finds that it does have subject matter jurisdiction over Plaintiff's claim and that the Eleventh Amendment does not bar the relief sought, but that because Plaintiff failed to request the pre-deprivation review that is available under New Jersey law, he cannot state a claim for denial of due process.

II. BACKGROUND

A. Factual Allegations in Amended Complaint*fn1 Between May 1, 2005 and January 31, 2008, Defendant Swift operated the Swift Driving Academy, during which period Swift was authorized by the Tennessee Department of Safety to administer the necessary official test to receive a Class A Commercial Driver's License ("CDL"), and to issue binding CDL test results and test certifications in the name of the State of Tennessee. (Am. Compl. ¶¶ 34, 39-41.) Defendant Swift administered a CDL test and issued official CDL test results to Plaintiff, a New Jersey resident, and all putative class members sometime between May 1, 2005 and January 31, 2009. (Am. Compl. ¶¶ 8-9, 44-45.) Plaintiff, along with proposed New Jersey class members, held a CDL in New Jersey, received based on the CDL test results issued by Swift. (Id. ¶ 10, 45.) Federal regulations permitted Plaintiff and proposed New Jersey class members*fn2 to transfer their original CDLs from Tennessee to New Jersey, based on the CDL test results from Swift. (Id. ¶¶ 46-48.)

In February, 2008, federal agents raided Swift's offices in Memphis, Tennessee and Millington, Tennessee, but to date, no criminal charges have been filed against Defendant Swift. (Id. ¶¶ 51-53.) In or after December, 2008, Defendant Mitchell sent written notice to the CDL program administrators in every state where former Swift students held CDLs, including New Jersey, stating that he believed the Swift CDL tests administered between May 1, 2005 and January 31, 2008 failed to comply with the rules and regulations governing Tennessee CDL tests, including chapter 1340-1-13-.22 of the rules of the Tennessee Department of Safety Driver Services Division and 49 C.F.R. § 383.75(a)(2)(iii).*fn3 (Id. ¶ 54.)

To date, Defendant Mitchell has not informed the CDL program administrators in other states, the general public, or the affected truck drivers what specifically is alleged to have been improper about the Swift CDL testing. (Id. ¶¶ 55-56.) Defendant Harrington does not know what aspects of the Swift CDL testing were allegedly improper. (Id. ¶ 76.)

In December, 2008, Defendant Harrington received a letter from Defendant Mitchell stating that the Swift CDL testing was not conducted in accordance with Tennessee rules and/or federal regulations. (Id. ¶ 68.) At some point after December 1, 2008, Defendant Harrington began sending form notices to all New Jersey putative class members substantially similar to the notice mailed to Plaintiff on March 27, 2009, stating that their New Jersey CDLs would be revoked in 30 days based on allegations that the CDL tests were improper and that to keep their CDLs members would have to take a new CDL test and pay the necessary fees. (Id. ¶¶ 69-72, 80-82.) The form notice further informed New Jersey class members that their New Jersey CDL would be revoked if they failed to appear, with a truck, for a CDL test at a specific time, date and place selected by Defendant Harrington. (Id. ¶ 72.) The letter to Plaintiff, dated March 27, 2009, reads in relevant part:

It has been brought to our attention by the State of Tennessee that you obtained your previous Tennessee Commercial Driver's License (CDL) based on testing with a third party testing company in Tennessee between May 2005 and January 2008. The Tennessee Department of Safety has information indicating that this third party testing company did not administer the tests in accordance with Federal Regulations and standards set by the State of Tennessee. As a result, the third party agreement has been revoked by the State of Tennessee.

Our records indicate that you have since transferred your Tennessee CDL to a New Jersey CDL. Based upon the information reported to the MVC as noted above, the MVC has determined that in order to maintain your current New Jersey CDL, it is necessary that you retake your CDL tests. This includes vision, knowledge and skills/road tests. You will have to first obtain a CDL learner's instructional permit to complete the process. The fee for this permit is $35.00. When you appear at the scheduled time and location listed below, you must have with you: (1) your six points of identification (enclosed is the six point ID Brochure for your review); and (2) the appropriate commercial motor vehicle in which you intend to take the skills test.

Please be advised that failure to appear for your scheduled retest will result in the suspension of your CDL. Please also be advised that if you fail to successfully complete any portion of the CDL retest, you will no longer be eligible to operate a commercial motor vehicle. Therefore it is recommended you arrive for your retest accompanied by a CDL holder licensed to drive the type of vehicle you are testing with.

If you have any questions or need any additional information, please call our Re-Exam Unit at 609-292-6500 ex 5030 and someone will be able to assist you.

Sincerely, Sharon A. Harrington Chief Administrator (Am. Compl. Ex. A.)*fn4

Defendant Harrington has not threatened to revoke the CDLs of Plaintiff and the proposed New Jersey class based on any alleged tickets, accidents, alleged misconduct, inability or ineptitude on the part of any driver. (Id. ¶ 93.) Defendant Harrington has made no allegations regarding the conduct or driving ability of any driver to justify revoking their CDLs. (Id. ¶ 94.)

According to Plaintiff, none of the New Jersey proposed class members received notice that they are entitled to a hearing regarding the revocation of the CDL either before or after revocation of that license. (Id. ¶¶ 83-85.) The notice provided does not specifically allege what was improper about the Swift CDL testing. (Id. ¶ 86.) Plaintiff further alleges that neither Plaintiff nor the proposed New Jersey class have been given an opportunity for any type of pre-revocation hearing. (Id. ¶ 116.) No proposed class member has received a hearing on the validity of his or her CDL tests administered by Swift. (Id. ¶ 66.)

Plaintiff and the proposed New Jersey class allege that Defendant Harrington's actions have caused them "serious hardship." (Id. ¶¶ 102-03.) Without a CDL they cannot work. (Id. ¶ 103.) Yet many cannot comply with the requirements of the Harrington notice, because they are unable to provide their own truck, or are unable to ...


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