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Peter Rodsan, et al v. Borough of Tenafly

June 30, 2011


The opinion of the court was delivered by: Shipp, Michael A., United States Magistrate Judge



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 ("Doc. No.") 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. 32. ("Pls.‟ Opp‟n Br."); Doc. No. 33 ("Pls.‟ 2d Opp‟n Br.")), while simultaneously filing a cross-motion for leave to amend the Complaint. (Doc. No. 34 ("Pls.‟ Moving Br.").) 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. (Doc. No. 1 ("Compl.") 2, ¶ 2.) 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:

Defendants . . . cited Plaintiffs for numerous alleged [zoning code] violations as part of a plan and scheme to harass and discriminate against the Plaintiffs. . . .

The conduct of the Defendants has been undertaken in violation of State and Federal law protecting the rights of handicapped individuals.

The Defendants have engaged in a course of deliberate, harassing and discriminatory conduct against the Plaintiffs. . . .

The . . . conduct of the Borough of Tenafly, Defendant Zoning Board of Adjustment and Mottola has been undertaken in violation of State Law, State and Federal Constitutions . . . . (Id. at 4, quoting Doc. No. 26-4 ("Ritvo Cert.") Ex. A ("State Compl.") ¶¶ 10, 12-13.) 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. (Doc. No. 26-3 ("McClure Cert.") Ex. B ("Borough‟s Answers to State Compl.") 1-3.) 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." (State Compl. Wherefore Clause a.)

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. (Doc. No. 29 ("Piekarsky Cert.") ¶ 2, Ex. A ("Stip.").) 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 ("Proposed Amend. Compl."); Pls.‟ Opp‟n Br. 2.)


A. Defendants' Motion for 12(b)(6) Dismissal or, in the Alternative, for Summary Judgment

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).

1. Relevant Legal Standards

a. Rule 12(b)(6) Dismissal Standard

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.

b. Summary Judgment Standard

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, the movant may discharge its burden by pointing to an absence of evidence necessary to support the non-movant‟s claim. Id. at 325. Alternatively, a moving party may submit affirmative evidence that negates a material element of the non-moving party‟s claim. Id. If the movant brings such affirmative evidence, or makes a showing that the non-movant lacks evidence essential to its claim, the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. The burden of persuasion, however, rests ultimately on the non-moving party to establish each element necessary to succeed on the claims on which it bears the burden of proof at trial. Celotex, 477 U.S. at 322.

To decide whether a genuine issue of material fact exists, the Court must consider all facts, drawing all reasonable inferences in a light most favorable to the non-moving party. Kaucher, 455 F.3d at 423. However, on a motion for summary judgment, "the judge's function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. Absent a genuine issue for trial, summary judgment as a matter of law is proper.

c. Full Faith and Credit Statute

Under the federal Full Faith and Credit Statute, 28 U.S.C. Section 1738, records and/or judicial proceedings in any state court, if properly authenticated, "shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from which they are taken." Accordingly, when considering the preclusive effect that a state judgment may have on a federal matter, the court must consider the Full Faith and Credit Statute and the rulings of the relevant state court. Dowdell v. Univ. of Med. & Dentistry of N.J., 94 F. Supp. 2d 527, 533 (D.N.J. 2000). More specifically, when assessing the effect that a state judgment has on a federal proceeding, "[f]ederal courts may not employ their own rules . . . in determining the effect of state judgments, but must accept the rules chosen by the State from which the judgment is taken." Id. (omitting quotation and citation). Here, in order to consider the preclusive effect of the underlying state court judgment, if any, the Court must consider and assess the applicable New Jersey law.

Significantly, pursuant to New Jersey law, a claim is considered to have been litigated if it was properly raised in the pleadings or other court filings. Velasquez v. Franz, 123 N.J. 498, 506-07 (1991) ("claims that are actually litigated and determined before trial also are barred from being relitigated," even if the judgment does not "pass directly on the substance of a claim." (internal citation omitted)). Further, "[a] dismissal with prejudice "constitutes an adjudication on the merits as fully and completely as if the order had been entered after a trial.‟" Dowdell, 94 F. Supp. 2d at 533 (citation omitted). Also, whether a claim is precluded is premised upon the judgment and not "the underlying rationale of the decision . . . ." Id.

Finally, it is important to note that when considering whether a claim is precluded pursuant to the Full Faith and Credit Statute, this Court has held that the same rules applied to general civil claims are also applicable to Section 1983 civil rights claims. Heir v. Del. River Port Auth., 218 F. Supp. 2d 627, 632 (D.N.J. 2002) (where a full condemnation award was granted in a state proceeding and was not appealed, finding that any Fifth Amendment takings claim in federal court was precluded under New Jersey‟s entire controversy doctrine); Rhodes v. Twp. of Saddle Brook, 980 F. Supp. 777, 781 (D.N.J. 1997) (precluding plaintiffs‟ federal counterclaim of civil rights violations under the entire controversy doctrine, because ...

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