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Christopher J. Fox v. Richard L. Carter

February 21, 2012

CHRISTOPHER J. FOX, PLAINTIFF,
v.
RICHARD L. CARTER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Jerome B. Simandle

OPINION

SIMANDLE, Chief Judge:

I. INTRODUCTION

This matter is before the Court on Defendants Richard L. Carter, Paul J. Baldini and the Borough of West Wildwood's Motions to Dismiss [Docket Items 13 and 14] and Plaintiff Christopher J. Fox's motion to expedite determination on the merits, or in the alternative, a motion for preliminary injunction [Docket Items 9 and 10.] The instant action arises out of the refusal of the Clerk of the Borough of West Wildwood, Richard Carter, to accept Plaintiff Christopher Fox's ("Plaintiff") petition to suspend an ordinance. The complaint was originally filed in state court and contains two counts. The first count seeks a declaration that the newly enacted ordinance is subject to the Initiative and Referendum Statute, N.J.S.A. 40:74-5. This ordinance changes the date of West Wildwood's non-partisan elections from May to November and is effective immediately. The second count alleges violations of Plaintiff's civil rights pursuant to 42 U.S.C. § 1983. This case was removed to federal court on the basis of Count II, since a federal question is presented, and this Court has jurisdiction over Count II pursuant to 28 U.S.C. § 1331.

The motion for expedited relief was filed by the Plaintiff and seeks relief only as to Count I. The Plaintiff seeks an order from the court suspending the ordinance. The two motions to dismiss pertain to Count II and argue the Plaintiff has failed to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c).

Both motions seek the dismissal of Count II. As to Count I, the Defendants argue that the court should decline to exercise supplemental jurisdiction and remand the matter to state court.

For the reasons discussed below and expressed on the record at oral argument, the Defendants' motions to dismiss will be granted. Plaintiff's allegations in Count II do not state a plausible basis for relief as the Plaintiff does not allege a violation of a federal right, for reasons discussed in Part III. C, below.

The court will decline to decide Plaintiff's motion for expedited relief, or in the alternative, a motion for preliminary injunction upon Count I, because the court declines to exercise supplemental jurisdiction over this claim pursuant to 28 U.S.C. § 1367(c). As explained below in Part IV, the Court finds that Count I raises a novel issue of state law which substantially predominates over the federal claim that was the basis for removal, and that the Superior Court is the appropriate forum to decide this intensely local issue of municipal governance. Therefore, the court will remand the case to state court and defer to the state court to decide the Plaintiff's preliminary injunction motion.

II. BACKGROUND

The facts of this case are straightforward and undisputed. On October 7, 2011, the governing body of the Borough of West Wildwood ("West Wildwood") adopted Ordinance 509-2011 ("Ordinance"), effective immediately. (Compl. ¶ 6.) The Ordinance changed the date of West Wildwood's non-partisan election from May to the date of the General Election, the Tuesday after the first Monday in November. (Compl. ¶ 5.)

A petition to repeal the Ordinance or put the same to a vote was then circulated among registered voters of West Wildwood. (Compl. ¶ 7, Pl.'s Ex. B to the Complaint.) The petition gathered 89 signatures. (Pl.'s Ex. B to the Complaint.) The Plaintiff, Christopher J. Fox, appeared at the Office of the Borough Clerk, with counsel, during normal business hours, on Wednesday, October 26, 2011, to file the petition. (Compl. ¶ 8.) The Plaintiff requested to see the Clerk, Richard L. Carter, to file the petition. (Compl. ¶ 9.) The Plaintiff was advised by an employee of the Clerk's Office that Mr. Carter was out of the state for a couple of days. (Compl. ¶ 10.)

The Plaintiff then advised that he wanted to file a petition with the Clerk's Office and extended his hand with the document. (Compl. ¶ 11.) The employee of the Clerk's office stepped away from the counter and said she could not take the petition because she was told not to take it. (Compl. ¶ 12.) The employee then presented the Plaintiff with a piece of paper from behind the counter, which was correspondence dated September 30, 2011 to the Clerk from the Borough Solicitor, Paul J. Baldini, Esq. (Compl. ¶ 14.)

The correspondence stated "you are advised that no petition should be accepted or reviewed by the Clerk's office under the Initiative and Referendum Statute." (Compl. ¶ 15 and Pl.'s Ex. C to the Complaint.) Another employee from the Clerk's office then arrived and spoke to the Plaintiff. This second employee allegedly reiterated that they were given specific instructions not to accept any petition regarding the Ordinance if someone came in and that they "were just doing what they were told." (Compl. ¶ 17.)

The Plaintiff then called Mr. Baldini at his office. His office advised that Mr. Baldini was not available. (Compl. ¶ 18.) The Plaintiff then drove to the County Clerk's Office in Cape May Court House and requested it be filed with the County Clerk. (Compl. ¶ 20.) The County Clerk advised Plaintiff that she had no oversight authority for Municipal Clerks and could not file a municipal petition nor direct the Office of the Borough Clerk to accept the petition for filing. (Compl. ¶ 21.)

The Plaintiff then filed the instant action in New Jersey Superior Court - Cape May County against Defendants Borough of West Wildwood, Richard L. Carter and Paul J. Baldini ("the Defendants"). [Docket Item 1.] The complaint alleges that the Defendants violated N.J.S.A. 40:74-5, New Jersey's Initiative and Referendum Statute, by refusing to accept Plaintiff's petition.

The complaint also alleges that the Defendants violated Plaintiff's rights under the United States Constitution and the New Jersey State Constitution pursuant to 42 U.S.C. § 1983 by denying Plaintiff the right to file a petition pursuant to law; improperly influencing the actions of employees of the Office of the Borough Clerk; and conspiring to prevent Plaintiff from filing the petition.

The Defendants then removed the case to federal court on the basis of Plaintiff's 1983 claim. [Docket Item 1.] All Defendants then filed their answers to the complaint. [Docket Items 2 and 5.] The Plaintiff then filed the instant motion to expedite determination on the merits, which this court has deemed a motion for preliminary injunction. [Docket Items 9 and 10.] The Defendants then filed two motions to dismiss. [Docket Items 13 and 14.] The Court heard oral argument on February 21, 2012.

III. DEFENDANTS' MOTIONS TO DISMISS

A. The Instant Motion

Defendants Richard L. Carter and Borough of West Wildwood filed a motion to dismiss Count II pursuant to Fed. R. Civ. P. 12(b)(6). Defendants Borough of West Wildwood, Richard L. Carter and Paul J. Baldini also filed a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). Since both motions raise similar arguments, this opinion will address them both together rather than separately.

First, the Defendants argue that Count II of Plaintiff's complaint must be dismissed because the Plaintiff has failed to allege with specificity what federal right he contends was violated. The Defendants argue that at best, the Plaintiff has alleged a violation of a state statute and maintain that the Plaintiff has not identified a First Amendment Petition Clause deprivation claim.

Second, to the extent that the Plaintiff alleges a conspiracy in violation of 42 U.S.C § 1985(3), the Defendants argue this claim should also be dismissed because the Plaintiff has failed to allege the elements of conspiracy. In particular, the Plaintiff has not alleged what federal right was violated and whether there was a meeting of the minds.

Next, the Defendants contend that Defendant Carter is entitled to qualified immunity and that West Wildwood should be dismissed because the Plaintiff has only alleged respondeat superior ...


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