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Warren v. Fisher

United States District Court, Third Circuit

December 20, 2013

THREASTON WARREN, JR., et al., Plaintiffs,
ALBERT FISHER, III, et al., Defendants.

Kerri E. Chewning, Esq. Lloyd Freeman, Esq. Joseph A. Martin, Esq. John Patrick Kahn, Esq. ARCHER & GREINER, PC Haddonfield, NJ, Counsel for Plaintiffs Threaston E. Warren, Jr., Marjorie, K. Warren & Continental Aggregate Corp. LLC.

Michael V. Madden, Esq., Michael P. Madden, Esq., Patrick J. Madden, Esq., MADDEN & MADDEN, PA, Haddonfield, NJ, Counsel for Defendants Albert Fisher III, Robert Howell & Joseph Hannagan, Jr.


JEROME B. SIMANDLE, Chief District Judge.


There are three motions before the Court in this matter: a motion for reconsideration of the Court's March 19, 2013 Opinion [Docket Item 101] and a motion to amend the Complaint [Docket Item 106], brought by Plaintiffs Threaston E. Warren, Jr., Marjorie K. Warren, and Continental Aggregate Corp., LLC, as well as a motion for attorneys' fees [Docket Item 100] brought by Defendants Albert W. Fisher, III, Robert Howell, and Joseph J. Hannagan, Jr.

This case arises out of a prolonged and contentious dispute between Plaintiffs and Defendants over the Plaintiffs' sand mining operation in Quinton, N.J. Plaintiffs allege that the Defendants conspired to interfere with their property rights and selectively enforced town ordinances in violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, as part of a campaign of harassment.

Plaintiffs seek reconsideration of this Court's previous dismissal of their First Amendment and substantive due process claims in the Second Amended Complaint, as well as the dismissal without prejudice of Plaintiffs' equal protection claim. Plaintiffs argue that the Court made improper factual determinations and improperly applied a heightened pleading standard in deciding the previous motion. Because the Court applied the proper pleading standard and did not make determinations of contested material facts, the Court will deny Plaintiffs' motion for reconsideration.

Plaintiffs also seek leave to file a Third Amended Complaint, curing the deficiencies the Court identified in the Plaintiffs' equal protection claim. In the Second Amended Complaint, Plaintiffs failed to plead facts that suggest that Continental was treated differently from similarly situated mines. Because the Court finds that Plaintiffs now have pleaded facts sufficient to plausibly suggest the existence of other similarly situated mines, and because the Court finds Defendants are not entitled to qualified immunity on the equal protection and selective enforcement claims, the Court will grant the motion to amend in part. However, the Third Amended Complaint fails to state an actual deprivation of a constitutionally protected property right, and therefore Plaintiffs fail to state a claim for conspiracy under 42 U.S.C. § 1983. Accordingly, the Court will deny the motion to amend in part, with respect to the proposed § 1983 conspiracy claim.

Finally, Defendants move for this Court to award discretionary attorneys' fees pursuant to 42 U.S.C. § 1988(b). Because the Court does not find Plaintiffs' claims to be frivolous, the Court will decline to award fees to Defendants in this case.


A. Facts

Plaintiffs Threaston "Ed" Warren and Marjorie Warren own approximately 170 acres of land in Quinton, New Jersey, and hold a soil removal permit for the property.[1] (TAC ¶¶ 14, 16.) The Warrens lease portions of the property to Plaintiff Continental, which conducts a sand mining operation using the Warrens' soil removal permit. (Id. ¶¶ 15-18.)

In January 2008, the town planning board - of which Defendants Fisher and Howell were members - denied Plaintiffs' application to expand their existing soil removal activities on the property and to install screening and washing equipment, known as a "wash plant." (Id. ¶¶ 11, 126, 132-33.) Plaintiffs allege that this decision was the product of an agreement by Defendants to run Plaintiff Continental out of business or otherwise harass Plaintiffs and interfere with their property rights under the soil permit. Plaintiffs challenged the planning board's decision in New Jersey Superior Court, and Judge Anne McDonnell ruled that the planning board incorrectly denied the application on the grounds that Continental lacked a mining license for certain lots. (Id. ¶¶ 132, 141, 147-48.) Judge McDonnell also determined that the record before the planning board did not support the finding that a wash plant was a "primary use" rather than an "accessory use, " as the Planning Board had concluded. (Id. ¶ 149.)

Both before and after the Superior Court ruling, Plaintiffs allege that they were subjected to threats, verbal abuse and other unfair treatment by Defendants. (Id. ¶¶ 138, 142, 155, 157-58.) Among Plaintiffs' chief complaints: (1) Defendant Fisher, as Mayor of Quinton, filled vacancies on the planning board with individuals who were unsympathetic or hostile to Plaintiffs (id. ¶¶ 162-68); (2) Defendants dubbed themselves "the Cool Run Gang, " discussed Plaintiffs' mining operations and plotted to harass Plaintiffs (id. ¶ 49); (3) Defendant Gibson intentionally lodged complaints and false accusations against Plaintiffs, forming the basis for official town responses (id. ¶¶ 58-63); (4) Fisher appointed Defendant Hannagan to the position of "Official Township Pit Inspector, " a post that Plaintiffs contend never existed before (id. ¶¶ 76-90); (5) Defendants subjected Plaintiffs to approximately 40 site inspections in less than three years, when other mines were inspected biannually, costing Continental tens of thousands of dollars (id. ¶ 104-109); (6) Defendants attempted, but failed, to amend a zoning ordinance to delete soil removal as a conditionally permitted use (id. ¶ 92); and (7) Hannagan trespassed on a part of Plaintiffs' land that was not permitted for mining to take a soil sample without permission (id. ¶¶ 169-173).

B. Procedural history

Plaintiffs initiated this action in the Superior Court of New Jersey, Salem County, and Defendants removed the action, pursuant to 28 U.S.C. § 1446, because the Complaint alleged violations of federal law.[2] [Docket Item 1.]

After Plaintiffs amended the Complaint twice, the Township Defendants brought a motion for judgment on the pleadings and a motion for partial summary judgment. [Docket Item 85.] The Court held that Plaintiffs failed to state a "class of one" claim under the Equal Protection Clause of the Fourteenth Amendment because Plaintiffs failed to plead facts to permit a reasonable inference that similarly situated mines existed and were treated differently. Warren, 2013 WL 1164492, at *7-*8. "Aside from the fact that other mines exist in the town, the Second Amended Complaint provides no factual detail to suggest that the mines are similarly situated in any aspect, let alone all relevant aspects, to Continental." Id. at *8. The Court granted Defendants' motion for judgment on the pleadings without prejudice, permitting Plaintiffs to file a motion to amend their equal protection claim. Id. at *9.

The Court dismissed Plaintiffs' substantive due process and First Amendment claims with prejudice. On the substantive due process claim, the Court ruled that Defendants' conduct pleaded in the Second Amended Complaint was "not so egregious that it shocks the conscience." Id. at *11. The Court stated that the conduct alleged "is not materially different" from that in Eichenlaub v. Twp. of Indiana , 385 F.3d 274, 286 (3d. Cir. 2004), where zoning officials applied subdivision requirements to the plaintiffs' property but not others, "pursued unannounced and unnecessary" inspection and enforcement actions, " delayed permits and approvals, improperly increased tax assessments and "maligned and muzzled" the plaintiffs. Id. at *10-*11. In Eichenlaub, the Third Circuit dismissed the substantive due process claim because the court found the conduct did not shock the conscience but rather exemplified "the kind of disagreement that is frequent in planning disputes." Id. at *10 (quoting Eichenlaub , 385 F.3d at 286). Likewise, in this case, the Court explained that Plaintiffs made no allegations of corruption, self-dealing, ethnic bias, virtual taking or interference with otherwise constitutionally protected activity on the property. Id. at *10-*11. Therefore, the substantive due process claim could not stand. Id. at *11.

On the First Amendment claim, in which Plaintiffs alleged they were retaliated against for exercising First Amendment rights by appealing the planning board decision to state court, the Court found that "Plaintiffs fail to plead a causal connection between the protected activity and the alleged retaliation...." Id. at *12. The Court noted that the pleadings themselves "expressly linked Defendants' conduct to the adverse, substantive decision by the state court, not the Plaintiffs' exercise of any First Amendment rights, " and that the alleged hostility began well before Plaintiffs exercised their First Amendment right to petition for redress. Id . The Court dismissed the claim. Id . Having disposed of all constitutional claims, the Court also dismissed Plaintiffs' claim for conspiracy under § 1983. Id. at *13.

Defendants then filed the present motion for attorneys' fees, and Plaintiffs moved for reconsideration and leave to amend the complaint. All discovery was stayed pending the outcome of these motions. [Docket Item 110.] The Court will begin by analyzing the motion for reconsideration, then address the motion to amend and the motion for attorneys' fees.


A. Standard of review

Courts in this circuit apply the same standard for motions for reconsideration under Rule 59(e), Fed. R. Civ. P., and L. Civ. R. 7.1(i). A "judgment may be altered or amended if the party seeking reconsideration shows at least one of the following grounds: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion for summary judgment; or (3) the need to correct a clear error of law or fact or to prevent a manifest injustice." Star Pac. Corp. v. Star Atl. Corp., No. 08-4957, 2012 WL 1079624, at *1 (D.N.J. Mar. 30, 2012) (quoting Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros , 176 F.3d 669, 677 (3d Cir. 1999)); see also Watkins v. DineEquity, Inc., No. 11-7182, 2013 WL 396012, at *2 (D.N.J. Jan. 31, 2013) (stating the grounds for relief under L. Civ. R. 7.1(i) include an intervening change in controlling law, newly discovered evidence that was not previously available, and the need to correct a clear error of law or prevent manifest injustice). Reconsideration is permitted "only when dispositive factual matters or controlling decisions of law were presented to the court but were overlooked." Einhorn v. Kaleck Bros., Inc. , 713 F.Supp.2d 417, 427 (D.N.J. 2010) (quoting Buffa v. N.J. State Dep't of Judiciary , 56 F.App'x 571, 575 (3d Cir. 2003)) (internal quotation marks omitted). Reconsideration is not to be used to simply argue for a second time what the Court has already considered and rejected, nor is it an opportunity to present new legal arguments that were available but not advanced when the underlying motion was decided.

B. First Amendment claim

Plaintiffs argue the Court clearly erred when it "impermissibly ma[de] factual determinations based on the limited record before" it, namely, "that because Defendants' improper conduct toward Plaintiffs began before Plaintiffs filed the Superior Court action in lieu of prerogative writ, Defendants' antipathy' toward Plaintiffs existed wholly independent' of Plaintiffs' Superior Court action." (Pl. Mot. for Recon. [Docket Item 101-1] at 4.) Plaintiffs also contend that the Court's statement that "the allegations that Defendants' greater ferocity' of attacks on Plaintiffs' operations expressly links Defendants' conduct to the adverse, substantive decision by the state court, not the Plaintiffs' exercise of any First Amendment rights'" was an improper factual determination. (Id.)

Plaintiffs argue that they need only show "an inference of causation which can later be proved through other... types of circumstantial evidence in addition to temporal proximity." (Id. at 4, citing Lauren W. ex rel. Jean W. v. DeFlaminis , 480 F.3d 259 (3d Cir. 2007).) Plaintiffs also rely on Farrell v. Planters Lifesavers Co. , 206 F.3d 271, 281 (3d Cir. 2000), arguing that this Court committed error by

too narrowly constru[ing] Plaintiffs' claim by crediting the Township Defendants for their prior unlawful and harassing conduct and by making the factbased judgment - at the pleading stage - that Plaintiffs must prove the Township's subjective motive to retaliate on the filing of the state court matter only, without consideration of other circumstantial evidence that may be provided through discovery.

(Id. at 6.) Moreover, Plaintiffs maintain that the Court improperly determined that Defendants' actions were motivated by the adverse ruling and not the exercise of First Amendment rights. (Id.) Plaintiffs argue that "the trier of fact should infer causation." (Id. at 5, quoting Lauren W. , 480 F.3d at 267.) Plaintiffs conclude that they stated a prima facie case for First Amendment retaliation. (Id. at 6.)

As an initial matter, the Court notes that Plaintiffs made none of these arguments and cited none of these cases in their opposition to Defendants' previous motion seeking to dismiss the First Amendment claim, and thus it is impossible to say that these arguments and controlling precedents were "presented to the court but were overlooked."[3] Einhorn , 713 F.Supp.2d at 427; see also (Pl. Opp'n [Docket Item 87] at 18-19). Plaintiffs offered only four paragraphs in support of the sufficiency of their First Amendment claim in the prior proceeding, one of which recited the elements of a retaliation claim and two more which concerned whether Continental was a "person of ordinary firmness" and whether, under Defendants' theory for dismissal, parties who assert their rights would be precluded from stating a retaliation claim. (Docket Item 87 at 19.) On the facial sufficiency of the claim, Plaintiffs stated only that "in the Second Amended Complaint... the Township Defendants continued their harassing attacks with greater ferocity after the Superior Court's decision" and that the Complaint "very clearly articulates a nexus between the state court action and the improper activities of the Township Defendants." (Id. at 18.) Because the Court did not overlook the argument Plaintiffs now advance, the motion for reconsideration will be denied.

Considering the substance of Plaintiffs' argument, the Court disagrees with Plaintiffs' characterization of the Court's prior Opinion. The Court did not make determinations of disputed fact or require that the Plaintiffs establish any facts at this stage of litigation; the Court highlighted the lack of factual pleading necessary to infer a connection between the exercise of First Amendment rights, i.e., petitioning the Superior Court, and the alleged retaliation, given the stated link between the retaliation and the Superior Court decision and the fact that harassment predated the filing in state court. See Warren, 2013 WL 1164492, at *11-*12. The Court observed that the Second Amended Complaint itself alleged that the campaign of harassment was set in motion before Plaintiffs filed in state court. The only reasonable inference from the Plaintiffs' own pleadings was that antipathy and alleged harassment of Plaintiffs predated any state court filing. The Second Amended Complaint further tied the escalated hostility to the state court's "decision" - not to the filing of the suit - and asserted that Defendants "became emboldened to continue implementing their unlawful agreement" after the state court issued its ruling. (Second Am. Compl. ¶¶ 54, 57) (emphasis added). Plaintiffs' own brief, clarifying the pleadings, ...

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