KEVIN McNULTY, District Judge.
The Plaintiffs, Scott and Lisa Lanin of Tenafly, New Jersey, brought this 32-count Amended Complaint against the Borough of Tenafly ("Tenafly") and the Tenafly Board of Education ("BOE") regarding local ordinances passed limiting access to Downey Drive, the road adjacent to their home. This matter comes before the Court on the motion of BOE to dismiss the Amended Complaint ("Am. Compl.") for failure to meet the pleading requirements of Fed.R.Civ.P. 8; lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1); and failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). (Docket No. 39). For the reasons set forth below, this motion will be GRANTED in part and DENIED in part.
Downey Drive is a public street running generally east and west. The Plaintiffs' home is located on the "lower Downey Drive" portion of the street, which runs from Engle Street to Smith School. Am. Compl. ¶¶ 94, 109-10. The Plaintiffs' property is on the north side of the street. Id. ¶¶ 112, 115. The back yard of their property borders the Smith School parking lot. Id. ¶ 51.
The majority of the claims in the Amended Complaint relate to the effects of the traffic patterns and parking practices established by Tenafly Ordinances; the presence of students and vehicles on and around the Plaintiffs' property; flooding on their property from the Smith School Parking lot; and the construction of sidewalks on Lower Downey Drive.
Tenafly has adopted several traffic and parking measures related to Smith School. Traffic Ordinance 10-19, adopted in September 2010, made lower Downey Drive one-way during school hours (from 8am to 4pm). Am. Compl. ¶ 3. Ordinance 10-20 eliminated parking on the upper portion of Downey Drive. Id. ¶ 14. Ordinance 10-22 allowed a sidewalk to be constructed on the south side of Downey Drive in August 2010, creating a "Student Drop-Off Pick-Up Zone." Id. ¶¶ 34, 121. At the time the Amended Complaint was filed, a second sidewalk on the north side of the street was planned (it has since been completed). Def. Br. (Docket No. 39-3) at 5.
The Plaintiffs also challenge the procedures by which the Ordinances and School Board Resolution were adopted. They allege that the Ordinances and Resolution were adopted after notice by publication in a newspaper, without "direct or actual" notice to the Plaintiffs. Id. ¶ 35. They further allege that the Defendants illegally conduct public business in secret by email or in closed session. Id. ¶ 50. The Plaintiffs allege that they have petitioned the Defendants under the New Jersey Open Public Records Act ("OPRA") for their emails concerning "the traffic, carpool', sidewalk' issues and related matters." Id.
Plaintiffs further allege that the BOE had a conflict of interest that tainted the official procedures. Id. ¶ 39. One of the BOE members, John Teall, owns a home on Downey Drive. Id. Teall was allowed to participate in and vote on matters related to the street, even though he had a "direct personal and pecuniary interest." Id. Plaintiffs also object to the role of the Tenafly Mayor and Council in adopting the Ordinances because they did not follow their "usual procedures and standards." Id. ¶ 40.
In the process of considering options for the traffic flow around Smith School, the Plaintiffs allege, Tenafly rigged the solicitation of traffic consultant proposals and dictated the conclusions of the selected consultant, Urbana Consulting. Id. ¶ 41. BOE and Tenafly then conducted a "quasi-judicial hearing" at a public meeting to review Urbana's recommendations. Id. ¶ 42. The Plaintiffs attended the meeting and opposed the recommendations favored by the Defendants. Id. The Plaintiffs object to the form of the hearing, alleging that evidentiary rules and judicial procedures were not followed, and that the evidence and witnesses were not disclosed beforehand. Id. ¶ 44. The Mayor and Council allegedly considered unsworn testimony at the hearing and did not allow objections, voir dire of experts, or cross-examination. Id.
Finally, the Plaintiffs challenge Tenafly's snow removal and sidewalk repair ordinances, General Ordinances 12-3.1 and 12-3.2. Id. ¶ 46. When the plaintiffs purchased their home, there were no sidewalks adjacent to it. Id. ¶ 49. Under those Ordinances, Plaintiffs are now allegedly "solely responsible" for the expense of removing snow, ice, and debris from the sidewalk that now abuts their property. Id.
The BOE seeks dismissal of the Amended Complaint for failure to meet the pleading requirements of Fed.R.Civ.P. 8, lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), and failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). I DENY the motion to dismiss the entire Amended Complaint as presented. I will however, GRANT the motion to dismiss as to Counts 4, 6, 15, 16, 18, 20, 21, 22, 23, 25, 26, and 29.
A. Failure to Meet Pleading Requirements of Fed.R.Civ.P. 8
The BOE argues that the Amended Complaint should be dismissed in its entirety for violating the "short and plain" pleading requirements of Fed.R.Civ.P. 8. Def. Br. at 1, 16. Rule 8 requires that a pleading contain "a short and plain statement" of (1) the grounds for the court's jurisdiction, and (2) the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a).
BOE's argument is not without merit. The Amended Complaint is 203 pages long, not including exhibits, and it contains 32 counts. The "Background" section alone comprises 126 pages. It would be difficult to call this Complaint "short" or "plain, " and courts in this Circuit have dismissed such prolix complaints on Rule 8 grounds. See In re Westinghouse Secs. Litig., 90 F.3d 696, 702 (3d Cir. 1996); Tillo v. Northland Group, 456 Fed.App'x. 158 (3d Cir. 2012); Jackson v. Rohm & Hass Co., 2008 U.S. Dist. LEXIS 117402, *4 (E.D. Pa. Dec. 17, 2008). Nevertheless, the complaint has already been amended once, further amendment might serve only to delay matters, and some of the counts adequately allege causes of action. I will therefore exercise my discretion to deny the BOE's motion on this ground and proceed to consider the legal sufficiency of the various causes of action.
B. Dismissal Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6)
The BOE moves to dismiss the Amended Complaint for lack of subject matter jurisdiction, or because it does not state a claim upon which relief can be granted. Def. Br. at 20. Those Rule 12(b)(1) and 12(b)(6) grounds will be considered together, count-by-count.
Federal Rule of Civil Procedure 12(b)(1) permits a party to bring a motion to dismiss for lack of subject matter jurisdiction, including lack of standing. Ballentine v. U.S., 486 F.3d 806, 810 (3d Cir. 2007); Coastal Outdoor Advertising Group, LLC v. Twp. of Union N.J., 676 F.Supp.2d 337, 343 (D.N.J. 2009). Rule 12(b)(1) challenges may be either facial or factual attacks. See 2 MOORE'S FEDERAL PRACTICE § 12.30 (3d ed. 2007); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A facial challenge asserts that the complaint does not allege sufficient grounds to establish subject matter jurisdiction. Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424, 438 (D.N.J. 1999). A court considering such a facial challenge assumes that the allegations in the complaint are true, and may dismiss the complaint only if it nevertheless appears that the plaintiff will not be able to assert a colorable claim of subject matter jurisdiction. Cardio-Med. Assoc., Ltd. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983); Iwanowa, 67 F.Supp.2d at 438. A factual challenge, however, attacks subject-matter jurisdiction by challenging the truth (or completeness) of the jurisdictional allegations set forth in the complaint. Mortensen, 549 F.2d at 891. Thus a factual jurisdictional proceeding may not occur until the plaintiff's allegations have been controverted. Id. at 891 n. 17. For purposes of this motion to dismiss, the Defendants' jurisdictional arguments will be treated as facial attacks.
In a challenge to a complaint pursuant to Fed.R.Civ.P. 12(b)(6), the defendant, as the moving party, bears the burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a Rule 12(b)(6) motion, a court must take the allegations of the complaint as true and draw reasonable inferences in favor of the Plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). Although a complaint need not contain detailed factual allegations, "a plaintiff's obligation to provide the grounds' of his entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus the factual allegations must be sufficient to raise a plaintiff's right to relief above a speculative level, such that it is "plausible on its face." See id. at 570; see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). That facial-plausibility standard is met "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). While "[t]he plausibility standard is not akin to a probability requirement'... it asks for more than a sheer possibility." Iqbal, 556 U.S. at 678.
1. The Motion to Dismiss is Denied as to Counts 2, 3, 10, 17, and 32.
The Amended Complaint alleges claims against the BOE and Tenafly for violations of the Fourteenth Amendment procedural due process clause (Counts 2 and 3); conspiracy under 18 U.S.C. § 1983 (Count 10); breach of fiduciary duty (Count 17); and ultra vires action (Count 32). When all reasonable are inferences drawn in favor of the Plaintiffs, Phillips, 515 F.3d at 231, these counts of the Amended Complaint set forth sufficient allegations to state a claim. See Iqbal, 556 U.S. at 678. Whether such claims can be established, of course, remains to be seen.
a. Fourteenth Amendment Procedural Due Process (Counts 2 and 3)
The Plaintiffs allege that Tenafly and the BOE violated their Fourteenth Amendment procedural due process rights to adequate notice (Count 2) and a fair hearing (Count 3). Am. Compl. ¶¶ 1060-1067. To state a procedural due process claim, Plaintiffs must establish (1) that they were deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of life, liberty and property, and (2) that the procedures available to them did not provide due process of law. Schmidt v. Creedon, 639 F.3d 587, 595 (3d Cir. 2011).
Count 2, the fair notice claim, alleges that Tenafly and the BOE deprived them of "actual notice" regarding matters "directly or indirectly" affecting their home, the surrounding area, and Downey Drive. Am. Com. ¶ 1065. In particular, Plaintiffs challenge the notice given for meetings of the Tenafly Mayor and Council regarding Ordinances 10-19 and 10-20. Id. ¶¶ 245-248. They also allege that there may have been meetings held, and ordinances and resolutions adopted, that are currently unknown to them and affect their rights. Id. ¶ 1033; see also ¶¶ 385-386. Plaintiffs seek declaratory and injunctive relief, declaring Ordinances 10-19, 10-20, Resolution A-3 and the adoption of the Urbana Consulting Report to be void and invalid, enjoining the enforcement of those ordinances or resolutions, and directing the Defendants to provide "direct and actual notice" of any past or future ordinances or resolutions that "impact, impair, or interfere" with their home. Id. ¶ 1064.
To satisfy due process, notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Pursuant to the New Jersey Open Public Meetings Act ("OPMA"), constructive notice by newspaper publication constitutes "adequate notice" for public meetings. N.J.S.A. 10:4-6 et seq.  Persons may request individualized notice of any regular, special, or rescheduled meeting. N.J.S.A. 10:4-18, 10:4-19. Tenafly responded to requests from the Plaintiffs under the Open Public Records Act ("OPRA") with "Proof of Publication Affidavits" purportedly showing published notice from The Record newspaper (known as the "Bergen Record") on 6/15/2010 and 6/27/2010. Am. Comp. ¶ 245. The Plaintiffs allege that even if this notice was provided, it was not "reasonably calculated" to, and did not, give them an adequate opportunity to respond and object. Id. ¶ 1064.
Although notice by publication satisfies New Jersey state law, it does not necessarily follow that it satisfies the due process clause. To succeed on this claim, the Plaintiffs will have to show, inter alia, that they lacked actual notice; that this constructive notice fails the Mullane standard; and that some cognizable right was affected by the lack of direct notice. See 339 U.S. at 314.
The Plaintiffs also allege that a June 2011 evidentiary hearing conducted by Tenafly's Mayor and Council regarding the acceptance of the Urbana Report violated procedural due process. Am. Compl. ¶¶ 924-926. At that hearing, the Council allegedly considered evidence, including testimony from members of the BOE, which was not disclosed to the Plaintiffs or made part of the record. Id. ¶ 930. The Mayor and Council heard statements from the BOE, the HSA parent organization, and the Principal of the Smith School. Id. ¶ 931. The Plaintiffs further allege that the hearing was conducted ultra vires insofar as it adjudicated the Plaintiffs' legal rights. Id. ¶¶ 937-941. The Plaintiffs attended the meeting, but contend that that should have been allowed to cross-examine witnesses and conduct voir dire of the traffic consultant, Urbana Consulting. Id. ¶ 948.
"The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner, " Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). A due process claim under Mathews requires the balancing of three factors: "[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest." Id. at 335. Assuming arguendo that the Plaintiffs have a property interest in an implied easement to the public street, the Court must determine whether the process afforded to the Plaintiffs in restricting that right failed to meet the due process test under Mathews.
Whether the evidentiary hearing fell short of due process standards cannot yet be determined, but the Amended Complaint states a claim that it did. The motion to dismiss ...