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City of Margate v. New Jersey Department of Environmental Protection

United States District Court, D. New Jersey, Camden Vicinage

August 10, 2017


          Jordan M. Rand, Esq. Matthew J. McDonald, Esq. Klehr Harrison Harvey Branzburg, John Scott Abbott, Esq. Law Offices of John Scott Abbott Attorneys for Plaintiff City of Margate

          Kristina Lee Miles, Esq. New Jersey Department of Law & Public Safety Division of Law Attorney for Defendant New Jersey Department of Environmental Protection

          Thomas R. Valen, Esq. Damian V. Santomauro, Esq. Gibbons, PC Attorney for Defendant Weeks Marine Inc.

          Anne B. Taylor, Esq. Office of the U.S. Attorney District of New Jersey Attorney for Defendant United States Army Corps of Engineers



         This matter comes before the Court upon the Motion for Emergent Dissolution of Temporary Restraints (the “Temporary Restraining Order”) [Docket No. 6] by Defendant Army Corps of Engineers (the “Army Corps”) seeking the immediate dissolution of the temporary restraints issued by the Honorable Julio L. Mendez of the Superior Court of New Jersey, Atlantic County, Chancery Division, on August 3, 2017 [Docket No. 1-4] prior to removal of the action to federal court. For the reasons set forth below, the Court grants, in part, the Army Corps' motion and modifies the Temporary Restraining as set forth herein and in the accompanying Order.

         On August 3, 2017, Plaintiff City of Margate (“Margate”) filed a Verified Complaint in the New Jersey Superior Court, alleging a single count of public nuisance against Defendant New Jersey Department of Environmental Protection (“NJDEP”) and Weeks Marine Inc. (“Weeks”) [Docket No. 1-1], as well as an Order to Show Cause seeking temporary restraints, declaratory judgment, and entry of a permanent injunction ceasing the construction of the Absecon Island Coastal Storm Risk Reduction Project (the “Project”) [Docket No. 1-2], an entirely federally-funded project of the Army Corps. The Army Corps has contracted with Weeks to construct the dune and berm system necessitated by the Project. The Project is currently under construction in Margate and has not yet been completed. Margate seeks to enjoin the construction of the Project due to ponding after rain events that has resulted between the bulkhead on the beach and the landward toe of the dunes constructed thus far. Construction of the Project is already well underway and dunes have been installed in much of Ventnor, to the north of Margate.

         Judge Mendez held a telephonic hearing on August 3, 2017 regarding Margate's application and granted temporary restraints that day. Because the Army Corps was not a party to the state court action, it did not participate in the hearing. In his Order, Judge Mendez temporarily enjoined the NJDEP and Weeks “from further construction” of the Project until August 11, 2017 and required NJDEP and Weeks to “take all necessary steps to remedy pools of standing water and beach flooding in those areas where Project construction has commenced.” TRO ¶¶ 10-11 [Docket No. 1-4].[1] Additionally, Judge Mendez ordered the Army Corps as an indispensable party in the matter and directed representatives of Margate, the NJDEP, the Army Corps, and Weeks to meet every day until August 11, 2017 “to engage in meaningful discussions and negotiations to resolve issues related to beach flooding, ponding, and storm water drainage connected with the Dunes project on Margate beach.” Id. ¶¶ 12-14.[2]

         The following day, the Army Corps, as an agency of the United States, properly removed the action to federal court pursuant to 28 U.S.C. § 1446(b)(1). Notice of Removal [Docket No. 1]. Thereafter, the Army Corps filed the instant motion, seeking the immediate dissolution of the temporary restraints, arguing that the state court did not have jurisdiction to enjoin the Army Corps and because the issuance of the injunction was not justified by the facts. Weeks does not oppose the Army Corps' motion. On August 9, 2017, the Court held a hearing on the motion, at which Margate and the Army Corps presented legal argument and evidence.[3]

         This Court is permitted to review the temporary restraints issued by the state court as if this Court had issued them itself. All orders and injunctions issued by a state court prior to removal “shall remain in full force and effect until dissolved or modified by the district court.” 28 U.S.C. § 1450. Thus, “[a]fter removal, interlocutory orders of the state court are transformed into orders of the court to which the case is removed.” In re Diet Drugs, 282 F.3d 220, 231-32 (3d Cir. 2002); accord Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 437 (1974); Cooper Health Sys. v. Virtua Health, Inc., 259 F.R.D. 208, 212 (D.N.J. 2009). The power to dissolve or modify temporary restraints or a preliminary injunction is left to the discretion of the district court. Sprint Commc'ns Co. L.P. v. CAT Commc'ns Int'l, Inc., 335 F.3d 235, 241 (3d Cir. 2003) (citing Glasco v. Hills, 558 F.2d 179, 180 (3d Cir. 1977)). When considering whether to dissolve such restraints, a court must consider whether the movant has made a showing of changed circumstances that warrant discontinuation of the order. Id. at 242 (citing Twp. Of Franklin Sewerage Auth. v. Middlesex County Utils. Auth., 787 F.2d 117, 121 (3d Cir. 1986)).

         Additionally, the Army Corps moves for reconsideration of the Temporary Restraining Order under District of New Jersey Local Civil Rule 7.1(i). Local Civil Rule 7.1(i) permits a court to reconsider its order where one of three circumstances is present: (1) an intervening change in the controlling law; (2) the availability of new evidence not previously available; or (3) the need to correct a clear error of law or prevent manifest injustice. Telebrands Corp. v. Harvest Direct, LLC, 2017 WL 1365216, at *3 (D.N.J. Apr. 6, 2017) (citing Carmichael v. Everson, 2004 WL 1587894, at *1 (D.N.J. May 21, 2004)).

         Here, as noted, the Army Corps did not participate in the hearing on the application for temporary restraints before the state court and did not have the opportunity to present evidence or argument in opposition. Additionally, the state court did not have jurisdiction to enjoin the Army Corps, an agency of the United States government, from constructing a federal project or to mandate the Army Corps' participation in the meetings with Margate, the NJDEP, and Weeks. See supra n.2. Given the addition of the Army Corps, a federal agency over which the state court lacked jurisdiction, to the litigation and the evidence presented to this Court, the Court finds, for the reasons set forth herein, that changed circumstances warrant modification and dissolution, in part, of the temporary restraints. Moreover, for the reasons set forth herein, the Court reconsiders the Temporary Restraining Order and finds that modification and dissolution, in part, of the temporary restraints is necessary to correct a clear error of law or fact and to prevent manifest injustice.

         “Preliminary injunctive relief is ‘an extraordinary remedy' and ‘should be granted only in limited circumstances.'” Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (quoting American Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994)). The decision to issue a temporary restraining order is governed by the same standard as a preliminary injunction. Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223, 236 n.4 (3d Cir. 2011) (citing Miller v. Mitchell, 598 F.3d 139, 145 (3d Cir. 2010)). A plaintiff seeking a temporary restraining order or a preliminary injunction must demonstrate: “(1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief. Kos, 369 F.3d at 708. The party seeking preliminary injunctive relief must meet all four factors and “failure to establish any element in [the plaintiff's] favor renders a preliminary injunction inappropriate.” NutraSweet Co. v. Vit-mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999); accord Lanin v. Borough of Tenafly, 515 F. App'x 114, 117 (3d Cir. 2013) (“All four factors must favor preliminary relief.”).

         Turning to the first factor, likelihood of success on the merits, the only cause of action currently asserted by Margate is a public nuisance claim, which appears to be brought under New Jersey state law. The Army Corps contends that Margate cannot establish a likelihood of success on the merits of its state law public nuisance claim as the United States has not waived its sovereign immunity for state tort claims seeking injunctive relief. Army Corps Br. at 11 n.2 [Docket No. 6-1] (citing 28 U.S.C. § 1346(b)(1)). While the Army Corps may be correct that it is immune from suit for state tort claims for injunctive relief, the Verified Complaint does not presently address the Army Corps specifically and may be amended to assert a federal public nuisance claim against the Army Corps.[4] Given the state of the pleadings, the ...

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