United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE
Carlos Fernandes and Jean Neimiller brought this action
against the City of Jersey City, Steven M. Fulop, and Anthony
B. Lewis. The original complaint alleged that the plaintiffs
obtained a construction permit and began remodeling work on
their home, but the City halted the work, saying that
plaintiffs had not obtained a required permit from die
Historic Preservation Committee. Since siding had already
been removed from the home, it suffered weather damage in the
ensuing months. When Fernandes complained about die
situation, City officials alleged defamed and falsely
moved to dismiss the original complaint. I dismissed
plaintiffs' defamation and negligence claims; the rest of
die complaint survived. Plaintiffs then filed an amended
complaint, which reasserts the defamation claim and
reformulates their tort claim under New Jersey state law. Now
before the court is defendants' motion to dismiss those
two amended claims. (ECF no. 23).
Plaintiffs' Interrupted Remodeling Efforts
Carlos Fernandes and Jean Neimiller are a married couple who
own and reside at a home (the "Property") located
in the West Bergen-East Lincoln Park Historic District
neighborhood of Jersey City, New Jersey. (1AC ¶¶ 1,
16). Fernandes has worked as an artist, design professional,
and stylist. (1AC ¶ 13). Since moving to Jersey City
many years ago, he has maintained many of his New York City
clients and developed new ones. (1AC ¶ 14). He works
with clients from the first floor of the Property, providing
hair styling, makeup, and design consultations. (1AC ¶
three named defendants are the City of Jersey City
("Jersey City" or the "City"), Steven M.
Fulop, the Mayor of Jersey City, and Anthony B. Lewis, a
sergeant in the Jersey City Police Department. (1AC
¶¶ 2, 6-7).
around July 20, 2015, Power Home Remodeling Group, Inc.
("Power HRG"), a remodeling contractor, applied to
the Building Department for a permit to remove wood siding
and install vinyl siding on plaintiffs' Property. (1AC
¶ 19). On August 1, 2015, pursuant to a Jersey City
Ordinance, plaintiffs' neighborhood became a newly
designated historic district. (1AC ¶¶ 16-17).
August 8, 2015, the Building Department approved the
Construction Permit Application. (1AC ¶ 20). On August
25, 2015, Power HRG began work on the Property, work which
included removal of the existing wood siding. (1AC ¶23).
August 29, 2015, officials from the Building Department and
the Historic Preservation Commission ("HPC") came
to the Property and demanded that plaintiffs and Power HRG
stop working. (1AC ¶ 24). These officials stated that
Power HRG lacked authorization for the work. (1AC ¶ 25).
Jersey City police officers also arrived at the Property and,
unprovoked, threatened to arrest Fernandes. (1AC ¶ 26).
The officials gave no explanation for their demands at the
time. (1AC ¶ 24).
days later, on September 3, 2015, the Building Department
issued a formal "Stop Work Order." (1AC ¶ 27).
That Order cited plaintiffs' failure to obtain the
HPC's approval before renovating the Property. (1AC
¶ 27). Power HRG stopped its work, leaving three
quarters of the Property without siding. (1AC ¶ 28).
Because the Building Department also prohibited the
plaintiffs from covering their home by other means, the walls
remained exposed. (1AC ¶¶ 28, 33).
went to City Hall to determine what had happened, but
"Jersey City refused to provide any answers to the
Plaintiffs and refused to acknowledge that the Building
Department gave Power HRG a permit to begin the
renovations." (1AC ¶ 30). On or about October 16,
2015, plaintiffs' counsel contacted Jeremey Farrell,
corporation counsel for the City of Jersey City, who
suggested that plaintiffs' counsel contact attorneys for
the Planning Board and the HPC. (1AC ¶ 31). Plaintiffs
contacted both attorneys via email, urgently requesting
authorization to move forward with construction or at least
to allow them to cover their home before the forthcoming
winter. (1AC ¶ 32).
October 19, 2015, James LaBianca, assistant corporation
counsel responsible for the HPC, responded to plaintiffs'
counsel's email and offered to meet with them. (1AC
¶ 34). On or about October 23, 2015, while they were
still trying to arrange a meeting, LaBianca wrote to
plaintiffs' counsel, stating, "HP[C] has no
objection to your client installing temporary but sufficient,
long-lasting preservation measures to protect the property,
including the installation of Tyvek or some other proper
board material." (1AC ¶ 36). On October 27, 2015,
plaintiffs' counsel responded, seeking clarification on
what preservation methods were authorized and again
requesting a meeting. (1AC ¶ 37). LaBianca never
responded to the October 27, 2015 correspondence. (1AC ¶
November 2015, plaintiffs took measures to protect the
Property from the winter weather, which included covering the
Property with plastic tarp. (1AC ¶ 39). "Despite
these efforts, the Property suffered substantial damage,
including but not limited to water damage tiiroughout the
Property." (1AC ¶ 40). At that point, plaintiffs
decided to take no further action until warmer weather
arrived so that the Property could dry out and they could
assess the damage. (1AC ¶41).
Alleged Disparate Treatment
allege that other property owners on their street have made
alterations to their properties without obtaining permits or
HPC authorization. (1AC ¶ 42). These alterations have
included disfavored alterations, such as vinyl siding, and
also alterations that are strictly prohibited, such as metal
frame windows. (1AC ¶ 42). One couple on their street
were allowed to alter their property without HPC approval,
allegedly because they "were married by Mayor Fulop and
... were significant supports of Mayor Fulop's
campaign." (1AC ¶ 42).
The Plaintiffs' Attendance at Public Meetings
around January 2016, plaintiffs began attending City Council
meetings and public meetings organized by Mayor Fulop. (1AC
¶ 44). Fernandes spoke at these meetings about the
condition of his Property and "the intimidation and
disrespectful treatment he and his wife suffered at the hands
of the defendants. (1AC ¶ 45). After one meeting, City
Council President Rolando Lavarro "accosted Mr.
Fernandes and demanded Mr. Fernandes meet with him the next
day." (1AC ¶ 46). On January 29, 2015, Fernandes
and his attorney met with Mr. Lavarro, who promised to assist
the plaintiffs but never did so. (1AC¶47).
a February 3, 2016 public meeting, although Fernandes
"was not causing any disturbance, " police
department officers in plain clothes "forcibly grabbed
[him] by the arms, lifted him from his feet and illegally
ejected [him] from the public meeting at the behest of Mayor
Fulop." (1AC ¶¶ 48-50).
counsel then sent a February 8, 2016 letter to Jeremey
Farrell. (1AC ¶ 51). In that letter, plaintiffs'
counsel included an Open Public Record Act ("OPRA")
request for the names of the officers who had removed
Fernandes from the meeting and an explanation for the
removal. (1AC ¶ 51). The letter stated that Fernandes
had been physically injured and that both plaintiffs had
suffered emotional injury. (1AC ¶ 51). Additionally, the
Mayor Fulop made several untrue statements to the audience in
attendance when asked why he had Mr. Fernandes removed.
First, it is untrue that my client attended "every
single one of these meetings"; as Mayor Fulop stated. It
is untrue that my client made a "disruption for twenty
to thirty minutes" or "five to ten minutes" at
any meeting. The City never "cited for violations"
his property. To date, Mr. Fernandes has not received any
notice of any violations against his, his wife or their
property. The Mayor should recant these slanderous, [sic]
Mr. Fernandes has every right to attend any and every public
meeting held by Mayor Fulop and he will continue do so. There
is no basis in law or in fact to deny him his right to attend
Obviously, this situation is extremely distressing to my
clients. Not only has the City ignored their attempts to
resolve this issue amicably, now it seems the City has an
agenda to assassinate the character of Mr. Fernandes and
prohibit him from exercising his rights as a citizen of
Jersey City. The City has gone to the length of physically
assaulting my client to achieve this agenda. Such behavior is
(1AC ¶ 51); (Feb. 8 Letter). The letter requested a
meeting with Farrell, but Plaintiffs' counsel did not
receive any response. (1AC ¶¶ 51-52).
eventually received a Use of Force Report, but it provided
inadequate information. (1AC ¶¶ 53-55). This
prompted plaintiffs' counsel, by a letter dated March 25,
2016, to demand that the City Clerk provide a more adequate
response. (1AC ¶ 55). The March 25, 2016 letter also
raised grievances about Mayor Fulop's alleged behavior
toward Fernandes during a March 14, 2016 public meeting. (1AC
¶¶ 55-56). This letter stated:
On March 14, 2016, I attended a public meeting in Ward F at
the Bethune Center with Carlos Fernandes. There, my client
asked the Mayor a question, to which the Mayor again answered
that my client is a disgruntled person because his property
had been cited for numerous violations by the City, and that
the matter is currently the subject of litigation. Again, to
date, Mr. Fernandes has not received any notice of any
violations against him, his wife or their property. The Mayor
knows his statements are untrue. The Mayor must be aware of
the true circumstances in this matter because after he made
the untrue statements at the February 3, 2016 meeting in Ward
A I wrote to you informing you that his statements were
The Mayor's behavior toward my client is unacceptable.
Instead of seriously addressing legitimate issues my client
has with the City's handling of abruptly halting
construction at his home after the City issued a valid permit
for the same construction (and the City's refusal to
allow my client to go forward with construction resulting in
significant damage to his property), the Mayor is waging a
smear campaign against my client in an attempt to minimize
his claims against the City.
(1AC ¶ 56); (March 25 Letter). There has been no
response to this letter. (1AC ¶ 57). Plaintiffs claim
that Fernandes did not attend all the public safety meetings
and did not cause a disruption. (1AC 158).
February 3, 2016 and March 14, 2016 incidents were videotaped
and broadcast on the internet. (1AC ¶ 59). Mayor Fulop
was allegedly aware he was being videotaped when he made his
statements and ordered the police to remove Fernandes. (1AC
¶ 59). Fernandes alleges that these incidents caused him
to lose clients and have diminished his business
substantially. (1AC ¶ 60).
The Tort Claim Notice and Complaint
around November 25, 2015-after the work had been shut down
and the Property had sustained damage, but before the
plaintiffs began attending public meetings-plaintiffs filed a
Tort Claim Notice ("TCN"). (1AC ¶ 43). On or
about April 18, 2016, plaintiffs' counsel received a
response to the TCN from Jersey City, which disclaimed
liability. (1AC ¶ 61).
September 22, 2016, the plaintiffs filed a civil complaint in
the Superior Court of New Jersey, Law Division, Hudson
County. (ECF No. 1). The defendants removed the action to
this Court on October 24, 2016. (Id.). The original
complaint contained six counts-four under 42 U.S.C. §
1983 and two under state tort law:
■ Count 1: Violation of the
plaintiffs' right to Equal Protection under the
Fourteenth Amendment, pursuant to 42 U.S.C. § 1983
("Section 1983") (Compl. ...