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Fernandes v. City of Jersey City

United States District Court, D. New Jersey

November 6, 2017

CARLOS FERNANDES and JEAN NEIMILLER, Plaintiffs,
v.
CITY OF JERSEY CITY, STEVEN M. FULOP, ANTHONY B. LEWIS, JOHN AND JANE DOES 1-20, and ABC CORPORATIONS 1-20, Defendants.

          OPINION

          KEVIN MCNULTY UNITED STATES DISTRICT JUDGE

         Plaintiffs 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 arrested him.

         Defendants 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).

         I. BACKGROUND [1]

         A. Plaintiffs' Interrupted Remodeling Efforts

         Plaintiffs 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 ¶ 14).

         The 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).

         On or 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).

         On 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).

         On 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).

         Several 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).

         Fernandes 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).

         On 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 ¶ 38).

         In 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).

         B. Alleged Disparate Treatment

         Plaintiffs 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).

         C. The Plaintiffs' Attendance at Public Meetings

         In or 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).

         During 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).

         Plaintiffs' 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 letter stated:

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 these meetings.
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 unacceptable.

(1AC ¶ 51); (Feb. 8 Letter). The letter requested a meeting with Farrell, but Plaintiffs' counsel did not receive any response. (1AC ¶¶ 51-52).

         Plaintiffs 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 untrue.
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).

         The 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).

         D. The Tort Claim Notice and Complaint

         On or 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).

         On 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. ยง 1983 ("Section 1983") (Compl. ...

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