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LLC v. City of Sea Isle City

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

December 12, 2018

8600 LANDIS, LLC, Plaintiff,
v.
CITY OF SEA ISLE CITY, et al., Defendants.

          OPINION

          RENÉE MARIE BUMB UNITED STATES DISTRICT JUDGE

         In a previous Opinion and Order, this Court extensively discussed the multitude of pleading deficiencies contained in Plaintiff's Amended Complaint. See 8600 Landis, LLC v. City of Sea Isle City, No. CV 17-2234 (RMB/JS), 2018 WL 1509088 (D.N.J. Mar. 27, 2018). Nonetheless, the Court allowed Plaintiff an opportunity to amend its Amended Complaint in an attempt to cure, if possible, the deficiencies identified. See id. at *14. Plaintiff did amend, and all Defendants presently move to dismiss the claims asserted in the Second Amended Complaint, asserting that Plaintiff's attempt to put more factual meat on the bones of its pleading still falls short of stating a plausible claim for relief.[1]

         The Court stated in its previous opinion that “if upon an appropriate motion the Court determines that the [Second] Amended Complaint fails to state a federal claim, the Court intends to decline to exercise supplemental jurisdiction over this suit pursuant to 28 U.S.C. § 1367(c)(3).” 8600 Landis, LLC, 2018 WL 1509088 at *14. The Court now holds that the Second Amended Complaint fails to plausibly plead sufficient facts in support of any federal claim. Accordingly, Defendants' Motions to Dismiss will be granted as to the federal claims and the Court will decline supplemental jurisdiction over the remaining state law claims.[2]

         I. FACTS

         As the Second Amended Complaint merely adds additional details and context to the factual allegations contained in the Amended Complaint, the Court will primarily rely on its recitation of the alleged facts in its previous opinion. See 8600 Landis, LLC, 2018 WL 1509088 at *1-2. Generally and succinctly, this is a local land-use and zoning dispute; a dispute Plaintiff had adjudicated in its favor in state court but which Plaintiff seeks to continue before this Court under various federal and state causes of action. Plaintiff's theory of its case is that Defendant Desiderio, who is a member of Sea Isle City's planning board, as well as a local business owner and the Mayor of Sea Isle City, sought to illegally “damage and delay” Plaintiff's development of a 13-unit residential rental and restaurant space allegedly with the motive of eliminating Plaintiff as a competitor in the market for restaurant and hospitality services. (Opposition Brief, Dkt 77, p. 4) The other individual Defendants, allegedly at Defendant Desiderio's direction and/or in conspiracy with him, assisted, or attempted to assist, Desiderio in his alleged plan to keep his alleged competitor out of the market. (Id.)

         The Second Amended Complaint asserts the following federal claims: violation of Plaintiff's substantive due process and equal protection rights under 42 U.S.C. § 1983, conspiracy under § 1983 and 42 U.S.C. § 1985, and violation of the Sherman Act, 15 U.S.C. § 1 et seq.[3]

         II. MOTION TO DISMISS STANDARD

         The Court incorporates herein by reference, and applies, the legal standard as set forth in its previous opinion in this case. See 8600 Landis, LLC, 2018 WL 1509088 at *3.

         III. ANALYSIS

         A. Substantive due process

         As discussed in the previous Opinion, the issue is whether Plaintiff has plausibly pled facts supporting a conclusion that Defendant Desiderio and others engaged in the type of egregious self-dealing that shocks the judicial conscience. 8600 Landis, LLC, 2018 WL 1509088 at *4.[4] “[T]he standard is sufficiently high to ‘avoid converting federal courts into super zoning tribunals.'” Selig v. N. Whitehall Twp. Zoning Hearing Bd., 653 Fed.Appx. 155, 157 (3d Cir. 2016) (quoting Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 285 (3d Cir. 2004), and citing United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 402 (3d Cir. 2003)). Moreover, in the land-use context, the Third Circuit has cautioned that “not . . . every violation of state law [should be] ‘constitutionalized' through the application of the substantive due process clause, and [] District Court[s] [should be] properly concerned with preventing this provision from turning into a broad authorization to review state actors' compliance with state law.” Whittaker v. County of Lawrence, 437 Fed.Appx. 105 (3d Cir. 2011).[5]

         With this legal foundation in mind, the Court turns to the factual allegations of the Second Amended Complaint. As stated in the previous Opinion, the Court's focus is on the facts-- not bald assertions, conclusions or mere labels.[6] Plaintiff alleges that Defendant Desiderio, at all relevant times, “owned” Kix McNutley's and Sea Isle Inn, both of which are located at 6400 Landis Avenue in Sea Isle City. (Second Amend. Compl., “S.A.C., ” ¶¶ 16, 20-21) Defendant Desiderio allegedly holds a liquor license that is associated with one, or both, of those establishments. (S.A.C. ¶ 25-26) Plaintiff allegedly also holds a liquor license[7], and allegedly, it was for this reason that on May 10, 2010 Defendant Desiderio recused himself from the consideration of, and abstained from the vote on, Plaintiff's predecessor-in-interest's zoning application. (Id. ¶ 26) Notably, every other Board Member in attendance at the meeting --seven members total, excluding Defendant Desiderio-- voted in favor of Plaintiff's application, and it was approved. (Id. Ex. D)

         Nonetheless, Plaintiff alleges in conclusory fashion that after the Board Meeting, Defendant Desiderio “stayed involved” “behind the scenes” to “undermin[e] Plaintiff's project.” (S.A.C. ¶¶ 27, 44) Only two examples are alleged, one rather conclusorily, and one undermined by the exhibits Plaintiff attaches to the Second Amended Complaint. The actions alleged are: (a) Defendant “had” two unidentified “business owners” “approach . . . a representative of Plaintiff to say that if Plaintiff sold their [sic] units instead of renting them, their [sic] problems would go away”[8]; and (b) twice “received correspondence [from Desiderio despite his purported recusal and abstention] relating to Plaintiff's project.” (S.A.C. ¶¶ 28, 49) The “correspondence”-- attached as Exhibits H and N to the Second Amended Complaint-- merely reveals that Defendant Desiderio was one of many other town officials carbon-copied on the two letters concerning the progress of Plaintiff's project. Defendant Desiderio allegedly was motivated to take these actions by a desire to indirectly benefit Kix McNutly's and Sea Isle Inn, through alleged decreased competition from Plaintiff's project once it opened. (S.A.C. ¶ 27, 49, 61) In conclusory fashion, Plaintiff also alleges that Defendant Desiderio “directed” unspecified conduct of the other Sea Isle City Defendants, without specifying which Defendants. (S.A.C. ¶¶ 5, 61, 90, 100)

         The Second Amended Complaint further alleges that Defendant Byrne, the Zoning Officer who issued the Stop Work Order, is also a bartender at Kix McNutley's. (S.A.C. ¶¶ 3, 88) While bartending one night, Defendant Byrne allegedly told “a representative of Plaintiff” that with regard to Plaintiff's project, Byrne “was acting on orders from” Defendant Desiderio. (S.A.C. ¶ 89)[9]

         According to Plaintiff, these allegations support a conclusion that Defendants Desiderio and Byrne engaged in self-dealing, and Plaintiff asserts, Eichenlaub states that self-dealing meets the shocks the conscience standard. See 385 F.3d at 286 (“as counsel for appellants acknowledged during oral argument, there is no allegation of corruption or self-dealing here.”). A comprehensive reading of Eichenlaub and the cases discussed therein, however, demonstrates that the allegations of the Second Amended Complaint are not sufficiently egregious to support a substantive due process claim. Rather, the allegations concern a vigorously contested local land use dispute, one which a state court judge has already adjudicated in part. Thus, this Court will avoid becoming a “super zoning tribunal[].” Selig, 653 Fed.Appx. at 157 (internal citation and quotation omitted).

         Eichenlaub provides two “illustrat[ions] [of] the kinds of gross misconduct that have shocked the judicial conscience.” 385 F.3d at 285. First, Conroe Creosoting Co. v. Montgomery County, 249 F.3d 337 (5th Cir. 2001), as explained by the Third Circuit in Eichenlaub, [10] involved allegations that the defendants “fraudulently converted a tax levy for a $75, 000 deficiency into an unauthorized seizure and forced sale and destruction of an $800, 000 ongoing business.” 385 F.3d at 285. The Third Circuit explained that, in addition to what “amounted to a claim of an unconstitutional taking, ” the facts also “carried a whiff of self-dealing” insofar as the principal defendant's friends allegedly helped accomplish the taking by performing the auction services. Id. Also in Conroe, one of the defendants was alleged to have “signed a false affidavit in support of a tax warrant” in furtherance of the taking. 249 F.3d at 342.

         Second, in Eichenlaub the Third Circuit explained that “Associates in Obstetrics & Gynecology v. Upper Merion Township, 270 F.Supp.2d 633 (E.D. Pa. 2003), is also a case that implicates more than just disagreement about conventional zoning or planning rules” because Associates in Obstetrics involved ÔÇťallegations of hostility to ...


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