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Rosa v. Borough of Leonia

United States District Court, D. New Jersey

February 21, 2019

JACQUELINE M. ROSA, Plaintiff,
v.
BOROUGH OF LEONIA, et al., Defendants.

          REPORT AND RECOMMENDATION

          MICHAEL A. HAMMER UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         This matter is before the Court on the motion of Intervenor Plaintiff, State of New Jersey Department of Transportation (“NJDOT”), to remand the action to the Superior Court of New Jersey, Law Division, Hudson County. See Pl. Br. In Support of Mot. to Remand, D.E. 3-3. Plaintiff Jacqueline Rosa and the City of Englewood[1] join in the NJDOT's motion. D.E. 5, 7. The Defendants, which consist of the Borough of Leonia, its Mayor, and its former Acting Clerk, oppose the motion. D.E. 10.

         The District Court referred this matter to the Undersigned to issue a Report and Recommendation. This Court has considered the matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth herein, the Court respectfully recommends that the District Court grant Plaintiffs' motion, decline to exercise supplemental jurisdiction, remand this matter in its entirety to the Superior Court of New Jersey, Law Division, Hudson County, and deny the NJDOT's request for attorneys' fees and costs.

         II. BACKGROUND

         The central question in this motion is whether the revival doctrine, also known as the revival exception, operates to extend the Defendants' thirty-day removal window under 28 U.S.C. § 1446(b). This Court's research discloses that only the Fifth Circuit and Seventh Circuit have recognized the revival exception and, even then, under limited circumstances. See Wilson v. Intercollegiate (Big Ten) Conference A.A., 668 F.2d 962 (7th Cir. 1982); Johnson v. Heublein Inc., 227 F.3d 236 (5th Cir. 2000). See also State ex rel. Slatery v. Tennessee Valley Auth., 311 F.Supp.3d 896, 903 (M.D. Tenn. 2018) (describing revival exception as “rarely-granted”); Flora v. Luzerne County of Pennsylvania, Civ. No. 13-1478, 2013 WL 4520854, at *2 (M.D. Pa. Aug. 26, 2013) (noting that “[n]umerous courts since Johnson have considered the revival exception in relation to amended complaints and a majority have declined to find the exception applicable”). The Third Circuit has neither recognized nor rejected the revival doctrine. Flora, 2013 WL 4520854, at *2. The Court concludes, however, that even if the Third Circuit recognized the revival doctrine, the circumstances of this case do not warrant its application.

         This case involves legal challenges to the Borough of Leonia's (“Leonia”) efforts to restrict the flow of through-traffic on certain of its streets. In late December 2017 and early January 2018, to address long-standing traffic issues within Leonia, the Borough of Leonia Council (“Council”) adopted ordinances that restrict access to certain streets within Leonia during certain times. Leonia also established penalties for any person determined to have violated the ordinances. NJDOT's Moving Certification, Nov. 16, 2018, Exh. B, Ordinance No. 2017-19, Exh. C., Ordinance No. 2018-2, and Exh. D, Ordinance No. 2018-5. The ordinances, however, contained exceptions for Leonia residents and persons traveling to or from a Leonia address.

         Plaintiff Jacqueline Rosa commenced the instant action in the Superior Court of New Jersey, Law Division, Bergen County, on January 30, 2018 by filing a Complaint in Lieu of a Prerogative Writ seeking invalidation of Ordinances Nos. 2017-19, 2018-2, and 2018-5. Id. at Exh. E, Complaint. Plaintiff Rosa's complaint was transferred to the Superior Court of New Jersey, Law Division, Hudson County, on February 6, 2018. Id. at Exh. F, Order transferring action. On February 12, 2018, Plaintiff Rosa filed an amended complaint.[2] The February 12thAmended Complaint challenged the ordinances on several grounds. It alleged that the ordinances violated Plaintiff Rosa's Fifth Amendment rights and sought redress under 42 U.S.C. § 1983. Plaintiff Rosa also claimed that the ordinances violated the Interstate Commerce Clause, as well as state statutory law. Id. at Exh. G, February 12th Amended Complaint. On June 11, 2018, the NJDOT intervened in the suit and filed a Complaint for a Declaratory Judgment and for an Action in Lieu of Prerogative Writs against Leonia, claiming that the ordinances violated state law. Id. at Exh. S, Complaint.

         A brief overview of the ordinances at issue might be useful. Plaintiff Rosa's February 12th Amended Complaint challenges Ordinance Nos. 2017-19, 2018-2, and 2018-5. NJDOT's Moving Certification, Nov. 16, 2018, at Exh. G, February 12th Amended Complaint. Plaintiff Rosa's October 12th Amended Complaint challenges Ordinance Nos. 2018-14 and 2018-15. Id. at Exh. SS. Ordinances Nos. 2017-19, 2018-2, and 2018-5 were codified in Leonia's Municipal Code at Sections 194-25.1 and 194-49. Ordinances Nos. 2018-14 and 2018-15 amended Sections 194-25.1 and 194-49.

         The NJDOT and Plaintiff Rosa separately moved for summary judgment. Leonia opposed the motions and cross-moved for summary judgment. Id. at Exhs. U, V, W (motions for summary judgment). In August 2018, the state court denied Defendants' and Plaintiff Rosa's motions for summary judgment, but granted summary judgment in favor of the NJDOT. The state court found that the ordinances were legally invalid, and restrained Leonia from enforcing them. Id. at Exhs. X, Y, Z, AA. The summary judgment motions did not resolve Plaintiff Rosa's constitutional claims, and therefore the case continued in state court. Id. at Exh. BB, Transcript of Motions for Summary Judgment, at 74.

         On September 17, 2018, Leonia adopted Ordinance Nos. 2018-14 and 2018-15. Id. at EE, Letter to Deputy Attorney General, FF, state court record. Ordinance Nos. 2018-14 and 2018-15 specifically amended Ordinance No. 2017-19. Id. On October 12, 2018, Plaintiff Rosa and the NJDOT filed amended complaints in the state court action to challenge Ordinances Nos. 2018-14 and 2018-15. Id. at Exhs. SS, TT, Amended Complaints. Plaintiff Rosa's October 12thAmended Complaint alleged the same claims against Leonia regarding Ordinance Nos. 2018-14 and 2018-15. Id. at Exhs. G, SS. Similarly, the NJDOT's Amended Complaint challenged Ordinance Nos. 2018-14 and 2018-15 on the same grounds as NJDOT's original challenge. Id. at Exhs. S, TT. The NJDOT's Amended Complaint also set forth five additional claims against Defendants. Id. Neither the NJDOT's original complaint, nor its Amended Complaint pleads any federal claims.

         On October 31, 2018, Defendants removed the action to this Court. Notice of Removal, Oct. 31, 2018, D.E. 1. Defendants predicated removal on the § 1983 and Interstate Commerce Clause claims in Plaintiff Rosa's October 12th Amended Complaint. Id. at ¶¶ 18-21.

         On November 16, 2018, the NJDOT filed the instant motion to remand. Motion to Remand, Nov. 16, 2018, D.E. 3. Plaintiff Rosa filed a letter with the Court on November 20, 2018, joining in the NJDOT's motion. Brief, Nov. 20, 2018, D.E. 5. Englewood also filed a letter joining in the NJDOT's motion to remand. Letter, Nov. 21, 2018, D.E. 7. On December 21, 2018, Defendants filed a brief in opposition to the motion to remand. Brief in Opposition, Dec. 21, 2018, D.E. 10. The NJDOT filed a reply brief on December 31, 2018. Reply Brief, Dec. 31, 2018, D.E. 11.

         III. ...


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