United States District Court, D. New Jersey
JACQUELINE M. ROSA, Plaintiff,
BOROUGH OF LEONIA, et al., Defendants.
REPORT AND RECOMMENDATION
MICHAEL A. HAMMER UNITED STATES MAGISTRATE JUDGE.
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 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.
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
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.
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
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. 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.
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.
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.
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.
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.
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.