Camden County Historical Society v. State of New Jersey Department of Transportation

          POSTERNOCK APELL, P.C. By: Matthew R. Litt, Esq., Counsel for Plaintiff Camden County Historical Society.

          OFFICE OF THE ATTORNEY GENERAL OF NEW JERSEY By: Brad M. Reiter, Esq., Fredric R. Cohen, Esq. Michael R. Sarno, Esq. Richard J. Hughes Justice Complex, Counsel for Defendants the New Jersey Department of Transportation, Richard T. Hammer, and David C. Mudge.

          OFFICE OF THE UNITED STATES ATTORNEY, DISTRICT OF NEW JERSEY By: Elizabeth A. Pascal, Esq., Counsel for U.S. Department of Transportation; Secretary of the U.S. Department of Transportation, Elaine L. Chao; the Federal Highway Administration; and Former Acting Director of the Federal Highway Administration, Walter Waidelich, Jr.

          OPINION

          MARIE BUMB, U.S.D.J.

         This suit arises out of the demolition of the historic Harrison House to make room for a federally-funded highway project. This opinion is the second of three opinions addressing the arguments raised by Defendants in their respective motions. The first opinion held that the National Historic Preservation Act, 54 U.S.C. § 306108 (“NHPA”), does not create a private right of action, and therefore dismissed Count 1 of the Amended Complaint. See Camden Cty. Historical Soc'y v. Dep't of Transportation, 371 F.Supp.3d 187 (D.N.J. 2019). The Court will address, in a third opinion to be issued at a later date, the Federal Defendants' Motion for Summary Judgment as to the Administrative Procedure Act, 5 U.S.C. § 706(2)(a), claim against them (Count 2 of the Amended Complaint). This opinion addresses the State Defendants' argument that they are entitled to Eleventh Amendment sovereign immunity as to Plaintiff Camden County Historical Society's state law tort claims of fraudulent concealment of evidence and negligent spoliation of evidence (Counts 3 and 5 of the Amended Complaint). As set forth below, the Court holds that the State of New Jersey has not waived its Eleventh Amendment sovereign immunity to the state law claims asserted by the Historical Society and therefore the State Defendants' Motion to Dismiss will be granted.

         I.

         Plaintiff asserts that the State and Federal Defendants conspired to prevent the Harrison House from being formally recognized and protected as a historic building pursuant to the NHPA, and that by “initiat[ing] a furtive and expedited demolition” of the house in the early morning hours of March 3, 2017, while Plaintiff's state court application to temporarily enjoin the demolition was pending (Amend. Compl. ¶¶ 20-21), the State Defendants fraudulently concealed evidence and/or negligently spoliated evidence.

         Relevant to the instant motion, the Amended Complaint alleges that “NJDOT was delegated responsibility for compliance with [the NHPA], and is therefore an ‘agency official' as that term is defined by 36 CFR § 800.2.” (Amend. Compl. ¶ 32)

         II.

         Rule 12(b)(1) motions may challenge subject-matter jurisdiction based upon the complaint's face or its underlying facts. Pittman v. Metuchen Police Dept., No. 08-2373, 2009 WL 3207854, *1 (D.N.J. Sept. 29, 2009) (citing James Wm. Moore, 2 Moore's Federal Practice § 12.30[4] (3d ed. 2007)). “A facial attack questions the sufficiency of the pleading, and in reviewing a facial attack, a trial court accepts the allegations in the complaint as true.” Id.

         III.

         The Eleventh Amendment to the United States Constitution states that federal courts may not hear “any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State....” U.S. Const. XI. The amendment also applies to suits against states by their own citizens. Hans v. Louisiana, 134 U.S. 1 (1890). It is undisputed that this is a suit against the State of New Jersey in federal court and therefore the Eleventh Amendment bars the state law tort claims at issue unless, as the Historical Society asserts, the State Defendants have waived sovereign immunity.

         Initially, the Historical Society argued that the State has waived sovereign immunity as to the state law claims through the New Jersey Tort Claims Act, N.J. Stat. Ann. § 59:2-2(a) (NJTCA), and has waived sovereign immunity as to the NHPA claim by accepting the delegation of authority pursuant to 36 CFR § 800.2. (Brief, Dkt. 73, p. 7-9)

         The State Defendants, relying upon Hyatt v. Cty. of Passaic, 340 Fed. App'x 833, 837 (3d Cir. 2009), responded that the NJTCA does not waive Eleventh Amendment immunity. Indeed, Hyatt so holds, and several other courts, including this Court, have applied Hyatt's holding to conclude that the NJTCA does not waive New Jersey's sovereign immunity to suit in federal court.^[1]See, e.g., Chitester v. Dep't of Child Prot. Permanency, 2018 WL 6600099 at *5 (D.N.J. Dec. 17, 2018); Dukes v. New Jersey Transit Corp., 2018 WL 1378726 at *5 (D.N.J. Mar. 19, 2018); Abulkhair v. Office of Attorney Ethics, 2018 WL 1352065 ...