United States District Court, D. New Jersey, Camden Vicinage
POSTERNOCK APELL, P.C. By: Matthew R. Litt, Esq., Counsel for
Plaintiff Camden County Historical Society.
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.
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.
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.
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.
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)
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 (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.”
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.
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)
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.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