8 ERIE ST. JC LLC v. CITY OF JERSEY CITY

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

8 ERIE ST. JC LLC,

Plaintiff, Civil Action No. 19-cv-9351

v. OPINION

CITY OF JERSEY CITY, et al.,

Defendants.

John Michael Vazquez, U.S.D.J.

In this matter, Plaintiff 8 Erie St. JC LLC (“8 Erie”) alleges that two city ordinances

violated its constitutional rights, state law, and private contractual rights. Presently pending before

the Court are motions to dismiss filed by the following Defendants: (1) Jersey City Redevelopment

Agency (“JCRA”), D.E. 13; (2) the City of Jersey City and the Jersey City Council (the “Council”

and together, the “City”), D.E. 16; and (3) the Jersey City Planning Board (“JCPB”), D.E. 35.

Plaintiff filed a brief in opposition to the motions, D.E. 44, to which Defendants replied, D.E. 47,

48, 49.1 The Court reviewed the parties’ submissions and decides the motions without oral

argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons set forth below,

Defendants’ motions are GRANTED in part and DENIED in part.

1 In this Opinion, JCRA’s brief in support of its motion to dismiss (D.E. 13-1) will be referred to

as “JCRA Br.”; the City’s brief in support of its motion to dismiss (D.E. 16-1) will be referred to

as “City Br.”; JCPB’s brief in support of its motion to dismiss (D.E. 35-3) will be referred to as

“JCPB Br.”; Plaintiff’s brief in opposition (D.E. 44) will be referred to as “Plf. Opp.”; JCRA’s

reply brief (D.E. 49) will be referred to as “JCRA Reply”; the City’s reply brief (D.E. 47) will be

referred to as “City Reply”; and JCPB’s reply brief (D.E. 48) will be referred to as “JCPB Reply”.

I. BACKGROUND2 AND PROCEDURAL HISTORY

In 2011, the Council, by ordinance, adopted a redevelopment plan for a building located at

8 Erie Street in downtown Jersey City. Pursuant to the plan, the JCRA issued a request for

proposals for redevelopment of the building. Compl. ¶ 17. The plan “set forth no restrictions,

other than those contained in the local zoning ordinances.” Id. ¶ 18. The JCRA awarded 8 Erie

the winning proposal in January 2012, and 8 Erie subsequently entered into an agreement (the

“Redevelopment Agreement”) with the JCRA on July 20, 2012. Id. ¶¶ 19-20. Through the

Redevelopment Agreement, Plaintiff purchased the property and agreed to convert a historic three-

story building into residential units on the second and third floors, and commercial space on the

ground floor and basement. Id. ¶ 22. Over the next three years, Plaintiff spent over $7 million to

redevelop the property; on June 19, 2015, Jersey City issued Plaintiff a certificate of occupancy

for the building. Id. ¶¶ 24, 28.

While Plaintiff was redeveloping the building, the City passed two ordinances that limited

the type of commercial businesses that could lease space in certain areas of Jersey City (the

“Challenged Ordinances”). The Challenged Ordinances, City Ordinances 15.052 and 15.053, were

passed by the Council on May 13, 2015. Id. ¶¶ 42, 56. Ordinance 15.052 created a definition for

“formula business,” which, generally and subject to certain exceptions, is a commercial business

with at least two standardized characteristics and that has ten or more locations within 300 miles

of Jersey City. Id. ¶ 40. Ordinance 15.053 amended certain redevelopment plans, including the

2 The factual background is taken from Plaintiff’s Complaint. D.E. 1. When reviewing a Rule

12(b)(6) motion to dismiss, “courts generally consider only the allegations contained in the

complaint, exhibits attached to the complaint and matters of public record.” Pension Ben. Guar.

Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

plan for 8 Erie Street, by limiting formula business establishments “to a maximum of 30% of

ground floor leasable commercial area.” Id. ¶ 49.

Plaintiff alleges Jersey City’s Mayor, Steven M. Fulop, forced the Challenged Ordinances

through the Council to bolster political support for his gubernatorial campaign. Id. ¶¶ 29-32.

Specifically, Plaintiff pleads that the JCPB made its recommendations as to the Challenged

Ordinances “solely at the insistence of the Mayor” and did not conduct any meaningful review

before recommending the Ordinances to the Council. Id. ¶ 34. Moreover, the Council, which

consisted of a majority of “Fulop-loyalists,” “rubber-stamped” the JCPB’s recommendations to

adopt the Challenged Ordinances. Id. ¶¶ 2, 42 Plaintiff also alleges that the restrictions were

structured to “focus on soft targets” to avoid public backlash. These soft targets, like Plaintiff,

were “least likely to bear the cost of challenging the legality of the ordinances.” Id. ¶ 3. Plaintiff

also contends that Defendants have selectively applied Ordinance 15.053, specifically pointing to

a 2017 donut shop opening. Id. ¶¶ 62-65.

After the Challenged Ordinances were passed, Plaintiff purportedly obtained an

“economically advantageous proposal” from a formula business to lease ground floor commercial

space in the building. The formula business, however, was prohibited from leasing the space

because of the Challenged Ordinances. Id. ¶¶ 67-68. The Challenged Ordinances also decreased

the value of Plaintiff’s property. Id. ¶ 71.

Plaintiff brought suit on April 5, 2019. D.E. 1. Plaintiff alleges that the Challenged

Ordinances violated the Commerce Clause and the Equal Protection Clause of the Fourteenth

Amendment. Plaintiff’s Complaint also asserts multiple state law claims. Plaintiff initially sought

injunctive relief declaring that the Challenged Ordinances are unconstitutional, in addition to

monetary relief from the lost tenant and decreased property value. Id. After Plaintiff filed its

Complaint, however, the Challenged Ordinances were repealed. Although Plaintiff no longer

seeks injunctive relief, it still seeks monetary damages through this action. D.E. 21.

II. LEGAL STANDARD

Defendants seek to dismiss the Complaint pursuant to Federal Rule of Civil Procedure

12(b)(6). Rule 12(b)(6) permits a court to dismiss a complaint that fails “to state a claim upon

which relief can be granted[.]” For a complaint to survive dismissal under Rule 12(b)(6), it must

contain sufficient factual matter to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is

facially plausible “when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. Further, a

plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery will uncover

proof of her claims.” Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016). In

evaluating the sufficiency of a complaint, district courts must separate the factual and legal

elements. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009). Restatements of

the elements of a claim are legal conclusions, and therefore, are not entitled to a presumption of

truth. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however,

“must accept all of the complaint’s well-pleaded facts as true.” Fowler, 578 F.3d at 210.

III. ANALYSIS

1. Dismissal Based on Mootness

The City and the JCPB first argue that the Complaint should be dismissed as moot because

the Challenged Ordinances were repealed on May 8, 2019.3 See, e.g., City Br. at 9-11. “The

3 Although the City and the JCPB seek to dismiss the Complaint pursuant to Rule 12(b)(6),

dismissing a complaint as moot is properly framed as one for lack of subject matter jurisdiction.

In any event, when subject matter jurisdiction is challenged on the basis of the pleadings pursuant

doctrine of mootness requires that ‘an actual controversy must be extant at all stages of review,

not merely at the time the complaint is filed.’” Brown v. Phila. Hous. Auth., 350 F.3d 338, 343

(3d Cir. 2003) (quoting N.J. Tpk. Auth. v. Jersey Cent. Power, 772 F.2d 31 (3d Cir. 1985)). “If a

claim no longer presents a live case or controversy, the claim is moot and the federal court lacks

jurisdiction to hear it.” Nextel W. Corp. v. Unity Township, 282 F.3d 257, 261 (3d Cir. 2002). An

amendment that removes the challenged aspects of statute or ordinance moots a claim for

injunctive relief from the challenged law. Id. Such an amendment, however, does not necessarily

moot a plaintiff’s claims for compensatory damages or attorneys’ fees. See Lighthouse Inst. for

Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 260 (3d Cir. 2007) (allowing a plaintiff’s

claims for damages and attorneys’ fees that resulted from an allegedly unconstitutional ordinance

to proceed).

Here, Plaintiff asserts claims for injunctive relief (Count Seven) and seeks compensatory

damages and attorneys’ fees. Compl. ¶¶ 118-26. Plaintiff concedes that its claim for injunctive

relief “is moot following the repeal of the ordinances.” Plf. Opp. at 13. Accordingly, Count Seven

is dismissed for lack of subject matter jurisdiction. Plaintiff, however, argues that the remainder

of its claims present a live controversy. Id. at 12-13. The Court agrees. Plaintiff alleges that while

the Challenged Ordinances were in effect, it lost a prospective commercial tenant and that the

Ordinances significantly reduced the value of its property. Compl. ¶¶ 67-71. These alleged

damages constitute a live controversy despite the fact that the Challenged Ordinances have been

repealed. Therefore, the City and the JCPB’s motion to dismiss is denied on these grounds as to

the remaining counts of the Complaint.

to Rule 12(b)(1), courts apply the same standard of review as a Rule 12(b)(6) motion to dismiss.

In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir.

2012).

2. Dismissal for Failure to State a Claim

In Counts One and Two, Plaintiff asserts claims pursuant to 42 U.S.C. § 1983 against all

Defendants. Section 1983, in relevant part, provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress[.]

42 U.S.C. § 1983. Section 1983 does not provide substantive rights; rather, Section 1983 provides

a vehicle for vindicating violations of other federal rights. Graham v. Connor, 490 U.S. 386, 393-

94 (1989). To state a Section 1983 claim, a plaintiff must demonstrate that “(1) a person deprived

him of a federal right; and (2) the person who deprived him of that right acted under color of state

or territorial law.” Burt v. CFG Health Sys., No. 15-2279, 2015 WL 1646849, at *2 (D.N.J. Apr.

14, 2015). No Defendant argues that it did not act under color of state law for purposes of the

instant motions.4 Accordingly, the Court focuses on whether the Challenged Ordinances violated

the Commerce Clause (Count I) or Equal Protection Clause (Count II).

a. Group Pleading

At the outset, Defendants all argue that the Complaint must be dismissed because Plaintiff

fails to plead sufficient facts demonstrating each Defendant’s individual involvement in the

purported wrongdoing. Mere “conclusory allegations against [d]efendants as a group” that “fail[]

to allege the personal involvement of any defendant” are insufficient to survive a motion to

dismiss. Galicki v. New Jersey, No. 14-169, 2015 WL 3970297, at *2 (D.N.J. June 29, 2015). A

4 The JCRA states that “[f]or the limited purpose of this motion, and in a good faith effort to reduce

the issues before the Court, the JCRA will not dispute that . . . at all relevant times [it] acted under

color of state law.” JCRA Br. at 12-13.

plaintiff must allege facts that “establish each individual [d]efendant’s liability for the misconduct

alleged.” Id. When a number of defendants are named in a complaint, a plaintiff cannot refer to

all defendants “who occupied different positions and presumably had distinct roles in the alleged

misconduct” without specifying “which defendants engaged in what wrongful conduct.” Falat v.

County of Hunterdon, No. 12-6804, 2013 WL 1163751, at *3 (D.N.J. Mar. 19, 2013). A complaint

that contains “impermissibly vague group pleading” will be dismissed. Id.

In this instance, Plaintiff falls short of the requirement that it plead specific facts as to

each Defendant’s involvement in the alleged wrongdoing. Instead, Plaintiff frequently groups the

Defendants together and simply alleges that collectively, Defendants acted improperly. Moreover,

the most detailed allegations of wrongdoing in the Complaint involve the Jersey City Mayor,

Steven M. Fulop, who is not even a defendant. See, e.g., Compl. ¶¶ 29-39. Without sufficient

factual allegations pertaining to each Defendant’s wrongdoing, the Complaint is not plausibly pled.

Although the group pleading deficiency is dispositive, Plaintiff’s pleading contains additional

defects which the Court will address because Plaintiff will be granted leave to amend its § 1983

claims.

b. Equal Protection Violation (Count II)

In Count II, Plaintiff alleges that by enacting the Challenged Ordinances, Defendants

violated Plaintiff’s rights under the Equal Protection Clause of the Fourteenth Amendment.

Compl. ¶¶ 80-91. Plaintiff does not allege that it is a member of a protected class.5 As a result,

Plaintiff appears to assert an equal protection claim based on a “class of one” theory. See Plf. Opp.

at 17-20 (arguing that Plaintiff sufficiently pleads a class-of-one equal protection claim). To state

5 Ordinarily, to plead a claim under the equal protection clause, a plaintiff must plead that it is a

member of a protected class, and was treated differently than similarly situated members of the

unprotected class. See Mayer v. Gottheiner, 382 F. Supp. 2d 635, 651 (D.N.J. 2005).

a class-of-one equal protection claim, “a plaintiff must allege that (1) the defendant treated him

differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was

no rational basis for the difference in treatment.” Newark Cab Ass’n v. City of Newark, 901 F.3d

146, 156 (3d Cir. 2018) (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006)).

Here, Plaintiff fails to sufficiently allege that any Defendant intentionally treated it

differently than other similarly situated businesses. Plaintiff asserts that the Challenged

Ordinances restricted “certain downtown redevelopment areas.” Compl. ¶ 54. Therefore, to the

extent that Plaintiff’s claim is premised on passing the Challenged Ordinances, the intentional act

apparently applied to all owners/landlords in the designated areas, not solely Plaintiff. Plaintiff’s

equal protection claim fails on these grounds.

Plaintiff contends that it sufficiently asserts a class-of-one claim because it pleads that the

City “permitted a formula business donut shop” to open in an area that was subject to the business

restrictions in the Challenged Ordinances. Compl. ¶ 62. Plaintiff continues that Defendants

permitted this business to open because it was labeled as a factory and that Defendants selectively

enforced the Challenged Ordinances in a manner that allowed the donut shop to open. Id. ¶¶ 64-

65. Taking Plaintiff’s allegations as true, the Complaint establishes that Defendants intentionally

acted in a manner that helped a single business, at the expense of Plaintiff and other

owners/landlords. As result, Plaintiff was not the only one adversely affected, which undercuts its

class-of-one theory.

c. Commerce Clause Violation (Count I)

In Count I, Plaintiff alleges that the Challenged Ordinances violated the Commerce Clause

of the United States Constitution because they discriminated against interstate commerce. The

Commerce Clause provides that Congress has the power “[t]o regulate Commerce . . . among the

several States.” U.S. Const. Art. I, § 8, cl. 3. The Clause contains an implied requirement,

frequently referred to as the Dormant Commerce Clause, “that states not ‘mandate differential

treatment of in-state and out-of-state economic interests that benefits the former and burdens the

latter.’” Cloverland-Green Spring Dairies, Inc. v. Pa. Milk Mktg. Bd., 462 F.3d 249, 261 (3d Cir.

2006) (quoting Granholm v. Heald, 544 U.S. 460, 472 (2005)). Pursuant to the Dormant

Commerce Clause, “state regulations may not discriminate against interstate commerce,” and

“may not impose undue burdens on interstate commerce.” South Dakota v. Wayfair, Inc., 138 S.

Ct. 2080, 2091 (2018). State laws that even-handedly regulate “to effectuate a legitimate local

public interest will be upheld unless the burden imposed on such commerce is clearly excessive in

relation to the putative local benefits.” Id. (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142

(1970)). State laws, however, “that discriminate against interstate commerce face ‘a virtually per

se rule of invalidity.’” Id. (quoting Granholm, 544 U.S. at 476).

The City contends that Count I should be dismissed because it is barred by the statute of

limitations. City Br. at 6-9. The statute of limitations is an affirmative defense not normally

decided on a motion to dismiss. See Crump v. Passaic County, 147 F. Supp. 3d 249, 259 (D.N.J.

2015). However, “where the complaint facially shows noncompliance with the limitations period,”

dismissal on statute of limitations grounds may be appropriate. Id.

“Section 1983 has no statute of limitations of its own, but borrows the statute of limitations

from state personal injury torts.” Nguyen v. Pennsylvania, 906 F.3d 271, 273 (3d Cir. 2018). In

New Jersey, personal injury torts have a two-year statute of limitations. Dique v. N.J. State Police,

603 F.3d 181, 185 (3d Cir. 2010). Federal law, however, governs the date when a Section 1983

claim accrues and the statute of limitations begins to run. Nguyen, 906 F.3d at 273. “A claim

accrues when the last act needed to complete the tort occurs.” Id.

Unlike the equal protection challenge, Plaintiff’s commerce clause claim does not allege

that Defendants’ application of either of the Challenged Ordinances personally harmed Plaintiff.

Instead, Plaintiff alleges that the Challenged Ordinances unconstitutionally discriminate against

interstate commerce on their face by limiting formula businesses in certain areas of Jersey City.

Compl. ¶¶ 75-77. Accordingly, Plaintiff appears to assert a facial dormant commerce clause

challenge in Count I.6 See Waterfront Renaissance Assocs. v. City of Philadelphia, 701 F. Supp.

2d 633, 642 (E.D. Pa. 2010) (“Count XV does not allege the ordinance is unconstitutional because

of its application to [Plaintiff]; rather it alleges the ordinance is unconstitutional in all applications.

Therefore, count XV is a facial challenge.”). A facial challenge to an ordinance “accrue[s] on the

date the ordinance is passed.” Silver Enters., Inc. v. Township of Freehold, No. 07-2322, 2008

WL 4068156, at *3 (D.N.J. Aug. 22, 2008); see also Knick v. Township of Scott, 862 F.3d 310,

324 (3d Cir. 2017) (explaining that facial challenges “are generally ripe the moment the challenged

regulation or ordinance is passed” (quoting Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725,

736 n.10 (1997))), overruled on other grounds by Knick v. Township of Scott, 139 S. Ct. 2162

(2019); Waterfront Renaissance Assocs., 701 F. Supp. 2d at 643 (explaining that facial challenge

to ordinance asserted in an amended complaint more than two years after ordinance was passed

was barred by the statute of limitations unless it related back to the original complaint). The

Challenged Ordinances were passed in 2015, Compl. ¶¶ 42, 56, and Plaintiff filed its complaint in

6 In its opposition brief, Plaintiff argues that it presents an as-applied dormant commerce clause

challenge in Count I. Plf. Opp. at 16. Plaintiff, however, cannot amend its pleading through a

brief. Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (“It is axiomatic

that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”)

(quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir.1984)).

2019, D.E. 1, approximately four years later. Consequently, as pled, Count I is barred by the two-

year statute of limitations.7

Plaintiff counters that the discovery rule applies to Count I. Pursuant to the federal

discovery rule, “a claim will accrue when the plaintiff discovers, or with due diligence should have

discovered, the injury that forms the basis for the claim.” Romero v. Allstate Corp., 404 F.3d 212,

222 (3d Cir. 2005). As discussed, Plaintiff appears to assert a facial commerce clause challenge

in Count I. Although Plaintiff claims that it did not have actual notice of the Challenged

Ordinances, it admits that there were public hearings before both of the Challenged Ordinances

were adopted. Compl. ¶¶ 45, 50, 57. More importantly, once a law is passed, all relevant citizens

are deemed to have notice of its contents. See Fed. Crop. Ins. Corp. v. Merrill, 332 U.S. 380, 384-

85 (1947). Finally, by virtue of Ordinance 15.053, language regarding the formula business

restriction was inserted into the Redevelopment Plan for 8 Erie Street. Compl. ¶¶ 2, 49. Therefore,

the Court concludes that Plaintiff had, at a minimum, sufficient constructive notice of the

Challenged Ordinances when they were enacted in 2015. The discovery rule does not save Count

I from the statute of limitations. As a result, Count I is dismissed.8

7 The City also seek to dismiss Count II on statute of limitations grounds. City Br. at 6-9. Count

II raises an as-applied rather than facial challenge. See Compl. ¶¶ 88-90 (alleging that Defendants

selectively enforced the Challenged Ordinances in a manner that damaged Plaintiff). “[T]he tort

cause of action accrues, and the statute of limitations commences to run, when the wrongful act or

omission results in damages.” Williams v. Borough of Highland Park, 707 F. App’x 72, 75 (3d

Cir. 2017) (quoting Dique, 603 F.3d at 185-86). Thus, an as-applied constitutional challenge to

an ordinance accrues once the ordinance is enforced as to a plaintiff. See, e.g., id. (affirming

decision that as-applied claim accrued when plaintiffs received notices informing them that their

property was not in compliance with the challenged ordinance). In this instance, it is not clear

from the Complaint when Plaintiff is asserting that the Challenged Ordinances were improperly

enforced as to it. Because the Court is granting Plaintiff leave to amend, Plaintiff should make

such allegation clear in its amended complaint should it choose to file one.

8 Because the Court is dismissing Count I on statute of limitations grounds, it will not address

Defendants’ remaining arguments that the claim is not plausibly pled.

3. Supplemental Jurisdiction

To adjudicate a case, a federal court must have either federal question or diversity

jurisdiction. 28 U.S.C. §§ 1331, 1332; see also Rockefeller v. Comcast Corp., 424 F. App’x 82,

83 (3d Cir. 2011). Here, the parties are not diverse. See Compl. ¶¶ 6-10 (alleging that all parties

are citizens of New Jersey). Instead, as noted above, the Court’s federal question jurisdiction is

based on Plaintiff’s § 1983 and declaratory judgment claims. See Rockefeller, 424 F. App’x at 83

(federal question jurisdiction arises when a federal court has subject matter jurisdiction arising

under “the Constitution, laws, or treaties of the United States.”). This Court has supplemental

jurisdiction over Plaintiff’s state law claims by virtue of 28 U.S.C. § 1367(a).

28 U.S.C. § 1367(a) confers district courts with supplemental jurisdiction over “claims that

are so related to the claims in the action within such original jurisdiction that they form part of the

same case or controversy.” 28 U.S.C. § 1367(a). 28 U.S.C. § 1367(c), however, gives district

courts discretion to decline to hear claims they would otherwise have supplemental jurisdiction to

entertain pursuant to § 1367(a). Namely, § 1367(c)(3) provides that a “district court[] may decline

to exercise supplemental jurisdiction over a claim” if “the district court has dismissed all claims

over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). While the determination of

whether to decline supplemental jurisdiction under § 1367(c)(3) is discretionary, “[t]he general

approach is for a district court to . . . hold that supplemental jurisdiction should not be exercised

where there is no longer any basis for original jurisdiction.” Shaffer v. Township of Franklin, No.

09-347, 2010 WL 715349, at *1 (D.N.J. Mar. 1, 2010); see also United Mine Workers of Am. v.

Gibbs, 383 U.S. 715, 726 (1966) (encouraging federal courts to avoid “[n]eedless decisions of state

law”); Markowitz v. Ne. Land Co., 906 F.2d 100, 106 (3d Cir. 1990) (“[T]he rule within this Circuit

is that once all claims with an independent basis of federal jurisdiction have been dismissed the

case no longer belongs in federal court.”).

As discussed, Plaintiff's § 1983 and declaratory judgment claims are dismissed. And those

are the claims that form the basis of the Court’s subject-matter jurisdiction. As a result, the Court

does not reach any issues concerning counts over which it exercises supplemental jurisdiction.

IV. CONCLUSION

For the reasons set forth above, Defendants’ motions to dismiss are GRANTED in part

and DENIED in part. Count VII is DISMISSED without prejudice for lack of subject matter

jurisdiction. Plaintiff's § 1983 claims, Counts I and II, are DISMISSED pursuant to Rule 12(b)(6).

These Counts are dismissed without prejudice. Plaintiff is provided with thirty (30) days to file an

amended complaint that cures the deficiencies noted herein with respect to its § 1983 claims.

Alternately, if Plaintiff chooses not to replead its § 1983 claims, Plaintiff should notify the Court

before the thirty days expire as this Court lacks subject matter jurisdiction over Plaintiff's

remaining state law claims. If Plaintiff does not file an amended pleading, its state law claims will

be dismissed for lack of jurisdiction. An appropriate Order accompanies this Opinion.

Dated: May 21, 2020

□□□ yOO. VN a KO

John Michael Vazquez, U.S‘DJ.°U

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