YU v. GILMORE

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

YUE YU,

Plaintiff,

No. 23cv2003 (EP) (MAH)

v.

OPINION

ANITA GILMORE, et al.,

Defendants.

PADIN, District Judge.

Pro se Plaintiff Yue Yu lives in single-family residential area of Kearny, New Jersey, next

to Defendant Anita Gilmore. Gilmore is a veteran’s surviving spouse, which entitles her to claim

a property tax exemption (the “Veterans’ Exemption”). The problem, in Plaintiff’s telling, is that

Kearny also lets Gilmore operate a seasonal tax preparation business from her home, permitting

Gilmore to claim both the Veterans’ Exemption and deductions for expenses related to the use of

her home as a business. Thus, Plaintiff alleges: (1) civil rights violations against the New Jersey

legislature and the Director of the New Jersey Division of Taxation (the “State Defendants”); (2)

civil rights violations against the Town of Kearny (“Kearny”), Kearny tax assessor John Peneda,

and Kearny “zoning official” Anthony Chisari (collectively the “Kearny Defendants”); and (3)

fraud and tax evasion against Gilmore. See D.E. 1 (“Complaint” or “Compl.”).

The Kearny Defendants move, pursuant to Fed. R. Civ. P. 12(b)(1) and (6), to dismiss the

Complaint for lack of subject matter jurisdiction and for failure to state a claim. D.E. 9 (“Kearny

Mot.”). The State Defendants move on the same grounds. D.E. 11 (“State Mot.”).

The motions will be GRANTED. The state and local tax-related claims against all parties

cannot be adjudicated in federal court, and have already been adjudicated in state Tax Court; thus,

they will be DISMISSED with prejudice.1 The zoning enforcement claims are not precluded,

but are inadequately pled; thus, they will be DISMISSED without prejudice.2

I. BACKGROUND3

A. This Action

Plaintiff lives next to Gilmore. Compl. ¶ 15. Gilmore has not paid property taxes for

decades due to the Veterans’ Exemption. Id. ¶ 16. Plaintiff challenges Gilmore’s use of her home

to operate a tax preparation business employing eight people during tax season. ¶¶ 17-19.

Kearny has been aware of Gilmore’s business but “failed to enforce [its] zoning

ordinance.”4 Id. ¶ 25. Kearny’s enforcement has, according to Plaintiff, been selective. For

example, a different Kearny business owner was threatened with a $1,000 fine for a banner

announcing her granddaughter’s birth. Id. ¶ 26. Likewise, Plaintiff was threatened with a fine for

failing to remove a tree in front of her property. Id. ¶ 27.

Gilmore’s business has impacted Plaintiff. For example, during tax filing season,

Gilmore’s employees are present at the property between 9 a.m. and 11 p.m. Id. ¶ 21. Similarly,

Gilmore’s clients “take most street parking spaces.” Id. ¶ 36. Plaintiff also alleges that the Kearny

Defendants have been improperly calculating Plaintiff’s taxes by using an “unproven and

unrecognized method . . . in order to save assessment fees for Kearny.” Id. ¶ 31.

Based on these allegations, Plaintiff asserts five causes of action:

1. Civil rights violations, 42 U.S.C. § 1983 – 14th Amendment. Id. ¶¶ 40-67.

2. 42 U.S.C. § 1983 Supervisor Liability. Id. ¶¶ 68-77.

1 Gilmore was served on June 13, 2023, but has not answered. Nevertheless, for the reasons below,

this matter will also be dismissed against her.

2 The Court notes Plaintiff’s oral argument requests, D.E.s, 16, 18, but deems it unnecessary to

resolve the pending motions. Fed. R. Civ. P. 78; L.Civ.R.78(b).

3 Except where otherwise noted, this section derives from the Complaint’s well-pled factual

allegations, presumed to be true for the purposes of these motions.

4 Plaintiff does not identify the ordinance.

3. Violation of New Jersey Civil Rights Act. Id. ¶¶ 78-84.

4. Fraud against Gilmore. Id. ¶¶ 85-92.

5. Tax evasion against Gilmore. Id. ¶¶ 93-95.

Counts 1 through 3 can be subcategorized as follows: (1) state and federal civil rights

claims against the State Defendants stemming from Gilmore’s Veterans’ Exemption; (2) state and

federal civil rights claims against the Kearny Defendants stemming from Gilmore’s Veterans’

Exemption and Kearny’s tax assessment on Plaintiff’s property; and (3) state and federal civil

rights claims against the Kearny Defendants for selective zoning enforcement, i.e., permitting

Gilmore to run a business from her residence. Counts 4 and 5 stand alone: they are individual tax

and fraud claims against Gilmore individually.

Based on these allegations, Plaintiff seeks damages and various forms of injunctive and

declaratory relief. Id. at 15-16. Plaintiff essentially seeks to have Gilmore’s Veterans’ Exemption

revoked and Plaintiff’s own taxes refunded. Id.

B. Plaintiff Loses Similar Challenges in State Tax Court

Plaintiff has filed at least two Tax Court actions, one of which encompassed allegations

similar to those here. The first was a 2021 tax appeal seeking to decrease Kearny’s assessment of

Plaintiff’s home. See D.E. 12-1, New Jersey Tax Court Docket No. 11024-2021 (the “Tax

Appeal”). Plaintiff and Kearny settled the Tax Appeal, agreeing to a refund and the right to

challenge future assessments. Id.

Plaintiff also filed a separate Tax Court action related to Gilmore’s Veterans’ Exemption.

See D.E. 9-2, Kearny Mot. Ex. 1, Yu v. Kearny, New Jersey Tax Court Docket No. 11046-2021

(the “Gilmore Tax Case”). There, Plaintiff argued that Gilmore’s Veterans’ Exemption should be

revoked because Gilmore’s property was “not used solely for residential purpose[s],” but also “to

conduct [Gilmore’s tax business] for 45 years.” Id. at 14; D.E. 9-2 at 14. Plaintiff argued that

Gilmore also used the business to justify deducting “all expenses caused to maintain the property,”

including utilities, “security surveillance,” mowing lawn, pool and household cleaning service,

property improvement costs, etc.” Id. The Tax Court joined Gilmore as a party. Id. at 12.

On February 24, 2022, after a hearing, the Tax Court found that: (1) Gilmore “indisputably

. . . satisfies the qualifying factors for a surviving spouse’s entitlement to the [Veterans’ Exemption]

pursuant to N.J.S.A. § 54:4-30,5 et seq.”; (2) N.J.S.A. § 54:4-30 does not prohibit the use of a

residence as a home office; and (3) the evidence did not “delineate a measurable portion of the

residential property being used exclusively as a business.” Id. at 18, Kearny Mot. Ex. 3. Based

on these findings, the Tax Court dismissed Plaintiff’s complaint with prejudice. Id.

C. The Pending Motions

The Kearny and State Defendants now move to dismiss. The Kearny Defendants argue

that (1) the Rooker-Feldman doctrine divests this Court of jurisdiction to consider Plaintiff’s

claims because the New Jersey Tax Court already addressed them; and (2) the Complaint fails to

state a claim upon which relief can be granted. The State Defendants argue that: (1) Plaintiff’s

claims are vague and not cognizable; (2) the TIA bars Plaintiff’s claims; and (3) principles of

comity also bar Plaintiff’s claims.

Plaintiff opposes both motions. D.E. 12 (“Pl. Kearny Opp’n”); D.E. 20 (“Pl. State

Opp’n”).6 The Kearny and State Defendants each reply. D.E. 15 (“Kearny Reply”); D.E. 22

(“State Reply”).

5 This appears to reference N.J.S.A. § 54:4-3.30.

6 Plaintiff submitted duplicate oppositions to the State Defendants’ motion. See D.E. 19, 20.

II. LEGAL STANDARDS

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a court accepts all well-pled facts as

true, construes the complaint in the plaintiff’s favor, and determines “whether, under any

reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. Cnty. of

Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (cleaned up). “In deciding a Rule 12(b)(6) motion, a

court must consider only the complaint, exhibits attached to the complaint, matters of public

record, as well as undisputedly authentic documents if the complainant’s claims are based upon

these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010).

To survive a Rule 12(b)(6) challenge, the plaintiff’s claims must be facially plausible,

meaning that the well-pled facts “allow[] the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The allegations must be “more

than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

do.” Twombly, 550 U.S. at 555. “[A] court considering a motion to dismiss can choose to begin

by identifying pleadings that, because they are no more than conclusions, are not entitled to the

assumption of truth.” Ashcroft, 556 U.S. at 679. Finally, “[w]hile legal conclusions can provide

the framework of a complaint, they must be supported by factual allegations.” Id.

Disposition of Rule 12(b)(1) motions is more complicated. “A district court has to first

determine . . . whether a Rule 12(b)(1) motion presents a ‘facial’ attack or a ‘factual’ attack on the

claim at issue, because that distinction determines how the pleading must be reviewed.”

Constitution Party of Penn. v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014) (citing In re Schering

Plough Corp. Intron, 678 F.3d 235, 243 (3d Cir. 2012)). “A facial attack . . . is an argument that

considers a claim on its face and asserts that it is insufficient to invoke the subject matter

jurisdiction of the court because, for example, it does not present a question of federal law, or

because there is no indication of a diversity of citizenship among the parties, or because some other

jurisdictional defect is present.” Id. at 358. But “[a] factual attack is an argument that there is no

subject matter jurisdiction because the facts of the case . . . do not support the asserted jurisdiction.”

Id. In a factual attack, “the District Court may look beyond the pleadings to ascertain the facts.”

Id. “In sum, a facial attack ‘contests the sufficiency of the pleadings,’” id. (quoting In re Schering

Plough Corp., 678 F.3d at 243), “‘whereas a factual attack concerns the actual failure of a

[plaintiff’s] claims to comport [factually] with the jurisdictional prerequisites.’” Id. (quoting CNA

v. United States, 535 F.3d 132, 139 (3d Cir. 2008)).

Here, Defendants do not dispute Plaintiff’s central factual allegations: that Gilmore was

granted the Veterans’ Exemption and permitted to run a business at her residential property.

Accordingly, this is a facial attack. And on a facial attack, this Court can consider whether the Tax

Case and Tax Appeal, the existence and outcome of which Plaintiff does not dispute, divest this

Court of jurisdiction. See John G. v. Northeastern Educ. Intermediate Unit 19, 490 F. Supp. 2d

565, 575 (M.D. Pa. 2007) (“[T]he court may consider only the [complaint’s allegations and

exhibits], matters of public record such as court records, letter decisions of government agencies

and published reports of administrative bodies, and ‘indisputably authentic’ documents which the

plaintiff has identified as a basis of his claims and which the defendant has attached as exhibits to

his motion to dismiss.”); Silverberg v. City of Phila., No. 19-2691, 2020 U.S. Dist. LEXIS 4736,

at *10-11 (E.D. Pa. Jan. 8, 2020) (considering docket printout for state case, lower court opinion,

and appellate court opinion on facial attack).

III. ANALYSIS

Because “[s]ubject matter jurisdiction is a threshold requirement for asserting a claim in

federal court,” the Court addresses Defendants’ jurisdictional arguments first. Silverberg, 2020

U.S. Dist. LEXIS 4736, at *12-13.

A. This Court Lacks Jurisdiction Over Plaintiff’s Tax-Related Claims based on

the Tax Injunction Act (“TIA”), Comity Principles, and the Rooker-Feldman

Doctrine

1. The TIA and principles of comity bar Plaintiff’s tax-related claims because “plain,

speedy, and efficient” state court procedures are available

The State Defendants argue that the TIA bars taxpayers from challenging the administration

of a state tax in federal court. State Mot. at 6. The Kearny Defendants join this argument. Kearny

Reply at 4. The Court agrees that the TIA precludes claims here related to the Veterans Exemption

pertaining to Gilmore’s home, Kearny’s tax assessment of Plaintiff’s home, or any other tax issue.

The TIA provides that “district courts shall not enjoin, suspend or restrain the assessment,

levy or collection of any tax under State law where a plain, speedy and efficient remedy may be

had in the courts of such State.” 28 U.S.C. § 1341. This “embodie[s] Congress’ decision to transfer

jurisdiction over a class of substantive federal claims from the federal district courts to the state

courts, as long as state-court procedures [are] ‘plain, speedy and efficient’ and final review of the

substantive federal claim could be obtained in [the Supreme Court].” Rosewell v. La Salle Nat’l

Bank, 450 U.S. 503, 515 n.19 (1981). The TIA is a jurisdictional bar to certain cases involving

state taxes. See In re Hechinger Inv. Co. of Del., Inc., 335 F.3d 243, 247 n.1 (3d Cir. 2003).

Similarly, “taxpayers are barred by the principle of comity from asserting Section 1983

actions against the validity of state tax systems in federal courts” so long as “plain, adequate, and

complete” remedies are available in state court.7 Fair Assessment in Real Estate Ass’n v. McNary,

454 U.S. 100, 116 (1981). “Taken together, the [TIA] and the Supreme Court’s decision in

McNary make it clear that a federal court cannot entertain a suit posing either an equitable or a

legal challenge to state or local taxes . . . if a sufficient remedy . . . is available in state court.”

Kerns v. Dukes, 153 F.3d 96, 101 (3d Cir. 1998). The “critical criterion” as to the adequacy of the

remedy available to taxpayers is “not the relief which they can obtain” in state court proceedings,

but “whether [the state court] provides a forum for presentation of their claims.” Hardwick v.

Cuomo, 891 F.2d 1097, 1106 (3d Cir. 1989).

Here, there is clearly a “plain, speedy, and efficient” state court procedure available to

Plaintiff. A taxpayer may challenge an added assessment by appealing to the County Board of

Taxation on or before December 1st of the year of the assessment. N.J.S.A. § 54:4-63.11. The

County Board must hear the appeal and render judgment within one month after the last day for

filing such appeals. Id. If the taxpayer is still dissatisfied, he or she may appeal the Board’s

decision to the Tax Court within forty-five days of the Board judgment. Id. In the Tax Court, the

taxpayer is entitled to a de novo hearing before a tax court judge with expertise in the field of real

property valuation. N.J.S.A. § 2B:13-3(b); see Union City Associates v. City of Union City, 115

N.J. 17, 23 (1989) (stating that Tax Court provides de novo review). A taxpayer may then proceed

to the Appellate Division and beyond. N.J.S.A. § 2B:3-4.

This satisfies the “‘minimal procedural criteria’ . . . to preclude section 1983 suits in either

federal or state courts.” GMC v. City of Linden, 143 N.J. 336, 350 (1996) (quoting Rosewell, 450

7 Courts analyze NJCRA claims under the same standards as section 1983 claims. Est. of Gandy

v. City of Millville, 2023 U.S. Dist. LEXIS 172088, *17-18 (D.N.J. Sept. 25, 2023).

U.S. at 512). Indeed, Plaintiff utilized the procedure for both her own tax appeal and her challenge

to Gilmore’s Veterans’ Exemption.

In opposition, Plaintiff argues that “the TIA should not apply . . . as Plaintiff is not

challenging the assessment, levy, or collection of a state tax. Instead, she is seeking declaratory

and injunctive relief against the State Defendants’ alleged failure to enforce tax laws. . . . [T]his

instant civil action is about civil rights violations of Plaintiff, not tax assessment.” Pl. State Opp’n

at 4, ¶ 6.

However, Plaintiff’s attempt to reframe her challenge to the administration of taxes—both

hers and Gilmore’s—as a civil rights claim is unavailing. As noted above, the availability of a

“plain, speedy, and efficient” Tax Court proceeding precludes those claims. Moreover,

constitutional objections are, and have been, available in Tax Court. See GMC, 143 N.J. at 349

(“Even before the . . . [expansion of] Tax Court jurisdiction to hear any tax-related matters over

which the Superior Court would have jurisdiction, the Tax Court could correct an unconstitutional

assessment.”); see also Russo v. Twp. of Plumsted, No. 13-5082, 2014 U.S. Dist. LEXIS 94318, at

*23-26 (D.N.J. July 11, 2014) (finding that TIA bars claim that “indirectly challenges the validity

of the procedures implemented and final determinations made by [defendant township’s] Tax

Assessor with respect to whether a farmland designation on [p]laintiff's [p]roperty was justified”).

Accordingly, this Court lacks jurisdiction to consider Plaintiff’s tax challenges. Thus, the

State Defendants’ motion to dismiss and the portion of the Kearny Defendants’ motion addressing

taxation will be GRANTED and any tax-related claims will be DISMISSED with prejudice for

lack of jurisdiction. Because the Complaint’s allegations against Gilmore relate entirely to

taxation, see Compl. ¶¶ 85-95, the Court will also sua sponte DISMISS with prejudice Counts

Four and Five against Gilmore.8

2. The Rooker-Feldman doctrine also bars Plaintiff’s tax-related claims because she

already litigated them in Tax Court

The Kearny Defendants argue that the Rooker-Feldman doctrine bars this Court from

considering Plaintiff’s claims because it would have to, in effect, sit as an appellate court reviewing

or modifying the state Tax Court’s judgment. Kearny Mot. at 2.

“The Rooker-Feldman doctrine [precludes] lower federal court jurisdiction over claims that

were actually litigated or inextricably intertwined with adjudication by a state’s courts.” Parkview

Assocs. Pshp. v. City of Leb., 225 F.3d 321, 325 (3d Cir. 2000). A federal action is inextricably

intertwined with a state adjudication, and thus barred in federal court under Feldman, “where

federal relief can only be predicated upon a conviction that the state court was wrong.” Id.

“[T]here are four requirements . . . for the Rooker-Feldman doctrine to apply: (1) the federal

plaintiff lost in state court; (2) the plaintiff ‘complain[s] of injuries caused by [the] state-court

judgments’; (3) those judgments were rendered before the federal suit was filed; and (4) the

plaintiff is inviting the district court to review and reject the state judgments.” Great Western

Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010) (quoting Exxon

Mobil, 544 U.S. at 284).

Here, the Court could not award Plaintiff what she seeks—as far as this Court can discern,

to strip Gilmore or all tax exemptions and close her business—without overruling the Tax Court.

8 Federal courts have a “continuing obligation to assess [their] subject matter jurisdiction,” and

thus can “dismiss a suit sua sponte for lack of subject matter jurisdiction at any stage in the

proceeding.” Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 420 (3d Cir. 2010). Notably,

there is no basis to find that Plaintiff has standing to challenge Gilmore (or anyone’s) failure to

pay federal taxes. Caldwell v. Singerman, 2023 U.S. Dist. LEXIS 12189, *7 (N.D. OH Jan. 23,

2023).

The Rooker-Feldman doctrine has previously barred actions meant to “get around” a state court

tax judgment. See Silverberg, 2020 U.S. Dist. LEXIS 4736, at *15 (holding that Rooker-Feldman

applies to plaintiff who effectively sought review of default judgment against him related to unpaid

taxes); Marquardt v. Supervisor of Dep’t of Assessments & Taxation of Calvert Cnty., 195 F. Supp.

2d 706, 710 (D. Md. 2002) (dismissing claim that tax reassessment affirmed by state appellate

court violated United States Constitution’s Contracts Clause); see also Kepoint Preservation Trust

Org. ex rel. Brown v. Fisher, 173 F. App’x 191, 194 (3d Cir. 2006) (affirming dismissal of claim

that real estate transfer taxes violated Contracts Clause and Pennsylvania law where earlier

Pennsylvania court rulings adverse to plaintiff were “inextricably intertwined” with plaintiff’s

claims in federal court).

Plaintiff argues, in substance, that “the Rooker-Feldman doctrine is not applicable in this

case as the federal claim was not actually litigated in the state court prior to the federal action, nor

is the federal claim inextricably intertwined with the state court adjudication.” Opp’n at 3.9 But

this argument is unavailing—the tax issues raised here were clearly raised in Tax Court.

In the Tax Case, Plaintiff argued that Gilmore continues to enjoy the Veterans’ Exemption

despite not using her property solely as a residence. See D.E. 9-2 at 6. In the Tax Appeal, Plaintiff

challenged Kearny’s assessment methodology. See D.E. 12-1.

And here, arguments reframed as civil rights claims simply reanimate the same tax issues.

For example, Count One centers on Gilmore’s use of her property-tax-exempt home to run a

business. Compl. ¶¶ 45-47. Count Two, framed as a supervisory liability claim, alleges that “[t]he

9 Plaintiff also differentiates this action from the Tax Court matters by characterizing it as “a civil

action . . . about civil rights violations of Plaintiff.” Pl. State Opp’n at 4. The Tax Court, Plaintiff

argues, “doesn’t have authority to adjudicate civil rights violations.” Id. These are essentially the

same arguments made, and rejected above, in response to the TIA issue.

failure of Kearny to train, supervise and correct [its assessor’s] methodology of assessing property

value in Kearny amounted to gross negligence. Id. ¶ 74.10 And Counts Four and Five, asserted

against Gilmore only, exclusively concern Gilmore’s taxes. Id. ¶¶ 85-95.

Plaintiff’s opposition papers confirm the Court’s interpretation. For example, just as she

did in Tax Court, Plaintiff invites the Court to “consult . . . the New Jersey Supreme Court’s

decision” in Gourmet Dining, LLC v. Union Township11 to clarify that Gilmore’s property “should

not be tax exempted if it is used for profit purposes.” Compare Pl. State Opp’n at 13 with D.E. 9-

2 at 6, ¶ 6. Thus, Plaintiff’s tax-related claims here are clearly not only “inextricably intertwined”

with her Tax Court claims, but are one and the same. Accordingly, this Court is precluded from

considering them, which provides a separate basis to DISMISS with prejudice any tax-related

claims.

B. Plaintiff Fails to State a Claim for Selective Zoning Enforcement

As discussed above, the tax-related claims, which comprise much of the Complaint, must

be dismissed without prejudice for lack of jurisdiction. And normally, upon finding that it lacks

jurisdiction, a court would proceed no further. See Battles v. Washington Metro. Area Transit

Auth., 272 F. Supp. 3d 5, 10-11 (D.D.C. 2017) (“Faced with motions to dismiss under Rule 12(b)(1)

and Rule 12(b)(6), a court should first consider the Rule 12(b)(1) motion because [o]nce a court

determines that it lacks subject matter jurisdiction, it can proceed no further.”)

However, though the parties barely address the Complaint’s allegation that Kearny “failed

to enforce [its] zoning ordinance,” it remains part of the Complaint’s civil rights claims (Counts

One through Three). See Compl. ¶ 25; see also id. ¶¶ 53, 56; Pl. State Opp’n at 13 (“Defendants

10 Count Three, which alleges a New Jersey Civil Rights Act violation, relies “on the aforesaid

conduct.” Id. ¶ 83.

11 243 N.J. 1, 4 (2020).

have continued [their] violations of Plaintiff’s civil rights by selectively enforcing zoning

ordinance.”). This allegation was not part of either the Tax Appeal or Gilmore Tax Case, and

therefore is not precluded under the TIA, comity doctrine, or Rooker-Feldman doctrine. That said,

though the Court must construe the pro se Complaint liberally, it cannot “add facts that [Plaintiff]

does not supply.” Doe v. Law Sch. Admission Council, Inc., 791 F. App’x 316, 321 (3d Cir. 2019).

Accordingly, the zoning enforcement claim will be DISMISSED without prejudice.

“[T]he reality is that local town officials engage in a vast range of highly discretionary

decisions that affect the property rights and everyday activities of town citizens.” Gray v. Town

of Easton, 115 F. Supp. 3d 312, 317 (D. Conn. 2015). Moreover, “[s]mall town governments often

make decisions with less than perfect information and ordinarily without the benefit of

sophisticated enforcement resources.” Id. Accordingly, “not every wrong or ill-informed decision

by a local government official is grounds for a federal constitutional cause of action.” Id. Thus,

“[c]ourts . . . have repeatedly cautioned about the danger of ordinary disputes between a citizen

and a municipality — whether it be about land use, licenses, inspections, or some other regulatory

or investigative function of local governments — being transformed into federal lawsuits by an

incorrect, overexpansive theory of class-of-one liability.” DeFalco v. Dechance, 949 F. Supp. 2d

422, 434 (E.D.N.Y. 2013) (citation omitted).

In limited circumstances, the Equal Protection Clause prohibits the “selective

enforcement” of a law based on an unjustifiable standard. Thomas v. Independence Twp., 463 F.3d

285, 297 (3d Cir. 2006); see also United States v. Batchelder, 442 U.S. 114, 125 n.9 (1979). To

establish a selective-enforcement claim, a plaintiff must demonstrate: (1) treatment different from

other similarly situated individuals, and (2) that this selective treatment was based on an

unjustifiable standard, such as race, or religion, or some other arbitrary factor, or to prevent the

exercise of a fundamental right. PG Publ’g Co. v. Aichele, 705 F.3d 91, 115 (3d Cir. 2013) (citing

Dique v. N.J. State Police, 603 F.3d 181, 184 n.5 (3d Cir. 2010)). To maintain an equal protection

claim, a plaintiff must show not only that the administration of a law has resulted in unequal

application to those who are entitled to be treated alike, but also that there is an element of

intentional or purposeful discrimination present. Id.; see also Jewish Home of E. Pa. v. Ctrs. for

Medicare and Medicaid Servs., 693 F.3d 359, 363 (3d Cir. 2012) (“[T]o maintain an equal

protection claim of this sort, [plaintiff] must provide evidence of discriminatory purpose, not mere

unequal treatment or adverse effect.”).

Here, the Court strains to find any plausible constitutional infirmity. Plaintiff does not, for

example, name the specific Kearny ordinance that Kearny is enforcing selectively, examples of

that selective enforcement, or how Plaintiff is similarly situated to Gilmore (or anyone else). Even

if she had identified one,12 however, Plaintiff does not allege that she is entitled to, and has been

denied from receiving, the benefit of any ordinances. See Jewish Home, 693 F.3d at 363 (finding

no “[s]elective discriminatory enforcement” where facts demonstrated only that some facilities

were penalized less often than plaintiff). She alleges just one specific example of selective

enforcement against her: that Kearny threatened her “with [a] $500 . . . fine if Plaintiff didn’t

12 Plaintiff appears to reference Kearny Ordinance § 38-6.2, which governs “Accessory Uses in

Residential Zones.” The street where Plaintiff and Gilmore’s properties are located is designated

R-1, or single-family zoning. See Kearny Zoning Map, available at

http://viewer.myidv.com/Map/71332c322babacd3/Kearny-myiDV---Public. That ordinance lists

certain requirements for businesses operated out of single-family houses. The requirements

include, as relevant to Plaintiff’s complaints, that such a business “shall not use more than 1/3 of

the total floor area of the dwelling unit or 750 square feet, whichever is less,” shall not permit

“more than one nonresident employee,” shall not “generate traffic, parking, . . . or any other hazard

or nuisance to any greater or more frequent extent than what normally occurs in the applicable

zoning district,” shall not serve more than three customers at a time, and must provide a certain

amount of off-street parking depending on the amount of the residence used as part of the business.

It also explicitly excludes certain uses—like nursery schools, gun shops, and tattoo parlors—but

notably does not exclude tax preparation offices.

remove a landscaping tree in front of her property” despite other properties and businesses

“hav[ing]| the same type of trees on their properties.”

However, “[l]and-use decisions are matters of local concern and such disputes should not

be transformed into substantive due process claims based only on allegations that government

officials acted with improper motives.” Hankin Family P ship v. Upper Merion Twp., No. 01-

1622, 2012 U.S. Dist. LEXIS 1471, at *58-59 (E.D. Pa. Jan. 5, 2012). Therefore, federal courts

apply the “shocks the conscience” test to avoid converting a court into super zoning boards of

appeals. Giuliani v. Springfield Twp., 726 F. App’x 118, 123 (3d Cir. 2018).

Here, Plaintiff does not explain why any zoning decisions made by Kearny—against her

or Gilmore have utilized an “unjustifiable standard,” or identify any conduct or motive that

“shocks the conscience.” Indeed, Plaintiff does not even allege that Kearny ever carried out its

threat, or that she was forced to remove the tree. Even if she had, however, this would not rise to

a constitutional concern. Because the Court addresses Plaintiff's first pleading, and because an

amended complaint could plausibly allege additional facts, the zoning-related claims will be

DISMISSED without prejudice and with an opportunity to amend.'?

IV. CONCLUSION

For the reasons above, the Kearny Defendants’ motion to dismiss, D.E. 9, and the State

Defendants’ motion to dismiss, D.E. 11, will be GRANTED as follows.

e Because Plaintiff fails to state a civil rights claim for selective enforcement of

zoning ordinances, the branch of the Kearny Defendants’ motion seeking to dismiss

'3 Plaintiff is cautioned, however, that the filing of any future frivolous papers in this action or the

opening of any new frivolous lawsuits, including any unreasonable attempt to relitigate claims

dismissed with prejudice, may be met with monetary sanctions, including attorneys’ fees and costs.

Peter v. New Jersey, No. 23-2477, 2024 U.S. Dist. LEXIS 14076, at *13 (D.N.J. Jan. 26, 2024);

Nufrio v. Quintavella, 2012 U.S. Dist. LEXIS 16791, at *4 (D.N.J. Feb. 10, 2012) (sanctioning

pro se plaintiff for repeated frivolous filings and ordering payment of $1,000 as a deterrent for

future violations).

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those claims will be GRANTED and the Court will DISMISS those claims against

the Kearny Defendants without prejudice and with leave to amend within 30 days

of the accompanying Order.

e Because the TIA, comity principles, and Rooker-Feldman doctrine preclude this

Court’s consideration of state tax issues, this Court will GRANT the State

Defendants’ motion and the branch of the Kearny Defendants’ motion addressing

tax claims and DISMISS any tax-related claims with prejudice.

e The Court will also sua sponte DISMISS with prejudice the claims against

Gilmore.

An appropriate Order accompanies this Opinion.

<7. p-

March 20, 2024 Ledge!

Evelyn Padin, U.S.D.J.

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