Petition — Blazer Corp. v. New Jersey Sports & Exposition Authority

Supreme Court brief1983

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2° 1 6 1 4 Office-Supreme Court, U.S.

—_—--- my j j L D

MAR 29 1993

IN THE

ANDER L. STEVAS,

Supreme Court of the United States:

OCTOBER TERM, 1982

BLAZER CORPORATION,

Petitioner,

af, ame

NEW JERSEY SPORTS AND EXPOSITION AUTHORITY, DAVID A.

WERBLIN, CHARLES SERRAINO, ADRIAN M. FOLEY, JR.,

GEORGE F. KUGLER, JR., AUBREY C. LEWIS, JOSEPH M.

MCCRAINE and “JOHN DOES”, said names being ficti-

tious

‘ Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

Of Counsel: ROBERT S. TOBIN

Harry E. Youtt Counsel of Record

152 Market Street

Paterson, New Jersey 07505

(201) 881-8554

HARRY E. YOUTT

350 Broadway

New York, New York 10013

(212) 334-9000

Dated: March 29, 1983 Attorneys for Petitioner

STATEMENT OF QUESTIONS

PRESENTED FOR REVIEW

The following issues are presented for review of this peti-

tion:

Whether state statutes of limitation which extend spe-

cial status to public agencies or officials may be “bor-

rowed” to exclude liability for deprivations alleged

under 42 U.S.C. § 1983.

. Whether the Courts below erred in creating an expan-

sive interpretation of the “respondeat superior” exclu-

sion from 42 U.S.C. § 1983 liability so as to prevent

the imputation of public agency wrongdoing to mem-

bers of a public agency and to immunize such members

from liability for passive or culpable neglect.

Whether the Courts below erred in creating an exclu-

sion from the 42 U.S.C. § 1983 liability of a public

agency chief executive for failure to perform statutor-

ily mandated acts, because they are part of “an ad-

ministrative plan to help the state regulate its officers’

conduct.”

Whether post-deprivation remedies under the New Jer-

sey Eminent Domain and Relocation Benefits statutes

existed sufficient to cure the deprivation of petitioner’s

rights to due process and equal protection of law.

TABLE OF CONTENTS

STATEMENT OF QUESTIONS PRESENTED FOR

OTT Te Tree rereTrerrrer ee errey

PE SP FAAP UNUIREBEEED so cc cccccccccccsovcsaces

eT os beveercvcceserenveveseceves

STATEMENT OF GROUNDS ON WHICH THE

JURISDICTION OF THIS COURT IS INVOKED ..

CONSTITUTIONAL PROVISIONS, STATUTES AND

REGULATIONS WHICH THE CASE INVOKES...

STATEMENT OF THE CASE .......ccccccccscccecs

REASONS FOR GRANTING THE WRIT...........

1. Granting New Jersey Tort Claims Act statute of

limitations protection to the respondent Sports

Authority conflicts with applicable decisions of

this Court which deny the protection of sovereign

immunity to such agencies in cases under 42

Ee ee ee

2. A conflict among the Circuits exists with respect

to the Tort Claims Act statute of limitations issue,

which should be resolved by this Court .........

3. The decisions below interpreting the scope of the

respondeat superior exclusion from § 1983 liabil-

ity is in conflict with this Court’s decision in

Monell v. Dept. of Soc. Serv. of the City of New

SE EP GREP UED coscccdccccccesesess

PAGE

4. Whether there should be an exclusion of liability

for administrative acts to regulate agency conduct

should be settled by this Court to prevent an

unwarranted dilution of the effectiveness of 42

Ries OS Ps 0 dk Oca sige badacusuebibacanaens

5. The scope of this Court’s decision in Parratt v.

Taylor with respect to the extent to which the

availability of postdeprivation remedies may cure

due process violations should be settled by this

Css chcauwa te Cadbennweawh bes eeses teas

PR ETT TE CeO C CT TE CCT TY TCT eT er

APPENDIX:

New Jersey Eminent Domain Act of 1971 ............

New Jersey Relocation Assistance Act of 1971 ........

New Jersey Relocation Assistance Act of 1967 .........

Pilger a TU CH POE ioc kccccsvecesvesicvedes

Rules and Regulations Adopted by (New Jersey) Depart-

ment of Community Affairs, Chapter VI, 478......

Rules and Regulations Adopted by (New Jersey) Depart-

ment of Community Affairs, Chapter 2, 3(a)(3).....

AB UBL. 9 TUGD cccadoncescascrccncsobccnecsceves

Decision of Chief Judge Clarkson S. Fischer dated

PN Oh Se ons fasecerceccueenes+éssnccceens

Decision of Judge Harold A. Ackerman dated Novem-

I i EE sn dek suds cs vabieatasedsecessseaunens

PAGE

12a

l3a

PAGE

Decision of Judge Harold A. Ackerman dated March 1,

SE ER Perry re hry Torr re ree ere er 25a

Judgment of the Court of Appeals for the Third Circuit

Gated Tegel: SZ, 19GZ. co ccceccverescvescassancens 35a

Order Denying Motion for Hearing En Banc dated

SEE ch outreebiwnwerdvanddusnceess 38a

TABLE OF AUTHORITIES

Cases PAGE

Ammburg v. City of Chester, 494 F.2d 811 (3rd Cir.

DMS Siac we beAnenee ee eh ebecunaws 10

Bell v. Bell, 83 N.J. 417 at 423, 416 A.2d 829 (1980)... 10

Board of Regents v. Tomanio, 446 U.S. 478 (1980) .... 9

Burt v. City of New York, 156 F.2d 791 (2d Cir. 1946)

Cordeco Devel. Corp. v. Vasquez, 539 F.2d 256 (ist Cir.

1976) cert. denied, 429 U.S. 978......... 0.000 e eee 7

Donovan v. Reinbold, 433 F.2d 738 (9th Cir. 1970)... .11, 13,

Duncan v. Poythress, 657 F.2d 691 (Sth Cir. 1981) cert.

granted, 102 S.Ct. 1426, cert. dismissed, _. U.S.

Fo PET TED PET Eee e eee TOT TTT eee TT Te ST 7,19

Erdmann v. Board of Ed., Union Co. 541 F.Supp. 388

PPP TCTT TUTE Te TPTeTeeTe eee riTe 14

Gipson v. Bass River, 82 F.R.D. 122 (D.N.J. 1979) .... 14

Gunther v. Miller, 498 F.Supp. 882 (D.N.M. 1980)..... 14

Johnson v. Railway Express Agency, 421 U.S. 454 (1975) 9

Lake Country Estates Inc. v. Tahoe Regional Planning

Agency, 440 U.S. 391 (1979).......... cece ee eens 9, 11, 18

Landon v. Plasencia, U.S. 103 S.Ct. 321 (1982)....... 7

Malloy v. State, 76 N.J. 515, 388 A.2d 622 (1978)..... 10

McFarland v. American Sugar Ref. Co. 241 U.S. 79

Sas bacn Gh hve seseeeswenpaed Os eenesee esas 7

Monell v. Dept. of Soc. Serv. of the City of New York,

lk Rt Prererreree 8, 9, 10, 11, 13, 15, 17

Monroe v. Pape, 365 U.S. 167 (1961)..........00000: 12

Vii

Naughton v. Bevilacqua, 605 F.2d 586 (Ist Cir. 1979) .. 17

Ney v. State of California, 439 F.2d 1285 (9th Cir. 1971) 13

Occidental Life Ins. Co. of Calif. v. E.E.O.C., 432 U.S.

i fei. Cake igaenewbsedsbbbiecebeses 11

Owen v. City of Independence, 445 U.S. 622 (1980)

rehearing denied, 446 U.S. 993 ........0.060005. 8,9, 11, 15

Parvast v. Dagens, 451 U.S. S27 CISSI). 0 wc ccccvccccces 19

Pauk v. Board of Trustees of City U. of New York, 654

F.2d 856 (2d Cir. 1981) cert. denied, 455 U.S. 1000 .. 13

Perrote v. Percy, 452 F.Supp. 604 (E.D.Wis. 1978)..... 14

Peters v. Township of Hopewell, 534 F.Supp. 1324

sewer gach aeedaveese 14

Peterson v. Fink, 515 F.2d 815 (8th Cir. 1975)......... 12

Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d

eles stake bse deb ie beesenwe 13

Shouse v. Pierce County, 559 F.2d 1142 (9th Cir. 1977) 13

Skrapits v. Skala, 314 F.Supp. 510 (N.D.III. 1970)..... 14

Snowden v. Hughes, 321 U.S. 1 (1944)............05. 7

Swan v. Board of Higher Education, 319 F.2d 56 (2d Cir.

Da ats 0S 13

Taylor v. Mayone, 626 F.2d 247 (2d Cir. 1980) ........ i, 83

United States v. Jiles, 658 F.2d 194 (3rd Cir. 1981) cert.

i tckdbakhevdkebeeeseseens 18

Willis v. Dept. of Conservation Devel., 55 N.J. 534, 264

EE a Tae od 686 6,690 050 0020 eedecenes 10

Statutes and Court Rules:

United States Code:

Title 28:

PEE cc cncaeues ened dee sedecresrecsees 2

viii

PAGE

SE cd cccemecibesnatuaee<tataaher 6

ee ae ena ecg hae We cease ReK RTOS 6

Title 42:

Section 1983... .2, 6, 8, 10, 11, 12, 13, 15, 17, 18, 19, 20

New Jersey Statutes Annotated:

PP dus seavareuvetaekehecuaehenansudeekewes 3

PP Gas clha ee cere ha Saaecaverey pheneaes 4

PE Dcatac ocak benhebekacuseaseasedien 4

PIS 6 no odsdsdcoececabvessrecieusecgeas 3, 6

PEG teCha pede ais shiseseeesw eens rouedyes 3, 16

Other Authorities:

New Jersey Eminent Domain Act of 1971 (PL. 1971,

Ss EN Vice aswaceneuwe bewees babes bhb0 ec hous 3

Relocation Assistance Act of 1971 (P.L. 1971,

aS ao a ck loa ee ae alee ee eae eb eR OD 3

Relocation Assistance Law of 1967 (PL. 1967,

MSc se Scavata ses cacaeenehavecine stab sous as 3

Rules and Regulations of New Jersey Department of

Community Affairs:

NL Perr Tr rye TTT ere ry eer re rree Trier 4

CR. 2G FGUD) oc ccccccccsccccccccczecccescsenss 16

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

BLAZER CORPORATION,

Petitioner,

—_—Vo—

NEW JERSEY SPORTS AND EXPOSITION AUTHORITY, DAVID A.

WERBLIN, CHARLES SERRAINO, ADRIAN M. FOLEY, JR.,

GEORGE F. KUGLER, JR., AUBREY C. LEWIS, JOSEPH M.

MCCRAINE and “JOHN DOES”, said names being ficti-

tious,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

The Petitioner, Blazer Corporation, respectfully prays that a

writ of certiorari issue to review the judgment of the United

States Court of Appeals for the Third Circuit entered in this

proceeding on December 2, 1982.

OPINIONS BELOW

The judgment of the Court of Appeals is reproduced in the

Appendix hereto at p. 36a. The unreported opinions of the

District Court for the District of New Jersey from which

appeal was taken dated November 16, 1981 and March 1, 1982,

are also reproduced in the Appendix hereto at pp. 16a and 26a

respectively.

STATEMENT OF GROUNDS ON WHICH THE

JURISDICTION OF THIS COURT IS INVOKED

On December 2, 1982, the Court of Appeals for the Third

Circuit entered its judgment in the matter for which review is

sought on this petition. On December 29, 1982, the Court of

Appeals entered its order denying petitioner’s application for

rehearing and for other relief. Jurisdiction to seek the writ of

certiorari prayed for in this petition is invoked pursuant to 28

U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS WHICH THE CASE INVOKES

Relevant Constitutional provisions, statutes, and regulations

are quoted verbatim in the appendix annexed to this petition.

STATEMENT OF THE CASE

Petitioner, a small business dislocated and forced into bank-

ruptcy so that Respondent New Jersey Sports and Exposition

Authority (Sports Authority) could build a racetrack-stadium-

sports arena complex, asserted claims pursuant to 42 U.S.C.

§ 1983 complaining of a systematic deprivation of New Jersey

statutory relocation benefits. Petitioner contends that its con-

stitutional rights to procedural due process (entitling it to

timely notice of available benefits), substantive due process

(entitling it to a fairly administered eminent domain system

consistent with statutory mandates), and equal protection of

the laws (entitling it to the same access to benefits which other

agencies, which properly follow statutory mandates, extend to

New Jersey property owners) have been violated by the system-

atic failure of the respondent Sports Authority, its chief execu-

tive (respondent Werblin) and the members of its Board

(respondents Serraino, Foley, Kugler, Lewis, McCrane and

Werblin) to carry out the mandates of the relevant New Jersey

statutes and regulations. The Courts below granted summary

judgment dismissing all respondents on non-substantive

grounds, including defenses of the statute of limitations (with

respect to the Sports Authority only) and non-liability for the

acts of subordinates under the doctrine of respondeat superior.

Deprivation of State Statutory Rights

The State of New Jersey has adopted a comprehensive

statutory scheme securing to real property owners a series of

rights in the event their property is taken by eminent domain.

These statutory guarantees are set forth in the New Jersey

Eminent Domain Act of 1971 (Chapter 361, Laws of 1971

N.J.S.A. 20:3-1 et seq.), the Relocation Assistance Law of

1967 (P.L. 1967, Chapter 79, N.J.S.A. 52:31B-1 et seq.), and

the Relocation Assistance Act of 1971 (P.L. 1971, Chapter 362,

N.J.S.A. 20:4-1, et seq.) (Relevant sections of said statutes are

set forth in the appendix annexed hereto.) The statutes are

implemented by a series of Regulations promulgated pursuant

to statutory authority by the New sereey Department of Com-

munity Affairs.

Among the rights guaranteed to property owners about to be

displaced are the right to prompt payment of authorized

relocation benefits and in “hardship cases”, the right to such

payments “in advance” of the property owner’s removal from

its premises. N.J.S.A. 20:4-10(a)(2) (A. 2a).* Petitioner was

never given notice of the existence of this statutory right, and

as a result of its displacement by eminent domain, it

“|. . was compelled and driven first into receivership

and then into bankruptcy, with a total loss of its business

including, but not limited to, inventory, personal prop-

erty, good will, ability to finance its business, and loss of

contracts. . .” (Amended Complaint 4 28 (R. 837a)).

° References in this Petition to materials contained in the appendix

annexed hereto are designated by the abbreviation “A” followed by

relevant page numbers. References to the record below which is

comprised of two volumes entitled “Appendix on Behalf of Plaintiff

Appellant” are designated by the abbreviation “R” followed by the

relevant page number.

Also among the statutory rights conferred upon New Jersey

displaced property owners is the right to payment for direct

losses of tangible personal property such as inventory or work

in process. N.J.S.A. 20:4-4(a)(2) (A. 2a). Petitioner was never

given notice of its right to these benefits; it was never offered

or paid any such benefits; and it lost personal property and

inventory through destruction, theft and vandalism. (Amended

Complaint 4 29 R. 837a)

Also among the rights of New Jersey displaced property

owners is the right, pursuant to adminstrative regulation, to

recover payment for physical and structural changes at its new

location. Rules and Regulations of New Jersey Department of

Community Affairs, Ch.6 4 78 promulgated pursuant to Relo-

cation Assistance Act of 1971 (A. 8a-10a). Petitioner was never

given notice of its right to such a payment. No offer was made,

and indeed, misrepresentations were made by certain respond-

ents that petitioner would not be entitled to be paid for

physical or structural changes at a new location. As a conse-

quence, petitioner was unable to find a suitable new location,

which contributed to the destruction of its business. (Amended

Complaint 44 30 and 31 (R. 837a)).

Also among the stautory rights of a displaced property

owner which were denied to petitioner was the right to be paid

for reasonable expenses in searching for a replacement business

(N.J.S.A. 20:4-4(a)(3) (A. 2a)).

New Jersey’s Statutory Scheme of Administrative

Accountability

In order to assure that state agencies focus upon the needs,

interests and statutory rights of property owners to be dis-

placed by eminent domain, New Jersey also requires that

before any dislocation of property owners, agencies must

formulate and implement an approved Workable Relocation

Assistance Program (WRAP). Such a program must include:

“. . , such measures, facilities, techniques or services as

may be necessary. . . to determine the needs of displaced

persons and business concerns for relocation assistance

. and to assist in minimizing hardships . . . (3) to

assist owners of displaced business concerns in obtaining

and becoming established in suitable business locations;

. . . (5) and to provide for fair and reasonable relocation

assistance payments pursuant to Section 4. . .” N.J.S.A.

52:31B-5 (A. 3a).

Respondents failed to forumulate a proper WRAP, in that the

procedures they devised failed to contemplate and provide for

the statutory benefits discussed above. (See Amended Com-

plaint 44 20 and 21 (R. 835a)).

To secure further the rights conferred upon property owners

by the New Jersey eminent domain statutes and to insure

administrative accountability, N.J.S.A. 52:31B-5 mandates

upon the chief executive officer of any state agency acquiring

property for public use the obligation to certify to the Commis-

sioner of the Department of Community Affairs “. . . that a

workable relocation assistance program (WRAP) for displaced

concerns, offering the . . . [statutorily mandated] services

. is available to reduce hardship to those affected.”

N.J.S.A. 52:31B-5 (A. 3a). Implicit in such a requirement of

course is the duty conferred upon an agency chief executive to

review proposed programs to assure that their provisions

comply with statutory requirements. The respondent chief

executive David A. Werblin failed to certify such a program.

Consequently approval of the program was never properly

based upon the informed certification of the chief executive, as

was also required by the statutory scheme. (Amended Com-

plaint ¢ 54(b) R. 843a). Thus petitioner was deprived of the

benefit of administrative review and screening by the respond-

ent Werblin and informed approval by the Commissioner of

the Department of Community Affairs. Had such screening,

review and informed approval taken place, it could well have

revealed and corrected the deficiences noted above.

In purported implementation of its uncertified relocation

program, the Sports Authority and other respondents engaged

in and countenanced a pattern of failures to satisfy other

mandated requirements, which included a failure to inform

petitioner of the relocation benefits and assistance available, a

failure to determine the extent of petitioner’s need for assist-

ance, a failure to provide current and continuing information

on the availability of prices and locations of comparable com-

mercial properties. Amended Complaint 4 22 (R. 835a-836a)

Among the more stunning institutional failures to satisfy

express statutory requirements respondent Werblin caused a

booklet entitled “If | Must Move” to be disseminated to

relocatees through subcontract with the New Jersey Depart-

ment of Transportation. The pamphlet was distributed to

targeted property owners, ostensibly to advise them fully of

their rights. /t failed, among other things, to notify and alert

property owners to the availability of advance relocation bene-

fits in hardship cases. N.J.S.A. 20:4-10(a)(2) (A. 2a). (See also

opinion at 30a), text of booklet reproduced at R. 559-567a).

Petitioner was evicted from its premises without ever receiv-

ing notice of the mandated benefits described above, and

without knowledge of the deficiencies in WRAP certification

and approval described above, in violation of the express

provisions of N.J.S.A. 20:3-19, (A. la), that section requires

that an eviction may take place only upon a judicial determina-

tion that the property owner has had adequate opportunity to

obtain funds and expenses to which the law entitles it.

(Amended Complaint 4 12, (R. 832a-833a)).

The Lawsuit

In this action commenced under 42 U.S.C.§ 1983,* peti-

tioner complains of the entire panoply of statutory denials.

The underlying property rights include petitioner’s right to

possession of its real property and its right to relocation

benefits under the applicable New Jersey statutes. Petitioner

seeks damages resulting from the failure of the Sports Author-

ity to timely apprise it of its rights to benefits and for unlawful

: Jurisdiction in the District Court below was originally invoked

pursuant to 28 U.S.C. § 1343 and 1331(a).

termination of possession of its property. The resulting losses

included petitioner’s insolvency and the destruction of its

business and goodwill. It has asserted that the respondents’

conduct denies its Fourteenth Amendment constitutional rights

to:

procedural due process in that it was never notified of

valuable statutory rights to relocation benefits so as to

enable it to claim and timely receive them in order to

salvage its business from bankruptcy;

a procedural due process right to administrative

screening and certification, derived from the statutory

obligation of respondent Werblin to screen and certify

a WRAP relocation plan conforming to state statutory

mandates;

procedural due process which should have imposed the

burden of proof upon respondent Sports Authority at

its judicial eviction hearing to establish that the re-

quirements of WRAP certification and approval had

been satisfied (Landon v. Plasencia, _. U.S. __ (1982),

103 S.Ct. 321);

substantive due process in that the wholesale depriva-

tions of petitoner’s rights and undermines the basic

fairness and integrity of the eminent domain system

(See Duncan v. Poythress, 657 F.2d 691 (Sth Cir.

1981), cert. granted 102 S.Ct. 1426, cert. dismissed

sissies SG ideal

equal protection of the laws in that the pattern of

official misfeasance referred to above results in dis-

crimination against petitoner and all property owners

dislocated by the respondent Sports Authority, since it

systematically denies to them the statutory benefits

which the legislature intended to confer upon all prop-

erty owners. See Snowden v. Hughes, 539 F.2d 256 (ist

Cir. 1976); Cordeco Devel. Corp. v. Vasquez, 539 F.2d

256 (ist Cir. 1976); Burt v. City of New York, 156 F.2d

791 (2d Cir. 1946); McFarland v. American Sugar Ref.

Co., 241 U.S. 79 (1916).

)

Dismissal in the District Court

Without grappling directly with the merits of petitioner’s

claims, the District Court below, piecemeal, has dismissed all

of the respondents. In a decision dated November 16, 1981,

respondent Sports Authority was granted the benefit of a two

year statute of limitations under the New Jersey Tort Claims

Act (A. 16a-25a) (Relevant provisions are set forth in the

appendix attached herc.o at 7a). Later, in a decision dated

March 1, 1982, respondents members of the Sports Authority

were dismissed because the allegations against them were

construed as seeking to impose liability for the acts of subordi-

nates on a respondeat superior theory not supportable under

§ 1983 interpretations (A. 26a-31a)). And respondent Werblin

was dismissed upon the ground that his failure to screen and

certify the agency-wide WRAP relocation program did not

deny petitioner any constitutional rights but instead was only a

part of an administrative plan to help New Jersey regulate

official conduct. (A. 3la-35a).

On appeal, the Third Circuit, without opinion, cryptically

affirmed the decisions below. (A. 36a-38a)

For the reasons which follow, Petitioner respectfully submits

that the dismissal of all of the respondents was erroneous,

involves substantial departures from § 1983 doctrine, and pre-

sents significant issues for decision by this Court.

REASONS FOR GRANTING THE WRIT

1. Granting New Jersey Tort Claims Act statute of limita-

tions protection to the respondent Sports Authority con-

flicts with applicable decisions of this Court which deny

the protection of sovereign immunity to such agencies in

cases under 42 U.S.C. § 1983

This Court has repeatedly proclaimed that a public body is a

“person” under the terms of 42 U.S.C. § 1983 and not entitled

to immunity except in rare circumstances not applicable here.

Monell v. Dept. of Soc. Serv. of the City of New York, 436

U.S. 690 (1978) (local government bodies), Owen v. City of

Independence, 445 U.S. 622 (1980), and Lake Country Estates

Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979)

(public agencies). No effort has been made by respondents

below, nor, we submit, would one have prevailed, to contend

that the Sports Authority was structured with a specific intent

to enable it to enjoy the protection of state sovereign immunity.

See Lake Country Estates, supra at 401-402. Accordingly the

Sports Authority, like municipalities in Monell and Owen,

supra must be construed as a “person” in the parlance of

Section 1983. As this Court elaborated in Owen,

“By including municipalities within the class of ‘persons’

subject to liability for violations of the Federal Constitu-

tion and Laws, Congress—the supreme sovereign on mat-

ters of federal law—abolished whatever vestige of the

State’s sovereign immunity the municipality possessed.”

445 U.S. at 647-48.

This case presents a prime example of a departure from

Monell, Owen and Lake Country, supra, since the Courts

below applied a six year statute of limitations to the individual

respondent “persons” (denying their motion to dismiss on

limitations grounds) and applied a two year statute to the

respondent Sports Authority (granting its limitations dismissal

motion). The sole distinction justifying the application of

different statutes was the status of the Sports Authority as a

public agency. We submit that in reaching this result, the

Courts below, contrary to the above authorities, improperly

bestowed upon the Sports Authority a status paramount to

that of the individual “persons” before it.

Purporting to follow the “resemblance” test standard autho-

rized in Board of Regents v. Tomanio, 446 U.S. 478 (1980);

Johnson v. Railway Express Agency, 421 U.S. 454 (1975) for

purposes of borrowing local statutes of limitations, the District

Court held that the Sports Authority was protected by the two

year limitations period of the New Jerscy Tort Claims Act,

N.J.S.A. 59:8-8 (A. 7a). In establishing a limitations period,

that Act does not focus upon the nature of the tortious

conduct. It merely provides that:

“The claimant shall be forever barred from recovering

against a public entity if . . . (b) two years have elapsed

since the accrual of the claim.”

When it denied the limitations claims of individual respond-

ents, the court ruled that the § 1983 constitutional tort most

resembles the tort of “unjustified interference with right to

pursue lawful business relations, which is subject to a six year

limitations period.” (A. 20a-23a). However, with respect to the

Sports Authority, the Court characterized the claim as being

one “. . . for tortious injury to property at the hands of a

public authority.” (A. 20a), subject to a two year limitation

period.

Although the District Court thought it was merely applying

the authorized resemblance test, what it in fact did when it

incorporated the New Jersey Tort Claims Act was to “borrow”

a portion of sovereign immunity. New Jersey’s Tort Claims Act

is clearly a child of the sovereign immunity doctrine. Its

inception came in response to the New Jersey Supreme Court’s

decision in Willis v. Dept. of Conservation Development, 55

N.J. 534, 264 A.2d 34 (1970) which denied sovereign immunity

protection for tort claims but invited the Legislature to define

the limits of tort liability. The basic approach of the Act is to

re-establish sovereign immunity against tort claims except

where the Act otherwise provides. See Be// v. Bell, 83 N.J. 417

at 423, 416 A.2d 829 (1980); Malloy v. State, 76 N.J. 515 at

518, 388 A.2d 622 (1978).

The resemblence test can be accommodated with the Monell

doctrine by limiting it to an evaluation of the nature of the

tortious character of the wrongs complained of, excluding as

irrelevant the character of the targeted defendant as either a

private person or a public agency. See Ammburg v. City of

Chester, 494 F.2d 811 (3rd Cir. 1974); “. . . the applicable

statute of limitations must be determined from the nature of

the conduct involved” /d. at 814. Only in this manner can any

meaning be preserved to the clear declaration in Monell that

local governments (and government agencies, see Lake Coun-

try Estates, Inc., supra), “. . . like every other § 1983 ‘per-

son’, by the very terms of the statute, may be sued for

constitutional deprivations” 436 U.S. at 690-91.

Permitting state agencies or municipalities to claim the

benefit of state Tort Claims Acts is also tantamount to grant-

ing them Eleventh Amendment immunity from suit, contrary

to this Court’s holding in Lake Country Estates, Inc. v. Tahoe

Regional Planning Agency, 440 U.S. 391 (1979) that Eleventh

Amendment immunity is not to be conferred:

“(Unless there is good reason to believe that the States

structured the new agency to enable it to enjoy the special

constitutional protection of the States themselves.” 440

U.S. at 401

No evidence of such an intent appears in the record below, and

the Court’s decision thus cannot be bolstered on this issue.

As the Court has mandated in the past:

“State limitations periods will not be borrowed if their

application would be inconsistent with the underlying

policies of the federal statute.”

Occidental Life Ins. Co. of Calif. v. E.E.O.C., 432

U.S. 355 (1977) at 367

That directive has been violated by the Courts below, and

petitioner respectfully requests that this Court issue the writ in

order to review the matter.

2. <A conflict among the Circuits exists with respect to the

Tort Claims Act statute of limitations issue, which should

be resolved by this Court.

An additional special and important reason exists supporting

this petition. There is a distinct conflict between the statute of

limitations decision below and decisions in other circuits. Long

before this Court’s decisions in Monell and Owen (but indeed

presaging their reasoning) the Ninth Circuit put this very issue

to rest in Donovan v. Reinbold, 433 F.2d 738 (9th Cir. 1970).

In rejecting the applicability to Section 1983 litigation of

limitations provisions in the California Tort Claims Act, the

Court reasoned that Congress has

“|. . never indicated an intent to engraft onto the fed-

eral [1983] right state concepts of sovereign immunity or

of state susceptibility to suit, which are the concepts that

are the roots of the California Tort Claims Act. Indeed

the history of Section 1983, summarized in Monroe v.

Pape, supra, 365 U.S. 167. . . vividly demonstrates that

state concepts of sovereign immunity were alien to the

purposes to be served by the Civil Rights Act... An

incorporation of such state created policies would practi-

cally constitute a judicial repeal of the Civil Rights Act.”

433 F.2d at 742.

The Court in Donovan also concluded that the nature of relief

sought in 42 U.S.C. § 1983 was of a distinctly different order

than that covered by the California Tort Claims Act, and

therefore not subject to the provisions of the local statute,

citing the concurring opinion of Mr. Justice Harlan in Monroe

v. Pape, 365 U.S. 167 (1961) at 196;

“. . . a deprivation of a constitutional right is signifi-

cantly different from and more serious than a violation of

a state right and therefore deserves a different remedy

even though the same act may constitute both a state tort

and the deprivation of a constitutional right.” at 196

On the other hand, the Eighth Circuit appears to follow the

rule adopted by the Third Circuit below. Peterson v. Fink, 515

F.2d 815 (8th Cir. 1975).

In the Second Circuit, however, Taylor v. Mayone, 626 F.2d

247 (2d Cir. 1980) refused to apply to a 1983 claim, a one year

New York statute of limitations for a sheriff, coroner or

constable “. . . upon a liability incurred by him by doing an

act in his official capacity or by omission of an official duty”

(N.Y.C.P.L.R. § 215(1)) upon essentially the same grounds as

those asserted above in support of the writ which petitioner

here seeks. The Second Circuit’s decision in Tay/or relied upon

its earlier decision in Quinn v. Syracuse Model Neighborhood

Corp., 613 F.2d 438 (2d Cir. 1980), which had refused to apply

the one year-ninety day limitation period of Section 50-(i) of

New York’s General Municipal Law. That statute applied to a

municipality and its employees for personal injury by reason of

the wrongful act of any of its officers, agents, or employees.

As the Quinn court aptly observed in justifying its opinion:

“In Monell, supra, the Supreme Court held that a munici-

pality is a “person” for purposes of § 1983. Since 1963,

this Court has consistently stated that § 214(2) [three year

general tort statute of limitations] applies in § 1983 suits

against “persons”, see Swan v. Board of Higher Educa-

tion, 319 F.2d 56 (2d Cir. 1963), even though § 50-(i)(1)

includes, within its terms, city officers, agents, and em-

ployees. To create different limitations periods for two

similarly situated classes of defendants would create a

distinction without a difference, and would engender

unnecessary confusion for litigants and judges alike.

Thus, we hold that the most appropriate limitations

period for suits against municipalities under § 1983 is that

which has been heretofore applied in actions against

individual municipal officers and employees.” 613 F.2d at

449

Issues involving special limitations periods for torts of public

officials continue to recur among the Circuits in 1983 actions.

The Ninth Circuit has been required to repeat its Donovan v.

Reinbold ruling on the inapplicability of the California Tort

Claims Act limitation provision. Ney v. State of California,

439 F.2d 1285 (9th Cir. 1971). Similarly, in Shouse v. Pierce

County, 559 F.2d 1142 (9th Cir. 1977) the Ninth Circuit rejected

(construing it as a “claims” statute rather than a limitations

statute) a ninety day municipal and public officer liability

limitations statute, citing Donovan v. Reinbold, supra.

In Pauk v. Board of Trustees of City U. of New York, 654

F.2d 856 (2d Cir. 1981), the Second Circuit was confronted

with still another variation of the issues decided earlier in

Taylor, supra. There the Court observed that:

“It would be anomalous for a federal court to apply a

state policy restricting remedies against public officials to

a federal statute that is designed to augment remedies

against those officials, especially a federal statute that

affords remedies for the protection of constitutional

rights.” Jd. at 862

In so holding, the Court also emphasized the strong interest in

establishing uniformity with respect to the issue of what

limitations period to apply.

District Courts also continue to be plagued by the same

issues. In addition to the two New Jersey District decisions

which reached decisions contrary to the one adopted by Third

Circuit below on the applicability of the New Jersey Tort

Claims Act (Peters v. Township of Hopewell, 534 F.Supp. 1324

(D.N.J. 1982); Erdman v. Board of Ed., Union Co., 541

F.Supp. 388 (D.N.J. 1982)), see Gunther v. Miller, 498 F.Supp.

882 (D.N.M. 1980) (following Donovan v. Reinbold, supra

and holding 1983 action not governed by a limitations provi-

sion in New Mexico Tort Claims Act); Perrote v. Percy, 452

F.Supp. 604 (E.D.Wis. 1978) (90 day attorney general notice of

claim statute for suits against state officers not applicable to

1983 actions); Skrapits v. Skala, 314 F.Supp. 510 (N.D.II1.

1970) (six month notice of claim statute inapplicable to 1983

actions). A contrary result, consistent with the District Court’s

opinion adopted by the Third Circuit below, was reached in

Gipson v. Bass River, 82 F.R.D. 122 (D.N.J. 1979).

The fact that issues involving public body and public em-

ployee special statutes of limitations continue to recur, even in

Circuits which have definitively decided the issue, indicates the

unsettled status of the law in this area and constitutes addi-

tional support for the granting of the writ sought here. Because

of this, and because of the conflict among the Circuits in

resolving the issue, petitioner respectfully prays that the writ be

issued. :

3. The decisions below interpreting the scope of the respon-

deat superior exclusion from § 1983 liability is in conflict

with this Court’s decision in Monell v. Dept. of Soc. Serv.

of the City of New York, 436 U.S. 690 (1978)

Some time ago, this Court expressly held that a public body:

“. . . cannot be held liable solely because it employs a

tortfeasor—or in other words . . . [it] cannot be held

liable under § 1983 on a respondeat superior theory.”

Monell v. Dept. of Soc. Serv. of the City of New York, 436

U.S. 658 (1978) at 691, because § 1983 imposes liability only

when a “person” subjects or ‘causes’ another to be subjected

to a deprivation of rights. Therefore, it is only when

“ . . execution of a government’s policy or custom,

whether made by its lawmakers or by those whose edicts

or acts may fairly be said to represent official policy,

inflicts the injury that the government as an entity is

responsible under § 1983.” Jd at 694. See also Owen v.

City of Independence, 445 U.S. 622 (1980) at 655.

In this case the District Court adopted an expansive view of

respondeat superior which emasculated the scope and protec-

tion of the Civil Rights Statute. From a review of its opinion

on the matter, the District Court apparently concluded that

individual respondents, members of the Sports Authority,

could not be liable for passive deprivations of rights, observing

that they could only be liable for their own

“. , . conduct or participation in a pattern of violations

by virtue of knowledge, acquiescence, support and en-

couragement.” (A. 29a).

Such a construction improperly excludes the situation in which

a defendant “causes” a plaintiff to be deprived of rights

through non action or culpable neglect. That construction is

inconsistent with this Court’s reasoning in Monell.

The District Court below also ruled that:

“to hold these defendants liable for the actions of the

Authority, or D.O.T. employees under the circumstances,

is to base liability, in my judgment, on the doctrine of

respondeat superior.” (A. 30a) (emphasis added)

Such a definition stands the theory of respondeat superior

upon its head, so as to exonerate public officials for any

conduct of the agency for which they are employees. Again, we

respectfully submit that this was not the intended meaning of

respondeat superior as that term was used by this Court in

Monell. (Indeed it suggests a new doctrine of respondeat

inferior!) Because the precise scope of the term is unclear,

petitioner submits that the writ should be granted in order to

prevent an unrestrained expansion of the term “respondeat

superior” from consuming the protective power of the Civil

Rights Act.

In fact, the record clearly supports a prima facie case of

liability in accordance with this Court’s ruling in Monell,

supra. The Court below specifically found the Sports Author-

ity’s WRAP plan to be deficient in that it “. . . did not

contain a proper eviction policy.” (A. 30a). Moreover, the

official publication “If 1 must move did not inform dislocatees

of the availability of hardship advance payments (A. 30a).

Among other things, the applicable rules and regulations also

provide with respect to the WRAP plan:

“Whether or not the agency responsible for the displace-

ment administers relocation activities, the local agency

has the obligation to assure that relocation assistance and

payments are provided in accordance with State law and

policies, standards and regulations.” N.J.D.C.A. Rules

and Regulations, Ch.2§ 3a(3), quoted at A. Ila).

Respondents also caused the dissemination (through subcon-

tract with the New Jersey Department of Transportation) of a

booklet which failed to apprise prospective dislocatees of their

rights, including their rights in hardship cases to advance

payment of benefits, and the failure (in the case of respondent

chief executive Werblin) to screen and certify the WRAP plan

as part of a procedure to assure that the relocation statutes are

being effectively executed.

Respondents were members of the local agency—the Sports

Authority. As such, the duty devolved upon them to see that

the WRAP plan and relocation procedures conformed to

statutory requirements. Respondent Werblin was additionally

mandated with the express duty to certify the WRAP plan to

the Commissioner of the Department of Community Affairs.

Clearly the principal deficiencies complained of in this ac-

tion are institutional in scope and nature. In the words of the

First Circuit, they are

“. . . $O pervasive that the agency head, because of his

statutory duties and powers, must be considered a respon-

sible party. . . Naughton v. Beviliacqua, 605 F.2d 586

(Ist Cir. 1979) at 589.

They are not sporadic incidents over which an agency head (or

agency members) might not have knowledge or control. The

liability of the individual respondents for the above agency

deficiencies is not vicarious. It is direct. In the parlance of the

Monell decision, the inaction of the individual respondents, in

violation of their statutory and constitutional duties, consti-

tuted the

“execution [or more appropriately the non-execution] of a

government’s policy or custom. . . by those whose edicts

or acts may fairly be said to represent official policy.”

Monell v. Dept. of Soc. Serv. of City of New York, 436

U.S. 690 (1978) at 694.

which inflicted petitioner’s injury. It was improper for the

Court to rule to the contrary, at least at the summary judgment

stage of the proceedings. In order to prevent the erosion of the

effectiveness of § 1983 by providing a loosely controlled re-

spondeat superior escape hatch, this Court should grant the

writ of certiorari for which petitioner prays.

4. Whether there should be an exclusion of liability for

administrative acts to regulate agency conduct should be

settled by this Court to prevent an unwarranted dilution

of the effectiveness of 42 U.S.C. § 1983

The District Court also improperly dismissed the respondent

Werblin, chief executive of the Sports Authority on the theory

that his failure to certify the WRAP relocation plan to the New

Jersey Commissioner for Community Affairs did not involve a

property right of petitioner but was instead merely a part of a

plan to “. . . help the state regulate its officers’ conduct.” (A.

34a). The Court’s reasoning on this issue was based upon a

Third Circuit decision entitled Urited States v. Jiles, 658 F.2d

194 (3rd Cir. 1981) cert. denied 455 U.S. 923. Jiles was a

criminal case. It is inapposite to the issues involved in the

instant appeal. Its reasoning has not heretofore been consid-

ered by this Court or applied to Civil Rights Act cases.

Isolation of the single event of failure to certify was myopic

and failed to acknowledge that petitioner has alleged the

pattern of deprivations described throughout this petition.

Failure to certify is merely a single instance.

The fact is that respondent Werblin, as chief executive,

represents the official policy and position of the Sports

Authority. Obviously, had the Sports Authority not been im-

properly dismissed (see points 1 and 2, supra) it would stand to

be liable for the transcendent pattern of rights deprivations

alleged in this action. See Lake Country Estates, Inc. v. Tahoe

Regional Planning Agency, 440 U.S. 391 (1979). Certainly,

however, in its absence as a party, respondent Werblin should

not be permitted a procedural escape from responsibility for

the pattern over which he presided.

5. The scope of this Court’s decision in Parratt v. Taylor

with respect to the extent to which the availability of

post-deprivation remedies may cure due process violations

should be settled by this Court.

Respondents argued in the Circuit Court that petitioner had

not stated a claim for § 1983 relief because it did not suffer a

deprivation of property rights. See brief of Respondent Sports

Authority below at p.44). This argument, based upon this

Court’s decision in Parratt v. Taylor, 451 U.S. 527 (1981), was

premised upon the notion that even if petitioner suffered the

deprivations about which it complained, it could have later

been made whole in administrative and local judicial proceed-

ings.

Parratt is clearly distinguishable, and its rule would be

misapplied in this case. The alleged due process deprivation

there involved the loss by prison officials of a hobby item

mail-ordered by petitioner, an incarcerated prisoner. There was

simply no way petitioner could have been granted pre-depriva-

tion due process notice and hearing rights, since there was no

way the state could have known that the loss would occur.

Parratt should be limited to its facts. It obviously has no

application in this case, in which petitioner contends that had

petitioner been notified of the relocation rights available to it,

it could have exercised those rights and avoided bankruptcy.

See Duncan v. Poythress, 657 F.2d 691 (Sth Cir. 1981) at 704.

Cert. granted _____ U.S. ___; cert. dismissed __. U.S. ___..

To suggest that post-deprivation relief would have sufficed

for petitioner as this Court held would have sufficed in

Parratt, is simply to rub salt into petitioner’s wounds. Had

petitioner known at the time it was displaced of the availability

of advance payments in hardship cases and of the other

benefits available to it, it would have been able to avail itself of

such benefits and bankruptcy would not have been necessary.

Finally, unless this Court grants the writ and limits the scope

of Parratt on the matter, there is a substantial danger that

Parratt will be broadly misinterpreted to engraft an exhaustion

of remedies requirement upon 1983 claims, contrary to the

repeated holdings of this Court that exhaustion is not a

requirement.

CONCLUSION

For the foregoing reasons, petitioner respectfully prays that

a writ of certiorari should issue to review the judgment of the

Court of Appeals for the Third Circuit.

Respectfully submitted,

Of Counsel: ROBERT S. TOBIN

Harry E. Youtt Counsel of Record

152 Market Street

Paterson, New Jersey 07505

(201) 881-8554

HARRY E. YOUTT

350 Broadway

New York, New York 10013

(212) 334-9000

Dated: March 29, 1983 Attorneys for Petitioner

APPENDIX

New Jersey Eminent Domain Act of 1971

N.J.S.A. 20:3-19. Right to possession and vesting of title

A copy of the declaration of taking and notice of the filing

thereof and of the making of the aforesaid deposit, shall be

served upon the condemnee and all occupants of the property

in accordance with the rules, and proof of such service shall be

filed in the action. Thereupon, the right to the immediate and

exclusive possession and titic to the property described in the

declaration of taking shall vest in the condemnor, free and

discharged of all right, title, interest and liens of all conde-

mnees without the necessity of further process provided how-

ever, that the court may, upon application and good cause

shown, stay the taking of possession of the land or other

property, or authorize possession to be taken upon prescribed

conditions. A property owner who refuses to vacate said

property or yield possession and remains in possession more

than 20 days after service of notice shall be deemed a trespasser

and shall be then liable for rents, issues and profits 20 days

after service. The court, upon notice and after determining

that the property owner has had adequate opportunity to

obtain any funds payable to him under sections 23 and 26 of

this act' and any other expenses to which he may be entitled to

as a matter of law, shall enter an order for possession directed

to the sheriff of the county in which the property is located. If

the owner or tenant occupies the property with the con-

demnor’s permission on a rental basis for a short term or for a

period subject to termination on short notice, the amount of

rent required shall not exceed the fair rental value of the

property to a short term occupier. Such right, title and interest

shall be transferred and shall attach to the compensation

determined to be payable hereunder, to the same extent and in

the same order of priority as existed at the date of vesting of

title in condemnor. The pendency of an appeal from an award

of judgment hereunder shall not interfere with such vesting of

title.

New Jersey Relocation Assistance Act of 1971

N.J.S.A. 20:4-4 Moving and related expenses

a. If a taking agency acquires real property for public use, it

shall make fair and reasonable relocation payments to dis-

placed persons and businesses as required by this act, for:

(2) actual direct losses of tangible personal property as

a result of moving or discontinuing a business or farm

operation, but not to exceed an amount equal to the

reasonable expenses that would have been required to

relocate such property, as determined by the taking

agency; and

(3) actual reasonable expenses in searching for a re-

placement business or farm.

N.J.S.A. 20:4-10 Authority of the commissioner

a. The commissioner shall adopt such rules and regulations

as may be necessary to assure:

(2) that a displaced person who makes proper applica-

tion for a payment authorized for such person by this act

shall be paid promptly after a move or, in hardship cases,

be paid in advance; and

New Jersey Relocation Assistance Act of 1967

N.J.S.A. 52:31B-5 Relocation assistance program; determina-

tions; formulation and execution of pro-

gram.

(a) Whenever any State agency or any unit of local govern-

ment acquires or seeks to acquire any real property for public

use, or implements or intends to implement a program of law

enforcement, or initiates or intends to initiate a program or

project for the voluntary rehabilitation of dwelling unit, the

chief executive officer of any such State agency or unit of local

government shall certify to the commissioner that a workable

relocation assistance program for displaced persons and busi-

ness concerns, offering the services prescribed by subsection

(b) of this section, is available to reduce hardship to those

affected. If the commissioner or the chief executive officer of

any such State agency or unit of local government shall

determine, in the exercise of their discretion, that the acquisi-

tion of real property for a public use or implementation of a

program of law enforcement or the initiation of a program or

project for the voluntary rehabilitation of dwelling units by

any such State agency or unit of local government will cause

substantial economic injury to persons and business concerns

other than those persons of business concerns with relocation

services pursuant to a workable relocation assistance program.

(b) Every workable relocation assistance program required

by subsection (a) of this section shall include such measures,

facilities, techniques or services as the commissioner may

prescribe by rules and regulations issued and promulgated

pursuant to this act, including, but not limited to, such

measures, facilities, techniques or services as may be necessary

or appropriate (1) to determine the needs of displaced persons

and business concerns for relocation assistance to supply infor-

mation concerning programs offering assistance to displaced

persons and business concerns and to assist in minimizing

hardships to displaced persons in adjusting to relocation; (2) to

assist each displaced person to secure decent, safe and sanitary

dwelling units at prices or rents within his means and in areas

reasonably accessible to his place of employment and not

generally less desirable in regard to public utilities and public

and commercial facilities; (3) to assist owners of displaced

business concerns in obtaining and becoming established in

suitable business locations; (4) to provide any displaced person

or business concern a reasonable time from the date of dis-

placement within which to apply for a relocation assistance

payment required by section 4 of this act, and to encourage the

prompt transmittal of any such relocation assistance payment

upon proper application therefor; (5) and to provide for fair

and reasonable relocation assistance payments pursuani to

section 4 of this act; (6) to secure to the greatest extent

practicable, the coordination of relocation activities with other

project activities and other planned or proposed governmental

actions in the community or nearby areas which may affect the

execution of the workable relocation program.

agency or unit of local government which reasonably contem-

plates that any person or business concern may be displaced by

the acquisition of real property for public use or the implemen-

tation of a program of law enforcement or the initiation of a

program or project for the voluntary rehabilitation of dwelling

units, shall designate or appoint an officer or employee therof

who shall be charged with the formulation and execution of

any workable relocation assistance program required by sec-

tion (a) of this section. Any such State agency or unit of local

government, acting through the officer or mployee so desig-

nated or appointed, may utilize the facilities, personnel or

services of any other officer or employee of said State agency

or unit of local government, or may enter into appropriate

contracts or agreements with any officer of the United States

or any other State agency or unit of local government, or with

any nonprofit organization, for the purpose of implementing

any workable relocation assistance program.

N.J.S.A. 52:31B-6 Emergency or imminent hazard to public

health, safety and welfare.

(a) No State agency or unit of local government shall,

except in the case of an emergency or an imminent hazard to

the health, safety and welfare of the public, displace or

remove, or cause to be displaced or removed, any person or

business concern on account of the acquisition of any real

property for public use or on account of a program of law

enforcement or on account of a program or project for the

voluntary rehabilitation of dwelling units, unless (1) any

workable relocation assistance program required by subsection

(a) of section 5 of this act shall have been submitted to, and

approved by, the commissioner; (2) the chief executive officer

of said State agency or unit of local government shall have

filed with the commissioner the certification required by sub-

section (a) of section 5 of this act; (3) an alternate dwelling unit

as described in section 5(b) (2) of this act is available for each

person displaced or removed, or caused to be displaced or

removed; and (4) the commissioner shall have certified to the

chief executive officer of said State agency or unit of local

government that the provisions of this act have been complied

with.

(b) Any State agency or unit of local government which, in

the case of an emergency or an imminent hazard to the health,

safety and welfare of the public, displaces or removes, or

causes to be displaced or removed, any person or business

concern on account of the acquisition of any real property for

public use or on account of a program of law enforcement or

on account of a program or project for the voluntary rehabili-

tation of dwelling units, shall do any and all things necessary

and appropriate to provide, that, as soon after the displace-

ment or removal of any such person or business concern as

possible, (1) any workable relocation assistance program re-

quired by subsection (a) of section 5 of this act will be

submitted to the commissioner the certification required by

subsection (a) of section 5 of this act; (3) an alternate dwelling

unit as described in subsection (b) (2) of section 5 of this act is

available for each person displaced or removed, or caused to

be displaced or removed; and (4) the commissioner will certify

to the chief executive officer of said State agency or unit of

local government that the provisions of this act have been

complied with.

New Jersey Tort Claims Act

N.J.S.A. 59:8—8. Time for presentation of claims

A claim relating to a cause of action for death or for injury

to person or to property shall be presented as provided in this

chapter’ not later than the ninetieth day after accrual of the

cause of action. After the expiration of 6 months from the date

notice of claim is received, the claimant may file suit in an

appropriate court of law. The claimant shall be forever barred

from recovering against a public entity if:

a. He failed to file his claim with the public entity

within 90 days of accrual of his claim except as otherwise

provided in section 59:8—9; or

b. Two years have elapsed since the accrual of the

claim; or

c. The claimant or his authorized representative en-

tered into a settlement agreement with respect to the

claim.

Nothing in this section shall prohibit an infant or incompe-

tent person from commencing an action under this act within

the time limitations contained herein, after his coming to or

being of full age or sane mind.

Rules and Regulations Adopted by Department of

Community Affairs, Chapter VI, ¢ 78

STATE OF NEW JERSEY

DEPARTMENT OF COMMUNITY AFFAIRS

[SEAL]

Rules and Regulations Adopted by the Department of Com-

munity Affairs Pursuant to the Relocation Assistance Law of

1971 (P.L. 1971, C. 362)

PATRICIA Q. SHEEHAN

Commissioner

* * *

78. PHYSICAL CHANGES AT NEW LOCATION.

a. Policy. The cost of making physical changes in or to a

building to which a business concern relocates may be eligible

as a moving expense under the following provisions and

limitations:

(1) The physical changes must be necessary to permit

the reinstallation of specific items relocated or substitute

machinery or equipment necessary to the continued

operation of the business, or be required to meet local

codes or ordinances related to the installation and use of

the machinery or equipment.

(2) The cost of foundations, concrete pads, or other

similar construction required for the reinstallation of

relocated or substitute machinery or equipment may be

eligible provided that the construction is necessary to the

proper operation of the equipment, and compensation for

a similar installation was not made to the business con-

cern as part of the price paid to acquire the former

property.

(3) Changes in or to a building or structure may not

increase the value of the building or structure for general

purpose uses, may not increase the structural or mechani-

cal capacity of the building or of its components beyond

the requirements of specific types of equipment moved

from the old location or replaced with a substitute, nor

include building or structural alterations required by local

building codes and ordinances, except if required for the

installation of specific types of equipment moved from

the old location or necessary for the continuation of the

business. No relocation payment in connection with a

change in or to a building or structure shall be made for

any items for which compensation was made as an ac-

quisition cost at the old location.

(4) The local agency must receive prior DCA concur-

rence in a determination that the physical changes are

required by local law or ordinance or are necessary to

reinstallation or reconnection of the equipment. If DCA

concurrence is requested after a move has been completed

and a relocation claim submitted, no portion of the claim

related to the cost of the physical changes may be paid,

prior to DCA concurrence.

(5) The business concern must submit the following

documentation to the local agency:

(a) A detailed description or drawing, or both, of

the installation in the former location.

(b) A detailed description or drawing, or both, of

the installation as proposed or actually installed.

to be provided to contractors or workmen.

(d) A statement describing the basis for the esti-

mated or actual cost related to the physical

changes.

(e) A statement explaining why the changes are nec-

essary to reinstallation of the equipment.

10a

b. Local Agency Action. In any case where it appears that

physical changes must be made to a building, the business

concern shall discuss its plan with the local agency before the

move so that an agency determination of acceptability can be

made. If the local agency finds that compensation for the

changes may be eligible, DCA concurrence shall be obtained

prior to the move. When the documentation described in

subsection 78a(5) has been received, the local agency shall:

(1) Review the documentation and determine whether

the physical changes meet the requirements set forth

above, and whether the costs are reasonable.

(2) Where applicable, secure an opinion of local agency

counsel stating that the changes are required by law. The

opinions should include appropriate citations.

(3) Assure that the value of any equivalent items in-

cluded in the acquisition payment made to the owner of

the real property or to the business concern is excluded

from the amount to be included in the relocation pay-

ment.

(4) Submit to DCA the documentation received from

the business concern, together with the local agency’s

written recommendations.

(5) Not make the payment until DCA concurrence is

received (see subsection 78a(4) above). (DCA will advise

the local agency, in writing, of the results of its review.)

lla

Rules and Regulations Adopted by Department of

Community Affairs Chapter 2, 3(a)(3)

3. THE RELOCATION PLAN.

a. Description of Administrative Organization.

* * *

(3) Whether or not the agency responsible for the

displacement administers relocation activities, the local

agency has the obligation to assure that relocation assist-

ance and payments are provided in accordance with State

law and policies, standards, and regulations.

* * *

12a

42 U.S.C. § 1983

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory, sub-

jects, or causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the depriva-

tion 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.

R.S. § 1979.

I3a

Decision of Chief Judge Clarisson F. Fischer

dated February 9, 1981

THE COURT: That’s right. That is the problem, although I

don’t know that he has got much of a case. I will put my

reasons down. You don’t have to argue this.

Defendant, New Jersey Sports & Exposition Authority et.

al., moves this Court to dismiss plaintiff, Blazer Corporation’s

complaint for failure to exhaust state judicial and administra-

tive remedies. Plaintiff asserts federal jurisdiction under 42

U.S.C. § 1983, alleging that defendant’s actions under color of

New Jersey laws N.J.S.A. 20:3-1 (Eminent Domain Act of

1971); N.J.S.A. 52:31B-1 (Relocation Assistance Act of 1967);

and N.J.S.A. 20:4-1 (Relocation Assistance Act of 1971)

caused plaintiff damages by forcing it to declare bankruptcy

and suffer the total loss of it’s business. Plaintiff argues that

Defendant failed to follow New Jersey statutory procedure and

thereby caused the alleged loss. Defendant points to a pending

state court eminent domain action, New Jersey Sports &

Exposition Authority v. Blazer Corp., No. L-20951-72 (1973)

and urges exhaustion of remedies before this Court takes

jurisdiction. Plaintiff argues, however, that since they cannot

seek destruction of business damages in the eminent domain

proceeding in state court, and since the total loss of a business

is compensable under § 1983, there is no need for exhaustion.

This case arises out of the following events. Plaintiff manu-

factured custom-built air conditioning systems at its 10.7 acre

leased premises in East Rutherford, New Jersey. In 1973,

defendant determined that plaintiff’s leasehold was needed for

a public purpose, to wit: the Meadowlands complex. Defen-

dant filed a declaration of taking on March 20, 1973, placed

$1,330,395.00 in the Superior Court Trust Fund for the value

of the premises, and ultimately evicted plaintiff in August

1974. Allegedly, no relocation information or financial assist-

ance for the move was offered plaintiff. This allegation is

controverted by the defendant. Although the factual back-

ground contains more nuances, we save that for a later day

since our concern is the immediate motion to dismiss.

l4a

There is no question that plaintiff’s alleged damages from

the destruction of it’s business is an appropriate action under

§ 1983. Lynch vs. Household Finance Corp., 405 U.S. 538

(1971). It cannot be doubted that among the civil rights

intended to be protected from . . . state action . . . are the

rights to acquire, enjoy, own and dispose of property. /d. at

544. The “dichotomy between personal liberties and property

rights is a false one. Property does not have rights. People

have rights”. Jd. at 552. Defendant’s actions under color of

state law allegedly caused plaintiff to suffer destruction of it’s

business. Thus, a cognizable claim under § 1983 has been

alleged.

Since plaintiff has alleged a valid § 1983 claim, there is

generally no need to exhaust state administrative or judicial

remedies. Monroe v. Pape, 365 U.S. 167 (1960); McNeese v.

Board of Education, 373 U.S. 668 (1962); Hochman v. Board

of Ed. of City of Newark, 534 F.2d 1094 (3d Cir. 1976); United

States ex. rel. Ricketts v. Lightcap, 567 F.2d 1226 (3d. Cir.

1977). Relief under § 1983 may not be defeated because relief

was not first sought under New Jersey law. See McNeese,

Supra at 671. The federal remedy is supplementary to the state

remedy. Monroe, supra at 183. Not only would the exhaustion

requirement be inappropriate here, it would also defeat the

purposes of § 1983 if held that assertion of a federal claim in

federal court must await an attempt to vindicate the same

claim in New Jersey court. McNeese, supra at 672. Further,

Elmwood Properties, Inc. v. Conzelman, 418 F.2d 1025 (7th

Cir. 1969) relied upon by defendant is inapposite. There, the

plaintiff could litigate the building permit refusal in state court

whereas plaintiff here cannot allege damages from loss of

business in a New Jeresy eminent domain proceeding. State v.

Gallant, 42 N.J. 583, 587 (1964); State of New Jersey v.

Cooper Alloy Corp., 136 N.J. Super. 560, 568 (App. Div.

1975). Thus, it would be tautological to require plaintiff to

first seek state law remedies when such do not exist.

Nor is abstention proper. At it’s core, abstention requires a

federal court to refrain from deciding federal constitutional

issues until related state law issues have first been adjudicated.

15a

D’lorio v. County of Delaware, 592 F.2d 681, 685 (3d Cir.

1978). In D’Jorio the Third Circuit set out the test for invoking

the abstention doctrine:

First, there must be uncertain issues of state Jaw underly-

ing the federal constitutional claim. Second, these state

law issues must be amenable to an interpretation by the

state court that would obviate the need or substantially

narrow the scope of the adjudication of the constitutional

claims. And third, it must appear that an erroneous

decision of state law by the federal court would be

disruptive of important state policies.

New Jersey provides a statutory framework from which con-

demnees such as plaintiff derive due process protection. That

statutory scheme does not permit damages for destruction of

business. Gallant, supra. Thus, there is not an unclear state law

issue that would, if decided by the New Jersey court, obviate

the need for the federal action. Further, plaintif alleges that

under color of that statutory authority and by omission of

duty, defendant forced plaintiff’s business into bankruptcy.

Since this claim is not cognizable in the New Jersey court

proceeding and since plaintiff is not asking this court to

interpret the New Jersey statute, there is no need to abstain

under the D’Jorio test. Although I do not pass on the ultimate

merits of plaintiff’s complaint, I do hold that it is an appropri-

ate § 1983 action and that exhaustion of remedies and absten-

tion do not apply.

Defendant’s motion to dismiss is denied. Plaintiff to submit

an appropriate order within 5 days. No costs.

Thank you, gentlemen.

l6a

Decision of Judge Harold A. Ackerman

dated November 16, 1981

THE COURT: This action arises out of the acquisition by

the State of New Jersey through its agent, the New Jersey

Sports and Exposition Authority (Authority) of land in East

Rutherford, New Jersey for development as the Meadowlands

Sports Complex.

Plaintiff is Blazer Corporation, which was located in East

Rutherford at the time this cause of action accrued and was in

the business of constructing specialized air-conditioning sys-

tems.

Defendants are the Authority and the individual members of

the Board of Commissioners of the Authority. Plaintiff com-

plains that it was dislocated in violation of the Relocation

Assistance laws of 1967 and 1971, NJSA 52:31B-1 et seq., and

NJSA 20:4-1 et seq., and in violation of the New Jersey

Eminent Domain Act of 1971, NJSA 20:3-1 et seq.

Plaintiff alleges that it went into bankruptcy as a direct

result of the illegal dislocation and the defendants therefore

deprived it of its property without due process of law in

violation of the Fourteenth Amendment. 28 U.S.C. Section

1331(a) and 42 U.S.C. Section 1983 are asserted as the basis of

this Court’s jurisdiction over this action.

I interpret the complaint as essentially basing jurisdiction on

28 U.S.C. Section 1343(3) and 42 U.S.C. Section 1983. There

is also an allegation in the complaint that these acts violated

plaintiff’s right to equal protection of the laws of New Jersey

under the United States Constitution and violated certain

federal statutes regarding relocation.

Upon discovery that no federal monies were used in the

Sports Complex project, plaintiff abandoned the federal statu-

tory claims.

The case is before me today on several motions of the

parties. Plaintiff Blazer Corporation moves for summary judg-

ment on the issue of liability. Defendant Authority moves to

dismiss the complaint as untimely.

17a

The individual defendants moved that summary judgment in

their favor is appropriate because the complaint fails to state a

cause of action cognizable under Section 1983, plaintiff has

failed to join necessary parties, and the nonliability of the

individual defendants is beyond doubt.

These motions raise many difficult issues. For the reasons

set forth, I will not reach all of the issues raised.

The following facts, however, are undisputed.

On March 20, 1973, the Authority filed a complaint in

condemnation and a declaration of taking on the property

leased to plaintiff in Bergen County Superior Court after a

written offer had been rejected. The Authority has the power

to acquire land through condemnation. NJSA 5:10-5(m) and

exercised that power pursuant to the Eminent Domain Act,

NJSA 20:3-1 et seq.

At the same time, the Authority deposited $1,115,000 as an

estimated just compensation, and later supplemented it with an

additional $214,395.

On November 12, 1973, Judge Trautwein entered an order

after hearing motions by both parties to the condemnation

proceeding allowing Blazer Corporation to withdraw the esti-

mated compensation and setting February 1, 1974 as the date

of vacation with certain conditions regarding the pro rata share

of taxes and other expenses. By consent or court order, this

date was extended several times until August 15, 1974.

The parties dispute whether the defendants fulfilled the legal

prerequisites for the dislocation to take place on August 15,

1974.

However, it is also undisputed that in April of 1973, the

Authority entered into a contract with the New Jersey Depart-

ment of Transportation (DOT) to formulate and implement a

relocation assistance plan for and on its behalf as allowed

under the relocation statute and applicable regulations.

In accerdaiive with this agreement, DOT established a relo-

cation office on the Sports Complex site and developed a plan.

The parties dispute whether this plan was properly certified,

what assistance and expenses plaintiff was entitled to, and also

whether plaintiff was the recipient of any and all assistance and

expenses it was entitled to.

The first of the motions that I will consider is the Author-

ity’s motion that the action is barred as untimely.

I have concluded that the complaint as to the Authority was

not brought in time. Defendant Authority moves to dismiss the

complaint against it on the grounds that the applicable Statute

of Limitations is the two-year limitation for actions brought

under the New Jersey Tort Claims Act. NJSA 59:8-8. That

statute provides in pertinent part:

“The claimant shall be forever barred from recovering

against a public entity if. . . (b) two years have elapsed since

the accrual of the claim.”

Plaintiff raises several arguments in defense of timeliness of

the complaint. It argues first that defendant has waived the

defense of limitations under Federal Rule of Civil Procedure

12(h)(1) by failing to plead the Tort Claims Act in its answer

and by failing to raise it in the first pretrial motion filed by the

Authority in this suit. Alternatively, Blazer argues that the

applicable limitations period for a suit under Section 1983 is no

less than six years. I am not persuaded by any of these

arguments.

The defense of Statute of Limitations is an affirmative

defense that must be raised in a responsive pleading, but

Defendant Authority did so. The fact that it did not mention

the Tort Claims Act by name is irrelevant.

Furthermore, this defense is not the kind of challenge to an

action which is least favored under Rule 12, and which there-

fore must be raised at the initial stage of the proceeding or not

at all.

Those challenges, such as improper venue or insufficient

service of process, are expected to be raised at the earliest

possible moment because they “can often be connected in a

timely fashion.” Weaver vs. Bowers, Slip Opinion No. 80-1245

(September 8, 1981, 3d Cir.). A statute of limitations defense is

properly considered a species of the defense of failure to state a

claim upon which relief can be granted. See Bethel v. Jendoco

19a

Construction Corporation, 570 F.2d 1168, 1174 (3d Cir. 1978);

5 Wright and Miller, Federal Practice and Procedure, Section

1360. Therefore, the motion can be considered at this juncture.

See Federal Rule of Civil Procedure 12(h)(2).

Congress has not provided a limitations period for actions

brought under the Civil Rights Act. Therefore, federal courts

apply to a Section 1983 action the State Statute of Limitations

that would be applicable “had an action seeking similar relief

been brought under state law.” See Polite v. Diehl, 507 F.2d

119, 122 (3d Cir. 1974) (en banc).

Our selection requires both a characterization of the nature

of the federal claim and an examination of the New Jersey law

on limitations periods. In our circuit, the district courts may

give separate treatment to different aspects of the same com-

plaint. See Davis v. United States Steel Supply, 581 F.2d 355,

342, Note 8 (3d Cir. 1978).

I find that it is appropriate to consider the claims against the

Authority distinct from those against the individual defen-

dants. ,

In Meyers vs. Pennypack Woods Home Ownership Associa-

tion, 559 F.2d 894, 901 (3d Cir. 1977), the court of appeals

identified three perspectives that should be utilized to analyze

the federal claim: (1) the defendants’ conduct; (2) the plain-

tiff’s injury; and (3) the relief requested.

As plaintiff admits, the Authority’s alleged conduct that is

the source of his complaint is a violation of statutory man-

dates. The Authority will be liable, if at all, because of its

official misconduct. Furthermore, in examining the other Mey-

ers elements, I find the plaintiff seeks damages for tangible

injuries to his asserted rights to lawfully pursue his business

until lawfully evicted.

As plaintiff’s complaint sets forth, it claims that the defen-

dants “deprived the plaintiff of its ability and means to carry

on its business, causing extreme damage to business and

property.” See Paragraph 49.

Also, as in Meyers, the wrong plaintiff complains cannot be

read as arising out of a centract with the defendants. In

20a

Meyers, where the injury complained of was the refusal to

contract for the sale of a house in violation of 42 U.S.C.,

Sections 1981 and 1982, the court stated:

“Although the complaint may be read as alleging a wrongful

refusal to enter into a contract, it cannot possibly be construed

as alleging the breach of any existing contract. Meyers’ cause

of action arises not from a breach of promise, but from a

breach of duty. It must therefore find its analogy in some sort

of action in tort.” See 559 F.2d at 901.

The complaint by Blazer Corporation sounds most like the

tort recognized in New Jersey of unjustified interference with

right to pursue lawful business relations. See Middlesex Con-

crete Products and Excavating Corporation vs. Carteret Indus-

trial Association, 37 N.J. 507 (1962).

As I indicated, the complaint sounds most like this tort,

except that as plaintiff admits, the defendant's interference

would have been justified under principles of eminent domain

absent the relocation statutes. For these reasons, | have con-

cluded that the claim against the Authority is most appro-

priately characterized as a claim for tortious injury to property

at the hands of a public authority.

I must next examine the New Jersey Statute of Limitations

scheme in order to find the proper analogy for the civil rights

injury just characterized.

While the applicable Statute of Limitations for a Section

1983 suit is a matter of federal law, | am persuaded by the

reasoning of a New Jersey court that held in an employment

discrimination suit against a municipality under Section 1983

that constitutional injuries were covered by the New Jersey

Tort Claims Act. See Lloyd vs. Borough of Stone Harbor, 179

N.J. Super. 496 (Law Division 1981).

In Lloyd, the court found the two-year period applicable to

the claim against the municipality even while finding the New

Jersey general six-year limitations period for torts other than

personal injuries applicable to the civil rights suit as against the

individual officials. Judge Gerry in this district has also found

the two-year Tort Claims Act limitations period applicable to a

2la

Section 1983 suit. See Gipson vs. Township of Bass River, 82

FRD 122 (D.N.J. 1979).

Plaintiff argues, however, that the Authority, unlike the

municipalities in L/oyd and Gipson, is not a “public entity” for

purposes of the Tort Claims Act, and therefore that Act’s

limitations period should not be borrowed.

In support for its proposition that the Authority is not

covered under the Act, plaintiff points to the Authority's

power to sue or be sued. NJSA 5:10-5(a) and the exclusion of

“any such entity which is statutorily authorized to sue and be

sued” from the Tort Claims Act’s definition of “state.” NJSA

59:1-3.

Blazer cites to the New Jersey Supreme Court decision in

Bell vs. Bell, 83 N.J. 417 (1980), to support the agreement that

the Authority is not a “public entity.” While Blazer’s argument

is not without appeal, my research reveals that it has misread

Bell and failed to account for the cases that clearly bring the

Authority within the meaning of “public entity.”

The Tort Claims Act defines “public entity” to mean the

State, and any county, municipality, district, public authority,

public agency and any other political subdivision or public

body in the state. N.J.S.A. 59:1-3. The Act defines “State” to

include the State and any office, department, division, bureau,

board, commission or agency of the State, but shall not include

any such entity which is statutorily authorized to sue and be

sued.

In Bell, the New Jersey Supreme Court held that the Dela-

ware River Port Authority (DRPA) is a bi-state agency with the

power to sue and be sued “arguably, could come within the

definition of a ‘public entity.’” The Tort Claims Act “is a

comprehensive legislative enactment governing the immunity

and liability of the state and public entities in the state” that

modifies the waivers of sovereign immunity found where there

is a power to sue or be sued. See 83 N.J. at 425. However, as a

bi-state agency, the New Jersey Legislature “does not have the

power to modify by unilateral action waiver of sovereign

immunity set forth in the bi-state compact.” See 83 N.J. at

424. In reaching its decision in Bel/, the New Jersey Supreme

22a

Court did not read the definition of “State” as incorporated

into the definition of “public entity,” as plaintiff here suggests.

In S. E. W. Friel Company vs. New Jersey Turnpike Author-

ity, 73 N.J. 107 (1977), the Supreme Court of New Jersey

explicitly considered the relationship between these two defini-

tions contained in the Tort Claims Act.

The court stated, quoting Judge Breslin in Wade v. New

Jersey Turnpike Authority, 132 N.J. Super. 92, 97-98 (Law

Division 1975), “Unless a moving party can demonstrate that

the Turnpike Authority is an office, department, division,

bureau, board, commission or state agency, then the said

exclusion contained in the definition of ‘State’ does not apply

to the Turnpike Authority. On the other hand, the Turnpike

Authority clearly fits under the definition of ‘public entities,”

namely as a public authority.” See page 116 of the Friel

opinion.

The court relied also upon the official comment to Section

59:1-3, which stated, “The definition of ‘public entity’ pro-

vided in this section is intended to be all inclusive and to apply

uniformly throughout the State of New Jersey to all entities

exercising governmental functions.” See 73 N.J. at 116.

The Sports Authority is similar to the Turnpike Authority in

that: “The Authority is hereby constituted as an instrumental-

ity of the State exercising and essential governmental func-

tions.” See N.J.S.A. 5:10-4.

I therefore must conclude that the New Jersey Supreme

Court would find the defendant Authority to be a public entity

encompassed within the New Jersey Tort Claims Act. Hence

there is nothing to prevent me from borrowing the two-year

Statute of Limitations of the Act for a Section 1983 action

against the Authority which, for the reasons outlined earlier, is

the most appropriate State Statute of Limitations.

The complaint against the Authority, having been filed

nearly six years from the date the cause of action accrued,

must be dismissed. However, | will not dismiss the complaint

as against the individual officials as untimely, because, as

Lloyd, supra, held, the Tort Claims Act’s limitations period

does not apply to suits brought against public officials.

23a

I find the general six-year statute, N.J.S.A. 2A:14-1 most

appropriate for this action against the individuals because it

states a claim most analogous to an unjustified interference

with business tort, as the Meyers analysis earlier indicated.

I next address the individual defendants’ motion to dismiss

the complaint for failure to specify the conduct of each

defendant plaintiff believes caused his injury under Rotolo vs.

Borough of Charleroi, 532 F.2d 920 (3d Cir. 1976).

The standard of review on a motion to dismiss for failure to

state a claim upon which relief can be granted is whether

plaintiff can prove any set of facts which would entitle it to the

relief it seeks. See Jamieson vs. Robinson, 611 F.2d 138 (1981).

However, where matters outside the pleadings are presented to

the court, a Rule 12(b)(6) motion is to be treated as one for

summary judgment under Rule 56.

I have concluded that the plaintiff has not pleaded a cause of

action under Section 1983 arising out of the due process clause

of the Fourteenth Amendment with sufficient specificity. But I

will not grant summary judgment. Rather, plaintiff will have

an opportunity to amend.

Section 1983 provides:

“Every person who, under cover of any statute; ordinance,

regulation, custom or usage of any state or territory, 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 Consti-

tution and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress.”

The elements which plaintiff must prove in order to state a

claim under Section 1983 for deprivation of property without

due process are:

(1) Defendants acted under color of state law;

(2) Which action amounted to a deprivation;

(3) Of plaintiff’s property; and

(4) Without due process of law.

In this point of their brief, the members of the Authority

claim that the complaint fails to inform them of the actions

they took on their omissions to act that constituted a breach of

24a

duty and that allegedly deprived the plaintiff of his property

without due process of law. | must agree with them.

The Third Circuit requires that civil rights complaints con-

tain a modicum of factual specificity, identifying the particular

conduct of defendants that is alleged to have harmed the

plaintiffs. See Ross vs. Meagan, 638 F.2d 646 (3d Cir. 1981).

On examination of the complaint, I find that the individual

defendants are not treated as individuals, but are lumped

together with the Authority as “defendants.” See Shirey vs.

Bensalem Township, 501 F. Supp. 1138, 1144 (E.D.Pa. 1980).

In the interrogatories served on plaintiff by the defendants,

the only specific action or admission which is attributable to an

individual defendant is the failure to certify the Workable

Relocation Assistance Plan (WRAP) through submission of

the DCA Forms 101 and 102. Defendants have a right to know

whether plaintiff will rest his case solely on these actions.

There is also an allegation that a booklet distributed by the

Authority misrepresented the benefits plaintiff might be eligi-

ble for. This booklet was obviously written or approved by

some person, but the plaintiff does not specify which, if any of

the defendants, did so.

However, this is the kind of information peculiarly in the

possession of the defendants and not the plaintiff. Therefore,

plaintiff’s answers to defendants’ interrogatories are not a

sufficient factual basis on which to grant defendants’ summary

judgment.

Even though I am granting plaintiff an opportunity to

amend the complaint, I feel compelled to remind them that

liability under Section 1983 cannot be predicated on judicial

notions of respondeat superior. See Hampton vs. Holmesburg

Prison Officials, 546 F.2d 1077 (3d Cir. 1976).

The administrative officers of the Authority have a good

faith immunity and can only be liable if they “played an

affirmative role in the deprivation of the plaintiff's rights, i.e.,

there must be a causal link between the actions of the responsi-

ble officials named and the challenged misconduct.” See Com-

monwealth of Pennsylvania vs. Porter, 642 F.2d 687, 696 (3rd

Cir. 1981). See also Rizzo vs. Goode, 423 U.S. 362, 375 (1976).

25a

While the defendants move to dismiss the complaint on the

ground of vagueness, granting plaintiff an opportunity to

amend its complaint is not inconsistent with the goal of

specificity because it works to insure that legitimate claims be

heard. See Rotolo cited supra.

In light of my decision, I do not reach plaintiff’s motion for

partial summary judgment or the remainder of the motions

raised by the individual defendants.

I will deny these motions without prejudice to the right of

the parties to renew any aspect of them if they choose to do so,

after an amended complaint is filed.

Plaintiff will have 30 days from the signing of the order to

file an amended complaint. If it does not do so, the entire

complaint will be dismissed.

Mr. Ward, may I ask you to draw an order in conformance

with my decision here this afternoon.

26a

Decision of Judge Ha:olt A. Ackerman dated March 1, 1982

Now, the individual defendants today argue on their present

motion that they are entitled to judgment as a matter of law

because the complaint fails to set forth a claim upon which

relief can be granted because they are protected by a qualified

immunity because the action is barred by the statute of limita-

tions.

They have also moved for attorneys’ fees, pursuant to

Section 1988. Plaintiff has denied that the defendants are

entitled to relief on any of these grounds, and further asserts

that it is entitled to judgment because the defendants are

culpable as a matter of law. Because both parties have submit-

ted to the Court matters outside the pleadings, | will consider

these motions under Federal Rule of Civil Procedure 56 stan-

dards.

On a Rule 56 motion I must give the party opposing the

motion the benefit of all reasonable factual inferences, and I

may grant summary judgment only if there are no genuine

issues of fact.

As a moving party, or I should say, the moving party is

entitled to judgment as a matter of law. See DeLong Corpora-

tion v. Raymond International, 622 F.2d 1135 (3rd Cir. 1980).

For the reasons I will set forth in a moment, I am granting

defendant’s motion and dismissing plaintiff's complaint, but

denying defendant’s request for fees.

Today the defendants have once again raised the spector of

time in this matter. On November 16, 1981, I ruled that the

statute of limitations applicable to this 1983 claim was the

two-year New Jersey Tort Claims Act. With respect to the

Authority, and the six-year general period, N.J.S.A. 2A:14-1,

with respect to the individual officials.

See Meyers v. Pennypack Woods Home Ownership Associa-

tion, 559 F.2d 894, 901 (3rd Cir. 1977). I stated that the

complaint, having been brought within six years of the date

Blazer Corporation was moved out of its location, was timely

as to the individual defendants.

27a

During the hearing in the fall, none of the parties suggested

any other date as the time the cause of action accrued, and I

assumed the August 15, 1974 date was the day which required

my analysis. Today it has been suggested that plaintiff’s cause

of action accrued and the six-year statute began to run at the

latest as of Judge Trautwein’s final order of July 16, 1974,

directing plaintiff to vacate its premises and possibly as early as

the November 12, 1973 order of Judge Trautwein.

While I have reconsidered my previous assumption that

August 15, 1974, started the clock running, I am not persuaded

by defendant’s argument.

Under New Jersey law, “A plaintiff’s cause of action accrues

for limitation purposes when he suffers actual consequential

damage or loss from the defendant’s negligence.” See Rosenau

v. City of New Brunswick, 51 N.J. 130 (1968); see also

Cappadona vy. Eckelmann, 159 N.J. Super. 352 (App. Div.

1978).

In the instant case the alleged unconstitutional conduct is the

failure of the defendants to assist plaintiff in relocating to

make payments due it prior to plaintiff’s dislocation, and to

inform plaintiff of how to take advantage of the relocation

services available.

If plaintiff has a cause of action under Section 1983 at all,

the actionable injury arose when plaintiff was dislocated. The

alleged injury to plaintiff’s property right to pursue a lawful

business without unjustifiable interference occurred not when

the Authority acquired Blazer’s property or when it set the date

for displacement, but when it displaced Blazer without, ac-

cording to it, all the predisplacement rights under the Reloca-

tion Assistance Acts.

Under the 1967 Act, “Displaced” means “required to vacate

any real property or any tenancy therein pursuant to any

lawful order or notice of any state agency. . .” N.J.S.A.

20:4-3(c).

As I read plaintiff’s complaint, but for the alleged failure to

comply with the acts, the Authority’s taking and dislocation

would have been a justifiable interference with its property

right under the Eminent Domain Act. The defendants could

28a

have given to plaintiff that which was allegedly due at anytime

between the November court order and the August dislocation.

Therefore, | find that the appropriate date for marking the

accrual of this cause of action is August 15, 1974. Plaintiff's

complaint against the individual Authority officials is therefore

timely.

Defendants also argue that they are entitled to summary

judgment because the amended complaint fails to state a claim

under Section 1983 against these officials. They contend that |

the allegations contained in the complaint are based predomi- |

nantly on the oversight or supervisory responsibilities of these

defendants who are the highest officials in the Authority. As

such, they are not the affirmative acts required for Section |

1983 actions. See Rizzo v. Goode, 423 U.S. 362 (1976). |

The only direct affirmative act or omission alleged by the |

plaintiff, according to defendants, is the failure of Defendant |

Werblin as the Chief Executive Officer of the Authority to sign

and forward the DCA assurance forms referred to as Form

DCA-101-Guideform assurance with respect to P.L. 1967 C.79

and P.L. 1971 C.362, and Form DCA-102-Guideform assist-

ance with respect to Relocation Requirements P.L. 1967 C.79

and P.L. 1971 C.362.

With respect to this allegation, defendant Werblin argues

that his failure is not unlawful under the 1971 Act, or is at

most a de minimus violation from which Blazer suffered no

actionable harm.

Plaintiff defends the sufficiency of its amended complaint

by pointing to numerous alleged affirmative duties and derelic-

tions of these duties which directly caused plaintiff’s loss of

property.

The amended complaint includes allegations of the defen-

dants unlawfully delegated their responsibilities under the Re-

location Acts to the Department of Transportation, that the

defendants failed to give the plaintiff the required 90-day

written notice, that the defendants failed to obtain the ap-

proval of the DCA Commissioner of the Workable Relocation

Assistance Plan (WRAP), and that the defendants failed to

incorporate into the WRAP all the necessary policies, and that

29a

the defendants had direct or constructive knowledge of the

unique circumstances of the plaintiff’s business, qualify it as a

hardship case.

Plaintiff asserts that these allegations bring the claim within

the requirements of Section 1982, under Hague v. CIO, 307

U.S. 496 (1939) and Black v. Stephens, 662 F.2d 181 (3rd Cir.

1981).

My review of all the papers filed on these motions and on

the earlier summary judgment motions leads me to believe that

the constitutional questions presented are difficult, and to

some extent, novel. Namely, this case raises the issue whether

every violation of state law also constitutes a constitutional or

deprivation of due process. See U.S. v. Jiles, 658 F.2d 194

(1981). Because this is a novel question, I will consider the

other avenues of argument raised by the parties first in order to

obviate, if possible, the need to reach it.

Section 1983 provides in pertinent part:

“Every person who, under color of law subjects or causes

to be subjected, any. . .person within the jurisdiction of

the United States to the deprivation of any

rights. . .secured by the Constitution and laws shall be

liable to the party injured in an action at law or suit in

equity. . .”

I must first determine whether, assuming arguendo, that the

alleged actions constitute constitutional deprivations, these

defendants subjected or caused to be subjected the plaintiff to

such deprivations.

This clause in Section 1983 has been construed to include

only a person’s own conduct or participation in a pattern of

violation by virtue of knowledge, acquiescence, support and

encouragement.

See Rizzo v. Goode, supra, and Black v. Stephens, supra.

Plaintiff’s principal allegations concern the failure of defen-

dants to inform plaintiff as to the availabilty and professing of

relocation benefits. I have not considered the alleged denial of

benefits to the part of liability phase of this case for the reason

that plaintiff never applied for them. The process that was due

30a

plaintiff and which allegedly was denied it was the accessibility

to the application process.

The facts presented on these motions viewed most favorably

to the plaintiff show the following:

Plaintiff received a DOT pamphlet called “If | Must Move,”

which failed to incorporate all the requisite information; for

example, it failed to specify that the hardship cases could,

upon application, receive advance payments.

Plaintiff was never presented with potential relocation sites

or with financial or technical assistance in adopting any reloca-

tion site to fit its special needs.

The WRAP prepared by DOT on behalf of the Authority

and never certified (which allegation I will address in a mo-

ment) did not contain a proper eviction policy.

I find that the acts of which plaintiff complains, assuming

that they are constitutional torts, were the acts of employees

and agents of these defendants. The defendants are essentially

the Board of Trustees for the Authority.

The plaintiff has alleged only that the powers of the Author-

ity vest in them, that the responsibilities under the Relocations

Acts are mandatory and that they had direct or constructive

knowledge of the unique circumstances of plaintiff's business.

To hold these defendants liable for the actions of the Author-

ity, or DOT employees, under these circumstances, is to base

liability, in my judgment, on the Doctrine of respondeat

superior.

A liability under Section 1983 cannot be predicated on

notions of respondeat superior. See Hampton v. Holmesberg

Prison Officials, 546 F.2d 1077 (3rd Cir. 1976).

Liability under Section 1983 can be predicated on the failure

of high officials to properly supervise their employees, but

only where there is found a policy on the part of high officials

of encouragement and acquiescence in the constitutional viola-

tions of their employees. See Commonwealth of Pennsylvania

v. Porter, 659 F.2d 306 (3rd Cir. 1981). However, such is not

the case here, even when the facts are viewed under summary

judgment standards.

This is not the case of a police chief who conveniently

ignores citizens’ complaints of the use of excessive force by

3la

police officers brought to his or her attention time after time.

See Porter, supra. Here, even if defendants knew that the

nature of plaintiff’s business involved unique structural cir-

cumstances, there are no facts in the record that even hint that

these defendants were not entitled to assume that their employ-

ees were properly administering to plaintiff's needs. C.F. Wat-

son v. Interstate Fire Casualty Company, 611 F.2d 120 (Sth Cir.

1980).

Therefore, defendants are not persons who have subjected

or caused to be subjected the plaintiff to a deprivation of any

rights to relocation assistance, even assuming these rights are

constitutionally protected.

If the allegations that are not clearly predicated on supervi-

sory responsibilities, two must be dismissed on the basis that

the undisputed evidence proves that the defendants did not

violate the Relocation Acts. Plaintiff has complained that the

defendants unlawfully delegated its responsibilities under the

Acts to the Department of Transportation. However, the Act

itself anticipates that state agencies will share resources and

expertise in implementing and carrying relocation programs.

N.J.S.A. 20:4-11 provides in part:

“In order to prevent unnecessary expense and duplica-

tion of functions and to promote uniform and effective

administration of relocation assistance programs for dis-

placed persons, the Commissioner may authorize any

taking agency to. . . carry out its functions under this

Act through any state agency or instrumentality having an

established organization for conducting relocation assis-

iance programs.”

On April 25, 1973, the Authority, by Defendant Werblin,

entered into a contract with the New Jersey Department of

Transportation which has “the required organization and the

special professional expertise” to accomplish relocation assis-

tance on behalf of the Authority.

The act by Defendant Werblin of contracting with the

Department of Transportation was therefore lawful. Under the

contract, the DOT was to “exclusively provide all areas of

32a

relocation assistance” while the Authority was to handle the

legal acquisition, condemnation and eviction matters. Even

though, the Authority was ultimately responsible for the ac-

tions of the Department of Transportation personnel as its

agents. See DCA Regulations, Chapter 2, Paragraph 3. These

defendants are not liable on this basis under Section 1983 for

the negligence of field officers and DOT employees for the

reasons already annunciated.

I have also determined that the notice of dispossession

provided to plaintiff was sufficient as a matter of law. While

the DCA regulations require 90-day written notice, | find that

the November 12, 1973, court order entered by Judge Traut-

wein which specified February Ist, 1974, as the date by which

plaintiff was to vacate the premises, constitute more than

adequate notice.

Actually, plaintiff was on notice for more than nine months,

when one takes into consideration the extensions consented to

in writing by the Authority and the amended orders of Judge

Trautwein.

I therefore find that no state law violation incurred in this

regard, and accordingly, no constitutional violation.

The plaintiff’s complaint, therefore, falls or stands on its

allegation that Defendant Werblin violated Blazer’s due

process rights by failing to submit the DCA Forms of Assur-

ance 101 and 102. Defendants suggest that the 1971 Act does

not make this a legal requirement, although the 1967 Act does.

See N.J.S.A. 52:31-B-5, and that therefore the failure to

certify cannot be a basis for Section 1983 liability. | do not

agree. The WRAP itself specifies with respect to these assur-

ances:

“The Sports and Exposition Authority attorney will

separately arrange as an integral part of this plan to

submit to the Commissioner of Community Affairs the

assurances required in form DCA-101-Guideform assur-

ance with respect to P.L. 1967 C.79 and P.L. 1971 C.362—

and DCA Form 102-Guideform assistance with respect to

relocation requirements P.L. 1967 and P.L. 1971 C.362.

33a

This is in accordance with DCA regulations which sets out in

its introductory paragraph that “governmental agencies are

subject to the relocation provisions of the Relocation Assis-

tance Acts of 1967 and 1971 (P.L. 1967, Chapter 79, and PL.

1971, Chapter 362). These regulations are promulgated pur-

suant to the legislation. See N.J.S.A. 52:31B-10 and N.J.S.A.

20:4-10. I therefore find that the certification by the Chief

Executive Officer of the taking agency, in this case, Defendant

Werblin, is required under the Acts.

I am therefore faced with determining whether this violation

by defendant of state law rises to the level of constitutional

error.

In Jiles, cited supra, as | pointed out earlier during the

colloquy, the Third Circuit began to shape the contours of this

area of constitutional law. When Judge Hunter, speaking for

the court, said:

“In determining whether the violation of a particular

state law deprived a defendant of his due process rights

. we must ascertain whether the state law directly

conferred a substantive right on the defendant or merely

created an administrative plan to help the state regulate its

officers’ conduct.” See page 200 of that opinion.

At issue in Jiles was a state procedure to protect juveniles

from having their criminal records released to the public. The

statute included a court procedure for intra-law enforcement

agency relief. The Third Circuit, holding that the use of a

photograph in a photo spread identification without having

obtained a court order did not violate the appellee’s constitu-

tional rights, stated:

“This safeguard, while helpful to the state in ensuring

that such records would not be released to the general

public, did not create a property interest on behalf of the

appellee.”

Here the statute created a procedure to protect dislocated

persons and business concerns from unfair or inequitable

relocation. See N.J.S.A. 20:4-2.

34a

The DCA forms 101 and 102 are the same kind of proce-

dural safeguard as was at issue in Ji/es. There can be no doubt

that a WRAP was promulgated by DOT under contract to the

Authority, and that it was implemented to some degree at least.

The WRAP was submitted to the Commissioner of DCA

pursuant to the Acts who found that “the manner in which you

propose to relocate persons displaced and the resources avail-

able for their relocation comply with the requirements of the

Relocation Assistance Law of 1971 and the regulations pro-

mulgated thereunder.” See letter from Commissioner Kramer

to James Hyde, dated July 20th, 1973. The Commissioner

concluded the letter by saying that the approval of the WRAP

is contingent on the submission of these forms.

For summary judgment purposes, the evidence does not

show that the forms were ever submitted. However, I do not

find that plaintiff had a property interest in this safeguard. It

was the intention of the Acts that relocation of plaintiff

proceed pursuant to a WRAP, but one was prepared for the

Authority and implemented. The signature of Defendant

Werblin on these forms can only be deemed part of “an

administrative plan to help the state regulate its officers’

conduct.” See Jiles at page 200.

To say that but for these forms, the field officers would have

properly informed plaintiff of its rights under the Acts and but

for this, plaintiff would not have been unprepared financially

and physically to relocate is to travel down the same supervi-

sory road covered before.

I find that the Defendant Werblin did not commit a constitu-

tional tort.

In sum then, I have determined that the amended complaint

was filed timely, but that it fails to state a claim cognizable

under Section 1983 against these defendants because, one,

these defendants did not personally perform the administrative

functions of informing the plaintiff of available relocation

assistance benefits, two, they did not as supervisor acknowl-

edge, encourage or support a pattern or practice of constitu-

tional violations; and three, Defendant Werblin’s delegation of

the relocation program responsibilities to DOT was lawful;

35a

four, Defendant Werblin’s violation of the certification re-

quirement does not constitute a constitutional violation.

However, | will not grant attorneys’ fees to the defendants.

The Civil Rights Attorneys’ Fees Awards Act, 42 U.S.C.

Section 1988 provides that a court “in its discretion may allow

the prevailing party. . . a reasonable attorneys’ fee as part of

the costs.”

The term “prevailing party” includes defendants, but Con-

gress has indicated that “defendants should be entitled to

attorneys’ fees only if the action is vexacious and frivolous, or

if the plaintiff instituted solely to harrass or embarrass the

defendant.”

See Note, 80 Columbia Law Review 346, 354 (1980). See also

Christiansburg Garment Company v. EEOC, 434 U.S. 412,

421, which I note is a case decided prior to the promulgation of

Section 1988, but the same standard is utilized under 1988 as is

utilized under the EEOC.

As I have already stated, plaintiff’s complaint raised diffi-

cult and unsettled questions of constitytional law.

In my discussion, the equities do not counsel granting fees to

these defendants.

Mr. Nowak, I will ask you to prepare an appropriate order

in conformance with my determination here today. Thank you.

MR. NOWAK: Yes, your Honor. Thank you.

36a

Judgment of the Court of Appeals for the Third Circuit

dated December 2, 1982

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 82-5239

BLAZER CORPORATION,

Appellant

—vVs.—

NEW JERSEY SPORTS AND EXPOSITION AUTHORITY, DAVID A.

WERBLIN, CHARLES SERRAINO, ADRIAN M. FOLEY, JR.,

GEORGE F,. KUGLER, JR., AUBREY C. LEWIS, JOSEPH M.

MCCRANE, and “JOHN DOES,” said names being fictitious

(D.C. Civil No. 80-2587)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY - NEWARK

ARGUED NOVEMBER 19, 1982

Before:

GIBBONS, HIGGINBOTHAM and BECKER,

Circuit Judges.

ROBERT S. TOBIN (Argued)

152 Market Street

Paterson, New Jersey 07505

Attorney for Appellant

37a

DONALD A. KLEIN (Argued)

WINNE, BANTA & RIZZI

25 East Salem Street

Hackensack, New Jersey 07602

Of Counsel: JOSEPH A. RIZZI,

DONALD A. KLEIN.

On The Brief: DONALD A. KLEIN,

VIRGINIA ANNE GLYNN.

Attorneys for Appellee New Jersey

Sports and Exposition Authority

KENNETH I. NOWAK (Argued)

ZAZZALI, ZAZZALI & KROLL

Gateway |

Newark, New Jersey 07102

Of Counsel: JAMES R. ZAZZALI.

On The Brief: KENNETH I. NOWAK.

Attorneys for Appellees, Werblin,

Serraino, Foley, Kugler, Lewis and

McCrane

JUDGMENT ORDER

Blazer Corporation appeals from a final order granting

summary judgment against it on its Section 1983 complaint

against the New Jersey Sports and Exposition Authority and

certain of its officials. Since the complaint fails to state a cause

of action for violation of that section, it is

38a

ORDERED, ADJUDGED and DECREED that the judgment be

and is hereby affirmed.

Costs are taxed in favor of appellees.

BY THE COURT,

/s/ JOHN GIBBONS

Circuit Judge

Attest:

/s/ SALLY MRVOS

Sally Mrvos, Clerk

Dated: Dec. 2, 1982

39a

Order Denying Motion for Hearing

En Banc dated December 29, 1982

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 82-5239

BLAZER CORPORATION,

Appellant,

—Vvs.—

NEW JERSEY SPORTS AND EXPOSITION AUTHORITY, DAVID A.

WERBLIN, CHARLES SERRAINO, ADRIAN M. FOLEY, JR.,

GEORGE F. KUGLER, JR., AUBREY C. LEWIS, JOSEPH M.

MCCRANE, and “JOHN DOES,”, said names being ficti-

tious,

(D.C. Civil No. 80-2587)

SUR PETITION FOR REHEARING

Present:

SEITZ, Chief Judge,

ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS,

HIGGINBOTHAM, SLOVITER and BECKER, Circuit Judges.

The petition for rehearing filed by appellant in the above

entitled case having been submitted to the judges who partici-

pated in the decision of this court and to all the other available

circuit judges of the circuit in regular active service, and no

40a

judge who concurred in the decision having asked for re-

hearing, and a majority of the circuit judges of the circuit in

regular active service not having voted for rehearing by the

court in banc, the petition for rehearing is denied.

By the Court,

s/ JOHN J. GIBBONS

Judge

Dated: Dec. 29, 1982

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.