Petition for Writ of Certiorari — Gallenthin Realty Development Development Development, Inc. v. BP Products of North America, Inc. (No. 05-1404)

1 FILE

No.05- QO5 1404APR 24 2006

ive OFFICE OF THE CLERK

Supreme Court of the United States

GALLENTHIN REALTY DEVELOPMENT, INC. ;

GEORGE A. GALLENTHIN, III, LTC, HUSBAND;

CYNTHIA L. GALLENTHIN, WIFE, »

Petitioners,

v.

BP PRODUCTS OF NORTH AMERICA, INC., d/b/a BP OIL

COMPANY; ESSEX CHEMICAL CORPORATION; DOW

CHEMICAL COMPANY; COMMERCE BANK/HARRISBURG

NATIONAL ASSOCIATION, d/b/a COMMERCE BANK, N.A.;

TRIAD ADVISORY SERVICES, INC., d/b/a TRIAD

ASSOCIATES, INC.; URS CORPORATION; PARKER

MCCAY & CRISCUOLO, P.A.; GLOUCESTER COUNTY

IMPROVEMENT AUTHORITY; BOROUGH OF PAULSBORO,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COuRT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

MICHAEL G. WALSH

Attorney for Petitioners

1025 North 30th Street

Allentown, PA 18104

(619) 434-3756

200851 ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

Il.

lil.

i

QUESTIONS PRESENTED FOR REVIEW

Did the District Court have subject matter jurisdiction

over a Claim of maritime fraud asserted by Petitioners?

Does a private right of action exist under the River and

Harbor Improvement Act, 33 U.S.C. § 540, thus

providing the District Court with jurisdiction over

Petitioners’ claims?

Did the District Court have jurisdiction under the

Commerce Clause to consider Petitioners’ claims that a

New Jersey borough engaged in a scheme to defraud

them by exercising unlawful dominion and control over

their 63-acre port/confined placement site along the

Delaware River?

li

LIST OF PARTIES TO THE PROCEEDING

All of the parties to the proceeding may be found in the

caption of this Petition.

CORPORATE DISCLOSURE STATEMENT

Gallenthin Realty Development, Inc., has no parent

company. It issues no stock, and no publicly held company

has any interest in the company.

tit

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ......

LIST OF PARTIES TO THE PROCEEDING .....

CORPORATE DISCLOSURE STATEMENT .....

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TABLE OF CITED AUTHORITIES ............

TABLE GF APPENEMGES 6 ois ss ccc a ice cua ccasc

ogi 8 8 ko) Serr errr rrr ry ey

STATEMENT OF JURISDICTION .............

CONSTITUTIONALAND STATUTORY

eo yt See rey eee rrr ne res pene E"

REASONS FOR GRANTING THE PETITION ...

1.

THIS COURT SHOULD ALLOW THE

WRIT OF CERTIORARI TO CONSIDER

WHETHER THE DISTRICT COURT HAD

SUBJECT MATTER JURISDICTION

OVER A CLAIM OF MARITIME FRAUD

ALLEGED BY PETITIONERS ..........

iv

Contents

Page

A. The Basis for the District Court’s

Admiralty Jurisdiction ............. 7

B. The Relationship between this Matter

and the Petitioner’s New Jersey Action

sk W Ae AEG cc fe be BO ce 9 ay

Il. THIS COURT SHOULD ALLOW THE

WRIT OF CERTIORARI TO DECIDE

WHETHER A PRIVATE RIGHT OF

ACTION EXIST UNDER THE RIVER

AND HARBOR IMPROVEMENT ACT,

33 U.S.C. § 540, AN ISSUE OF FIRST

MITE 5 wk WEL Kh awa Os bs OO aS 12

lll. THIS COURT SHOULD ALLOW THE

WRIT OF CERTIORARI TO CONSIDER

WHETHER THE DISTRICT COURT

IGNORED PRIOR SUPREME COURT

DECISIONS WHEN IT RULED THAT IT

LACKED SUBJECT MATTER

JURISDICTION TO CONSIDER THE

PETITIONERS’ CLAIM UNDER THE

CAPPER CAUCUS 36 ccie eck es ces 14

ARMED RecA ac SERS EAG ESR ea Nee 18

Vv

TABLE OF CITED AUTHORITIES

Cases:

American Dredging Co. v. Miller, 510 U.S. 443

2. 5 Seam ipame rere e arene OGM RReMI yn Sone srysp ty See

Boatowners and Tenants Association, Inc. v. Port of

Seattle, 716 F.2d 669 (9" Cir. 1983) ..........

C & A Carbone, Inc., v. Town of Clarkstone,

SERED WR cts. | Rear egen y Dy meee ry

California v. Deep Sea Research, Inc., 523 U.S. 491

La | GRR ent ae apeien ane arene oor rer Sond oe

Executive Jet Aviation, Inc. v. Cleveland, 409 U.S.

DATES hs aR eh eek Sacer

Foremost Insurance Co. v. Richardson, 457 U.S. 668

Sn | RRS ie etree arta Munya arene ce gear ame gag?

Grubart, Inc. v. Great Lakes Dredge & Dock Co.,

She aT COPE 5h a sk ee Ee

Harvey & Harvey, Inc. v. City of Chester, 68 F.3d

FO FN ck ak 0 ha OR Se ee eee ae

H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525

EE Aa bedi be civ cea eb eanee bear seraees

Jerome B., Grubart, Inc. v. Great Lakes Dedge &

Pen 06. FAS 8. Saree) ask ss ervcke ian

Page

13

17

11

10

10

16

17

vi

Cited Authorities

Page

Lewis v. B.T: Investment Managers, Inc., 447 U.S.

Be tak hoe ace RAGING AREA eR 14, 15

Norfolk Southern Corp. v. Oberly, 822 F.2d 388

CP ROOTES howe se eke sR Uae 17

R. M. S. Titanic, Inc. v. Haver, 171 F.3d 943 (4" Cir.

SOE ie 6h A PCE RRR RE MOE IT SOT EO 7

Romero v. International Terminal Operating Co.,

See AE OO CASED Aaah benacihna eens iaaenn it

Sisson v. Ruby, 497 U.S. 358 (1990) ............ 10

The Lottawanna, 88 U.S. 558, 21 Wall. 558,

ee ha SU ETSY 6 ak nk wknd kh cee eae 9

The Propeller Genesee Chief v. Fitzhugh, 53 U.S.

RUNES KV AGAS aan bd dea ws eee a Dee ees eee 9

Wardair Canada, Inc. v. Florida Dept. of Revenue,

jp hs Gel, | peer e rears ees ere rary 17

White Mountain Apache Tribe v. Williams, 810 F.2d

844 (9th Cir. 1985), cert. denied, 479 U.S. 1050

PRS 558 ocr ida cs wdc ama ek eee eee 15

Vil

Cited Authorities

- Page

United States Constitution:

Article I, section 8, clause 3 ................... 2,14

Article III, section 2, clause 1 ................5. 2,7

Statutes:

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rg AH OE SS 5: ERR Saree rc garage ats terre rae 3

Be a ees Ge es 2

Be Rs RARE 5k RNS VS ANS ARS 8

5a i 8 re Ee aa kw ee es i, 12

OAL Gn FS TE, es 0b Ci ein vena eerie es 9

Extension of Admiralty Jurisdiction Act, 62 Stat.

Di NaS 6 eae ek Sa OIA ROE RT 9

Rule:

2 2 See Se Ll errr or vere ree pore l

Other Authority:

F. Frankfurter & J. Landis, The Business of the Supreme

7 hth foc PREP ee ere rr ee cere 8

Vili

TABLE OF APPENDICES

Page

Appendix A — Opinion Of The United States Court

Of Appeals For The Third Circuit Filed January

eer ae eer eee ees a ee ee la

Appendix B — Opinion Of The United States District

Court For The Eastern District Of Pennsylvania

Decwed February 18; 2005... 2... 2... eee. lla

]

OPINIONS BELOW

The Opinion of the United States Court of Appeals for

the Third Circuit, No. 05-1822, was submitted under Third

Circuit LAR 34.1(a) on January 12, 2006, and filed on

January 24, 2006. The Opinion may be found at 2006 U.S.

App. LEXIS i722 and is reproduced at page la of the

Appendix.

By Order dated February 14, 2005, the United States

District Court for the Eastern District of Pennsylvania, the

Honorable Edmund V. Ludwig presiding, inter alia, granted

the Respondents’ motions and dismissed the Petitioners’

Complaint for lack of subject matter jurisdiction, pursuant

to Fed. R. Civ. P. 12(b)(1). Reproduced at page lla of the

Appendix.

The District Court below also denied the Petitioners’

“Motion[s] to Dismiss or otherwise Grant Leave to Amend

the Complaint or Otherwise Conduct a Preliminary Hearing,”

filed in response to each Respondent’s motion to dismiss

the Complaint (docket numbers 26, 27, 28, 29, 30, 31, 32,

and 34).

Finally, the District Court denied the Petitioners’ “Motion

to File a Sur Reply Brief to Respondent Commerce,” “Motion

for Leave to File Reply Brief to PMC’s Memorandum of

Law,” and “Motion to Supplement the Record” (docket

numbers 42, 43, and 44).

STATEMENT OF JURISDICTION

The Judgment sought to be reviewed was filed by the

United States Court of Appeals for the Third Circuit under

Third Circuit LAR 34.1(a) on January 24, 2006. The Court

2

of Appeals had jurisdiction over this appeal under 28 U.S.C.

§ 1291, which provides that the courts of appeals (other than

that for the Federal Circuit) shall have jurisdiction over

appeals from all final decisions of the district courts of the

United States.

This Court has jurisdiction over this matter pursuant to

28 U.S.C. § 1254(1), which permits review by writ of

certiorari “in any civil or criminal case, before or after

rendition of judgment or decree.”

CONSTITUTIONAL AND STATUTORY

PROVISIONS

Article I, section 8, clause 3, of the Constitution of the

United States states “the Congress shall have Power .. . to

regulate Commerce . . . among the several States.”

Article III, section 2, clause 1, of the Constitution of the

United States provides that federal judicial power shall extend

to “all Cases of admiralty and maritime Jurisdiction.”

Title 28 of the United States Code, section 1333

(“Admiralty, maritime and prize cases”) states in pertinent

part:

The district courts shall have original jurisdiction,

exclusive of the courts of the States, of:

(1) Any civil case of admiralty or

maritime jurisdiction, saving to suitors

in all cases all other remedies to which

they are otherwise entitled.

3

STATEMENT OF THE CASE

A. Jurisdiction of the Courts Below

The United States Court of Appeals for the Third Circuit,

whose order is sought to be reviewed in this Petition, had

jurisdiction over this matter pursuant to 28 U.S.C. § 1291

(“Final decisions of district courts”), which states in part:

The courts of appeals . . . shall have jurisdiction

of appeals from all final decisions of the district

courts of the United States... .

The United States District Court for the Eastern District

of Pennsylvania had jurisdiction pursuant to 28 U.S.C. § 1331

(federal question jurisdiction).

B. Facts

Petitioners alleged in their Complaint that, beginning on

October 22, 1897, the U.S. Army Corps of Engineers

(“Corps”) has numerous times deposited dredge material

from the berths and channels of the. Delaware River at

“etitioners’ 63-acre confined disposal facility, located in

Paulsboro, New Jersey. Additional deposits were made in

1902, 1934, and 1937. On May 4, 1951, Petitioners’ family,

purchased the 63-acre facility, renaming it the Gallenthin

Meadowlands Sediment Disposal and Recycling Facility, and

continued its use as a disposal site for private dredge material.

The family has continuously operated the site as a dredge

disposal facility ever since. In June of 1964, the Corps placed

186 900 cubic yards of dredge material, under a ground lease

from Petitioners, at the 63-acre site. This facility was

permitted to accept Corps-dredged material under various

acts of Congress.

4

Since 1996, Petitioners have continuously made

improvements to the 63-acre tract, and have pursued diverse

markets for their services throughout the Delaware Valley.

One result of these efforts was a September, 1998 contract

for the deposit, drying, and removal by rail of dredged

material for mine reclamation in Tamaqua, Pennsylvania. In

October, 2000, Petitioners contracted to develop their facility

for portfield and brownfield reclamation and reuse. In August,

2002, Petitioners formally offered to purchase Respondent

BP’s 130-acre and Respondent Dow’s 60-acre portfield real

estate project for $78 mi'lion. In July, 2003, Petitioners

submitted a “Waterfront Development Permit Application”

to the New Jersey Department of Environmental Protection.

The gist of the Petitioners’ action, as stated in Paragraph

26 of its Complaint, is as follows:

On or about 6 March 2002, Respondents BP, Dow

Chemical, and Essex Chemicals, for the expressed

purpose of defrauding Petitioners of their business

and real property, met with Respondents Triad,

URS, Paulsboro, and GCIA at Respondent BP’s

offices in Townsend, Maryland. The plan

developed at this meeting was implemented over

the next thirteen months using the United States

mail, interstate telephones, and U.S. highways.

Petitioners’ Complaint further alleged that, in December,

2002, Respondents BP, Dow Chemical, and Essex Chemicals,

by and through the direct professional services of the

Respondents URS and Triad:

* “Voluniarily” place their 190 acres of real

property into “redevelopment” with

Respondent Paulsboro as their “partner”;

5

* Knowingly included a substantial portion of

Petitioners’ real property into their

redevelopment area without notice to

Petitioners (as required by law);

* Removed any references to dredge material

use to cover their toxic/contaminated 190

acres;

* Removed all references to cooperation with

or the use of Petitioners’ confined placement

site as source of replacement soil;

. Violated Title 33 U.S.C. §§ 540, et seq.;

* Created a fictitious additional lot and block

in Petitioners’ “area in need of

redevelopment” for the purpose of artificially

creating a diversity of title (as required by

law); and

¢ Concealed the required use of Petitioners’

real property as an entrance and exit truck

route.

Petitioners allege these acts were directly intended to

place Respondent Paulsboro Borough in a position to exercise

unlawful dominion and control over Petitioners’ 63-acre port/

confined placement site. If successful, this scheme will result

in a substantial financial benefit to all Respondents.

Petitioners contend Respondents’ scheme came to fruition

on May 20, 2003, when Respondent Paulsboro Borough

placed Petitioners’ real property into redevelopment; thus

directly and economically harming Petitioners by stripping

6

their development rights without due process, and without

compensation.

Petitioners also averred in their Complaint that on May

27 and 29, 2003, Respondents BP, Dow Chemical, Essex

Chemicals, Parker McCay & Criscuolo, GCIA, Triad, URS,

Commerce Bank N/A, and Paulsboro announced a public

meeting with the intention of placing a private road across

the Petitioners’ real property without providing any written

notice to Petitioners (as required by law). On June 17, 2003,

Respondents BP, Dow Chemical, Essex Chemicals, Parker

McCay & Criscuolo, GCIA, Triad, URS, Commerce Bank

N/A, and Paulsboro fraudulently held a public scoping

meeting without said notice.

The District Court dismissed Petitioners’ complaint for

lack of subject matter jurisdiction, and the United States

Court of Appeals for the Third Circuit affirmed.

Contemporaneously with this action, Petitioners

instituted a suit in the Superior Court of Gloucester County,

New Jersey, against the Borough of Paulsboro, New Jersey,

and/or the Planning Board of Paulsboro and/or Paulsboro

Redevelopment Agency. Petitioners’ action was in response

to the adoption by ordinance, on May 20, 2003, of a

redevelopment plan by the Borough of Paulsboro Governing

Body, which stripped Petitioners of development rights to

their 63-acre tract. As of the filing date of this Petition,

Petitioners are awaiting oral argument before the Superior

Court of New Jersey, Appellate Division.

7

REASONS FOR GRANTING THE PETITION

I.

THIS COURT SHOULD ALLOW THE WRIT OF

CERTIORARI TO CONSIDER WHETHER THE

DISTRICT COURT HAD SUBJECT MATTER

JURISDICTION OVER A CLAIM OF MARITIME

FRAUD ALLEGED BY PETITIONERS

Petitioners’ 63-acre tract at issue in this case lies in

southern New Jersey, along and near the mouth of the Delaware

River. Containing major port facilities in Pennsylvania, New

Jersey, and Delaware, the River is one of the largest and most

important freshwater waterways in the world. Commercial

activity on it thus qualifies as maritime commerce. Petitioners’ land

sits directly on a federal commercial waterway built and

maintained by specific act of Congress, and is used solely for

commercial maritime purposes. Clearly, this dispute falls

within the maritime jurisdiction of the federal courts, and the District

Court below improperly dismissed the action for lack of subject

matter jurisdiction. The issue of maritime fraud jurisdiction was

raised at United States District Court and Third Circuit Court of

Appeals levels, and both did not address the issue in their opinions.

A. The Basis for the District Court’s Admiralty

Jurisdiction

_The United States Constitution expressly grants

admiralty and maritime jurisdiction to federal courts. See Art.

Il, § 2, cl. 1 (providing that the federal judicial power shall

extend to “all Cases of admiralty and maritime Jurisdiction’’).

In the exercise of that jurisdiction, federal courts have

developed and applied a body of general maritime law, “the

wellknown and welideveloped venerable law of the sea which

arose from the custom among seafaring men.” R. M. S.

Titanic, Inc. v. Haver, 171 F.3d 943, 960 (4" Cir. 1999). The

8

federal courts’ role in maritime cases has been unique since

the Country’s founding due to its importance in providing

political and economic unity among the States. In short,

“maritime commerce was . . . the jugular vein of the Thirteen

States” F. Frankfurter & J. Landis, The Business of the

Supreme Court 7 (1927). Accordingly, “the need for a body

of law applicable throughout the nation was recognized by

every shade of opinion in the Constitutional Convention.”

Ibid. The constitutional provision was incorporated into the

first Judiciary Act in 1789, and federal courts have retained

“admiralty or maritime jurisdiction” ever since.

The District Court also had maritime jurisdiction over

this case pursuant to 28 U.S.C. § 1333(1), which provides:

The district courts shall have original jurisdiction,

exclusive of the courts of the States, of:

(1) Any civil case of admiralty or maritime

jurisdiction, saving to suitors in all cases all other

remedies to which they are otherwise entitled.

This Court has explained that Article IIl’s grant of

admiralty and maritime jurisdiction

must have referred to a system of law coextensive

with, and operating uniformly in, the whole

country. It certainly could not have been the

intention to place the rules and limits of maritime

law under the disposal and regulation of the

several States, as that would have defeated the

uniformity and consistency at which the

Constitution aimed on all subjects of a commercial

9

character affecting the intercourse of the States

with each other or with foreign states.

American Dredging Co. v. Miller, 510 U.S. 443, 451 (1994)

(quoting The Lottawanna, 88 U.S. 558, 21 Wall. 558, 575,

22. L. Ed. 654 (1875)). In Yamaha Motor Corp., U.S.A. v.

Calhoun, 516 U.S. 199, 210 (1996), this Court explained

that, “in several contexts, we have recognized that vindication

of maritime policies demanded uniform adherence to a

federal rule of decision.” Maritime jurisdiction is not limited

to tide waters. It extends to all public navigable lakes and

rivers, where commerce is carried on between different states,

or with foreign nation. See The Propeller Genesee Chief v.

Fitzhugh, 53 U.S. 443 (1852) (superseded by statute as stated

in Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249

(1972)).

Over the past half-century, Congress and the courts have

enlarged maritime jurisdiction, particularly as regards torts

committed on or near navigable waters. In 1948, Congress

enacted the Extension of Admiralty Jurisdiction Act, 62 Stat.

496. The Act provided that

the admiralty and maritime jurisdiction of the

United States shall extend to and include all cases

of damage or injury, to person or property, caused

by a vessel on navigable water, notwithstanding

that such damage or injury be done or

consummated on land.

46 U.S.C. App. § 740. This Court analyzed the purpose of

the Act as being “to end concern over the sometimes

confusing line between land and water, by investing admiralty

with jurisdiction over ‘all cases’ where the injury was caused

10

by a ship or other vessel on navigable water, even if such

injury occurred on land.” Grubart, Inc. v. Great Lakes Dredge

& Dock Co., 513 U.S. 527, 532 (1995).

In the wake of the 1948 Amendment, this Court has

recognized that “the fundamental interest giving rise to

maritime jurisdiction is ‘the protection of marine

commerce,” Foremost Insurance Co. v. Richardson, 457

U.S. 668 (1982), and that “that interest cannot be fully

vindicated unless ‘all operators of vessels on navigable waters

are subject to uniform rules of conduct.’” Sisson v. Ruby,

497 U.S. 358 (1990) (quoting 457 U.S. at 674-75). Thus,

although an incident involving the commission of a tort may

not occur on navigable waters, it may still have a sufficient

connection with a maritime activity to justify the exercise of

maritime jurisdiction. See Jerome B., Grubart, Inc. v. Great

Lakes Dedge & Dock Co., 513'U.S. 527 (1995). The events

of which the Petitioners have complained throughout this

litigation clearly meet this standard, thus conferring maritime

jurisdiction on the District Court below.

In Grubart, Justice Souter sets forth what one

commentator referred to as “a thumbnail sketch” of this rule

regarding the application of maritime jurisdiction in cases

such as the one now under consideration:

[A] party seeking to invoke federal admiralty

jurisdiction pursuant to 28 U.S.C. § 1333(1) over

a tort claim must satisfy conditions both of

location and of connection with maritime activity.

A court applying the location test must determine

whether the tort occurred on navigable water or

whether injury suffered on land was caused by a

vessel on navigable water. ... The connection

1]

tests raises two issues. A court, first, must “assess

the general features of the type of incident

involved, “to determine whether the incident as

“a potentially disruptive impact on maritime

commerce.” Second, a court must determine

whether the general character” of the “activity

giving rise to the incident” shows a “substantial

relationship to traditional maritime activity.”

Under Justice Souter’s two-step test in Grubart, the

District Court below clearly possessed maritime jurisdiction

to hear this case. If the Respondents are permitted to carry

on with their tortious conduct against the Petitioners and

deprive them of their valuable land while simultaneously

interfering with river traffic on the Delaware River, the

impact on maritime commerce would indeed be disruptive.

As to the second prong of the test, the actions of the

Respondents undeniably bears a substantial relationship to

traditional maritime activity on the Delaware River.

B. The Relationship between this Matter and the

Petitioner’s New Jersey Action

Past decisions of this Court have established that this

federal action should take precedence over the New Jersey

action filed by the Petitioners. See Romero v. International

Terminal Operating Co., 358 U.S. 354, 373 (1959) (“[S]tate

law must yield to the needs of a uniform federal maritime

law when this Court finds inroads on a harmonious system

...”). In California v. Deep Sea Research, Inc., 523 U.S.

491 (1998), this Court held that the Eleventh Amendment

does not bar federal jurisdiction over in rem admiralty actions

when the State is not in possession of the property.

12

The overreaching by the Borough of Paulsboro and its

governing bodies has not only made inroads in a previously

harmonious system but also directly affected the maritime

activity on the Delaware River. The actions by these local

officials cannot bar the exercise of maritime jurisdiction by

the District Court. Its failure to do so amounted to an

egregious lapse of judgment that can be corrected by this

Court’s grant of certiorari.

Il.

THIS COURT SHOULD ALLOW THE WRIT OF

CERTIORARI TO DECIDE WHETHER A PRIVATE

RIGHT OF ACTION EXIST UNDER THE RIVER AND

HARBOR IMPROVEMENT ACT, 33 U.S.C. § 540,

AN ISSUE OF FIRST IMPRESSION

The Petitioners based this action in part on the River

and Harbor Improvements Act, 33 U.S.C. § 540, et seq.

(“Act”), which states in pertinent part:

Federal investigations and improvements of

rivers, harbors, and other waterways shall be under

the jurisdiction of and shall be prosecuted by. the

War Department [Department of the Army] under

the direction of the Secretary of War [Secretary

of the Army] and the supervision of the Chief of

Engineers, except as otherwise specifically

provided by Act of Congress, which said

investigations and improvements shall include a

due regard for wildlife conservation.

In the only federal appellate decision found on this issue,

the Ninth Circuit, in an action by private owners of

13

recreational boats arising from allegedly excessive marina

fees, stated:

The statutory language and legislative history thus

indicate an intent to improve navigation, enhance

commerce, and reduce vehiclevessel traffic

problems, all to the benefit of the general public.

There is no evidence whatsoever of an intent to

provide economical moorage or to create any

special benefit for the class of pleasure craft

owners. BOATA thus has no enforceable rights

under the Act.

Boatowners and Tenants Association, Inc. v. Port of Seattle,

716 F.2d 669, 673-74 (9" Cir. 1983). In ruling that the Act

did not afford the Petitioners in this case with a private right

of action, the Third Circuit expressly relied on Boatowners,

notwithstanding that the facts of the Petitioners’ case bore

no resemblance to those in Boatowners. If, indeed, the Ninth

Circuit is correct in its observation that the Act’s “statutory

language and legislative history thus indicate an intent to

improve navigation, enhance commerce, and reduce

vehiclevessel traffic problems,” then the Petitioner’s

allegations place their case squarely within the Act’s

boundaries.

As this Court has not ruled to date on whether the Act

provides a private right of action, it should grant certiorari

to consider this important issue. The Respondents’ conduct

of which the Petitioners have complained relates directly to

the improvement of navigation, the enhancement of

commerce, and the possible reduction of vehicle-vessel traffic

problems, thus squarely placing the case within the Act.

cS

Il.

THIS COURT SHOULD ALLOW THE WRIT OF

CERTIORARI TO CONSIDER WHETHER THE

DISTRICT COURT IGNORED PRIOR SUPREME

COURT DECISIONS WHEN IT RULED THAT IT

LACKED SUBJECT MATTER JURISDICTION TO

CONSIDER THE PETITIONERS’ CLAIM UNDER

THE COMMERCE CLAUSE

The Commerce Clause provides in part that “the

Congress shall have Power ... to regulate Commerce .. .

among the several States.” U.S. Const. art. I, § 8, cl. 3. This

Court has made it clear that, “[a]lthough the Clause speaks

in terms of powers bestowed upon Congress, the Court has

long recognized that it also limits the power of the States to

erect barriers against interstate trade.” Lewis v. B.T.

Investment Managers, Inc., 447 U.S. 27, 35 (1980). That is

precisely what the Respondent Paulsboro is attempting in

this case. By acting in concert with the other Respondents,

Paulsboro is in a position to exercise unlawful dominion and

control over the Petitioners’ 63-acre port/confined placement

site and then, as a direct result, financially benefit all of the

Respondents. Ultimately, if left unchecked, this action by

Paulsboro would erect barriers against the Petitioners, who

are residents of Pennsylvania and are therefore routinely

engaged in interstate commerce. These barriers, the

Petitioners’ have averred in their complaint, would benefit

the other Respondents with whom the Petitioners are in

competition.

The purpose of the Commerce Clause is the allocation

of power between state and national governments, not the

protection of individuals from the abuse of government

15

authority. See White Mountain Apache Tribe v. Williams, 810

F.2d 844, 849 (9th Cir. 1985), cert. denied, 479 U.S. 1050

(1987). The Commerce Clause creates no individual rights.

Id. Nevertheless, the District Court’s rejection of the

Petitioners’ Commerce Clause claim, on the ground that “no

facts are alleged to suggest that the Borough of Paulsboro’s

designation of Petitioners’ property as an ‘area in need of

redevelopment’ materially affects such commerce,” is not

borne out by the facts and runs afoul of this Court’s holding

in Lewis, supra.

The Petitioners’ alleged in their Complaint numerous

facts implicating the Borough of Paulsboro in a scheme to

defraud the Petitioners with the aid of the other named

Respondents. The Complaint of the Petitioners alleged, inter

alia, that, in December, 2002, the Respondents BP, Dow

Chemicals, and Essex Chemicals, by and through the direct

professional services of the Respondents URS and Triad:

¢ “Voluntarily” place their 190 acres of real

property into “redevelopment” with the

Respondent Paulsboro as their “partner”;

* Knowingly included a substantial portion of

the Petitioners’ real property into their

redevelopment area without any required

notice to the Petitioners;

* Removed any references to dredge material

use to cover their toxic/ contaminated 190

acres;

16

* Removed all references to cooperation with

or the use of the Petitioners’ confined

placement site as source of replacement soil;

¢ Violated Title 33 U.S.C. §§ 540, et seq.;

¢ Created a fictitious additional lot and block

in the Petitioners’ “area in need of

redevelopment” to create the required

diversity of title; and

* Concealed the required use of the Petitioners’

real property as an entrance and exit truck

route (A41).

The Petitioners alleged that these acts were intended to

place the Respondents’ “partner,” the Respondent Paulsboro,

in a position to exercise unlawful dominion and control over

the Petitioners’ 63-acre port/confined placement site and then,

as a direct result, financially benefit all of the Respondents

(A31).

The District Court’s conclusion that “no facts are alleged

[in the Petitioners’ complaint] to suggest that the Borough

of Paulsboro’s designation of Petitioners’ property as an ‘area

in need of redevelopment’ materially affects such commerce”

(A4) is simply not supported by the Petitioners’ specific

pleadings as summarized above. Moreover, the District Court

misinterpreted the cases it cites in support of its statement

that “[s]tate municipalities may incidentally burden interstate

commerce in the regulation of local domestic commerce,”

as a close reading of Harvey & Harvey, Inc. v. City of Chester,

68 F.3d 788, 797 (3d Cir. 1995), and the cases it cites reveals.

17

In considering Commerce Clause challenges, courts

should “determine whether action taken by state or local

authorities unduly threatens the values the Commerce Clause

was intended to serve.” Norfolk Southern Corp. v. Oberly,

822 F.2d 388, 399 (3d Cir. 1987) (quoting Wardair Canada,

Inc. v. Florida Dept. of Revenue, 477 U.S. 1 (1986)). In short,

the purpose of the Commerce Clause is to prevent “state and

local governments [from using] their regulatory power to

favor local enterprise by prohibiting patronage of outofstate

competitors or their facilities.” C & A Carbone, Inc., v. Town

of Clarkstone, 511 U.S. 383 (1994); see also H.P. Hood &

Sons, Inc. v. Du Mond, 336 U.S. 5255-53738 (1949). There

can be little doubt that the unholy alliance among the

Respondent Paulsboro and the other Respondents amounts

to a transparent attempt by the former to use its regulatory

power to favor the latter, especially the Respondents BP, Dow

Chemical, and Essex Chemicals, at the expense of the

Petitioners, their out-of-state competitors.

In short, the facts of this case and the precedents cited

above clearly establish that the District Court ignored or

misapplied precedents of this Court when it ruled that it

lacked subject matter jurisdiction in this case with respect to

the Petitioners’ Commerce Clause claim.

18

CONCLUSION

The undersigned respectfully requests that this Court

grant certiorari in this matter for the reasons stated above.

Respectfully submitted,

LTC George A. Gallenthin, III

Attorney for Petitioners

P.O. Box 7866

Philadelphia, PA 19101-7866

(215) 680-6771

APPENDIX

la

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

FILED JANUARY 24, 2006

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

No. 05-1822

January 12, 2006, Submitted Under

Third Circuit LAR 34.1(a)

January 24, 2006, Filed

GALLENTHIN REALTY DEVELOPMENT, INC.;

GEORGE A. GALLENTHIN, III, LTC, HUSBAND;

CYNTHIAL. GALLENTHIN, WIFE

V.

BP PRODUCTS OF NORTH AMERICA, INC., d/b/a

BP OIL COMPANY; ESSEX CHEMICAL CORPORATION;

DOW CHEMICAL COMPANY; COMMERCE BANK/

HARRISBURG NATIONAL ASSOCIATION, d/b/a

COMMERCE BANK, N.A.; TRIAD ADVISORY

SERVICES, INC., d/b/a TRIAD ASSOCIATES, INC.; URS

CORPORATION; PARKER MCCAY & CRISCUOLO, P.A.;

GLOUCESTER COUNTY IMPROVEMENT AUTHORITY;

BOROUGH OF PAULSBORO; Gallenthin Realty

Development, Inc.; LTC George A. Gallenthin, Ili, Husband;

Cynthia L. Gallenthin, Wife,

Appellants

2a

Appendix A

JUDGES: Before: BARRY, AMBRO and ALDISERT,

Circuit Judges.

OPINION BY: AMBRO

OPINION: AMBRO, Circuit Judge

This case arises from Plaintiffs’ contemplated

redevelopment of their real estate located in the Borough of

Paulsboro, Gloucester County, New Jersey.' Plaintiffs filed

a complaint alleging claims for declaratory judgment, fraud,

and unjust enrichment. The United States District Court for

the Eastern District of Pennsylvania ruled that it lacked

subject matter jurisdiction over those claims notwithstanding

Plaintiffs’ invocation of 28 U.S.C. § 1331, the River and

Harbors Improvement Act, 33 U.S.C. § § 540 et seq., and

the Commerce Clause, U.S. Const. art. I, § 8, cl. 3. For the

reasons explained below, we affirm the order of the District

Court dismissing for lack of jurisdiction.

I. Facts and Procedural Background

As we write for the parties, only a brief summary of

pertinent facts is necessary. Plaintiffs own a 63-acre parcel

1. The plaintiffs include Gallenthin Realty Development, Inc.,

and its owners, LTC George A. Gallenthin, II] and Cynthia L.

Gallenthin, husband and wife (hereinafter “Plaintiffs”). The

defendants include BP Products of North America, Inc., Essex

Chemical Corporation, Dow Chemical Corporation, Commerce

Bank/Harrisburg National Association, Triad Advisory Services, !nc.,

URS Corporation, Parker, McCay & Criscuolo, P.A., the Gloucester

County Improvement Authority, and the Borough of Paulsboro

(hereinafter “Defendants”).

3a

Appendix A

of land, currently operated as a disposal facility, that fronts

the Delaware River. Since 1996, Plaintiffs have taken steps

in anticipation of a complete redevelopment of the site,

including failed attempts to purchase two contiguous

properties—a 130-acre parcel owned by defendant BP

Products of North America, Inc. (BP) and a 60-acre parcel

owned by defendant Dow Chemical Company (Dow).

Moreover, in July 2003, Plaintiffs submitted a “Waterfront

Development Permit Application” to the New Jersey

Department of Environmental Protection.

According to Plaintiffs, Defendants devised a scheme

to thwart their proposed redevelopment and thereby deprive

Plaintiffs of their property rights. Specifically, they allege

that in March 2002, representatives of BP, Dow, and Essex

Chemical Corporation (Essex) met with representatives of

Triad Advisory Services, Inc., URS Corporation, the Borough

of Paulsboro (Borough) and the Gloucester County

Improvement Authority to develop a plan to exercise

unlawful dominion and control over Plaintiffs’ property that

would financially benefit Defendants to Plaintiffs’ detriment.

The complaint alleges that this scheme came to fruition in

May 2003, when the Borough adopted an ordinance

approving a “Redevelopment Plan” under the Local Housing

and Redevelopment Law, New Jersey Stat. Ann. § 40A:12A-

7, which resulted in the designation of Plaintiffs’ property,

among others, as an “area in need of redevelopment.”

In response to the acts of the Borough, Plaintiffs filed a

complaint against the Borough, the Paulsboro Planning

Board, and the Paulsboro Redevelopment Agency in the

Superior Court of New Jersey, Gloucester County,

4a

Appendix A

challenging the validity of the ordinance. The Superior Court

dismissed the complaint, concluding that Plaintiffs could not

demonstrate that the public entities named in the lawsuit had

acted arbitrarily and capriciously in designating their property

and other properties as an area in need of redevelopment.

Plaintiffs timely appealed the dismissal of their complaint

to the Appellate Division.

During the pendency of their state court appeal, Plaintiffs

filed this case in federal District Court, again challenging

the validity of the Borough’s action — this time naming a

number of private parties as defendants and contending that

they engaged in a joint effort to deprive them of their

property.’ Plaintiffs contend that the District Court had

federal question jurisdiction over the action pursuant to

28 U.S.C. § 1331, as they asserted claims arising under the

River and Harbor Improvement Act and the Commerce

Clause. The complaint also alleged common law fraud and

unjust enrichment claims. All Defendants moved to the

dismiss the complaint, interposing (1) lack of subject matter

jurisdiction, (2) lack of ripeness, (3) abstention doctrine

dictates, and (4) failure to state a claim upon which relief

can be granted.

The District Court entered an order dismissing Plaintiffs’

complaint on the ground that they had failed to allege any

basis for the exercise of federal subject matter jurisdiction.

Specifically, the Court ruled that (1) the River and Harbor

2. The Paulsboro Planning Board and the Paulsboro

Redevelopment Agency were not named as defendants in Plaintiffs’

federal action.

Sa

Appendix A

Improvements Act did not provide a private right of action

and, therefore, could not afford Plaintiffs a predicate for

jurisdiction, regardless whether the alleged violations

occurred and (2) the Commerce Clause did not offer a basis

for the exercise of federal jurisdiction because no facts were

alleged to suggest that the Borough’s designation of Plaintiffs’

property as an area in need of redevelopment materially

affects interstate commerce. Rather, the Court explained, “the

factual allegations in the complaint, taken as true, are a

private individual’s challenge to the exercise by a

municipality of its power to enact local land use law; no more.

Without a sound basis for the exercise of federal jurisdiction,

this action must be dismissed.” The District Court further

held that even if it were to grant Plaintiffs’ motion for leave

to amend their complaint to allege some other basis for

federal jurisdiction, that amendment would be futile because

Plaintiffs’ claims “are not ripe and because the doctrine of

abstention would not permit the exercise of jurisdiction.”

This appeal followed.

II. Standard of Review

We have jurisdiction under 28 U.S.C. § 129] and

exercise plenary review over the District Court’s order

dismissing Plaintiffs’ complaint for lack of subject matter

jurisdiction. See, e.g., In re Kaiser Group Intern. Inc., 399

F.3d 558, 561 (3d Cir. 2005); Turicentro, S.A. v. American

Airlines Inc., 303 F.3d 293, 300 (3d Cir. 2002) (citing Gould

Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000)).

In the appeai from the grant of a motion to dismiss for lack

of subject matter jurisdiction under Federal Rule of Civil

Procedure 12(b)(1), ““we review only whether the allegations

6a

Appendix A

on the face of the complaint, taken as true, allege facts

sufficient to invoke the jurisdiction of the district court.’”

Turicentro, 303 F.3d at 300 (quoting Licata v. United States

Postal Serv., 33 F.3d 259, 260 (3d Cir. 1994)). “Challenges

to subject matter jurisdiction under Rule 12(b)(1) may be

‘facial’ or ‘factual.’ Facial attacks, like the one here, contest

the sufficiency of the pleadings, and the trial court must

accept the complaint’s allegations as true.” Turicentro, 303

F.3d at 300, n.4 (citing NE Hub Partners, L.P. v. CNG

Transmission Corp., 239 F.3d 333, 341 n.7 (3d Cir. 2001)).

III. Discussion

Federal district courts have subject matter jurisdiction

over all civil actions that arise either (1) under the

Constitution, laws or treaties of the United States (called

federal question jurisdiction), or (2) between citizens of

different states where the matter in controversy exceeds

$75,000 (referred to as diversity jurisdiction). 28 U.S.C.

$$ 1331-1332. Plaintiffs here do not submit that the District

Court has subject matter jurisdiction based on diversity of

citizenship. Instead, their complaint expressly alleges federal

question jurisdiction because the claims arise under the

Constitution and statutory law of the United States.

A claim arises under federal law if it is apparent from

the face of the plaintiff’s complaint that the plaintiff’s cause

of action was created by federal law. See Dukes v. U.S.

Healthcare, Inc., 57 F.3d 350, 353 (3d Cir. 1995) (“Under

the well-pleaded complaint rule, a cause of action ‘arises

under’ federal law ... only if there is a federal question

presented on the face of the plaintiff’s properly pleaded

7a

Appendix A

complaint”). When jurisdiction is challenged, it is the

plaintiff’s burden to establish that jurisdiction exists. Kehr

Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d

Cir. 1991). Plaintiffs contend that they have a cognizable

federal claim under the Harbor and River Improvements Act

because the Act prohibits the “named defendants from any

lawful exercise of authority over the Plaintiffs’ maritime

_ business or real assets.” We disagree.

The Harbor and River Improvements Acts grants

authority to the Army Corps of Engineers to conduct

investigations and improvements of rivers, harbors and

waterways, to grant easements on lands acquired by the

United States for river and harbor improvements, to approve

the plans of private persons or municipal corporations who

desire to improve navigable rivers at their own expense, to

procure the services of experts, and to award contracts for

architectural, engineering, surveying and mapping services.

See 33 U.S.C. § § 540-633. It does not provide, however, an

express private right of action to persons allegedly injured

by violations of its provisions. See Boatowners and Tenants

Ass'n, Inc. v. Port of Seattle, 716 F.2d 669, 673-74 (9th Cir.

1983) (holding that River and Harbor Improvements Act does

not afford a private right of action to association of boat

owners who moored their boats at marina and who brought

action against municipality contending that imposition of

unreasonable fees constituted a deprivation of federal

statutory rights).

As Defendants emphasize, Plaintiffs cite no case or other

authority to support their contention that they have a private

right of action under the River and Harbor Improvements

8a

Appendix A

Act. Moreover, Plaintiffs have failed to establish that the Act

impliedly creates a private cause of action by demonstrating

that they are “one of the class for whose especial benefit the

statute was enacted,” that Congress intended to create a

private right of action for individuals in their class, or that

their cause of action is not one traditionally relegated to state

law (and thus inferring a cause of action based solely on

federal law). See id. at 672 (setting forth elements to be

analyzed in determining whether a federal statute creates an

enforceable private right of action) (emphasis in original);

cf. California v. Sierra Club, 451 U.S. 287, 297-98, 101

S. Ct. 1775, 68 L. Ed. 2d 101 (1981) (no private right of

action implied on behalf of those allegedly injured by

violation of the River and Harbor Appropriations Act

prohibiting obstructions of rivers, harbors and waterways

except on plans recommended by the Chief of Engineers).

Because no private right of action-either express or implied-

is provided by the River and Harbor Improvements Act, the

District Court properly concluded that the Act cannot serve

as a basis for the exercise of federal question jurisdiction.

Plaintiffs further argue that they have a cognizable

federal claim under the Commerce Clause, which provides

that “the Congress shall have power ... to regulate

Commerce... among the several states.” U.S. Const. art. I,

§ 8, cl.3. “Although the Clause speaks in terms of powers

bestowed upon Congress, the [Supreme] Court has long

recognized that it also limits the power of the States to erect

barriers against interstate trade.” Lewis v. BT Investment

Managers, Inc., 447 U.S. 27, 35, 100 S. Ct. 2009, 64 L. Ed.

2d 702 (1980). That is, the Commerce Clause has a negative,

colloquially called “dormant,” aspect that limits state

9a

Appendix A

authority to regulate areas where “Congress has not

affirmatively acted to either authorize or forbid the challenged

state activity.” Atlantic Coast Demolition & Recycling, Inc.

v. Board of Chosen Freeholders of Atlantic County, 48 F.3d

701, 710 (3d Cir. 1995) (quoting Norfolk Southern Corp. v.

Oberly, 822 F.2d 388, 392 (3d Cir. 1987)). It is undisputed

that Congress has neither prohibited nor authorized the

ordinance at issue. Consequently, we must consider whether

the Borough’s ordinance approving the designation of

Plaintiffs’ property as an “area in need of redevelopment”

violates the dormant Commerce Clause.

As we have made clear in cases involving the dormant

Commerce Clause, state municipalities may incidentally

burden interstate commerce in the regulation of local

domestic commerce. Harvey & Harvey, Inc. v. County of

Chester, 68 F.3d 788, 797 (3d Cir. 1995) (statute that affects

interstate commerce will be upheld unless “the burden

imposed on such commerce is clearly excessive in relation

to the putative local benefits” (quoting Pike v. Bruce Church

Inc., 397 U.S. 137, 142, 90 S. Ct. 844, 25 L. Ed. 2d 174

(1970)); see also Elberton Southern Ry. Co. v. State Highway

Dept., 211 Ga. 838, 89 S.E.2d 645, 649 (Ga. 1955)

(“[A] state may exercise the power of eminent domain

although interstate commerce may be indirectly or

incidentally involved.”). Simply stated, while the purpose

of the dormant Commerce Clause is to prevent “state and

local governments [from using] their regulatory power to

favor local enterprise by prohibiting patronage of out-of-state

competitors or their facilities,” C & A Carbone, Inc. v. Town

of Clarkstown, 511 U.S. 383, 394, 114 S. Ct. 1677, 128 L.

Ed. 2d 399 (1994), its “purpose...is not to protect individual

10a

Appendix A

firms,” Harvey & Harvey, Inc., 68 F.3d at 798. Here, Plaintiffs

have alleged no facts to suggest that the Borough’s

designation of the Plaintiffs’ property as an “area in need of

redevelopment” unduly burdens or materially affects

interstate commerce. As a result, we must conclude that the

dormant Commerce Clause does not give rise to the proper

exercise of subject matter jurisdiction.

* * * *

For the reasons provided above, the decision of the

District Court as to lack of subject matter jurisdiction is

affirmed. As such, we need not reach whether the Court

correctly concluded that dismissal of the Plaintiffs’ complaint

was also required under the ripeness and abstention doctrines.

lla

APPENDIX B — OPINION OF THE UNITED STATES

DISTRICT COURT FOR THE EASTERN DISTRICT

OF PENNSYLVANIA DECIDED FEBRUARY 18, 2005

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION, No. 04-4849

February 18, 2005, Decided

GALLENTHIN REALTY DEVELOPMENT, INC., et al.

v.

BP PRODUCTS OF NORTH AMERICA, et al.

JUDGES: Edmund V. Ludwig, J.

OPINION BY: Edmund V. Ludwig

OPINION:

MEMORANDUM

Ludwig, J.

This action arises from plaintiffs’ contemplated

redevelopment of their real estate located in the Borough of

Paulsboro, Gloucester County, New Jersey.' The complaint

1. Plaintiffs are Gallenthin Realty Development, Inc., and its

owners, LTC George A. Gallenthin, III and Cynthia L. Gallenthin,

(Cont'd)

12a

Appendix B

purports to aver claims for declaratory judgment (Count I),

fraud (Count II), and unjust enrichment (Count III), based

on the following facts: Plaintiffs own a 63-acre parcel of

land with frontage on the Delaware River - currently operated

as a disposal facility.2 Complaint, PP17, 18. Since 1996,

plaintiffs have taken steps in anticipation of a complete

redevelopment of the site, Complaint, P18, including

attempting to purchase two contiguous properties - a 130-

acre parcel owned by defendant BP and a 60-acre parcel

owned by defendant Dow. In July 2003, they submitted a

“Waterfront Development Permit Application” to the New

Jersey Department of Environmental Protection. Complaint,

PP18(t), (v).

Beginning March 2002, defendants are alleged to have

devised a scheme to thwart the proposed redevelopment and

thereby deprive plaintiffs of their property rights. Complaint,

(Cont'd)

husband and wife. Defendants are BP Products of North America,

Inc, Essex Chemical Corporation, Dow Chemical Corporation,

’ Commerce Bank/Harrisburg National Association, Triad Advisory

Services, Inc., URS Corporation, Parker, McCay & Criscuolo, P.A.,

Gloucester County Improvement Authority, and the Borough of

Paulsboro.

2. The property receives material discharged by the United

States Army Corps of Engineers, which periodically dredges the

Delaware River for navigation and other purposes. Plaintiffs propose

to use the property to accept and process dredge material for

reclamation of mines, “portfields,” and “brownfields.” Complaint,

PP17, 18(i), (n). Plaintiff would develop “commercial, light industrial

and waterfront-related commercial uses” on the property. Complaint,

P18(h).

I3a

Appendix B

P26. In May 2003, defendant Borough of Paulsboro adopted

an ordinance approving a “Redevelopment Plan” under the

Local Housing and Redevelopment Law, N.J.S.A. 40A:12A-

7, and designated plaintiffs’ property, among others, as an

“area in need of redevelopment.”’ Complaint, PP29, 20. Its

doing so is alleged to have benefitted defendants, and harmed

plaintiffs.‘

All defendants move to dismiss the complaint, asserting

(1) lack of subject matter jurisdiction; (2) lack of ripeness;

3. Plaintiffs thereupon filed a “Complaint in Lieu of Prerogative

Writ” in New Jersey Superior Court, Gloucester County, Law

Division, against the Borough of Paulsboro and others challenging

the validity of the ordinance. On July 7, 2004, following a hearing

on June 25, 2004, the complaint was dismissed. Plaintiffs’ appeal to

the Appellate Division is pending. See Exhibits “A” (complaint in

lieu of prerogative writ), “B” (transcript of June 25, 2004 hearing

before the Honorable George H. Stanger, Jr.), “C” (July 7, 2004

order), and “D” (notice of appeal) to the “Brief of Defendant

Commerce Bank/Harrisburg National Association in Support of

Motion to Dismiss Complaint.” These records, though not described

in or attached to the complaint, may be considered in deciding a

motion to dismiss. See Southern Cross Overseas Agencies, Inc. v.

Wah Kwong Shipping, Ltd., 181 F.3d 410, 426 (3d Cir. 1999).

4. Recently, Gloucester County publicly gave notice that it will

construct an overpass across a portion of plaintiffs’ property, linking

Interstate 295 with a “proposed deepwater port facility” to be

constructed on BP’s 130 acres. Adam Fifield, County Announces a

Deal to Build an I-295 Overpass, PHILADELPHIA INQUIRER, Feb.

3, 2005, at BI. Furthermore, “there [will] be negotiations with

Gallenthin over the use of a portion of his land for the overpass and

... 1f negotiations fail[{], ‘eminent domain [will] be engaged.’” Id.,

quoting John Burzichelli, Mayor of Paulsboro.

14a

Appendix B

(3) abstention doctrine dictates; and (4) lack of a claim upon

which relief can be granted. Because subject matter

jurisdiction has not been substantiated, the motions were

granted by order dated February 15, 2005.°

The complaint premises itself on federal question

jurisdiction, 28 U.S.C. § 1331], and asserts violations of both

the River and Harbor Improvement Act, 33 U.S.C. § 540,

and the Commerce Clause of the United States Constitution,

Article I, Section 8.° Complaint, PP2-4. However, the River

and Harbor Improvement Act has been dispositively held not

to embody a private right of action. California v. Sierra Club,

451 U.S. 287, 297-98, 68 L. Ed. 2d 101, 101 S. Ct. 1775

(1981); Boatowners & Tenants Asso. v. Port of Seattle, 716

F.2d 669, 673-74 (9th Cir 1983). It, therefore, cannot afford

plaintiffs a predicate for jurisdiction, regardless whether the

alleged violations have occurred.

Moreover, with respect to the Commerce Clause, which

gives Congress exclusive power to regulate interstate

commerce, no facts are alleged to suggest that the Borough

of Paulsboro’s designation of plaintiffs’ property as an “area

in need of redevelopment” materially affects such commerce.

5. Plaintiffs’ motion to amend was also denied, given the lack

of ripeness and the obligation to abstain from deciding a matter more

properly considered by the New Jersey state court. Amendment would

appear to be futile. Infra, at 4-5. For these reasons, the complaint

was not assessed under Fed. R. Civ. P. 12(b)(6).

6. There is no basis for diversity jurisdiction, inasmuch as all

plaintiffs and some defendants are citizens of Pennsylvania.

Complaint, PP7-16.

15a

Appendix B

State municipalities may incidentally burden interstate

commerce in the regulation of local domestic commerce.

See Harvey & Harvey, Inc. v. City of Chester, 68 F.3d 788,

797 (3d Cir. 1995), quoting Pike v. Bruce Church, Inc., 397

U.S. 137, 142, 25 L. Ed. 2d 174, 90 S. Ct. 844 (1970) (statute

that affects interstate commerce “will be upheld unless ‘the

burden imposed on such commerce is clearly excessive in

relation to the putative local benefits.’”) See also Elberton

S. R. Co. v. State Highway Dept, 211 Ga. 838, 89 S.E.2d

645, 649 (Ga. 1955) (“A State may exercise the power of

eminent domain although interstate commerce may be

indirectly or incidentally involved.”). In short, “the purpose

of the Commerce Clause is not to protect individual firms.”

Harvey, 68 F.3d at 799. Accordingly, the Commerce Clause

does not offer grounds for the exercise of subject matter

jurisdiction in this case.

Plaintiffs’ “Motion to Dismiss or Otherwise Grant Leave

to Amend the Complaint,” filed in response to defendants’

motions to dismiss, implicates federal jurisdiction under

various Acts of Congress: the Sherman Act, /5 U.S.C. § 2;

the Federal Coastal Zone Management Act, /6 U.S.C.

§ 1451; the Hobbs Act, /8 U.S.C. § 195]; the Declaratory

Judgment Act, 28 U.S.C. § 220/; the Federal Water Pollution

Act, 33 U.S.C. § 40] and § 125]; and the Civil Rights Act,

42 U.S.C. § 1983. With the exception of the Declaratory

Judgment Act, which cannot be an independent source of

jurisdiction, see Terra Nova Ins Co. v. 900 Bar, Inc., 887

F.2d 1213, 1218 n.2 (3d Cir. 1989), none of these

Congressional statutes is mentioned or adverted in the

complaint.

l6a

Appendix B

“Under the well-pleaded complaint rule, a cause of action

‘arises under’ federal law . . . only if a federal question is

presented on the face of the plaintiff’s properly pleaded

complaint.” Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 353

(3d Cir. 1995). When jurisdiction is challenged, it is

plaintiff’s burden to establish that jurisdiction exists. Kehr

Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d

Cir. 1991). Here, plaintiffs have not done so. The factual

allegations in the complaint, taken as true, are a private

individual’s challenge to the exercise by a municipality of

its power to enact local land use law; no more. Without a

sound basis for the exercise of federal jurisdiction, this action

must be dismissed.

Plaintiffs request leave to amend. Axiomatically, leave

to amend, “shall be freely given when justice so requires,”

Fed. R. Civ. P. 15(a), unless the amendment would be futile.’

Here, even if the amended complaint proposed a good basis

for federal jurisdiction,’ dismissal would be required because

7. Rule 15(a) declares that leave to amend ‘shall be freely given

when justice so requires’; this mandate is to be heeded... . In the

absence of any apparent or declared reason - such as undue delay,

bad faith or dilatory motive on the part of the movant, repeated failure

to cure deficiencies by amendments previously allowed, undue

prejudice to the opposing party by virtue of allowance of amendment,

futility of amendment, etc. - the leave should, as the rules require,

‘be freely given.’” Foman vy. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d

222, 83 S. Ct. 227 (1962). See also Jablonski v. Pan Am World

Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988).

8. In this instance, the lack of the proffer of the proposed

amended complaint is sufficient to deny the request. See Cureton v.

National Collegiate Athletic Ass'n, 252 F.3d 267, 273 (3d Cir. 2001).

17a

Appendix B

the claims are not ripe’ and because abstention doctrine would

not permit the exercise of jurisdiction.'°

BY THE COURT:

Edmund V. Ludwig, J.

9. “A court has no alternative but to dismiss an unripe action.”

Ernst & Young v. Depositors Economic Protection Corp., 45 F.3d

530, 535 (1st Cir. 1995). Here, though plaintiff’s property has been

designated an “area in need of redevelopment,” no declaration of

taking has been filed by the Borough. Until plaintiffs’ property is

condemned, and the condemnation approved by the New Jersey

courts, it is unlikely that a controversy exists. See Eddystone Equip.

and Rental Corp. v. Redevelopment Auth. of Cty. of Delaware, 1988

U.S. Dist. LEXIS 4577, 1998 WL 52082, at *2 (E.D. Pa., May 17,

1988). See also Patel v. City of Chicago, 383 F.3d 569, 573 (7th Cir.

2004) (where ordinance identified potential targets for acquisition,

but no condemnation had been taken place, no injury had occurred

and civil rights case filed by plaintiffs was not ripe). A de facto

condemnation is not alleged. See complaint.

10. See Younger v. Harris, 401 U.S. 37, 46, 27 L. Ed. 2d 669,

91 S. Ct. 746 (1971); Gwynedd Properties, Inc. v. Lower Gwynedd

Township, 970 F.2d 1195, 1199 (3d Cir. 1992) (abstention doctrine

reflects a “strong federal policy against federal court interference

with pending judicial proceedings absent extraordinary

circumstances”). Younger abstention is appropriate where (1) there

are ongoing state proceedings that are judicial in nature; (2) the

proceedings involve state interests; and (3) the state proceedings

offer adequate opportunity to litigate any federal claims. /d. at 1200.

As noted, plaintiffs’ appeal in their state case is pending. Further,

the legality of a local land use ordinance entails special state interests.

New Jersey law sets forth a mechanism for condemnees to challenge

(Cont'd)

18a

Appendix B

(Cont’d)

any aspect of a condemnation in state court. See N. J.S.A. 20:3-5.

Abstention is also appropriate under Burford v. Sun Oil Co., 319

U.S. 315, 318, 87 L. Ed. 1424, 63 S. Ct. 1098 (1943); Colorado

River Water Conservation Dist. v. United States, 424 U.S. 800, 814,

47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976) (abstention appropriate to

avoid disrupting state’s effort to “establish a coherent policy with

respect to a matter of substantial public concern). See Coles v. Street,

38 Fed. Appx. 829, 831 (3d. Cir. 2002) (affirming district court

decision to abstain in eminent domain case because “questions of

state law concerning a state’s desire to establish a coherent policy

with respect to a matter of substantial public concern, such as eminent

domain, abstention is proper.”