Opposition Brief — Fernandes v. Rockaway Township Town Council

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In The

Supreme Court of the United States

+

October Term, 1993

NELSON A. FERNANDES,

Petitioner,

VS.

ROCKAWAY TOWNSHIP TOWN COUNCIL AND

TOWNSHIP ENGINEER,

Respondents.

On Petition for Writ of Certiorari to the Supreme Court of

New Jersey

RESPONDENTS’ BRIEF IN OPPOSITION

JOHN. H. DORSEY

Counsel of Record

DORSEY AND FISHER

Attorneys for Respondents

714 Main Street

P.O. Box 228

Boonton, New Jersey 07005

(201) 334-1900

DOUGLAS R. CABANA

On the Brief

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TABLE OF CONTENTS

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Reasons for Denying (he Wit... on cess ccc ncacsanss 9

I. There is no jurisdiction to grant a writ of certiorari.

Achaiah cheeks b wee eee e Ree ee 9

II. Matters of state or federal law were correctly

decided by the New Jersey courts. ............ 12

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TABLE OF CONTENTS

Cases Cited:

Cito v. Bridgewater Tp. Police Dept., 892 F.2d 23 (3rd Cir.

a | PUREE CORTE TC Oe 15

Herb v. Pitcairn, 65 S. Ct. 459, 324 U.S. 117, 89 L. Ed. 789

i! Peer rer ree re rere re rr eer ere se 11

House v. Road Improv. Dist., 45 S. Ct. 60, 266 U.S. 175, 68

OF: i | Peery ere rere Teer ee eee 12

Layne & Bowler Corporation v. Western Well Works, 261

U.S. 387, 43 S. Ct. 422, 67 L. Ed. 712(1923) ........ 10

Oroz v. American President Lines, Limited, 259 F.2d 636

(1958), cert. denied, 79 S. Ct. 584, 359 U.S. 908, 3 L.

St: Pa, UE 4s sake hues cocasksetuaeuns 15

il

Contents

Page

Rice v. Sioux City Memorial Park Cemetery, 75 S. Ct. 614,

349 U.S. 76, 99 L.. Ba. SFT CISSS) «sve ce ise arcines 10

Wilson v. Garcia, 105 S. Ct. 1938, 471 U.S. 261, 85 L. Ed.

ye TG) rere ery rp 15

Wilson v. Loew’s Inc., 78 S. Ct. 526, 355 U.S. 597, 2 L. Ed.

yo), 0) > ) reer rrr rey 11

Statutes Cited:

NID.S.A. GOA: 12-2 C6806: . oo iceecccseunineuseveses 1,6

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MTR A SRST oi nc sewi we ccenaneekene ees 14

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POU BAe STS) ccna sak sense tan seveeberesaeee 11,12

yp SURE oe |) rs rere 12

Rh ET od 9). reer rermrrc ret ws tere S 6,12, 15

ROR S Op Ferry errr sco cyl 15

United States Constitution Cited:

FUR AMOREORE oon 6 ccc cdn cee ccasvanenseeeeenes 6

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Contents

Page

FourteenthAmendment ........................... 10

Rules Cited:

United States Supreme Court Rules:

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APPENDIX

Appendix A — Order of the United States District Court for

the District of New Jersey Filed November 29,1991 .. la

Appendix B — Order of the United States District Court for

the District of New Jersey Filed September 23,1991 .. 6a

]

No. 93-88

In The

Supreme Court of the United States

+

October Term, 1993

NELSON A. FERNANDES,

Petitioner,

VS.

ROCKAWAY TOWNSHIP TOWN COUNCIL AND

TOWNSHIP ENGINEER,

Respondents.

On Petition for Writ of Certiorari to the Supreme Court of

New Jersey

RESPONDENTS’ BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Respondent Township of Rockaway sold municipally-owned

land no longer needed for public use to Petitioner Nelson

Fernandes at an auction on September 21, 1985. This sale was

conducted lawfully pursuant to N.J.S.A.40A:12-1 et seq.

The Township Council authorized the auction in a resolution

it approved on August 6, 1985. The sale of the municipal lands no

longer needed for public use was to be subject to the following

relevant terms and conditions:

2

...(f) All conveyance shall be by bargain and

sale Deed with covenants against grantors acts.

No Affidavit of Title will be provided.

[emphasis supplied].

(h) This sale is made subject to such facts as an

accurate survey may disclose, existing

tenancies, rights of persons in possession,

zoning ordinance, easements, existing

conditions, covenants, and restrictions, codes

and ordinances of the _— applicable

municipalities, County of Morris, State of New

Jersey and the United States of America.

[emphasis supplied].

(i) Norepresentations or any kind are made by

_ the Township of Rockaway as to the condition,

area or boundaries of the property herein

relevant. Said premises are being sold in their

present condition “as is.” [emphasis supplied].

(j) If the title to this property shall prove to be

unmarketable, liability of the Township of

Rockaway Shall be limited to repayment to the

purchaser of the amount of his other deposit

and the balance of the purchase price (if paid)

... Notice of the alleged defects of title or

claim of unmarketability shall be given to the

Township of Rockaway in writing not less than

thirty (30) days after the sale. The successful

bidder agrees that the failure to give such

notice shall be deemed conclusive evidence

that the purchaser accepts the title in its then

present condition. [emphasis supplied].

3

(k) Bidders are advised that no employee,

agent or official of the Township of Rockaway

has any authority to waive, modify or amend

any of the conditions of sale therein provided.

(1) It is conclusively presumed that a bidder,

prior to making his or her bid, had done the

following:

1. Checked the exact location,

including the correct street address,

boundaries and the size of the

property.

2. Checked the zoning restrictions to

ascertain the current legal use of the

property.

3. Made a personal inspection of the

property prior to bidding.

These terms and conditions make it unmistakably clear that at

the auction, purchasers such as Petitioner, received nothing more

than marketable title to any land sold. The Township specifically

refused to provide an Affidavit of Title to purchasers. It also told

purchasers that the lands were being sold subject to existing

easements, restrictions, and applicable local, county, state and

federal laws and regulations, whatever those might be. By the

terms and conditions of this sale, the onus fell on purchasers to

determine whether what they planned to do on the property was

legally feasible. Respondent Township was clearly not promising

any purchaser that the potential “best and hi ghest” use of that tract

was permissible or feasible.

Petitioner offered the successful bid of $10,000 on Block

4

20504, Lot 8 located at 15 Cayuga Avenue within the Township.

The lot was smaller than the minimum size set by the Township’s

zoning ordinance and residential development. A portion of the lot

was also covered by environmentally-sensitive freshwater

wetlands. However, Petitioner, an experienced home builder and/

or speculator in undeveloped property, knew the lot was

undersized and did inspect the subject property. After his

inspection, he decided to purchase. He later purchased the adjacent

Lot 9, planning to subdivide the two lots into two “buildable” lots.

At the time of his successful bid, Petitioner signed a form

entitled “Auction Information for Bidders for Properties being

Sold for Rockaway Township.” This form described the terms of

the sale including the requirement to sign a contract, and deposit

with the Township $500 no later than two days after the auction. It

also contained the following paragraph which is relevant to the

case at bar:

Acceptance of a Bidding Number indicates that

the Bidder has read, understands, and agrees

to these terms and conditions, as well as the

provisions of the Township’s published

resolution and contract, which together with

this information form the terms and conditions

of this sale... I have read and accepted these

terms and conditions. [emphasis supplied].

Petitioner took title to the lot at 15 Cayuga Avenue, with the

assistance of the law firm of Somer & Englehardt, by deed

recorded with the Morris County Clerk on November 15, 1985.

Petitioner had a title search done at the time of the purchase but

chose not to pay for title insurance. Petitioner claims to have

conducted, at approximately the same time, percolation tests on

Lots 8 and 9 and those tests purported to indicate that a below-

ground Individual Septic Disposal System (I.S.D.S.) would not be

>

feasible. As previously stated, Petitioner’s intention was to build

and sell a detached, single family dwelling on Lots 8 and 9. The

Planning Board approved his application for a minor subdivision

on October 20, 1986. Petitioner hoped to connect this home to the

municipal sanitary sewer line that ran adjacent to his lots. This

application was rejected, however, because of a grant condition

imposed by the federal government in 1983 when it provided the

Township with a portion of the money needed to build the sanitary

sewer system to which Petitioner wished to connect. Petitioner’s

lots, according to the United States Environmental Protection

Agency (EPA), are located in an environmentally sensitive area

(ESA). Lots within an ESA cannot be connected to federally-

funded sanitary sewers, in order to protect the wetlands which

create an ESA designation, from sewer-induced development. The

lots owned by Petitioner were designated as within an ESA and

were two of approximately 140 lots in the Township impacted by

the ESA grant condition prohibiting connections to the municipal

sanitary sewer. Correspondence confirming this is dated

September 30, 1983 from the consulting engineers who delineated

the ESA’s to then Township Mayor Wojtaszek.

The Township cooperated with Petitioner in his attempt to

obtain a waiver from this ban, including allocation of sewer

gallonage (subject to EPA approval) and approval of a wetlands

waiver as part of his application for waiver to the EPA. But on May

5, 1989, the Rockaway Valley Regional Sewerage Authority

(RVRSA) received a letter from the EPA’s Acting Regional

Administrator denying the request.

This law suit arose because Petitioner alleged that he is the

owner of a worthless tract that can neither be connected to the

municipal sanitary sewer, nor sustain a below-ground ISDS.

Petitioner conveniently ignored the option of an above-ground

ISDS for the lots in question.

6

Petitioner, appearing pro se, filed a lawsuit in the United

States District Court, District of New Jersey, some time in early

1990. The cause of action asserted by the Petitioner arose under 42

U.S.C. § 1983, i.e., the Township officials, under color of state law,

acted to deprive Petitioner of his constitutional rights. The Hon.

Maryanne Trump Barry, U.S.D.J., on November 29, 1990 entered

an order dismissing the petitioner’s complaint for failure to

adequately state a claim for a violation of his federal constitutional

rights. (Ra 1)’.

The Petitioner subsequently filed a complaint in the New

Jersey Superior Court, Law Division on December 4, 1990. The

Township filed its answer on or about February 21, 1991, pursuant

to a consent order permitting a late filing. Petitioner then filed a

motion, returnable April 5, 1991, for “partial summary judgment”

and subsequently, tacked on to that same motion, a request for a

jury trial as well as permission of the court to allow the entry into

evidence of videotaped depositions. In what respect the summary

judgment was “partial” was not made clear by Petitioner’s moving

papers. Respondent Township made a cross motion to dismiss the

complaint. The Petitioner’s motion was denied while the

Respondent Township’s motion was granted with an exception by

the Hon. John J. Harper, J.S.C. on July 10, 1991. Judge Harper’s

order, dismissed all counts except counts two and six. Count two

alleged that Respondent Township violated the provisions of

N.J.S.A.40A:12-1 et seq. and by doing so, violated the Petitioner’s

constitutional right to due process. Count six alleged that actions of

the Township or its agents constituted a “taking” without

compensation in violation of his rights under the Fifth

Amendment.

Leave to file an amended complaint with a supporting brief

was filed with the federal district court by Petitioner on August 7,

(

1. “Ra” refers to Respondents’ Appendix.

7

1991. Respondent Township filed its brief in opposition on or

about August 8, 1991 and a response was filed by the Petitioner on

August 30, 1991. Judge Maryanne Trump Barry dismissed this

matter and stated that “justice does not require this Court to grant

Plaintiff leave to amend the Complaint.” (Ra 7). Petitioner did not

appeal the dismissal in the federal district court.

Respondent then filed a motion in New Jersey Superior Court,

Law Division, to dismiss the remaining counts of Petitioner’s

complaint on or about August 10, 1991. This matter was adjourned

pending the signing of the federal court order by Judge Barry. A

motion to file an amended complaint in the New Jersey Superior

Court, Law Division, was instituted by Petitioner and responding

briefs were filed on or about October 10, 1991. Hon. Karen

Russell, J.S.C., conducted a hearing in this matter on October 25,

1991 and the order dismissing the remaining counts was entered on

January 3, 1992. (Pa 72)’.

On December 3, 1991, Petitioner filed a motion for

reconsideration. Respondent Township filed a responding letter

brief on January 7, 1992. The jurist noted that “these claims are all

either previously dismissed by Judge Harper, barred by the notice

provisions of the New Jersey Tort Claims Act or beyond the

applicable Statute of Limitations for Section 1983 claims as well as

Plaintiff’s counts filed to state a cause of action upon which relief

can be granted as well are vague and conclusory.” (Pa 70).

On May 20, 1992, the Petitioner filed a motion for summary

disposition and sanctions with the Superior Court of New Jersey,

Appellate Division. The Respondent, Township of Rockaway filed

an answer on June 12, 1992.

The Superior Court of New Jersey, Appellate Division on June

2. “Pa” refers to Petitioner's Appendix.

8

23, 1992 denied Petitioner’s motion and permitted the Respondent

to rely on its motion brief and its merits brief. The matter was

argued on December 9, 1992 before Judges Gaulkin and Stern. Ina

per curiam opinion, the Appellate Division found “no basis for

disturbing the judgment,” “no basis for the breach of contract

claims advanced by Plaintiff” and they affirmed the judgment of

the trial court. Fernandes v. Rockaway. (Pa 63).

On February 4, 1993, Petitioner filed a notice of petition for

certification from the judgment of the Superior Court of New

Jersey, Appellate Division with the Clerk of the New Jersey

Supreme Court. The Township filed its brief in opposition to the

petition for certification on February 18, 1993. The petition was

denied by the court on March 15, 1993. (Pa 62). Thereafter,

Petitioner filed a motion for reconsideration with the New Jersey

Supreme Court urging the court to reconsider his petition. The

court denied petitioner’s request on May 11, 1993. (Pa61).

On July 14, 1993 Petitioner served Respondent with his

petition seeking a writ of certiorari with the United States Supreme

Court.

Petitioner apparently claims that had he known of the EPA

grant condition when the auction occurred, he would have made a

different economic decision and not purchased the subject

property. The Township should not be held responsible for the

consequences of Petitioner’s financial decisions. By the precisely

stated terms and conditions of the 1985 auction, the Respondent

Township promised to convey marketable title and nothing more.

The EPA grant condition did not deny Petitioner marketable title

and the Township conveyed the property pursuant to the terms and

conditions which Petitioner had agreed to at the time of the sale.

The matters of federal and state law herein presented have

been ruled upon by the state courts and have been upheld.

9

REASONS FOR DENYING THE WRIT

I.

THERE IS NO JURISDICTION TO GRANT A WRIT

OF CERTIORARI.

The petition submitted to the Court does not present questions

for review that meet the criteria necessary for this Court to grant a

writ of certiorari. A writ of certiorari is granted by judicial

discretion only when there exists “special and important reasons

therefore.” Rule 10.1. To illustrate the character of reasons which

may be deemed “special and important,” Rule 10.1 refers to cases:

[W ]hen a state court of last resort has decided a

federal question in a way that conflicts with the

decision of another state court of last resort or

of a United States Court of Appeals or

[W]jhen a state court ... has decided an

important question of federal law which has

not been, but should be, settled by this Court or

has decided a federal question in a way that

conflicts with applicable decisions of this

Court. [Rules 10.1(b), 10.1(c)].

In the case sub judice, there is not one single special or

important reason articulated on which to grant certiorari.

“Special and important reasons” imply a reach

to a problem beyond the academic or the

episodic. This is especially true where the

issues involved reach constitutional

dimensions, for there comes into play regard

for the court’s duty to avoid decision of

10

constitutional issues unless avoidance

becomes evasion.

Rice v. Sioux City Memorial Park Cemetery, 75 S. Ct. 614, 349 U.S.

70, 99 L. Ed.897 (1955). Certiorari should not be granted except in

those cases involving principles the settlement of which is of

importance to the public, as distinguished from that of the parties,

and in cases where there is a real and embarrassing conflict of

opinion or authority between the courts. Rice v. Sioux City

Memorial Park Cemetery, supra, 75 S. Ct. at 620, 349 U.S. at 79,

99 L. Ed. 897 quoting Layne & Bowler Corporation v. Western

Well Works, 261 U.S. 387, 393, 43 S. Ct. 422, 423, 67 L. Ed. 712

(1923). Here, petitioner has not presented to the Court any real and

embarrassing conflict with another state court of last resort or in

the decisions of this Court. There is simply no conflict whatsoever

presented for consideration.

The questions presented for review are vague and unspecific.

The petition is devoid of any authority to demonstrate a conflict.

Petitioner has taken a scattershot approach in hopes that this Court

will find an issue in which to grant certiorari. Notwithstanding the

fact that Petitioner has presented his claims in the federal district

court and in three levels of the New Jersey courts, the specific

constitutional rights he seeks to vindicate remain unclear. )/The

inference can be drawn, though not clearly stated, that a basis for

the petition to this Court is primarily the Fourteenth Amendment

through the Due Process Clause. Even assuming that Petitioner is

seeking to bring a due process challenge under the Fourteenth

Amendment of the Constitution, a claim he has not articulated with

any specificity, the facts in this case do not support his contentions.

The broad statement that he was “denied due process by the

erroneous application of the statute of limitations” (Pet. p. i) has no

basis most especially in light of the fact Petitioner filed his

complaint well in excess of the two year statute of limitations.

11

Concerning issues of state law, again Petitioner fails to clearly

articulate with any specificity where his rights have been violated.

The judgments of the New Jersey courts are well reasoned and

have applied the appropriate principles of law. See Appellate

Division opinion (Pa 63, 66) and Law Division opinion (Pa 67,

71). When a judgment below rests on an independent and adequate

state ground, the writ of certiorari should be dismissed, Wilson v.

Loew's Inc., 78 S. Ct. 526, 355 U.S. 597, 2 L. Ed. 2d 519 (1958) for

“{ojur only power over state judgment is to correct them to the

extent that they incorrectly adjudge federal rights. And, our power

is to correct wrong judgments, not to revise opinions. We are not

permitted to render an advisory opinion, and if the same judgment

would be rendered by the State court after we corrected its views of

federal laws, our review could amount to nothing more than an

advisory opinion.” Herb v. Pitcairn, 65 S. Ct. 459, 463, 324 U.S.

117, 125-126, 89 L. Ed. 789 (1945). The judgment of the New

Jersey state courts rests on adequate and independent state grounds

as articulated in the opinions of the lower courts, see supra (Pa 63,

66, 67 to 71) nor are there any special or important reasons

presented to disturb the judgment of the New Jersey courts.

Petitioner asserts that jurisdiction is invoked pursuant to 28

U.S.C. § 1257(3) now 28 U.S.C. § hae In pertinent part the

Statute provides:

(a) Final judgments or decrees rendered by the

highest court of a state . .. . may be reviewed

by the Supreme Court by writ of certiorari

where the validity of a. . . statute of the United

States is drawn in question or where the

validity of a statute of any State is drawn in

question on the grounds of its being repugnant

to the Constitution or laws of the United States

12

Other than the mere assertion of jurisdiction under the

foregoing statute, Petitioner cites no authority nor raises any

challenge to the validity of the applicable federal or state law. In

order for this Court to exercise jurisdiction on the grounds that a

statute is repugnant to the Constitution, the challenge must be

distinct and substantial. House v. Road Improv. Dist., 45 S. Ct. 60,

266 U.S. 175, 68 L. Ed. 229 (1924). Petitioner’s simple assertion,

by way of single statement that the applicable state statutes are

repugnant to the Constitution or to the laws of the United States

without substantiation is insufficient grounds for this Court to

grant a writ of certiorari.

Moreover, Rule 29.4(c) requires that a petitioner questioning

the constitutionality of any state statute and the State is not a party

thereto, must file the initial pleading with this Court reciting that

28 U.S.C. § 2403(b) may be applicable and be served upon the state

attorney general. As petitioner has asserted jurisdiction pursuant to

28 U.S.C. § 1257(a) he has an affirmative duty to comply with the

requirement for service upon the New Jersey Attorney General.

His failure to do so rendered his petition defective.

II.

MATTERS OF STATE OR FEDERAL LAW WERE

CORRECTLY DECIDED BY THE NEW JERSEY

COURTS.

This action began when Petitioner filed a 42 U.S.C. § 1983

action in the federal district court for the District of New Jersey.

The Honorable Maryanne Trump Barry, U.S.D.J. entered an order

dismissing the complaint on November 29, 1990 for failure to

a “quately state constitutional rights. (Ra 1). Petitioner never

. -pealed from Judge Barry’s dismissal of his 1983 claim.

Thereafter, Petitioner brought his case to the Superior Court of

saw

13

New Jersey which considered both the state and federal claims. In

affirming the judgment of the trial court, the Appellate Division of

the New Jersey Superior Court concluded:

Particularly given plaintiff’s acknowledgment

of the “auction information” indicating the

property was sold “as is,” and acknowledging

the “terms and conditions” of the property, and

making the sale subject to “existing conditions,

covenants and restrictions” of all relevant

governmental entities including the United

States of America and the Township, we see no

basis for disturbing the judgment. [citation

omitted]

In light of those provisions, we see no basis for

the breach of contract claims advanced by

plaintiff. While plaintiff argues that “[t]he

issue before the court is a breach of contract not

a tort claim,” and cites cases for the proposition

“that contract issues are not subject to the Tort

Claims Act, he cites no authority for the

Proposition that the Township would have a

duty to disclose the condition to every buyer

... Fernandes v. Rkwy Tp. Town Council [Pa

64].

The Appellate Division further rejected the argument that

N.J.S.A. 40A:12-13 barred the sale by the Township as “restricted

pursuant to law.” (Pa 65). While Petitioner references a state law

governing the method of sale which public entities must follow

when offering lands at public auction, see N.J.S.A.

40A:12-13, he nowhere alleges in what manner the failure to

follow the provisions of this law, if there was a failure by Township

Officials, violated his federal or state constitutional rights.

14

Respondent conducted the property auction in strict accordance

with the statute on August 5, 1985. The Township Council

authorized the sale by resolution and conducted an open public sale

at auction to the highest bidder, the Petitioner, after an

advertisement in local newspapers within the specified time

required by statute. N.J.S.A. 40:12-13(a).

Thus, assuming arguendo that Petitioner did demonstrate

failure on behalf of Respondent to conduct the auction pursuant to

statute, he has exhausted his legal remedies in the state courts and

has not been denied due process.

Where a state has provided reasonable

remedies to rectify a legal error by a locai

administrative body ... current authority

indicates that due process has been provided,

and that section 1983 is not a means for

litigating the correctness of the state or local

administrative decision in a federal forum...

[One’s right to] property is not denied without

due process simply because a local planning

board rejects a proposed development for

erroneous reasons or makes demands which

arguably exceed its authority under relevant

state statutes. Creative Environments, Inc. v.

Estabrook, 680 F.2d 822, 832, n. 9 (1st Cir.

1982), cert. denied, 459 U.S. 989 (1982).

A mere bad faith refusal to follow state law in

such local administrative matters simply does

not amount to a deprivation of due process

where state courts are available to correct the

error. Chiplin Enterprises v. City of Lebanon,

712 F.2d 1524, 1528 (1st Cir. 1983).

15

There is no basis for petitioner’s assertion that the sale by the

Township was barred as restricted pursuant to law.

The petitioner’s federal civil rights claim pursuant to 42

U.S.C. § 1983 was barred by New Jersey’s two year statute of

limitations. “To the extent plaintiff relies on tort claims because of

the personal injury aspect of the federal claims, see Wilson vy.

Garcia, 105 S. Ct. 1938, 471 U.S. 261, 85 L. Ed. 2d 254 (1985), no

timely notice was given as required by statute. See N.J.S.A. 58:8-8,

-9” (Ra 65). Under New Jersey law, the two year statute of

limitations applies to all personal injury claims, whether based on

tort or contract, Oroz v. American President Lines, Limited, 259

F.2d 636 (1958), cert. denied, 79 S. Ct. 584, 359 U.S. 908, 3 L. Ed.

2d 572 (C.A.N.Y.) and is applicable to bar civil rights actions. Cito

v. Bridgewater Tp. Police Dept., 892 F.2d 23 (3rd Cir. 1989),

rehearing denied. In the state proceedings, petitioner did not

contest the applicable period of limitation in which to file his 1983

claim. (Pa 65). However, before this Court Petitioner now asserts

his claim in an effort to secure jurisdiction. Furthermore, Petitioner

now raises a jurisdictional claim under 42 U.S.C. § 2000d, aclaim

that was not raised before the state courts. The Respondent

respectfully submits that Petitioner’s acknowledgment of the

proper application of the two year statute of limitations and failure

to assert a claim under 42 U.S.C. § 2000d bars him from raising

these issues before this Court.

Petitioner fails to set forth any error committed by the state

courts in their determination which would indicate a result being

repugnant to the Constitution or to any law of the United States or

New Jersey. The state court properly decided the issues of federal

and state law before it and the judgment of the state court should

not be disturbed.

16

CONCLUSION

Based upon the foregoing reasons, it is respectfully requested

that this Court should deny certiorari as the decision of state and

federal law was correctly decided by the New Jersey courts, no

conflict exists between the New Jersey Supreme Court and any

state court of last resort or a United States Court of Appeals and

Petitioner has failed to present a substantial question for review by

the Supreme Court of the United States of America.

Respectfully submitted,

JOHN H. DORSEY

Counsel of Record

DORSEY AND FISHER

Attorneys for Respondents

714 Main Street

P.O. Box 228

Boonton, New Jersey 07005

(201) 334-1900

la

APPENDIX A — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF NEW

JERSEY FILED NOVEMBER 29, 1990

Civil Action No.

90-830 (MTB)

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

NELSON FERNANDES,

Plaintiff,

VS.

ROCKAWAY TOWNSHIP TOWN COUNCIL and TOWNSHIP

ENGINEER,

Defendants.

ORDER

This matter having been opened to the Court upon the motion

of plaintiff Nelson Fernandes (“plaintiff”) for summary judgment,

see Fed.R.Civ.P. 56(c), and upon the cross-motion of defendants,

Rockaway Township Town Council, et al. (“defendants”) to

dismiss the complaint for lack of subject matter jurisdiction, see

Fed.R.Civ.P. 12 (b) (1), and the Court having considered the

submissions of the parties both in support of and in Opposition to

the above motions without oral argument, pursuant to the

provisions of Federal Rule of Civil Procedure 78; and

2a

Appendix A

it appearing that plaintiff filed an amended complaint in this

matter on July 19, 1990, pursuant to 42 U.S.C. § 1983'; and

the Court first addressing the cross-motion to dismiss for lack

of subject matter jurisdiction’; and

it being the opinion of the Court that “a complaint should not

be dismissed for failure to sate a claim unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief,” see Conley v. Gibson, 355

U.S. 41, 45-46 (1957); Paolino v. Channel Home Centers, 688 F.2d

721, 722 (3rd Cir. 1981); and

it being the opinion of the Court that “plaintiffs in civil rights

cases are required to plead facts with specificity”, see Rotolo v.

Borough of Charleroi, 532 F.2d 920, 922 (3rd Cir. 1976);

1. 42U.S.C. § 1983 provides, in pertinent part: “Every person who, under color

of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or

causes to be subjected, any citizen of the United States . . . tothe deprivation of any

rights, privileges, or immunities secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity, or other proper proceeding for

TOmees 5.»

2. Although defendants have brought their motion pursuant to Rule 12 (b) (1),

Fed.R.Civ.P., (lack of subject matter jurisdiction), the motion is more properly

considered as one brought under Rule 12 (b) (6), Fed.R.Civ.P., (failure to state aclaim

upon which relief may be granted). See Chiplin Enterprises v. City of Lebanon, 712

F.2d 1524, 1528-1529 (1st Cir. 1983). There is no doubt that plaintiff has properly

invoked the jurisdiction of this Court on the face of his complaint, or that he has

attempted to state a claim for the deprivation of his civil rights. Plaintiff's right to

recovery thus depends upon whether or not he has stated a claim which is cognizable

under the Constitution and laws of the United States, and not whether his claim is one

over which this Court possesses subject matter jurisdiction. See Chiplin, 712 F.2d at

1528. Accordingly, I will treat the motion as one brought pursuant to Rule 12 (b) (6).

3a

Appendix A

Kauffman v. Moss, 420 F.2d 1270, 1275-1276 (3rd Cir. 1970), cert.

denied, 400 U.S. 846 (1970); Negrich v. Hohn, 379 F.2d 213 (3rd

Cir. 1967); and

it being the opinion of the Court that the requirement that civil

rights complaints be pled with specificity is designed to “protect{[]

state officials from a deluge of frivolous claims and [to] provid[e]

state officials with sufficient notice of the claims asserted to enable

preparation of responsive pleadings . . .”; see Colburn v. Upper

Darby Tp., 838 F.2d 663, 666 (3rd Cir. 1988); see also Rotolo, 532

F.2d at 922; and

it appearing that, in attempting to articulate, with specificity,

the particular constitutional rights, privileges or immunities of

which defendants have deprived him, plaintiff states, inter alia,

that defendants have acted so as to deprive him of “property ... of

property rights and due process”, see Complaint at p. 1; and

it appearing that, in support of this contention, plaintiff

alleges, in the main, that he was permitted and/or fraudulently

induced into purchasing certain lots in Rockaway Township

without proper disclosure by the Town Council of sewer use

restrictions which had been imposed on the property; see Amended

Complaint at pp. 2-3; and

it being the opinion of the Court that, even considering the

supplemental papers plaintiff has filed in support of his motion for

summary judgment, plaintiff has failed to adequately state aclaim

for a violation of his federal constitutional rights;

3. Notwithstanding the fact that plaintiff has already once amended his

complaint, the specific Constitutional rights he seeks to vindicate remain unclear.

While plaintiff references a state law governing the method of sale which public

entities must follow when offering lands at public auction, see N.J.S.A. 40A:12- 13,

(Cont'd)

4a

Appendix A

WMS uth s2Berudtrey ii Nrverredeap LQ)

(Cont'd)

he nowhere alleges in that manner the failure to follow the provisions of his law, if

failure there was, would also constitute a violation of his federal rights under the

Constitution of the United States. Even assuming that plaintiff seeks to bring a

procedural due process challenge under the Fourteenth Amendment of the

Constitution, aclaim which is not articulated with any specificity, I would have grave

doubts as to the sufficiency of this claim vis a vis the facts as they now exist. See, e.g.,

Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 832, n. 9 (1st Cir. 1982),

cert. denied, 459 U.S. 989 (1982) (“Where a state has provided reasonable remedies

to rectify a legal error by a local administrative body . . . current authority indicates

that due process has been provided, and that section 1983 is not a means for litigating

the correctness of the state or local administrative decision in a federal

forum . . . [One's right to] property is not denied without due process simply because

a local planning board rejects a proposed development for erroneous reasons or

makes demands which arguably exceed its authority under the relevant state

statutes.”’); See also, Chiplin, 712 F.2d at 1528 (“A mere bad faith refusal to follow

state law in such local administrative matters simply does not amount to a deprivation

of due process where the state courts are available to correct the error”). Thus, even

assuming that plaintiff had properly and articulately set forth a procedural due process

challenge, dismissal would be appropriate.

I also note that the same analysis would apply as to any “takings” challenge

under the Fifth Amendment. Plaintiff has certainly not been deprived of all use of his

property, see, e.g., Bello v. Walker, 840 F.2d 1124, 1131 (3rd Cir. 1988), and thus,

even if articulately stated, this claim would be dismissed as well.

Finally, to the extent that plaintiff has alleged separate claims under state law,

see supra, they are dismissed as well. See, e.g., Lovell Mfg. v. Export-Import Bank of

the U.S., 843 F.2d 725, 735 (3rd Cir. 1988) (dismissal of federal claims where no

independent basis for jurisdiction exists).

While plaintiff is free to attempt to amend his complaint to comply with the

specific pleading requirements regarding Section 1983 actions, see Ross v. Meagan,

638 F.2d 646, 650 (3rd Cir. 1981) (leave to amend shall be freely given), | would urge

(Cont'd)

|

Sa

Appendix A

ORDERED. that the amended compiaint of plaintiff Nelson

Fernandes is hereby dismissed without prejudice.

s/ Maryanne Trump Barry

MARYANNE TRUMP BARRY

U.S.D.J.

(Cont'd)

plaintiff to consider airing his grievance within the courts of the State of New Jersey.

if plaintiffhas any claim atall, it would appear to arise exclusively under state law and,

accordingly, it is in the state courts in which he should proceed in this non-diverse

action. If plaintiff has any claim at all, it would appear to arise exclusively under state

law and, accordingly, it is in the state courts in which he should proceed in this non-

diverse action. If plaintiff feels he can still articulate a federal claim, the state court

would be equally equipped to handle it, see, e.g., Maine v. Thiboutot, 448 U.S. 1

(1980), and he would thus avoid having to re-rile in state court in any event should it be

determined at a later date by this Court that he has not, in fact, stated a viable federal

claim, but only a state law claim. See Lovell, supra.

6a

APPENDIX B — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF NEW

JERSEY FILED SEPTEMBER 23, 1991

Civil Action No.

90-830 (MTB)

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

NELSON FERNANDES,

Plaintiff,

VS.

THE TOWNSHIP OF ROCKAWAY, a Municipal Corporation of

the State of New Jersey,

Defendant.

ORDER

This matter having come before the Court upon the motion of

plaintiff Nelson Fernandes for leave to file an amended complaint

out of time pursuant to Fed. R. Civ. P. 15(a); and the Court having

considered the submissions of the parties both in support of and in

~opposition to the motion without oral argument pursuant to Fed. R.

Civ. P. 78; and

it appearing that plaintiff initially filed a complaint with this

Court on February 28, 1990 and subsequently filed an amended

complaint on July 19, 1990; and

(+S

Ta

Appendix B

it appearing that this Court dismissed without prejudice

plaintiff's amended complaint in an order dated November 28,

1990; see Fernandes v. Township of Rockaway, No. 90-830 (MTB)

(D.N.J. November 28, 1990); and

it appearing that plaintiff filed a similar action in the Superior

Court of New Jersey, Law Division, Morris County Docket

Number MRS-L-5845-90, on December 4, 1990; and it appearing

that the Superior Court of New Jersey, Hon. John J. Harper, J.S.C.,

by an order dated July 10, 1991, dismissed all but two counts of

plaintiff's complaint, permitting plaintiff to litigate the remaining

two counts and ordering that discovery continue; and

it being the opinion of the Court that leave to amend a

complaint need not be given where justice does not so require; see

Fed. R. Civ. P. 15(a); and

it being the opinion of the Court that, given the pendency of

identical state court proceedings, justice does not require this

Court to grant plaintiff leave to amend the complaint’,

IT IS on this 23rd day of September, 1991, hereby

1. Ofcourse, whether to grant leave to amend a complaint is committed to the

sound discretion of the district court. Foman v. Davis, 371 U.S. 178, 182 (1962);

Coventry v. U.S. Steel Corp., 856 F.2d 514, 518 (3rd Cir. 1988). In this case, justice

clearly does not require leave to amend. I find cases dealing with federal court

abstention to be informative on this point.

A federal district court may decline to exercise its jurisdiction “where the

controversy may be settled more expeditiously in state court.” Will v. Calvert Fire Ins.

Co., 437 U.S. 655, 662-63 (1978) (citing Brillhart v. Excess Ins. Co., 316 U.S. 491 ‘

494 (1942)). The question of whether to defer to state court proceedings is within the

discretion of the district court. Moses H. Cone Memorial Hosp. v. Mercury Const.

Corp., 460 U.S. 1, 19(1983). (Cont'd)

8a

Appendix B

ORDERED, that leave to amend plaintiff’s complaint is

hereby denied.

s/ Maryanne Trump Barry

MARYANNE TRUMP BARRY

U.S.D.J.

(Cont’d)

The Supreme Court recognized in Colorado River Water Conservation District

v. United States, 424 U.S. 800, 818 (1976) the propriety of dismissing a federal action

due to the existence of pending state litigation in the name of “wise judicial

administration.” Jd. The Court in Colorado River enunciated several factors that

would support such a decision. /d. These factors are to be applied pragmatically and

flexibly, based on the realities of the case at hand. Moses H. Cone, 460 U.S. at 21.

First, a district court may consider the advantages of avoiding piecemeal

litigation. Colorado River, 424 U.S. at 818. Clearly this factor weighs in favor of

denying the motion now before me. All but two of plaintiff's claims have been

adjudicated in state court, and the state court has ordered that discovery continue on

the two remaining claims. To recommence proceedings on these two very same

claims in federal court would be to needlessly bifurcate litigation which is more

efficiently handled in one forum.

Second, a district court may look to the “priority” of the federal and state

actions. The Supreme Court’s decision in Moses H. Cone clarified that priority

between forums is not merely a mechanical inquiry into which action was filed first.

Moses H. Cone, 460 U.S. at 21. Rather, priority contemplates a comparison of how

much progress has been made in each action. Jd. Once again, the state court’s

substantial progress in resolving claims identical to those brought before this Court in

the amended complaint counsels against granting plaintiff leave to amend.

Finally, I note that state courts have independent jurisdiction over § 1983

claims. See, e.g., Maine v. Thiboutot, 448 U.S. 1 (1980). Thus, plaintiff's § 1983

claims can be adequately addressed in the ongoing state court litigation. See Medema

v. Medema Builders, Inc., 854 F.2d 20, 213 (7th Cir. 1988) (district courts should not

decline to exercise jurisdiction in areas of exclusive federal jurisdiction).