DURAN v. COUNTY OF MIDDLESEX

DEBEVOISE, Senior District Judge.

This matter is before the court on the motion of defendants Port Authority of New York and New Jersey and Port Authority of New York and New Jersey Police Department (collectively, the "Port Authority") to dismiss the claims of plaintiffs Jose B. Duran and Felicia Duran (the "Durans") against the Port Authority for lack of subject-matter jurisdiction. The motion is deemed to have been made under Federal Rule of Civil Procedure 12(b)(1). For the reasons that follow, the Port Authority's motion to dismiss is granted as to the Durans' claims against the Port Authority arising under New Jersey common, statutory, or constitutional law, and is denied as to the Durans' claims against the Port Authority arising under federal statutory and constitutional law.

The Durans, husband and wife, live in the Township of Franklin in Middlesex County, New Jersey. The Durans filed a complaint on September 15, 2000 in the Law Division of the Middlesex County Superior Court. The complaint contains the following factual allegations.

On August 21, 1998, the County of Middlesex, the Middlesex County Prosecutor's Office, and the Middlesex Sheriff's Department falsely and without probable cause charged Jose Duran ("Duran") with the crime of having failed to register with the authorities as a sex offender. Durans' Complaint, 9/15/00, First Count ¶ 5; Second Count ¶¶ 2, 5, 6; Third Count ¶¶ 2, 3. Pursuant to an arrest warrant that issued on the criminal complaint bearing this false charge, Compl., Second Count ¶ 3, Third Count ¶ 2, on October 17, 1998, certain police officers of the Port Authority wrongfully arrested Duran. Id., First Count ¶¶ 2, 4; Second Count ¶ 4. Duran was unlawfully detained, first at the in the Queens County Jail in the State of New York and then in the Middlesex County Jail in the State of New Jersey, for a total of sixteen days. Id., First Count ¶ 4; Third Count ¶ 4. Throughout his detention, Duran's jailors knew, could have known, or should have known that Duran was not the unregistered sex offender sought by the authorities, id.; throughout his detention, Duran stood ready to appear before a Middlesex County magistrate to prove his innocence. Id., First Count ¶ 3, 6; Second Count ¶ 4. Duran eventually appeared before the Middlesex County Superior Court on November 2, 1998, whereupon that court declared Duran had been misidentified as the unregistered sex offender, exonerated him, and ordered him immediately released from custody. Id., First Count ¶ 7; Second Count ¶ 4; Third Count ¶ 5.

The Durans' complaint comprises five counts arising from these facts. The first, second, third, and fifth counts contain claims against all defendants arising under New Jersey common law. The fifth count includes a clearly-worded claim by Felicia Duran for loss of consortium. Though the allegations in the first, second, and third counts are somewhat desultory, for purposes of this motion it will be assumed arguendo that those counts include claims for false arrest or false imprisonment, abuse of process, and malicious prosecution. The fourth count contains claims against all defendants that Duran was seized and deprived of his liberty in violation of his "civil rights under the Constitution of New Jersey, the United States Constitution, and applicable State and Federal Laws." Compl., Fourth Count ¶ 2; see Fourth Count ¶ 1 (incorporating by reference all prior allegations, including the allegations of deprivation of liberty in First Count ¶ 8, Second Count ¶ 7, and Third Count ¶ 6).

A summons in the Durans' case was issued by the Clerk of the Middlesex County Superior Court on September 27, 2000. The summons was sent to the Port Authority's office in New York City by certified mail on September 29, 2000. The Port Authority has provided the court with proof that it received the summons on October 3, 2000.

The Port Authority never answered the Durans' complaint. Instead, the Port Authority first removed the case to this court by filing a notice of removal, supported by a verified petition for removal, on October 25, 2000. The Port Authority then filed the instant motion to dismiss in lieu of an answer, together with supporting documentation, on November 6, 2000.

This court has an affirmative obligation to verify its jurisdiction over the subject matter of the Durans' complaint. A federal district court has jurisdiction over the subject-matter of a case removed from a state court if and only if it would have had original subject-matter jurisdiction had the case originally been filed in federal district court. 28 U.S.C. § 1441(a) (1948, as amended); see, e.g., Allbritton Communications Co. v. Nat'l Labor Relations Bd., 766 F.2d 812, 820 (3rd Cir. 1985).

The complaint alleges Duran was deprived of his liberty in violation of his civil rights under the United States Constitution and applicable federal law. Though Duran cites no specific federal constitutional or statutory provisions, these omissions are not fatal, for he has made a "short and plain statement of the grounds upon which the court's jurisdiction depends . . ." Fed.R.Civ.P. 8(a)(1) (1937, as amended). Read synoptically, the fourth count of the complaint contains two claims: one that Duran was seized in violation of his rights under the Fourth Amendment to the Constitution, and one that he was deprived of his liberty without due process of law in violation of the Fourteenth Amendment. These constitutional violations "can be sufficiently vindicated by an action under 42 U.S.C. § 1983 and there is no need or right to assert a cause of action directly under the Constitution." Narducci v. Timoney, 1999 WL 961221, at *7 (E.D.Pa.).

This court would have original jurisdiction over the federal constitutional and statutory claims in this case under 28 U.S.C. § 1331 and 1343, and supplemental jurisdiction over the Durans' state-law claims against the defendants other than the Port Authority under 28 U.S.C. § 1367, had the Durans' complaint originally been filed here. Though this court lacks subject-matter jurisdiction over the Durans' state-law claims against the Port Authority, subject-matter jurisdiction over the remainder of the case is not divested. Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 386, 390, 118 S.Ct. 2047, 2051, 2053, 141 L.Ed.2d 364 (1998).

Threshold Procedural Matters The Port Authority's Failure To Comply with the Requirements of 28 U.S.C. § 1446(a ) 28 U.S.C. § 1446(a) reads, in pertinent part, as follows: "A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States . . . a notice of removal. . . ." 28 U.S.C. § 1446(a) (1948, as amended) (emphasis added). Judicial construction of the phrase "defendant or defendants" has given rise to the "well-settled rule of law commonly known as the `rule of unanimity' that all defendants must join in or consent to the removal petition." Michaels v. New Jersey, 955 F. Supp. 315, 319 (D.N.J. 1996) (citing Balazik v. County of Dauphin, 44 F.3d 209, 213 (3rd Cir. 1995) (other citations omitted)).

Though the Port Authority's notice of removal and verified petition violate the rule of unanimity, as none of the other defendants joined in the notice or petition and there is no evidence in the record of their consent thereto, this defect is modal, not jurisdictional. Balazik, 44 F.3d at 213. The Durans had until November 24, 2000, thirty days after the Port Authority filed its notice of removal on October 25, 2000, to move for remand of their case based on this defect. 28 U.S.C. § 1447(c) (1948, as amended). They did not do so. Accordingly, the Durans have waived their right to challenge removal on this or any other nonjurisdictional ground. Calloway v. Borough of Glassboro Dep't of Police, 89 F. Supp.2d 543, 549 n. 13 (D.N.J. 2000); Michaels, 955 F. Supp. at 322. Further, judicial remand sua sponte is forbidden. Calloway, 89 F. Supp.2d at 549 n. 13. Despite the defects in the removal notice and petition, the Durans' case is properly lodged in this court.

Untimeliness of the Port Authority's Motion To Dismiss under Fed.R.Civ.P. 81(c)

Federal Rule of Civil Procedure 81(c) provides, in pertinent part, as follows:

In a removed action in which the defendant has not answered, the defendant shall answer or present the other defenses or objections available under these rules within 20 days after the receipt through service or otherwise of a copy of the initial pleading setting forth the claim for relief upon which the action or proceeding is based, or within 20 days after the service of summons upon such initial pleading, then filed, or within 5 days after the filing of the petition for removal, whichever period is longest.

Fed.R.Civ.P. 81(c) (1937, as amended).

It cannot be gleaned from the record when the Port Authority actually received a copy of the Durans' complaint. As noted above, see supra p. 3, the Port Authority received the summons upon that complaint presumably with a copy of the complaint itself on October 3, 2000. The summons was served by certified mail. The Port Authority filed its verified petition for removal on October 25, 2000. Thus, the longest period for filing a motion to dismiss was the five-day period from the petition-filing date, and the deadline for the Port Authority's filing such a motion to dismiss was Monday, October 30, 2000.

The Port Authority filed its instant motion to dismiss on November 6, 2000, six days late. Notwithstanding this tardiness, the Port Authority's technical default of Rule 81(c) may be, and will be, overlooked in favor of a decision on the merits. N Y Typographical Union No. 6 v. AA Job Printing, 622 F. Supp. 566, 567 (S.D.N.Y. 1985).

Merits of the Motion History of the Port Authority of New York and New Jersey and New Jersey's Conditional Waiver of the Port Authority's Sovereign Immunity In 1921, New York and New Jersey entered a bistate compact creating the Port Authority of New York and New Jersey. Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 301, 110 S.Ct. 1868, 1870, 109 L.Ed.2d 264 (1990). In accord with the Compact Clause, U.S. Const. art. I, § 10, cl.3, Congress consented to the compact. Feeney, 495 U.S. at 301, 110 S.Ct. at 1870.

From 1921 through 1950, the Port Authority enjoyed complete sovereign immunity from suit. Shifa Servs., Inc. v. Port Auth. of N.Y. and N.J., 1997 WL 16062, at *10 (S.D.N.Y.). "Identical statutes enacted by New York and New Jersey in 1950 changed this, setting forth terms and conditions upon which consent to suits against the Port Authority was granted." Shifa Servs., 1997 WL 16062, at *10. Two such conditions were articulated in N.J. Stat. Ann. § 32:1-163, which conditional waiver provision is the sole basis of the Port Authority's instant motion.

Section 32:1-163 provides, in pertinent part, that consent to suit against the Port Authority is granted upon the condition that any suit, action or proceeding prosecuted or maintained under this act [§§ 32:1-157 through 32:1-168] shall be commenced within one year after the cause of action therefor shall have accrued, and upon the further condition that in the case of any suit, action or proceeding for the recovery or payment of money, prosecuted or maintained under this act, a notice of claim shall have been served upon the Port Authority by or on behalf of the plaintiff or plaintiffs at least sixty days before such suit, action or proceeding is commenced. N.J. Stat. Ann. § 32:1-163 (1951) (West 1990) (emphasis added) (footnote omitted, text of footnote inserted in brackets). Accord N.Y. Unconsol. Law § 7107 (1950) (McKinney 2000). Disposition of the Port Authority's motion turns largely on the one-year filing requirement of the conditional waiver provision. The waiver provision's notice-of-claim condition is not in play.

By dint of § 32:1-163 and its New York counterpart, the Port Authority conditionally waived its sovereign immunity and subjected itself to suit in the state courts of New York and New Jersey. Feeney, 495 U.S. at 303, 110 S.Ct. 1871 (quoting N.J. Stat. Ann. § 32:1-162 (1950) (West 1963)). The one-year filing requirement in § 32:1-163 has been strictly construed as a jurisdictional requirement, not as a statute of limitations. Matthews v. Port Auth. of N.Y. and N.J., 163 N.J. Super. 83, 85, 394 A.2d 172 (Law Div. 1978), cited in Mullen v. Port Auth. of N.Y. and N.J., 100 F. Supp.2d 249, 254-55 (D.N.J. 1999), aff'd mem., 225 F.3d 649 (3rd Cir. 2000).

In 1990, the Supreme Court of the United States held the Port Authority had, by virtue of the unmistakably clear language of § 32:1-163, waived its sovereign immunity under the Eleventh Amendment and subjected itself to suit in the United States District Courts for the Districts of New York and New Jersey. Feeney, 495 U.S. at 303, 307-09, 110 S.Ct. at 1871, 1873-74. The Court in Feeney bypassed the question whether the Port Authority actually does enjoy the states' Eleventh Amendment immunity, because there was no question of the Port Authority's consent to suit under the conditional waiver provision as applied to the facts of that case.

In 1994, however, the Supreme Court held the Port Authority enjoyed no sovereign immunity from suit under the Eleventh Amendment. Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 52-53, 115 S.Ct. 394, 406, 130 L.Ed.2d 245 (1994). The Court in Hess reached the issue it had bypassed in Feeney because the petitioners before the Court in Hess had filed their separate suits against the Port Authority in the United States District Court for the District of New Jersey more than one year after their causes of action against the Port Authority had accrued, and so it could not be said that the Port Authority had consented to suit under § 32:1-163.

This Court Has No Subject-Matter Jurisdiction over the Durans' State-Law Claims against the Port Authority

Several judges of the District of New Jersey have dismissed, under § 32:1-163, state-law claims filed more than one year after accrual. Doll Jr. v. Port Auth. Trans-Hudson Corp., 92 F. Supp.2d 416, 423 (D.N.J. 2000) ( per Hochberg, J.); Mullen, 100 F. Supp.2d at 255-56 ( per Bissell, J.).

In Mullen, Judge Bissell sua sponte addressed Hess and distinguished it as nonbinding precedent. He noted that though the Supreme Court had held in Hess the Port Authority lacked immunity from suit under the Eleventh Amendment on a federal claim under the Federal Employers' Liability Act because any judgment on such a claim would not be paid from the New Jersey state treasury the Court in Hess did not answer the question whether the one-year filing requirement of § 32:1-163 could, as a jurisdictional bar, provide the Port Authority with immunity from suit under the Eleventh Amendment on a late-filed state claim under New Jersey law. Mullen, 100 F. Supp.2d at 255 n. 4.

A plausible argument can be made that Hess subjects the Port Authority to suit in federal court on both federal and state claims, without the protection of the Eleventh Amendment, and that the conditional waiver provision has no effect on the federal courts' jurisdiction to entertain state-law claims against the Port Authority filed more than one year after accrual. To begin, the Court's discussion of the federal nature of the FELA claim was not part of the Court's ratio decidendi, and so was dictum; see Hess, 513 U.S. at 41-42, 52-53, 115 S.Ct. at 401, 406. Next, though it cannot be questioned that § 32:1-163 still applies with full force in New Jersey state courts, it must also be kept in mind that the one-year filing requirement of this conditional waiver statute has been construed by those courts as a jurisdictional bar, not as a statute of limitations. Assuming Hess means the Port Authority enjoys no sovereign immunity from suit on a state-law claim in federal court under the Eleventh Amendment, the conditional waiver of sovereign immunity, including the jurisdictional bar of the one-year filing requirement, loses all efficacy and meaning in federal court. The Port Authority, so the argument goes, cannot conditionally waive a right it does not have; its conditional sovereign immunity from suit in New Jersey state courts is irrelevant to its unconditional lack of sovereign immunity in federal court; and once § 32:1-163 is rendered inert in the federal courts, the one-year filing requirement that is part and parcel of the conditional waiver of sovereign immunity loses its potency as a jurisdictional bar and retains no residual power as a statute of limitations. The conclusion to be drawn from this argument is that the applicable New Jersey statutes of limitations for the causes of action of false arrest, abuse of process, and malicious prosecution would obtain in this case.

While this argument has a certain logic to it, as a matter of federalism, it is untoward to hold that claims against the Port Authority over which New Jersey state courts would irrefutably lack jurisdiction under § 32:1-163 may be entertained in the District of New Jersey merely by virtue of the Port Authority's lack of sovereign immunity under the Eleventh Amendment. The one-year filing requirement of § 32:1-163 will be applied to the Durans' state-law claims against the Port Authority in this case.

It remains to determine whether the Durans' state-law claims comply with the one-year filing requirement or breach it. Under New Jersey law, Duran's claims for false arrest and abuse of process accrued on October 17, 1998, the date of Duran's arrest. Michaels, 955 F. Supp. at 326-27 (citations omitted); see supra p. 2. Felicia Duran's claim for loss of consortium also accrued on that date. By contrast, Duran's claim for malicious prosecution accrued on November 2, 1998, the date on which the criminal proceedings against Duran terminated in his favor. Ibid.; see supra p. 3. The Durans' complaint was filed on September 15, 2000, more than one year after these state-law causes of action accrued under New Jersey law. See supra p. 2. Accordingly, this court has no jurisdiction over these claims against the Port Authority. This court likewise lacks jurisdiction over Duran's claims under the New Jersey Constitution against the Port Authority. Mullen, 100 F. Supp.2d at 255.

This Court Has Subject-Matter Jurisdiction over the Durans' Section 1983 Claims against the Port Authority

This Court does have subject-matter jurisdiction over Duran's federal constitutional claims brought under § 1983. The statute of limitations for § 1983 claims is imported from state law. 42 U.S.C. § 1988 (1976, as amended), construed in Wilson v. Garcia, 471 U.S. 261, 269, 105 S.Ct. 1938, 1943, 85 L.Ed.2d 254 (1985). "[C]ourts considering § 1983 claims should borrow the general or residual [state] statute for personal injury actions." Owens v. Okure, 488 U.S. 235, 250, 109 S.Ct. 573, 582, 102 L.Ed.2d 594 (1989). In New Jersey, the residual personal injury statute that controls in § 1983 actions is N.J. Stat. Ann. § 2A:14-2, which provides that "[e]very action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued." N.J. Stat. Ann. 2A:14-2 (1877, as amended) (West 2000), applied in Cito v. Bridgewater Township Police Dep't, 892 F.2d 23, 25 (3rd Cir. 1989).

The two-year statute of limitations prescribed by § 2A:14-2 applies to § 1983 claims; the one-year jurisdictional bar for actions against the Port Authority prescribed by § 32:1-163 does not. Mullen, 100 F. Supp. at 260; Shifa Servs., Inc., 1997 WL 16062, at *10 n. 9; see Silva v. Crain, 169 F.3d 608, 610-11 (9th Cir. 1999).

While the statute of limitations for § 1983 actions is borrowed from the law of the forum state under § 1988 as construed in Wilson and Okure, "federal law governs the accrual of such an action." Mullen, 100 F. Supp.2d at 260. "Under federal law, a § 1983 cause of action begins to accrue when the plaintiff knows, or has reason to know, of the injury on which the action is based." Ibid. (citing Montgomery v. DeSimone, 159 F.2d 120, 126 (3rd Cir. 1998)).

Duran first knew or had reason to know of the injuries on which his § 1983 claims are based on October 17, 1998, the date of his arrest. Since the Durans' complaint was filed on September 15, 2000, Duran's § 1983 claims fall within the applicable two-year statute of limitations and are not barred.

For the foregoing reasons, this court shall grant in part and deny in part the Port Authority's motion to dismiss. The motion is granted with respect to all state-law claims against the Port Authority, which claims shall be dismissed for lack of subject-matter jurisdiction. The motion is denied with respect to all federal claims against the Port Authority. An appropriate order shall enter.