The Estate of Rosario Rapisardi v. The Estate of Harry Lange & Laurilee Lange

• Court: Court of Appeals for the Third Circuit
• Decided: September 28, 2022
• Docket: 22-1323
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-1323 __________

THE ESTATE OF ROSARIO RAPISARDI; JAMES P. RAPISARDI, individually and as the successor of the Estate of Rosario Rapisardi

v.

THE ESTATE OF HARRY LANGE AND LAURILEE LANGE; RONALD JENKINS; CHRISTOPHER MONTANA; JOHN DOES 1-10; TIMOTHY HUHN; HUHN ENTERPRISES OCR

James P. Rapisardi, Appellant ____________________________________

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 1:18-cv-14842) District Judge: Honorable Robert B. Kugler ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) September 20, 2022 Before: RESTREPO, RENDELL, and FUENTES, Circuit Judges

(Opinion filed: September 28, 2022) ___________

OPINION *

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. ___________

PER CURIAM

Oldmans Creek is a tributary of the Delaware River. It defines part of the

boundary between Gloucester and Salem counties in southwestern New Jersey. And it

abuts the land at the heart of this legal dispute.

On the one side of the dispute is Lot 3—the family farm of Appellant James

Rapisardi, who has been proceeding individually and as successor-in-interest to the Estate

of Rosario Rapisardi (collectively, “Rapisardi”). On the other side is Lot 2, a piece of

property Rapisardi has described as a carve-out from the family farm (circa 1975) that

has been separately and successively owned by the Estate of Harry and Laurilee Lange,

Ronald Jenkins, Timothy Huhn, and Huhn Enterprises OCR.

According to Rapisardi, a section of his family’s property (the so-called “sliver of

land”) is situated between Oldmans Creek and Lot 2, such that access to the former from

the latter would require traversing Lot 3. Rapisardi has contended that Jenkins and

Christopher Montana (a Lot 2 tenant) constructed and used a “boat ramp” on the sliver of

land, which constituted encroachment or a trespass in violation of New Jersey law.

The land-use dispute was resolved against Rapisardi in New Jersey’s court system.

The intermediate appellate court, in particular, concluded as follows: “[Rapisardi] lost

title over the ‘sliver of land’ to the State when it became submerged and fell below the

mean high water line. * * * With the ‘sliver of land’ being owned by the State, and

2 without a grant of riparian rights from the State, [Rapisardi] cannot restrict access to

Oldmans Creek from Jenkins’ property. Accordingly, there was no trespass or

encroachment by defendants on [Rapisardi’s] property.” Rapisardi v. Est. of Lange, No.

A-3722-16T2, 2018 WL 1473918, at *4 (N.J. Super. Ct. App. Div. Mar. 27, 2018) (per

curiam) (internal citation omitted).

Lamenting his counsel’s handling of the litigation to that point, Rapisardi’s next

move was to file in federal court a suit seeking to, in his words, “[t]hrow out [the] state

courts[’] decisions.” In addition to allegations about the boat ramp, Rapisardi alleged that

Jenkins, specifically, removed “basement sump discharge piping that was discharging

above ground and had it relocated and installed underground into side drainage ditch that

Plaintiff owns approximately 50 feet of downstream of Defendant’s buildings into

Plaintiff’s Riparian Right.” Rapisardi’s third amended complaint raised two claims under

New Jersey law exclusively.

Thereafter, the District Court entered an order directing Rapisardi to file “a fourth

amended complaint properly pleading a basis for federal jurisdiction . . . , under pain of

dismissal for lack of subject matter jurisdiction pursuant to Federal Rule of Civil

Procedure 12(h)(3).” Rapisardi responded in turn.

The District Court described Rapisardi’s new pleading as lacking “a short plain

statement of the claim or a demand for relief as required by” Federal Rule of Civil

Procedure 8, and as containing “only Plaintiffs’ jurisdictional arguments[.]” Addressing

3 those jurisdictional arguments, the District Court determined that Rapisardi failed to

adequately allege diversity jurisdiction under 28 U.S.C. § 1332, as he did not allege “the

state citizenship of any party in this case,” and did not even provide information

regarding the residence of multiple named defendants. The District Court also determined

that Rapisardi failed to adequately allege federal-question jurisdiction under § 1331.

Insofar as Rapisardi suggested that his action implicated the Clean Water Act, 33 U.S.C.

§ 1251, et seq., or else 33 U.S.C. § 701, et seq. (relating to “flood control”), the District

Court reasoned that those laws did not provide a private right of action against a private

litigant, under the circumstances or at all, respectively. Additionally, the District Court

determined that Rapisardi failed to adequately allege a “factual basis for admiralty

jurisdiction” under § 1333. The District Court thus dismissed Rapisardi’s case for lack of

subject matter jurisdiction.

This appeal followed. We have appellate jurisdiction under 28 U.S.C. § 1291. Our

standard of review of an order dismissing an action under Rule 12(h)(3) is de novo. See

S.E.C. v. Infinity Grp. Co., 212 F.3d 180, 186 n.6 (3d Cir. 2000).

For essentially the reasons given by the District Court in the underlying order,

dismissal pursuant to Rule 12(h)(3) was proper. In particular, Rapisardi’s argument in

favor of jurisdiction under § 1332, based only on some of the defendants’ residencies, see

Br. 10, overlooks that such jurisdiction requires “complete diversity between all plaintiffs

and all defendants,” Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005).

4 As for jurisdiction under § 1331, Rapisardi’s newfound focus on federal regulation

of water pollution, see, e.g., Br. 43, and one or more “twelve-mile” riparian rules, see,

e.g., Br. 27; cf. New Jersey v. Delaware, 291 U.S. 361, 385 (1934); Proclamation No.

5928, 54 Fed. Reg. 777, 777 (Dec. 27, 1988), are not properly considered in this appeal,

see Delaware Nation v. Pennsylvania, 446 F.3d 410, 416 (3d Cir. 2006) (“Absent

exceptional circumstances, this Court will not consider issues raised for the first time on

appeal.”). But even assuming, arguendo, that Rapisardi had not forfeited his ability to

present those issues, none of them would reveal a legitimate federal-law hook to what is

and plainly has been a land-use dispute between neighbors under New Jersey law. See

Goldman v. Citigroup Glob. Mkts. Inc., 834 F.3d 242, 249 (3d Cir. 2016); cf. City of

Hoboken v. Chevron Corp., No. 21-2728, --- F.4th ---, 2022 WL 3440653, at *5 (3d Cir.

Aug. 17, 2022) (observing that “our system presumes that most state-law claims belong

in state, not federal, court”).

Rapisardi’s remaining jurisdictional arguments are unpersuasive. Accordingly, the

judgment of the District Court will be affirmed. Additionally, we deny Rapisardi’s

application (as amended, see Docs. 12 and 15) to enjoin the Logan Township, New

Jersey zoning authority from approving a variance request unrelated to the sliver of land

or some other aspect of the case as pleaded below. Cf. Adams v. Freedom Forge Corp.,

204 F.3d 475, 489–90 (3d Cir. 2000) (affirming denial of injunction where plaintiffs’

5 harm was “insufficiently related to the complaint and does not deserve the benefits of

protective measures that a preliminary injunction affords”).