Lang Reply

Case 1:18-cv-12045-RMB-JS Document 3 Filed 07/25/18 Page 1 of 4 PageID: 29
Arthur H. Lang
Attorney at Law
918 East Kennedy Blvd. Lakewood, New Jersey 08701 Phone: 732-609-5530
E-Mail: [email protected] NJ Att. No. 014102012

July 25, 2018
Victor DiFrancesco, Esq.
Office of The Attorney General
RJ Hughes Justice Complex
25 Market Street, Box 080
Trenton, NJ 08625-0080
Re: Jack Levine v. New Jersey State Police

BUR-L-000138-18
Dear Mr. DiFrancesco,
Please accept this letter as notice under Rule 11 of
the Federal Rules of Civil Procedure providing sanctions
for presenting matters to the federal court for “any
improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of
litigation.”
Plaintiff’s well-pleaded complaint does not allege a
federal cause of action. The facts in Paragraph 17 allege
that the Defendant officer knew or should have known that
“his actions were contrary to the Attorney General
directives on body cavity and strip searches, and that his
mere suspicion that the Plaintiff had marijuana in a body
cavity did not warrant sticking his hands in that area
pursuant the New Jersey Constitution protection against
unreasonable searches.” Again in Paragraph 20, concerning
the second search, Plaintiff alleged that the officer’s

Arthur H. Lang
Attorney at Law

“actions were contrary to the Attorney General directives
on body cavity and strip searches, and that his mere
suspicion that the Plaintiff had marijuana in a body
cavity did not warrant sticking his hands in that area
pursuant the New Jersey Constitution protection against
unreasonable searches.” Again in conclusion of the facts,
Paragraph 37 alleges “By reason of the actions of the
named and unnamed individual defendants on March 8, 2017
acting under the color of law, knowing or constructively
knowing that a roadside body cavity and strip search was
in violation of the Attorney General directive and the New
Jersey Constitution’s prohibition of unreasonable searches
and seizures. . . .” (Emphasis added.) The federal
constitution is not mentioned.
The only mention of the word “federal” is in the Count
I cause of action under the New Jersey Civil Rights Act,
which states in part:
c. Any person who has been deprived of any

substantive due process or equal protection
rights, privileges or immunities secured by the
Constitution or laws of the United States, or
any substantive rights, privileges or immunities
secured by the Constitution or laws of this
State, or whose exercise or enjoyment of those
substantive rights, privileges or immunities has
been interfered with or attempted to be
2
Arthur H. Lang
Attorney at Law

interfered with, by threats, intimidation or
coercion by a person acting under color of law,
may bring a civil action for damages and for
injunctive or other appropriate relief. The
penalty provided in subsection e. of this
section shall be applicable to a violation of
this subsection. N.J.S.A. § 10:6-2(c).(Emphasis
added.)
After realleging paragraphs 1-34 in Paragraph 38, which as
mentioned, do not allege a violation of the federal
constitution, Paragraph 39 also does not allege that the
officers acted in violation of the Attorney General
Directive and federal constitution and state constitutions
but merely asserts the common knowledge of those
prohibitions while acting under the color of law pursuant
to the language of the New Jersey Civil Rights Act.
Most importantly, the mention of the federal
constitution in the pleadings under the New Jersey Civil
Rights Act giving rise to the cause of action for which
Plaintiff seeks damages is not grounds for federal
jurisdiction by any stretch of the imagination because
even had Plaintiff alleged that the Defendants acted in
violation of the federal constitution, an act in violation
of the federal constitution does not grant the federal
courts jurisdiction without an act of Congress providing
3
Arthur H. Lang
Attorney at Law

for a cause of action. Plaintiff did not plead or cite any
federal cause of action, any federal statute or any
federal claim. That the federal constitution was violated
does not warrant removal.
For the foregoing reasons, particularly the fact that
no federal claim was pleaded, the removal to federal court
is improper and a violation of Rule 11. Plaintiff hereby
serves notice and demands that Defendants take any and all
steps in order to reverse their removal to federal court.
Should Plaintiff find it necessary to file a motion to
remand, he will seek appropriate sanctions including
attorney fees.
Respectfully Submitted,
s/Arthur H. Lang
Arthur H. Lang
Attorney at Law
Dated: July 25, 2018

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Case 1:18-cv-12045-RMB-JS Document 3 Filed 07/25/18 Page 1 of 4 PageID: 29

Re: Jack Levine v. New Jersey State Police

Dear Mr. DiFrancesco,

Please accept this letter as notice under Rule 11 of

the Federal Rules of Civil Procedure providing sanctions

for presenting matters to the federal court for “any

improper purpose, such as to harass or to cause

unnecessary delay or needless increase in the cost of

Plaintiff’s well-pleaded complaint does not allege a

federal cause of action. The facts in Paragraph 17 allege

that the Defendant officer knew or should have known that

“his actions were contrary to the Attorney General

directives on body cavity and strip searches, and that his

mere suspicion that the Plaintiff had marijuana in a body

cavity did not warrant sticking his hands in that area

pursuant the New Jersey Constitution protection against

unreasonable searches.” Again in Paragraph 20, concerning

the second search, Plaintiff alleged that the officer’s

on body cavity and strip searches, and that his mere

suspicion that the Plaintiff had marijuana in a body

cavity did not warrant sticking his hands in that area

pursuant the New Jersey Constitution protection against

unreasonable searches.” Again in conclusion of the facts,

Paragraph 37 alleges “By reason of the actions of the

named and unnamed individual defendants on March 8, 2017

acting under the color of law, knowing or constructively

knowing that a roadside body cavity and strip search was

in violation of the Attorney General directive and the New

Jersey Constitution’s prohibition of unreasonable searches

and seizures. . . .” (Emphasis added.) The federal

constitution is not mentioned.

The only mention of the word “federal” is in the Count

I cause of action under the New Jersey Civil Rights Act,

which states in part:

c. Any person who has been deprived of any

After realleging paragraphs 1-34 in Paragraph 38, which as

mentioned, do not allege a violation of the federal

constitution, Paragraph 39 also does not allege that the

officers acted in violation of the Attorney General

Directive and federal constitution and state constitutions

but merely asserts the common knowledge of those

prohibitions while acting under the color of law pursuant

to the language of the New Jersey Civil Rights Act.

Most importantly, the mention of the federal

constitution in the pleadings under the New Jersey Civil

Rights Act giving rise to the cause of action for which

Plaintiff seeks damages is not grounds for federal

jurisdiction by any stretch of the imagination because

even had Plaintiff alleged that the Defendants acted in

violation of the federal constitution, an act in violation

of the federal constitution does not grant the federal

courts jurisdiction without an act of Congress providing

federal cause of action, any federal statute or any

federal claim. That the federal constitution was violated

does not warrant removal.

For the foregoing reasons, particularly the fact that

no federal claim was pleaded, the removal to federal court

is improper and a violation of Rule 11. Plaintiff hereby

steps in order to reverse their removal to federal court.