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ERSEK v. TOWNSHIP OF SPRINGFIELD

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


June 17, 1993

WILLIAM ERSEK
v.
TOWNSHIP OF SPRINGFIELD, DELAWARE COUNTY, et al.

The opinion of the court was delivered by: BY THE COURT; J. WILLIAM DITTER, JR.

MEMORANDUM AND ORDER

 On May 5, 1993, I granted defendants' partial motion to dismiss and motion for a more definite statement. Because pursuant to those orders, plaintiff would be redrafting significant portions of his complaint, I ordered him to "clarify his allegations against the Township of Springfield" and to "state[] explicitly which defendants are responsible for which wrongful acts" as well. Plaintiff now moves for reconsideration of my order on six grounds, each of which I find unpersuasive.

 1. Leatherman

 Plaintiff argues that my dismissal of his complaint (with leave to amend) for failure "to state clearly and specifically what each defendant did and why those actions entitle [him] to relief" is inconsistent with the federal requirement of notice pleading and the Supreme Court's recent decision in Leatherman v. Tarrant County Narcotics Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993). The Fifth Circuit had adopted a "heightened pleading standard" in section 1983 cases which stated:

 

In cases against government officials involving the likely defense of immunity we require of trial judges that they demand that the plaintiff's complaints state with factual detail and particularity the basis for the claim which necessarily includes why the defendant-official cannot successfully maintain the defense of immunity.

 Id. at 1163, quoting Elliott v. Perez, 751 F.2d 1472, 1473 (5th Cir. 1985). In Leatherman, the Supreme Court rejected this standard. I did not require Ersek to re-draft his complaint to pre-empt any potential defenses, nor to plead with any special care because this is a section 1983 municipal liability suit. I merely told him to make his claims in a straightforward way because his complaint is rife with unsupportable generalizations. *fn1" In any event, I have not prejudiced Ersek in any way. I gave him leave to re-draft his entire complaint (with one exception, to be addressed below), so that he would plead not with "heightened" particularity but with intelligible particularity.

 2. Counts V, VI, and VII

 Next, Ersek contends I should not have granted defendants' motion for a more definite statement on the conspiracy, defamation, and false light charges, arguing that his allegations satisfied the federal pleading requirement that defendants be able to respond. I held, however, not that defendants could not respond, but that Ersek's conclusory allegation of conspiracy was contradicted by the rest of his complaint, which described the defendants acting without any shared plan whatsoever. (See opinion of May 5, 1993, at 12.) For this reason, I thought it generous that defendants only asked for a more definite statement and not for outright dismissal.

 With regard to the defamation claim, Ersek charges so many defendants with "disseminating" information and "publicly and privately maintaining" Ersek's guilt that his claim cries out for re-drafting. Can a defendant who "privately maintains" an opinion be liable for defamation? Is Ersek serious in his assertion that one who is convinced and remains convinced that another is guilty of a crime but never says a word about it is liable for defamation?

 Last, Ersek's false light claim is entirely unsupported by any fact in his 23-page complaint. (See opinion at 12-13.) I granted defendants' motion for a more definite statement of these claims so that Ersek could re-draft them to comport with his factual assertions. This is appropriate under any system of pleading.

 3. The Other More Definite Statements

 Ersek also contends that I should not have ordered clarifications sua sponte of the other counts of his complaint. To the extent those counts charge "all defendants" with things that Ersek's own factual assertions contradict, however, or charge (for example) that "the actions of defendants complained of by plaintiff" represented an official policy and practice of Springfield Township, (complaint P 57), my order was wholly appropriate. In modern litigation, a judge is not to be content to loll at the rail and count the days as they slip by. On the contrary, he is responsible not only for steering the litigation ship, but for ensuring that the voyage is as just, speedy, and inexpensive as possible.

 4. Count II

 Ersek also objects to my dismissal with prejudice of count II, which he asserts charged the defendants with violating Ersek's right to substantive due process by arbitrarily and unreasonably terminating his employment with the Springfield Country Club. Ersek contends I should not have decided at this stage that defendants' decision was arbitrary and unreasonable. I did not, however, dismiss Ersek's claim for that reason, and since Ersek apparently believes I did, I will state my holding again. I said that Ersek's own presentation of the facts contradicted his conclusory assertion that his employment was terminated. (See opinion of May 5, 1993, at 4.) Ersek's complaint had stated that in September, 1991, he was advised that his employment contract, which was scheduled to expire in December, 1991, would be "terminated" as of that date (complaint PP 42-43.) Thereafter, the Springfield Board of Commissioners "proposed renewing plaintiff's contract of employment for an additional year" at approximately half-salary. (Id. P 43.) What I held was that Ersek had failed to state a claim for arbitrary and unreasonable termination because he nowhere alleged he had been terminated, actually or constructively. All Ersek alleges is that he was made an offer he considered unattractive, to which he responded by resigning. (Id.) He does not say he attempted a counter-offer, or that this was the Township's final offer, or what, if anything, tranformed the Township's altered-term contract proposal into a termination. In short, Ersek's own narration of the events showed there was no termination, much less one that was arbitrary or unreasonable.

 5. Procedural Due Process

 Fifth, Ersek asks that I reconsider my decision to dismiss his procedural due process claim without prejudice because he had failed to allege any effort to recover his property through available state post-deprivation proceedings. Ersek contends that: 1) the defendants have not claimed adequate post-deprivation remedies exist; 2) the defendants have not yet "averred or proved they have possession of the property seized from plaintiff"; and 3) Hudson v. Palmer, 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984), does not apply because defendants never said they were unable to give Ersek notice and a hearing before they seized his property. (Plf's Mot. for Reconsideration at 10.)

 I am not governed by whether or not defendants claimed post-deprivation remedies exist, so long as I can see that they do by the statute. *fn2" Is Ersek seriously contending that a judge can only apply the law which the parties bring to his attention?

 With regard to Ersek's second concern, that the defendants have not said they still possess the property, it is Ersek who charged the defendants with "refusing to return" his records (complaint P 40). Upon that belief, Ersek can very appropriately pursue the state post-deprivation remedies which, if adequate, undermine his federal constitutional due process claim.

 Finally, whether the defendants say so or not, a hearing prior to a seizure of property pursuant to a search warrant is "not only impracticable, but impossible." Moore v. Warwick Public School Dist. No. 29, 794 F.2d 322, 328 (8th Cir. 1986) (quoting Parratt v. Taylor, 451 U.S. 527, 541, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981)). Clearly, a search warrant would lose its effectiveness if the subject of that warrant were fully apprised of the time of and reason for the search. In such cases, any adequate remedy must be a post-deprivation remedy. Because Ersek fails to state that the remedies provided to him (whether by Pennsylvania Rule of Criminal Procedure 324 or anywhere else) are inadequate to protect his due process rights, his procedural due process claim was dismissed without prejudice.

 6. Intentional Infliction of Emotional Distress

 Finally, Ersek contends that I should not have dismissed his claim for intentional infliction of emotional distress because it, too, satisfied the federal notice pleading requirements. As explained above, however, I dismissed the claim because it was unintelligible regarding which defendant damaged Ersek in what way. I have not yet judged the "outrageousness" of defendants' alleged behavior. I have merely stopped a claim from going forward which charges "all defendants" with things the complaint's own factual assertions contradict.

 As I have said before, Ersek suffers no prejudice from my order because he can clarify his charges and remove the inherent contradictions. Except for the substantive due process claim which I have dismissed on the merits, the entire complaint may be re-drafted and re-filed.

 An order follows.

 ORDER - June 18, 1993, Filed

 AND NOW, this 17th of June, 1993, plaintiff's motion for reconsideration of my order dated May 5, 1993, is hereby refused.

 BY THE COURT:

 J. William Ditter, Jr., J.


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