The opinion of the court was delivered by: Reed, Senior Judge.
Plaintiff B.J. Marchese ("Marchese") brought this action pursuant
to 42 U.S.C. § 1983 ("section 1983"), alleging that his civil
rights were violated by defendants Robert Umstead ("Umstead"), the
Borough of Royersford ("Borough"), and Jennifer Walters Brown
("Brown"). Marchese also asserts various state law claims. This
Court has jurisdiction pursuant to 28 U.S.C. § 1331 and § 1367. It
is undisputed that the law of Pennsylvania applies to the state
Presently before the Court are the motions of defendants Umstead
and the Borough to dismiss for lack of standing (Document No. 7),
the motion of defendant Brown to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6) (Document No. 9), and the motion of
plaintiff B.J. Marchese to amend the complaint, joining B.J.
Marchese Chevrolet and adding a claim for negligent infliction of
emotional distress (Document No. 10).
Plaintiff Marchese is the president and owner of B.J. Marchese
Chevrolet, a Chevrolet dealership in Royersford, Pennsylvania.
(Complaint at ¶ 6). Marchese alleges that he has been victim to a
"pattern of harassment and disparate treatment." (Complaint at ¶
12). Marchese claims that the adverse actions began when he wanted
to park some vehicles "for sale" on a commercial lot on his
property. (Complaint at ¶ 12). The complaint alleges that the
Borough required him to submit, on behalf of the dealership, an
expensive and unnecessary land development plan, a storm water
runoff plan, and required that the lot be paved with black top.
(Complaint at ¶ 12). Marchese claims that the defendants treated
him differently from other citizens when it required him to take
these steps. (Complaint at ¶ 13). Marchese also alleges that
defendants singled him out and required him to remove the flashing
lights on the dealership's sign, allegedly in violation of an
ordinance, even though other businesses were not required to
remove similar lights. (Complaint at ¶ 14). In addition, the
complaint alleges that during the past four years, Marchese had
routinely parked vehicles for sale "near the roadway which is the
entrance to his business establishment," but that defendants
invoked a "remote ordinance regarding sidewalks" to harass him and
causing a criminal citation to be issued to the dealership.
(Complaint at ¶¶ 15 & 19).
Specifically, Marchese alleges that on or about November 26, 1999,
defendant Umstead instructed Sergeant Shurr of the Borough of
Royersford Police Department to issue a criminal citation against
plaintiff because of the allegedly illegally parked cars.
(Complaint at ¶ 21). Sergeant Shurr issued the a citation citing a
violation of 18 Pa.C.S.A. § 5507, "Obstructions on Highways and
Other Public Passages." (Complaint at ¶ 22). Marchese claims that
he tried to discuss matters with various Borough officials but
that they continuously refused to meet with him. (Complaint at ¶
24). Marchese also claims that he volunteered to move his vehicles
from the sidewalk with the understanding that the citation would
be withdrawn, but that the citation was not withdrawn even after
he moved the vehicles. (Complaint at ¶¶ 28 & 29). Marchese alleges
that the reason the citation was not withdrawn was that defendants
Brown and Umstead insisted that the police officer go forward with
the criminal hearing. (Complaint at ¶ 32). Marchese also alleges
that Brown and Umstead "forced" officer Shurr to testify and that
they refused to settle the matter as moot. (Complaint at ¶ 33).
Marchese further alleges that there was no basis for the citation,
that the officer had no authority to proceed, and that the officer
admitted that he had not confirmed whether the borough had any
legal basis for ordering the dealership to remove its vehicles
from the sidewalk. (Complaint at ¶¶ 34 & 35).
Marchese alleges that although the criminal charge was dismissed
at the hearing, the harm he suffered in receiving the citation was
substantial and caused him emotional distress.*fn1 Marchese also
alleges that an individual found guilty of the offense for which
he was cited could face imprisonment. (Complaint at ¶ 23).
Finally, Marchese also alleges that a criminal record could cause
the loss of his dealership license and that the criminal citation
was issued with the express intent to cause him fear about jail
and worry about the loss of his livelihood. (Complaint at ¶¶ 40,
73, 74). It is undisputed, however, that the citation was issued
to B.J. Marchese Chevrolet, and not to Marchese himself.
Plaintiff, as an individual, brought this action on March 8, 2000,
against the Borough of Royersford as well as Robert Umstead, the
Borough Manager, and Jennifer Walters Brown, the Borough's
their official and individual capacities. Defendants have moved
to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. The main thrust of defendants' argument
is that Marchese, as an individual, lacks standing to bring the
case because the citation was issued to "B.J. Marchese Chevrolet,"
the business, not B.J. Marchese, the individual. (Brief of Defendants
Robert Umstead and Borough of Royersford in Support of the Motion
to Dismiss Plaintiff's Complaint ("Umstead Mem."), at 2) and (Brief
in Support of Defendant Jennifer Walters Brown's Motion to Dismiss
("Brown Mem."), at 3).
In response to the motions to dismiss, Marchese seeks leave to
amend his complaint in order to add B.J. Marchese Chevrolet, a
Pennsylvania corporation ("the automobile dealership") as a
plaintiff and to add a count for negligent infliction of emotional
distress. (Plaintiff's Petition to Amend Complaint ("Petition to
Amend"), at ¶ 3). Defendants state that they have no objections to
plaintiff "substituting" the automobile dealership as the
plaintiff in the suit, but that they object to Marchese, the
individual, remaining a party to the suit because he lacks
standing. (Brief of Defendants Robert Umstead and Borough of
Royersford in Opposition to Plaintiff's Petition to Amend
Complaint ("Umstead Opposition"), at 1); (Brief of Defendant
Jennifer Brown in Opposition to Plaintiff's Petition to Amend
Complaint ("Brown Opposition"), at 2).
In a partial response to the motion to dismiss, plaintiff seeks to
add the corporation B.J. Marchese Chevrolet as a plaintiff.
Federal Rule of Civil Procedure 21 governs the joinder of an
additional plaintiff.*fn2 See 7 Wright, Miller & Kane, Federal
Practice & Procedure § 1687-87. The Rule provides that "[p]arties
may be dropped or added by order of the court on motion by any
party or of its own motion at any stage of the action on such
terms as is just." Fed.R.Civ.P. 21. The determination of a Rule
21 motion is wholly within the sound discretion of the trial
judge. Miller v. Hygrade Food Prods. Corp., 89 F. Supp.2d 643
(E.D.Pa. 2000) (seeking to add named plaintiffs to class action);
Arch v. American Tobacco Co., Inc., 984 F. Supp. 830, 842
(E.D.Pa. 1997); Hawkins v. Fulton County, 95 F.R.D. 88, 91 (N.D.Ga.
There appears to be no opposition by the defendants to the
inclusion of the corporation B.J. Marchese Chevrolet as a
plaintiff. Indeed, the defendants have, by their arguments in
their motions to dismiss and their partial opposition to the
motion to amend, implied that the dealership is the proper party
to bring this action. This Court finds that many of the
allegations involve conduct by the defendants directed at the
corporation B.J. Marchese Chevrolet and therefore it is a proper
plaintiff here. Accordingly, the Court will allow the inclusion of
B.J. Marchese Chevrolet as a plaintiff.
The amended complaint essentially tracks the language of the
complaint other than making the allegations in the plural (to
include the addition of B.J. Marchese Chevrolet) and the addition
of a state law claim for negligent infliction of emotional
distress. The amended complaint thus contains three federal claims
as well as three state law claims: abuse of process and malicious
prosecution (Count I); equal protection (Count II); conspiracy
(Count IV); defamation (Count V); intentional infliction of
emotional distress (Count VI); and negligent infliction of
emotional distress (Count VII).*fn3
The decision whether to grant or deny a motion for leave to amend
a complaint is within the sound discretion of the district court.
Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330
(1971); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
1434 (3d Cir. 1997). The Federal Rules of Civil Procedure provide
that leave to amend "shall be freely given when justice so
requires." Fed.R.Civ.P. 15(a). Indeed, in the absence of any
apparent reason, "this mandate is to be heeded." Foman v. Davis,
371 U.S. 178, 182 (1962); Kiser v. General Elec. Corp.,
831 F.2d 423, 426-27 (3d Cir. 1987), cert. denied sub nom, 485 U.S. 906
Factors that militate against granting leave to amend are "undue
delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, [and] futility of amendment. . . ."
Foman, 371 U.S. 178, 182 (1962). In assessing futility, the Court
"applies the same standard of legal sufficiency as applies under
Rule 12(b)(6)." In re Burlington Coat Factory, 114 F.3d at 1434.
Thus, in deciding whether an amendment is futile, a court must
take all well pleaded facts in the complaint as true and view them
in the light most favorable to the plaintiff. Id.; Jenkins v.
McKeithen, 395 U.S. 411, 421 (1969) (standard for motion to
dismiss). Leave to file an amendment should only be denied if "it
is clear that no relief could be granted under any set of facts
that could be proved consistent with the allegations." Hishon v.
King & Spalding, 467 U.S. 69, 73 (1984) (standard for motion to
As the amended complaint contains the same allegations with
respect to plaintiff Marchese, the Court will consider the
arguments made by the defendants in their motions to dismiss as
well as the issues raised in their opposition to the motion to
amend in the context of evaluating ...