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August 24, 2000


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 law claims.

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.


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. 1982).

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 (1988).

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 dismiss).

A. Claims of Marchese

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 ...

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