United States District Court, E.D. Pennsylvania
March 29, 2004.
GAZI ABDULHAY, M.D.; GYNECOLOGIC ONCOLOGY ASSOCIATES OF LEHIGH VALLEY, INC., trading as Lehigh Valley Women's Cancer Center; ABDULHAY ASSOCIATES, L.P.; and BETHLEHEM AMBULATORY SURGERY CENTER, LLC, Plaintiffs
BETHLEHEM MEDICAL ARTS, L.P.; BETHLEHEM MEDICAL ARTS, LLC; KEVIN T. FOGARTY, M.D., Individually and as Managing Director of Bethlehem Medical Arts, L.P., and as President of Bethlehem Medical Arts, LLC; ROTH MARZ PARTNERSHIP, P.C.; MARK R. THOMPSON, Individually and as Vice President of Roth Marz Partnership, P.C., Defendants
The opinion of the court was delivered by: JAMES KNOLL GARDNER, District Judge
This matter is before the court on the Motion of Bethlehem Medical
Arts, L.P., Bethlehem Medical Arts, LLC, and Kevin T. Fogarty, M.D. to
Dismiss Plaintiffs' Complaint, which motion was filed August 20, 2003 and
the Motion to Dismiss Pursuant to Federal Rule of Civil Procedure
12(b)(6) on Behalf of Defendants, Roth Marz Partnership, P.C. and Mark R.
Thompson, Individually and as Vice President of Roth Marz Partnership,
P.C. filed September 10, 2003.*fn1
Because we determine that Gazi Abdulhay, M.D., Gynecologic Oncology
Associates of Lehigh Valley, Inc. ("Lehigh Valley"), and Bethlehem
Ambulatory Surgery Center, LLC ("BASC") were not parties to the contract
with which the Bethlehem defendants are alleged to have interfered, we
conclude that these plaintiffs lack standing to state a claim under
either 42 U.S.C. § 1981 or § 1982. We further determine that a
claim under 42 U.S.C. § 1981 or § 1982
may be the basis for a claim under 42 U.S.C. § 1985(3).
Accordingly, we conclude that Abdulhay Associates, L.P. ("Abdulhay") may
state a Section 1985(3) claim. Hence, we grant in part and deny in part
the Bethlehem defendants' motion to dismiss.
Because we determine that Dr. Abdulhay and Abdulhay were not parties to
a contract with defendants Roth Marz Partnership, P.C. and Mark R.
Thompson ("Marz defendants"), we conclude that these plaintiffs lack
standing to raise a claim under 42 U.S.C. § 1981. However, we further
conclude that Lehigh Valley and BASC have stated a claim of alleged
illegal discrimination to contractual rights by defendants Roth Marz
Partnership, P.C. and Mark R. Thompson ("Marz defendants").
Therefore, we conclude that Lehigh Valley's and BASC's claim under
42 U.S.C. § 1981 may be the basis for a claim under
42 U.S.C. § 1985(3). Moreover, we conclude that plaintiffs have adequately
pled a claim pursuant to 42 U.S.C. § 1985(3). Accordingly, we grant in part
and deny in part the Marz defendants' motion to dismiss.
The within civil action was initiated on July 25, 2003 when plaintiffs
filed a ten-count Complaint. In Count
One all plaintiffs claim a violation of 42 U.S.C. § 1981 by the
Bethlehem defendants. In Count Two, all plaintiffs aver a violation of
42 U.S.C. § 1981 by the Marz defendants. In Count Three, all plaintiffs
assert a 42 U.S.C. § 1982 claim against the Bethlehem defendants. In
Count Four, all plaintiffs claim a violation of 42 U.S.C. § 1985(3)
by all defendants. In Count Five, Abdulhay asserts a breach of contract
claim against Bethlehem Medical Arts, L.P.
In Count Six, Lehigh Valley and BASC aver breach of contract against
Roth Marz Partnership, P.C. Count Seven is a defamation claim by Dr.
Abdulhay against the Marz defendants. In Count Eight, all plaintiffs aver
an intentional interference with a contract claim against the Marz
defendants. In Count Nine, Abdulhay asserts an intentional interference
with a contract claim against the Bethlehem defendants. In Count Ten, all
plaintiffs accuse all defendants of conspiring to engage in the above
This action is before the court on federal question jurisdiction.
See 28 U.S.C. § 1331. The court has supplemental
jurisdiction over plaintiff's pendent state law claims. See
28 U.S.C. § 1367. Venue is appropriate because plaintiff alleges that
the facts and circumstances
giving rise to the causes of action occurred in Northampton County.
See 28 U.S.C. § 118, 1391. Plaintiff demands a trial by
Based upon the allegations in plaintiffs' Complaint, which we must
accept as true for the purposes of this motion, the operative facts are
as follows. Plaintiff Gazi Abdulhay, M.D. is a licensed physician and
surgeon with a speciality in gynecological oncology.*fn2 Dr. Abdulhay is
a United States citizen of Syrian and Turkish descent and claims to be an
Arab-American.*fn3 He is the General Partner of Abdulhay, President of
Lehigh Valley, and President and Managing Partner of BASC.*fn4
On April 23, 2001, Abdulhay entered into a Lease Agreement with
Bethlehem Medical Arts, L.P. ("BMA") for 6,000 net rentable feet of space
on the first floor of a medical office building located at 5325 Northgate
Drive, Bethlehem, Pennsylvania. ("Building").*fn5 Subsequently, Abdulhay
additional 3,800 net rentable feet of space on the second floor of
the Building and an additional 1,500 net rentable feet of space on the
first floor of the Building.*fn6 (The space which Abdulhay leased from
BMA is collectively referred to as the "Leased Premises".)
All of the leased areas were subject to the agreements in the Lease
Agreement ("Lease").*fn7 Pursuant to the terms of the Lease, Abdulhay
purchased shares in Bethlehem Medical Associates, L.L.C., the business
which through Dr. Fogarty managed the Building.*fn8
The Leased Premises were unfinished at the time of the Lease.*fn9 The
Lease contains no time limit for Abdulhay to complete improvements on the
Leased Premises.*fn10 Improvements to the Leased Premises are governed
by Section 7 of the Lease.*fn11 Dr. Abdulhay, Abdulhay, and the
Bethlehem defendants agreed that Dr. Abdulhay, Abdulhay, and BASC would
developed the Leased Premises as both medical offices and an ambulatory
The intent of plaintiffs and the Bethlehem defendants was that Dr.
Abdulhay, BASC and other physicians located by Dr. Abdulhay would occupy
the Leased Premises after improvements to the Leased Premises were
complete and extend
medical care to patients of Dr. Abdulhay, Lehigh Valley, and
BASC.*fn13 There is no allegation that the agreements regarding Dr.
Abdulhay, Lehigh Valley, and BASC were reduced to writing or executed by
Because Suites 103 and 200 of the Leased Premises were to be fitted as
an ambulatory surgery center, plaintiffs were required to obtain approval
of the planned improvements from the Pennsylvania Department of Health
("DOH"). Plaintiffs were required to comply with a complex set of DOH
regulations before construction could begin.*fn14
Plaintiffs needed an architect to design the improvements to the Leased
Premises. The Bethlehem defendants introduced Dr. Abdulhay to Roth Marz
Partnership, P.C.*fn15 The Bethlehem defendants had a longstanding
relationship with Roth Marz Partnership.*fn16 Dr. Abdulhay, as President
of Lehigh Valley and BASC, entered into a contract with Roth Marz
Partnership for improvements to the Leased Premises at the
On November 2, 2001, an initial set of plans for the
project was submitted to, and approved by, DOH. On December 18,
2002, DOH approved revised plans for the project.*fn18
In Spring 2003, all defendants conspired and implemented a plan to stop
the plaintiffs from continuing with the improvements. Defendants
collectively created a sham default of the lease. On or after May 6,
2003, the Bethlehem defendants, in concert with the Marz defendants
implemented a strategy to force Dr. Abdulhay and Abdulhay to abandon the
improvements and vacate the Building. This strategy was implemented to
prevent Dr. Abdulhay, Abdulhay, Lehigh Valley, and BASC from occupying
the Leases Premises.*fn19
In the course of the conspiracy, the following occurred. The Marz
defendants, who were in possession of the original DOH-approved plans for
the Leased Premises, refused to surrender the plans to BASC.*fn20 As a
result, BASC was forced to resubmit plans to DOH on May 27, 2003. The
resubmitted plans were approved on May 27, 2003.*fn21
Abdulhay and BASC submitted this second set of plans to Hanover
Township, Northampton County, Pennsylvania, to obtain a building permit.
This permit was granted on June 3, 2003.*fn22 However, on June 6, 2003,
the Marz defendants sent a
letter to Jim Sterner, the Township Manager of Hanover Township,
falsely claiming that Dr. Abdulhay had tampered with the plans submitted
to obtain the building permit. The Marz defendants claimed that the DOH
certification was invalid.*fn23
Meanwhile, on May 23, 2003, BMA demanded that Dr. Abdulhay and Abdulhay
agree to abandon the Leased Premises.*fn24
Instead of vacating the Leased Premises, Abdulhay submitted the
DOH-approved plans to BMA in June 2003.*fn25 On June 9, 2003, BMA
notified Abdulhay that the June 6, 2003 letter from the Marz defendants
had raised questions regarding the validity of the plans and the building
permits and declined to review the plans until those questions were
Nevertheless, Abdulhay obtained financing, hired Serfass Construction,
and instructed Serfass Construction to begin work on June 10, 2003 at the
Leased Premises in accordance with the DOH-approved plans and the
building permits.*fn27 On June 10, 2003, the Bethlehem defendants
demanded that construction on the Leased Premises be halted.*fn28 The
Bethlehem defendants reiterated that construction would not be permitted
until they had reviewed the plans and that they would not review the
plans until the questions raised by
the Marz defendants' June 6, 2003 letter had been resolved to their
On June 19, 2003, BMA, through Dr. Fogarty, informed Abdulhay that
Abdulhay was in default of the Lease. BMA invoked the rent acceleration
and confession of judgment clauses of the Lease. Additionally, BMA
refused to abide by Section 17.1.3 of the Lease, which permits Abdulhay
30 days to cure any default.*fn30
On June 30, 2003, the Bethlehem defendants terminated "oral leases" for
Suites 200 and 202, ordered Abdulhay to vacate the building, and stated
that Dr. Abdulhay would not be permitted to enter the building after July
Other tenants in the Building with substantially the same obligations
have not completed improvements to their leased premises, but have not
been subject to the treatment that the defendants inflicted upon
plaintiffs.*fn32 Defendants treated plaintiffs differently because of
Dr. Abdulhay's race, national origin or ethnicity.
STANDARD FOR MOTION TO DISMISS
When considering a motion to dismiss the court must accept as true all
factual allegations in the complaint and construe all reasonable
inferences to be drawn therefrom in the light most favorable to the
plaintiff. Jurimex Kommerz Transit G.M.B.H. v. Case Corp., 65
Fed.Appx. 803, 805 (3d Cir. 2003) (citing Lorenz v. CSX Corp.,
1 F.3d 1406, 1411 (3d Cir. 1993)). A Rule 12(b)(6) motion should be
granted "if it appears to a certainty that no relief could be granted
under any set of facts which could be proved." Morse v. Lower Merion
School District, 132 F.3d 902, 906 (3d Cir. 1997) (citing D.P.
Enter. Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d
Cir. 1984)). But a court need not credit a complaint's "bald assertions"
or "legal conclusions" when deciding a motion to dismiss.
Morse, 132 F.3d at 906. (Citations omitted.)
In their motion, the Bethlehem defendants seek to dismiss Counts One,
Three and Four of plaintiffs' Complaint.*fn33
The Bethlehem defendants seek to dismiss Count One because
plaintiffs have failed to prove intent to discriminate in the Complaint,
because there is no evidence of discrimination, and because Dr. Abdulhay,
Lehigh Valley Women's Cancer Center and Bethlehem Ambulatory Surgery
Center lack standing to bring a Section 1981 claim.
They further contend that Count Two, plaintiffs' Section 1982 claim,
should be dismissed because plaintiff cannot prove racial animus or
discrimination. Finally, they assert that Count Four must be dismissed
because a violation of Sections 1981 and 1982 may not be the basis for a
Section 1985(3) action.
The Marz defendants' motion seek to dismiss Counts Two and Four of
plaintiff's Complaint.*fn34 The Marz defendants argue that plaintiff may
not assert an action under
42 U.S.C. § 1985(3) because alleged violations of 42 U.S.C. § 1981 and
1982 may not serve as the basis for such a claim. Furthermore, they
contend that the Section 1985(3) claims should be dismissed because
plaintiffs have not adequately pled a conspiracy.
The Marz defendants also assert that the Section 1981 action must be
dismissed because they characterize plaintiffs' Complaint as asserting
discrimination on the basis of national origin as opposed to race.
Finally, they aver that the Section 1981 action must be dismissed because
they characterize plaintiffs' Section 1981 cause of action to be under
the "full and equal benefit" clause of the act.
42 U.S.C. § 1981, 1982
Defendants's motion to dismiss plaintiffs' claims under Sections 1981
and 1982 may be reduced to two assertions. First, defendants contend that
those plaintiffs who were not in privity to a contract at issue must be
dismissed from the respective counts. Second, they contend that
plaintiffs have failed to aver sufficient facts to prove their claims.
Defendants' contention that plaintiffs must prove their claims in the
Complaint is without merit. Plaintiffs
are required only to aver facts sufficient to put defendants on
notice of the claims against them. Fed.R.Civ.P. 8(a); See
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992,
152 L.Ed.2d 1 (2002).
The averments in the Complaint and the reasonable inferences therefrom,
clearly notify defendants that they stand accused of individually and
collectively discriminating against the organizations in which Dr.
Abdulhay is a principle because of invidious racial, national origin, or
ethnic bias.*fn35 Accordingly, we deny defendants' motion on this basis.
However, we agree with defendants that only parties to a contract may
bring suit for a violation of Sections 1981 or 1982. "Someone who is not
a party to a contract . . . does not have standing to make a § 1981
claim for interference with their right to make and enforce that
contract." North American Roofing & Sheet Metal Company v.
Construction Trades Council of Philadelphia & Vicinity,
AFL-CIO, Civ. No. 99-2050, 2000 U.S. Dist. Lexis 2040, *11, 2000 WL
230214, *3 (E.D. Pa. February 29, 2000). By analogy, only those having a
property interest may bring suit for alleged interference with the right
to inherent, purchase, lease, sell, hold and convey that property.
In Counts I and III, plaintiffs aver that Abdulhay entered into the
Lease with the Bethlehem defendants. However, plaintiffs assert that,
although Abdulhay was the only party to the Lease, the parties entered
into the Lease with the knowledge that Lehigh Valley and BASC would
utilize the Leased Premises.
Plaintiffs' argument fails because the Lease contains an integration
clause which states that the Lease is the sum of all agreements between
the parties.*fn36 Where the
language of the contract is clear, a court is required to give the
words their ordinary meaning. Atlantic Mutual Insurance Co. v.
Brotech Corporation, 857 F. Supp. 423, 427 (E.D. Pa. 1994),
aff'd, 60 F.3d 813 (3d Cir. 1995).
Because the contract does not provide for use of the Leased Premises by
Lehigh Valley, BASC, or Dr. Abdulhay, in his individual capacity, and
because plaintiffs provide no document signed by the Bethlehem defendants
authorizing use of the Leased Premises by these plaintiffs, we conclude
that Lehigh Valley, BASC, and Dr. Abdulhay were not parties to the
contract between Abdulhay and the Bethlehem defendants. Accordingly, we
dismiss the claims of Dr. Abdulhay, Lehigh Valley, and BASC from Counts I
and III of the Complaint.
In Count II, plaintiffs assert that Lehigh Valley and BASC entered into
a contract with the Marz defendants. Although Dr. Abdulhay signed these
agreements, he was acting in his capacity as a principal of Lehigh Valley
and BASC and not as an individual. There is no allegation that Abdulhay
was a party to the contracts with the Marz defendants. Accordingly, the
claims of Dr. Abdulhay and Abdulhay are dismissed from Count II of the
42 U.S.C. § 1985(3)
All defendants contend that plaintiffs may not state a claim under
Section 1985(3) because, as a matter of law, plaintiffs may not assert a
Section 1985(3) claim for the private actions alleged and because
plaintiffs have not asserted any state action that deprived them of the
equal protection of the law.*fn37 For the reasons expressed below, we
conclude that plaintiffs have adequately plead a Section 1985(3) claim.
"It is well established that § 1985(3) does not itself create any
substantive rights; rather, it serves only as a vehicle for vindicating
federal rights and privileges which have been defined elsewhere."
Brown, 250 F.3d at 805. Thus, the question presented is which
rights and privileges may serve as the basis for a Section 1985(3)
In determining the reach of Section 1985(3), we
begin with the text of the statute itself.
If two or more persons in any State or Territory
conspire . . . for the purpose of depriving,
either directly or indirectly, any person or class
of persons of the equal protections of the laws,
or of equal privileges and immunities under the
laws; or for the purpose of preventing or
hindering the constituted authorities of any State
or Territory from giving or securing to all
persons within such State or Territory the equal
protection of the laws; . . . in any case of
conspiracy set forth in this section, if one or
more persons engaged therein do, or cause to be
done, any act in furtherance of the object of such
conspiracy, whereby another is injured in his
person or property, or deprived of having and
exercising any right or privilege of a citizen of
the United States, the party so injured or
deprived may have an action for recovery of
damages occasioned by such injury or deprivation,
against any one or more of the conspirators.
42 U.S.C. § 1985(3).
"On their face, the words of the statute fully encompass the conduct of
private persons."*fn38 Griffin v.
Breckenridge, 403 U.S. 88, 96, 91 S.Ct. 1790, 1795,
29 L.Ed.2d 338, 344-345 (1971).
In considering whether individual conduct fell within the scope of
Section 1985(3), the Griffin Court compared it to the section's
exact criminal counterpart. The Court noted that in United States v.
Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290 (1882), it had
"observed that the statute was `not limited to take effect only in case
of [state action],' . . . but `was framed to protect from invasion by
private persons, the equal privileges and immunities under the laws, of
all persons and classes of persons.'" Griffin, 403 U.S. at
97-98, 91 S.Ct. at 1796, 29 L.Ed.2d at 345 (quoting Harris, 106
U.S. at 637, 1 S.Ct. at 607, 27 L.Ed. at 293.
The Griffin Court further noted that in United States v.
Williams, 341 U.S. 70, 71 S.Ct. 581, 95 L.Ed. 758 (1951), "the Court
considered the closest remaining criminal analogue to § 1985(3),
18 U.S.C. § 241." Griffin, 403 U.S. at 98, 91 S.Ct. at 1796,
29 L.Ed.2d at 345. In Williams, the plurality, without
contravention, found that there was nothing in the terms of § 241 to
indicate "that color of State law was to be relevant to prosecute under
it." Griffin, 403 U.S. at 98, 91 S.Ct. at 1796, 29 L.Ed.2d at
(quoting Williams, 341 U.S. at 78, 71 S.Ct. at 585, 95
L.Ed. at 765).
In addition to examining the criminal counterparts of Section 1985(3),
the Griffin Court also examined the companion statutory
provisions of Section 1985(3) in order to determine the extent of the
statute. The Court analyzed these provisions as follows:
There appear to be three possible forms for a
state action limitation on § 1985(3)
that there must be action under color of state
law, that there must be interference with or
influence upon state authorities, or that there
must be a private conspiracy so massive and
effective that it supplants those authorities and
thus satisfies the state action requirement. The
Congress that passed the Civil Rights Act of 1871,
17 Stat. 13, § 2 of which is the parent of
§ 1985(3), dealt with each of these three
situations in explicit terms in other parts of the
same Act. An element of the cause of action
established by the first section, now
42 U.S.C. § 1983, is that the deprivation complained of
must have been inflicted under color of state law.
To read any such requirement into § 1985(3)
would thus deprive that section of all independent
effect. As for the interference with state
officials, § 1985(3) itself contains another
clause dealing explicitly with that situation. And
§ 3 of the 1871 Act provided for military
action at the command of the President should
massive private lawlessness render state
authorities powerless to protect the federal
rights of classes of citizens, such a situation
being defined by the Act as constituting a state
denial of equal protection. 17 Stat. 14. Given the
existence of these three provisions, it is almost
impossible to believe that Congress intended, in
the dissimilar language of the portion of §
1985(3) now before us, simply to
duplicate the coverage of one or more of them.
Griffin, 403 U.S. at 98-99, 91 S.Ct. at 1796-1797, 29
L.Ed.2d at 346 (footnotes omitted).
To the extent that Congressional intent can be understood from the
legislative history, this source also supports the conclusion that
Section 1985(3) was meant to counter invidious discrimination perpetuated
by individuals without regard to whether state action was implicated. The
bill which ultimately included the provisions that became Section 1985(3)
originally began as only a criminal provision outlawing similar conduct.
Before the amendment which added the provision that became Section
1985(3) was introduced, "Representative Shanks urged, `I do not want to
see [this measure] so amended that there shall be taken out of it the
frank assertion of the power of the national Government to protect life,
liberty, and property, irrespective of the act of the State.'"
Griffin, 403 U.S. at 101, 91 S.Ct. at 1997-1798, 29 L.Ed.2d at
347 (quoting Cong. Globe, 42d Cong., 1st Sess., App. 141 (1871)).
After the amendment was introduced, Representative Shellabarger thus
explained the amendment:
The object of the amendment is . . . to confine
the authority of this law to the prevention of
deprivations which shall attach the equality
of rights of American citizens; that any violation
of the right, the animus and effect of
which is to strike down the citizen, to the end
that he may not enjoy equality of rights as
contrasted with his and other citizen's rights,
shall be within the scope of the remedies of this
Griffin, 403 U.S. at 100, 91 S.Ct. at 1997, 29 L.Ed.2d at
347 (quoting Cong. Globe, 42d Cong., 1st Sess., App. 478 n.8
After the amendment was proposed in the House, Senator Pool supported
the amendment in the Senate by stating, "Congress must deal with
individuals, not States. It must punish the offender against the rights
of the citizen . . . " Griffin, 403 U.S. at 101, 91 S.Ct. at
1798, 29 L.Ed.2d at 347-348 (quoting Cong. Globe, 42d Cong.,
1st Sess., App. 608 (1871).
However, the Griffin court left unresolved the rights which,
upon violation thereof, a citizen could file suit under Section 1985(3).
"[In] the context of actions brought against private conspirators, the
Supreme Court has thus far recognized only two rights protected under
§ 1985(3): the right to be free from involuntary servitude and the
right to interstate travel." Brown 250 F.3d at 805. However, in
enunciating these two sources, the Supreme Court cautioned that it was
not excluding other sources. Griffin, 403 U.S. at
107, 91 S.Ct. at 1801, 29 L.Ed.2d at 351. Moreover, the Supreme
Court found that "since the allegations of the complaint bring this cause
of action so close to the constitutionally authorized ore of the statute,
there has been no occasion here to trace out its constitutionally
permissible periphery." Id.
The United States Court of Appeals for the Third Circuit resolved this
question in Novotny v. Great American Federal Savings & Loan
Association, 584 F.2d 1235 (3d Cir. 1978), vacated on other
grounds by Great American Savings & Loan Association v. Novotny,
442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979),*fn39 wherein that
court held that
the violation of either Constitutional or statutory rights may form
the basis for a Section 1985(3) claim. "Whatever else `equal privileges
and immunities' or `equal protection' may mean . . . we conclude that a
deprivation of equal privileges and immunities under § 1985(3)
includes the deprivation of a right secured by a federal statute . . . "
Novotny, 584 F.2d at 1247; see e.g. Shaare Tefila
Congregation v. Cobb, 481 U.S. 615, 107 S.Ct. 2019, 95 L.Ed.2d 594
But in securing the fundamental of equal protection under the law, we
must take care to avoid expanding the statute beyond the parameters which
Congress created. The act requires that there be a conspiracy to deprive
a person or a class of equal protection under the law or of equal
privileges and immunities under the law. "The conspiracy, in other words,
must aim at a deprivation of the equal enjoyment of rights secured by the
law to all." Griffin, 403 U.S. at 102, 91 S.Ct. at 1798, 29
L.Ed.2d at 348 (footnotes omitted).
A claim asserted under Sections 1981 and 1982 of Title 42 is required
to allege the requisite violations of equal protection necessary to state
a claim under Section 1985. Section 1981 requires that "All persons . . .
shall have the same right . . . to make and enforce contracts . . . as is
enjoyed by white citizens". Likewise, Section 1982 requires that "All
citizens . . . shall have the same right . . . as is enjoyed by
white citizens . . . [to] purchase, lease, sell, hold, and convey real
and personal property."
These provisions unequivocally require an equal application of the law
and protect citizens from the acts by the State or by individuals which
abridge these fundamental equal protection statutes. Accordingly, we
conclude that either Section 1981 or 1982 may serve as the basis for a
Section 1985(3) claim.
In the instant case, plaintiffs have adequately pled a Section 1985(3)
In order successfully to bring an action under
§ 1985(3) for private conspiracy, a plaintiff
must show, inter alia, "(a) that a racial or other
class-based invidious discriminatory animus lay
behind the coconspirators' actions, (b) that the
coconspirators intended to deprive the victim of a
right guaranteed by the Constitution [or federal
statute] against private impairment, and (c) that
the right was consciously targeted and not just
Brown, 250 F.3d at 805.
While we need not analyze the various permutations by which plaintiffs
may seek to prove their case, we note that, as we concluded above,
plaintiffs*fn40 have adequately pled
their Section 1981 and 1982 causes of action. These causes of
action form the basis upon which the Section 1985(3) claim is founded.
Additionally, plaintiffs have provided ample notice of their claim that
all defendants conspired to interfere with Abdulhay Associates' contract
with the Bethlehem defendants, and with Lehigh Valley's and BASC's
contract with the Marz defendants. Finally, plaintiffs aver that the
object of defendants' conspiracy was to discriminate against Dr. Abdulhay
on the basis of his race, national origin or ethnicity. Accordingly, we
conclude that plaintiffs have
adequately pled a Section 1985(3) claim.*fn41
For the foregoing reasons, we grant in part and deny in part
defendants' motions to dismiss. We dismiss plaintiffs Dr. Abdulhay,
Lehigh Valley and BASC from Counts I and III of the Complaint because
they are not parties to a contract with the Bethlehem defendants. In
addition, we dismiss Dr. Abdulhay from Count IV of the Complaint because
establish a violation of either 42 U.S.C. § 1981 and 1982.
Because we conclude that Dr. Abdulhay and Abdulhay are not parties to a
contract with the Marz defendants, we dismiss those plaintiffs from Count
II of the Complaint. The remainder of defendants' motions to dismiss are