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Stacey v. City of Hermitage

April 7, 2008

RAYMOND STACEY, INDIVIDUALLY AND AS CO-EXECUTOR OF THE LAST WILL OF HELEN STACEY, PLAINTIFF,
v.
CITY OF HERMITAGE; GARY P. HINKSON, INDIVIDUALLY; EDWARD STANTON, INDIVIDUALLY; RUSSELL V. PENN, JR., INDIVIDUALLY; JEFFREY OSBORNE, INDIVIDUALLY; ROBERT S. GOELTZ, INDIVIDUALLY; JAMES PAT WHITE, INDIVIDUALLY; THOMAS W. KUSTER; H. WILLIAM WHITE, III; CHRISTOPHER FERRY; WATTS & PEPICELLI, ATTORNEYS AT LAW; JERRY G. CARTWRIGHT, JR., ATTORNEY AT LAW; RICHARD SEREDAY, ROSEANN SEREDAY, DOING BUSINESS AS SEREDAY EXCAVATING, DEFENDANTS.



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

MEMORANDUM OPINION AND ORDER

Pending before the Court for consideration and disposition is DEFENDANTS', CHRISTOPHER FERRY AND WATTS & PEPICELLI, MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(b) (Document No. 147). Plaintiff has filed a response (Document No. 151) and the motion is ripe for disposition.

Factual and Procedural Background

This case arose from the condemnation and subsequent demolition of the home of Plaintiff's mother in November 2000 -- over seven years ago. The case has been embroiled in extensive legal wrangling and, as evidenced by the pending motion, is still in the initial pleadings stage. The entire procedural history will not be reiterated. The original complaint was pro se. On April 15, 2005, counsel for Plaintiff filed an amended complaint. On April 19, 2006, the Court of Appeals issued a second opinion in this case ("Stacey II") which affirmed in part and vacated in part the district court's original order of dismissal and remanded for further proceedings consistent with its opinion. (Document No. 103). Stacey II held that some, but not all, of Defendants' asserted grounds for dismissal had merit, Opinion at 8, and concluded that the only claimswhich survived the motions to dismiss were:

(1) claims under § 1983 against the City defendants and Sereday arising from the demolition; (2) claims under § 1983 against the City defendants arising from the imposition of the lien against the Stacey property; and (3) legal malpractice claims against the Staceys' attorneys.

Stacey II at 14. Stacey II further directed that Raymond Stacey be afforded an opportunity to amend the complaint to demonstrate standing, Opinion at 9, and instructed Plaintiff to clearly specify the parties to whom he refers in the various claims. Opinion at 11. This Court's Order dated August 1, 2006 instructed Plaintiff to file an amended complaint "limited to the recited surviving claims." On September 15, 2006, after further wrangling, Plaintiff filed a fourth complaint*fn1 (Document No. 128) against "caption defendants" (the "Amended Complaint").

On January 31, 2008, the Court isssued a Memorandum Opinion which, among other actions, denied Plaintiff's motions to file yet another amended complaint and/or to resurrect the initial pro se complaint. The Court stated, in relevant part:

Leave to amend the complaint is also denied on the alternative grounds of undue delay, dilatory motive and prejudice. Although the original complaint was pro se, Plaintiff's current counsel entered her appearance almost three years ago and filed an amended complaint in April 2005 and did not allege the instant contract and conspiracy claims. Moreover, the procedural history of this case is replete with efforts by Plaintiff to stay or suspend the proceedings, to take improper appeals, to unilaterally assert claims that were specifically barred by this Court and the Court of Appeals, and to generally prolong this case in derogation of the principles articulated in Fed. R. Civ. P. 1. At the risk of repetition, this case is over five years old and has not progressed past the pleadings stage. . . .

Plaintiff will not be permitted to further amend his complaint, except upon unanimous consent of the parties and/or leave of court. Thus, the Amended Complaint filed on September 15, 2006 (Document No. 128), as modified by this Memorandum Opinion and Order, will be the operative statement of Plaintiff's claims.

Subsequently, Defendants Christopher Ferry and Watts and Pepicelli, Attorneys at Law, filed the pending motion to dismiss the claims asserted against them in the Amended Complaint.

Standard of Review

The proper standard for evaluating motions to dismiss has been the subject of two recent binding decisions. In Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), all nine justices of the United States Supreme Court agreed that the oft-quoted standard that a complaint may not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" has been retired and "is best forgotten." Id. at 1968. The Court explained that a complaint must allege enough "facts" to show that a claim is "plausible" and not merely conceivable. Id. at 1965. The term "plausible" is not suspectible of mathematical quantification, but lies somewhere on the rhetorical spectrum between "conceivable" or "speculative" and "probable." Indeed, the Twombly Court made a distinction between facts that were merely "consistent" with wrongful conduct and facts that would be "suggestive" enough to render the alleged conduct plausible. Id. at 1966. In particular, the Court upheld dismissal of a complaint alleging an antitrust conspiracy, despite "stray averments" that defendants had entered into an unlawful agreement, explaining that the plaintiff had alleged "merely legal conclusions." Id. at 1970. The Supreme Court also emphasized the need for district courts to prevent unjustified litigation expenses resulting from claims that are "just shy of a plausible entitlement." Id. at 1967, 1975.

In Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008), the Court of Appeals for the Third Circuit further refined the Twombly standard. As the Court of Appeals explained, "notice pleading" pursuant to Rule 8(a)(2) remains intact, but requires the pleader to make a "showing" of entitlement to relief, and to give the defendant fair notice of what the claim is and the grounds upon which it rests. A pleader may not simply make a "bare averment that he wants relief and is entitled to it." Id. at 233. Labels, conclusions, and a formulaic recitation of the elements of a cause of action will not suffice. Id. at 231. Rather, the now-applicable pleading standard is as follows: stating a claim requires a complaint with enough factual matter (taken as true) to raise a reasonable expectation that discovery will reveal evidence of all the necessary elements of Plaintiff's claims. Id. at 234.

Discussion

Despite specific instruction from the Court, the Amended Complaint does not clearly articulate the various claims being pursued and the parties targeted under each theory. Plaintiff contends that he is entitled to assert three independent legal theories as to attorney Christopher Ferry and his law firm, Watts & Pepicelli (collectively, "Defendants"). See Plaintiff's Response ...


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