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Oberle v. City of Duquesne

April 16, 2008


The opinion of the court was delivered by: Ambrose, Chief District Judge


Pending before the Court is a Motion to Dismiss Plaintiff's Amended Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendant City of Duquesne ("Duquesne" or "Defendant"). (Docket No. 12). Plaintiff filed a response in opposition thereto. (Docket No. 14). After a careful review of the submissions by the parties and for the reasons discussed in this Opinion, the Motion to Dismiss is granted and Plaintiff's Amended Complaint is dismissed without prejudice.


Unless otherwise noted, the facts in this section are taken from Plaintiff's Complaint.

In April 2002, Plaintiff Steve Oberle ("Oberle" or "Plaintiff"), was hired by Defendant as a "part time" police officer. Plaintiff is a veteran of the United States Armed Services, having been honorably discharged in 1993. After hiring Plaintiff as "part time," Duquesne hired Officers Hornyak, Cimba, and Gogo as "part-time" police officers. None of these officers was a veteran of the United States Armed Services. Subsequently, Defendant promoted Hornyak, Cimba, and Gogo to full-time positions before promoting Plaintiff to a full-time position. In so doing, Plaintiff alleges that Defendant improperly denied him veterans' preference rights. Although he has since been awarded full-time status, Plaintiff contends that he lost seniority, back pay, and insurance benefits as a result of Defendant's actions.

On or about June 26, 2007, Plaintiff commenced this action via Writ of Summons in the Court of Common Pleas of Allegheny County. Plaintiff filed a Complaint against Defendant in that same court on November 12, 2007. On December 19, 2007, Defendant removed the case to this Court pursuant to 28 U.S.C. §§ 1331, 1343, and 1441. (Docket No. 1). On January 18, 2008, Plaintiff filed a First Amended Complaint against Defendant. (Docket No. 4). Plaintiff's Amended Complaint sets forth four counts against Defendant: (I) violation of Plaintiff's civil rights under 42 U.S.C. § 1983 pursuant to the Veterans' Preference Act, 51 Pa. Cons. Stat. Ann. § 7104(b); (II) violation of Plaintiff's equal protection rights pursuant to the Fourteenth Amendment; (III) violation of 53 Pa. Stat. § 23431; and (IV) violation of the City of Duquesne's Third Class City Code.

Defendant filed a motion to dismiss Plaintiff's Amended Complaint in its entirety for failure to state a claim against it and brief in support. (Docket Nos. 12, 13). Plaintiff has filed a brief in opposition to Defendant's motion. (Docket No. 14). The issues are now ripe for my review.


A. Standard of Review

In ruling on a 12(b)(6) motion for failure to state a claim, I must look to whether the complaint "contain[s] either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1969 (2007); see also Fed. R. Civ. P. 8(a)(2) (requiring a "short and plain statement of the claim showing that the pleader is entitled to relief"); Phillips v. County of Allegheny, 515 F.3d 224, 230-34 (3d Cir. 2008) (analyzing Twombly). In so doing, I must accept all factual allegations, and all reasonable inferences therefrom, as true and view them in the light most favorable to the plaintiff. Phillips, 515 F.3d at 231. Although a complaint attacked by a Rule 12(b)(6) motion does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 127 S.Ct. at 1964-65; Phillips, 515 F.3d at 231. "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 1965 (internal citations omitted). In short:

"stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest" the required element. This "does not impose a probability requirement at the pleading stage," but instead "simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of" the necessary element.

Phillips, 515 F.3d at 234 (quoting Twombly, 127 S.Ct. at 1965) (alteration in original).

When ruling upon a 12(b)(6) motion, I generally may consider only the allegations contained in the complaint, exhibits attached to the complaint, matters of public record, and items appearing in the record of the case. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1195 (3d Cir. 1993). I also may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to ...

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