The opinion of the court was delivered by: Donetta W. Ambrose Chief U.S. District Judge
AMBROSE, Chief District Judge.
OPINION AND ORDER OF COURT
The Plaintiff, John M. Lugaila (hereinafter as "Lugaila"), brings claims of intentional trespass to land, violation of the Fourth and Fourteenth Amendments pursuant to 42 U.S.C. §1983 and for failure to restore property against the Midway Sewerage Authority (hereinafter as "the Authority") and Alex E. Paris Contracting Company Inc. (hereinafter as "Paris Contracting"). This case was removed to this court by the Defendants on the basis of 28 U.S.C. §1331 and 1343. Both Defendants filed separate motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) of which they have joined together and incorporated into each other by reference such that both motions combined seek to dismiss the Complaint in its entirety. For the reasons stated below the §1983 claim is dismissed and the remaining state law claims of the Complaint are dismissed pursuant to 28 U.S.C. §1367(c)(3).
Unless otherwise indicated, the facts are taken from Lugaila's Complaint.
Lugaila is the owner of a parcel of land located in Washington County. In January of 2002, the Authority filed a Declaration of Taking for the purpose of building a sewage line over Lugaila's land. In May of 2004, Paris Contracting, acting as an agent of the Authority, constructed a sewer line across Lugaila's land. Subsequent to the construction of the sewer line, in May or June of 2005, Paris Contracting reentered Lugaila's land and removed large amounts of topsoil from the property. This re-entry and removal of the topsoil was done without the consent or permission of Lugaila. Despite Lugaila's requests, neither Paris Contracting nor the Authority have restored Lugaila's land to its condition prior to the construction of the sewage line and removal of the topsoil.
MOTION TO DISMISS STANDARD
In ruling on a 12(b)(6) motion for failure to state a claim, it must be considered 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, ---U.S. ----,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); Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008) ("The allegations of the complaint . . . should 'plausibly suggest' that the pleader is entitled to relief."). In so doing, all factual allegations, and all reasonable inferences therefrom, must be accepted as true and viewed 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 her 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)." Twombly, 127 S.Ct. 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, the court 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). Other matters outside the pleadings should not be considered.
Lugaila claims that the alleged trespass by the Defendants has violated his Fourth and Fourteenth Amendment constitutional rights and said violation was performed under color of state law. In order to state a claim under §1983, the plaintiff must show "(1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535 (1981). "Section 1983 'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994)(quoting Baker v. McCollan, 443 U.S. 137, 144, n.3 (1979)). Since Lugaila ...