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Bowser v. Bogdanovic

April 9, 2010


The opinion of the court was delivered by: Hon. John E. Jones III


Before the Court in this matter is Defendants Swatara Township, David Bogdanovic ("Bogdanovic"), Jason Umberger ("Umberger"), and David Ricci's ("Ricci") (collectively, "Defendants") Motion to Strike Plaintiffs Michael Bowser ("Bowser") and Anthony Frey's ("Frey") (collectively, "Plaintiffs") Amended Complaint ("the Motion"). (Doc. 51). In the alternative, Defendants move to dismiss Plaintiffs' Amended Complaint. The Court will grant the Motion in the manner detailed below and will dismiss the Amended Complaint (Doc. 50) in its entirety.


A. Motion to Strike

Federal Rule of Civil Procedure 12(f) provides: Upon motion made by a party before a responsive pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous material.

Fed. R. Civ. P. 12(f).

B. Motion to Dismiss

In considering a motion to dismiss pursuant to Rule 12(b)(6), courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In resolving a motion to dismiss pursuant to Rule 12(b)(6), a court generally should consider only the allegations in the complaint, as well as "documents that are attached to or submitted with the complaint, . . . and any matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).

A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief, "in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss need not contain detailed factual allegations, it must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ---U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). To survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a right to relief above the speculative level . . . ." Victaulic Co. v. Tieman, 499 F.3d 227, 235 (3d Cir. 2007) (quoting Twombly, 550 U.S. at 555). Accordingly, to satisfy the plausibility standard, the complaint must indicate that defendant's liability is more than "a sheer possibility." Iqbal, 120 S.Ct. at 1949. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

Under the two-pronged approach articulated in Twombly and later formalized in Iqbal, a district court must first identify all factual allegations that constitute nothing more than "legal conclusions" or "naked assertions." Twombly, 550 U.S. at 555, 557. Such allegations are "not entitled to the assumption of truth" and must be disregarded for purposes of resolving a 12(b)(6) motion to dismiss. Iqbal, 129 S.Ct. at 1950. Next, the district court must identify "the 'nub' of the . . . complaint--the well-pleaded, nonconclusory factual allegation[s]." Id. Taking these allegations as true, the district judge must then determine whether the complaint states a plausible claim for relief. See id.

However, "a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips, 515 F.3d at 231(citing Twombly, 127 S.Ct. 1964-65, 1969 n.8). Rule 8 "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." Id. at 234.


Plaintiffs initiated the instant action with the filing of a Complaint on May 6, 2008, asserting various federal constitutional claims against Defendants pursuant to 42 U.S.C. § 1983. (Doc. 1). Defendants filed a Motion to Dismiss (Doc. 5) that we granted in part and denied in part. (Doc. 15). On October 23, 2008, we granted Plaintiff Bowser leave to amend the complaint so as to properly allege a First Amendment retaliation claim. (Doc. 15). Plaintiffs eventually filed an Amended Complaint on March 11, 2009. (Doc. 27). Defendants filed another Motion to Dismiss the Amended Complaint on March 25, 2009. (Doc. 28). A screening of the Amended Complaint revealed that Plaintiffs' counsel failed to comply with the Middle District of Pennsylvania Local Rule 15.1(2), which mandates that motions to amend a complaint must be accompanied by "a copy of the original pleading in which stricken material has been lined through and any new material has been inserted and underlined or set forth in bold-faced type." M.D. Pa. L .R. 15.1(2). Plaintiffs appropriately re-filed the Amended Complaint on August 5, 2009. (Doc. 43). Defendants subsequently filed an addendum to their Motion on August 10, 2009.

The Court ultimately granted in part and denied in part Defendants' Motion to Dismiss the Amended Complaint. (Doc. 45). Specifically, the Court ordered that paragraphs 11, 13, 29, 30, 32-35, 47 (in part), 49, 52, 53, 55, and 60 be stricken from the Amended Complaint. We further directed Plaintiffs to file a revised Amended Complaint "which shall incorporate into consecutively numbered paragraphs those proposed amendments that were not stricken by virtue of this Memorandum and Order." (Doc. 45 pp. 16-17). We granted Plaintiffs leave to file a motion to supplement the allegations contained in paragraphs 32-35, 55, and 60 or waive any right to assert them in the future, and Plaintiffs did not avail themselves of that opportunity. In granting Plaintiffs some leniency by allowing them to file an Amended Complaint, we strongly cautioned that "Plaintiffs shall not include any ...

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