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Barber v. Commonwealth of Pennsylvania Dep't Agriculture

May 3, 2010

ROLLIN MICHAEL BARBER, PAULA LAPPE-BARBER, RACHEL LAPPE-BILER, PAULINE GLADYS BRYNER-LAPPE AND FAITHFUL BUT FORGOTTEN FRIENDS ANIMAL RESCUE AND PLACEMENT SERVICES, INC. PLAINTIFFS,
v.
THE COMMONWEALTH OF PENNSYLVANIA DEPT. AGRICULTURE, BUREAU OF DOG LAW ENFORCEMENT, BRADLEY D. SHIELDS, BRUCE MINICK, REBECCA MCDONALD, PENNSYLVANIA SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, DREW DELENICK, RICKEE MILLER, HOWARD NELSON, JESSE L. SMITH AND JOHN DOES. DEFENDANTS.



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

OPINION and ORDER OF COURT

As set forth in my previous Opinion and Order (Docket No. [28]), Plaintiffs Rollin Michael Barber, Paula Lappe-Barber, Rachel Lappe-Biler and Pauline Gladys Bryner-Lappe are owners and operators of a non-profit animal rescue and kennel - Faithful But Forgotten Friends Animal Placement Services, Inc. ("the Kennel" -also a named Plaintiff in this action). The Plaintiffs are engaged in the rescue of dogs and other animals in and throughout Fayette County, Pennsylvania. Rollin Michael Barber and Rachel Lappe-Biler are co-named as the rightful holders of the kennel license issued with respect to this property. According to the Complaint, the license authorized the Plaintiffs to house in excess of 500 dogs.

The current dispute stems from a series of kennel inspections and the execution of search warrants which occurred during the 2007 calendar year. A number of the Plaintiffs' dogs were seized and criminal charges were filed against the Plaintiffs. The Plaintiffs in turn initiated this action against the Commonwealth of Pennsylvania Department of Agriculture, Bureau of Dog Law Enforcement and a number of its employees.*fn1 Defendants the Pennsylvania Society for Prevention of Cruelty to Animals ("PSPCA"), Howard Nelson (Director of the PSPCA) and Rebecca McDonald (a PSPCA Humane Society police officer) have filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Docket No. [25].

The Plaintiffs oppose the Motion. For the reasons set forth below, the Motion is granted in part and denied in part.

Standard of Review

A. Rule 12(b)(1)*fn2

"A motion to dismiss under Rule 12(b)(1) may be treated as either a facial or factual challenge to the court's subject matter jurisdiction." Goodson v. Maggi, Civ. No. 8-44, 2009 WL 2960386 at * 4 (W.D. Pa. Sept. 14, 2009), citing, Patsakis v. Greek Orthodox Archdiocese of America, 339 F. Supp.2d 689, 692 (W.D. Pa. 2004) and Gould Electronics, Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). In a facial attack, "the court must consider the allegations of the complaint as true, in the light most favorable to the plaintiff, similar to a motion to dismiss." Goodson, 2009 WL 2960386 at * 4, citing, Mortensen, 549 F.2d at 891 and In re Kaiser Group Int'l., Inc., 399 F.3d 558, 561 (3d Cir. 2005).

B. Rule 12(b)(6)

When deciding whether to grant or deny a 12(b)(6) motion the Supreme Court has held:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss 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. 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).

Bell Atlantic Co. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65,167 L.Ed.2d 929 (2007). (internal citations, footnotes and quotation marks omitted). See also, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (a plaintiff's factual allegations must be enough to raise a right to relief above the speculative level).

Most recently, in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), the Supreme Court held, ". . . a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citations and internal quotation marks omitted).

In Iqbal, the Court specifically highlighted the two principles which formed the basis of the Twomblydecision: First, for the purposes of a motion to dismiss, courts must accept as true all factual allegations set forth in the complaint, but courts are not bound to accept as true any legal conclusions couched as factual allegations. Id. at 1949-1950. See also, Fowler v. UPMC Shadyside, 578 F.3d 203 (3d. Cir. 2009). Second, a complaint will only survive a motion to dismiss if it states a plausible claim for relief, which requires a court to engage in a context-specific task, drawing on the court's judicial experience and common sense. Id. at 1950. Where well-pleaded facts do not permit the ...


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