The opinion of the court was delivered by: . Richard Caputo United States District Judge
Presently before the Court is Magistrate Judge Blewitt's Report and Recommendation ("R & R") of July 27 and 28 and August 3, 4, 5, 13, and 26, 2010 (Docs. 125, 126, 128, 129, 130, 133, and 136), and Plaintiffs' Objections to the Magistrate Judge's R&Rs (Docs. 131, 132,134, 135, 137, and 139 ). Magistrate Judge Blewitt recommended that all of the Defendants' Motions to Dismiss be granted with prejudice. The Court will adopt Judge Blewitt's R & R for the reasons discussed more fully below.
On October 6, 2009, Plaintiffs Madhu Agarwal and Anil Agarwal filed, pro se, the instant civil rights action pursuant to 42 U.S.C. § 1983. This action stemmed from unpaid tax bills which led to tax liens being placed on Plaintiffs' properties. In their original pleading, Plaintiffs asserted four claims for violations of their U.S. Constitutional rights as well as violations of their rights under the Pennsylvania Constitution. Plaintiffs named 26 Defendants in their original Complaint along with John and Jane Doe Defendants number ## 27 to 51. After the named Defendants were served, all of them -- except for the Hazleton Water Authority ("HCWA"), who answered the Complaint -- joined in one of several Motions to Dismiss. Plaintiff then filed a Motion to Amend their Complaint, which was granted on November 30, 2009, rendering the Defendants' Motions to Dismiss moot. Plaintiff then filed an Amended Complaint on December 22, 2009. (Doc. 53.) After Plaintiffs' Amended Complaint was served, eleven Motions to Dismiss were filed. (Docs. 55, 56, 59, 66, 68, 69, 70, 74, 79, 82.) On July 14, 2010, the Court adopted the R&R of Magistrate Judge Blewitt and dismissed the Amended Complaint with prejudice as to Defendant Pennsylvania Tax Collection, Inc. and Defendant Paul Datte, Esq. (Doc. 123.)
I. Report and Recommendation
Where objections to the magistrate judge's report are filed, the Court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In making its de novo review, the Court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the Court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the Court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D. Pa. 1998).
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations "'to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (requiring a complaint to set forth information from which each element of a claim may be inferred). In light of Federal Rule of Civil Procedure 8(a)(2), the statement need only "'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555). "[T]he factual detail in a complaint [must not be] so undeveloped that it does not provide a defendant [with] the type of notice of claim which is contemplated by Rule 8." Phillips, 515 F.3d at 232; see also Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007).
In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Court may also consider "undisputedly authentic" documents when the plaintiff's claims are based on the documents and the defendant has attached copies of the documents to the motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998), or credit a complaint's "'bald assertions'" or "'legal conclusions,'" Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). When considering a Rule 12(b)(6) motion, the Court's role is limited to determining whether a plaintiff is entitled to offer evidence in support of her claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
I. Motions to Dismiss from the Schuykill County Defendants and Defendant Commonwealth of Pennsylvania, and Defendant Schuykill County Tax Claim Bureau's Motion to Strike Service and Dismiss Due to Improper Service on Defendants "Pamela" The Schuykill County Defendants' and Defendant Commonwealth of Pennsylvania's ("PA Defendant") Motions to Dismiss (Docs. 56 and 69) as well as the Schuykill County Tax Claim Bureau's ("SCTCB") Motion to Strike Service and Dismiss as to Defendant "Pamela" (Doc. 72) will be granted.
Plaintiffs' claims against these sets of Defendants arise out of Defendant Schuylkill County's policy not to accept personal checks for the payment of delinquent real-estate taxes, which Plaintiffs allege violates their constitutional rights.
As to Defendant's SCTCB's Motion to Strike Service and Dismiss as to Defendants "Pamela" and Mid County Resources, LLC ("MCR"), Defendant SCTCB claims that there has not been a "Pamela" working at the SCTCB either now or at the time the original Complaint was filed, and that therefore they were not the authorized agent to accept service for "Pamela." Therefore, according to SCTCB, service upon Defendants "Pamela" was insufficient insofar as Plaintiffs tried to serve "Pamela" at SCTCB's office.
The rule for serving an individual within a judicial district of the United States is found at Fed. R. Civ. P. 4(e). According to Patterson v. City of Phila., 2009 WL 1259968, *7 (E.D. Pa. May 1, 2009):
Under Fed.R.Civ.P. 4(e)(2), a plaintiff may either deliver process "to the person individually," deliver process to a person "at the individual's dwelling place or usual place of abode, or deliver process to "an agent authorized by appointment or law to receive service of process."
Since Plaintiffs failed to personally deliver process to Defendant "Pamela", deliver process to someone at "Pamela"'s dwelling place or place of abode, or deliver it to an authorized agent, Defendant SCTCB's Motion to Strike Service and the Motion to Dismiss Defendant "Pamela" due to improper service will be granted and Defendant Pamela will be dismissed from the suit.
Furthermore, since Plaintiffs failed to properly serve Defendant Mid County Resources LLC ("MCR") with the summons and complaint within 120 days of the filing of Plaintiffs' Complaint, the action against Defendants "MCR" will be dismissed according to Fed. R. Civ. P. 4(m).
Turning to the Motion to Dismiss of Schuykill County Defendants Mantura M. Gallagher, Robert S. Frycklund, Shelly K. Morrison, Russell T. Motsko, and Denise McGinley-Gerchak, Plaintiffs claim Defendants violated their constitutional rights by not allowing Plaintiffs to pay their delinquent real-estate taxes by personal check. Such an ...