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James R. Harper, Iii, Daniel J. Harper, John T. Harper v. Global

January 11, 2011

JAMES R. HARPER, III, DANIEL J. HARPER, JOHN T. HARPER, CHRISTINE A. RYAN, AND ARTHUR G. STEINBERG, PLAINTIFFS,
v.
GLOBAL GEOPHYSICAL SERVICES, INC. AND COUGAR LAND SERVICES, LLC,
DEFENDANTS.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

MEMORANDUM OPINION RE: DEFENDANTS‟ MOTION TO DISSOLVE OR MODIFY THE PRELIMINARY INJUNCTION (DOC. NO. 15) AND DEFENDANTS‟ MOTION TO DISMISS (DOC. NO. 13)

I.Factual Background

Plaintiffs, James R. Harper, III, Daniel J. Harper, John T. Harper, Christine A. Ryan, and Arthur G. Steinberg, (collectively referred to as "Plaintiffs"), filed a civil action in the Court of Common Pleas of Fayette County (Doc. No. 1-2) on November 17, 2010 against Defendants Global Geophysical Services, Inc., and Cougar Land Services, LLC (individually referred to as "Global" and "Cougar Land" and collectively referred to as "Defendants"). Plaintiffs also filed a Motion for Preliminary Injunction on November 17, 2010. The Fayette County Court of Common Pleas issued a Preliminary Injunction ordering Defendants to cease and desist from "reviewing, analyzing, disseminating, selling, licensing or otherwise using the testing information gathered related to" Plaintiffs‟ property. Doc. No. 1-4. Plaintiffs were ordered to post a bond in the sum of one dollar with the Prothonotary of Fayette County. Id. Judge Gerald Solomon ordered and directed that a hearing would be held on November 22, 2010, to "determine whether the injunction should be made permanent or dissolved." Id.

On November 19, 2010, Defendant Global timely removed the present action to this court. Doc. No. 1. Thereafter, on December 30, 2010, Defendants filed a Motion to Dismiss Plaintiffs‟ Complaint (Doc. No. 13) and a Motion to Dissolve or Modify the Preliminary Injunction (Doc. No. 15). Plaintiffs filed responsive briefs to Defendants‟ motions on January 7, 2010. Doc. Nos. 17 & 18.

For the subsequent reasons, Defendants‟ Motion to Dissolve or Modify the Preliminary Injunction (Doc. No. 15) will be granted. Defendants‟ Motion to Dismiss (Doc. No. 13) will be denied as to Counts I-VI.

II.Standard of Review

In considering a Rule 12(b)(6) motion, federal courts require notice pleading, as opposed to the heightened standard of fact pleading. Federal Rule of Civil Procedure 8(a)(2) requires only " "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 on which it rests.‟ " Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

To survive a motion to dismiss, plaintiff must allege sufficient facts that, if accepted as true, state "a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). A claim has facial plausibility when a plaintiff pleads facts that allow the court to draw the reasonable inference that the defendant may be liable for the misconduct alleged. Iqbal, 129 S.Ct. at 1949. However, the court is ""not bound to accept as true a legal conclusion couched as a factual allegation.‟ " Id. at 1950 (quoting Twombly, 550 U.S. at 555). In deciding a motion to dismiss, a court must determine whether the complaint "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." PA Prison Soc. v. Cortes, 622 F.3d 215, 233 (3d Cir. 2010), citing Iqbal, 129 S.Ct. at 1949. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id.; see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009).

As explained succinctly by the United States Courts of Appeals for the Third Circuit: Pursuant to Ashcroft v. Iqbal, [citation omitted], district courts must conduct a two-part analysis when presented with a motion to dismiss. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009). "First, the factual and legal elements of a claim should be separated." Id. "The District Court must accept all of the complaint‟s well-pleaded facts as true, but may disregard any legal conclusions." Id. at 210-11. "Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief.‟ " Id. at 211 (quoting Iqbal, 129 S.Ct. at 1950).

Edwards v. A.H. Cornell and Son, Inc., 610 F.3d 217, 219 (3d Cir. 2010).

When determining whether a plaintiff has met the second part of the analysis and presented facts sufficient to show a "plausible claim for relief," the Court must consider the specific nature of the claim presented and the facts pled to substantiate that claim. For example, in Fowler, a case predicated upon a violation of the Rehabilitation Act, the Court of Appeals determined that "[t]he complaint pleads how, when, and where [the defendant] allegedly discriminated against Fowler." Fowler, 578 F.3d at 212. The Court, while noting that the Complaint was "not as rich with detail as some might prefer," it the "how, when and where" provided by the plaintiff sufficient grounds to establish plausibility. Id. at 211-212.

The Court of Appeals in Guirguis v. Movers Specialty Services, Inc., 346 Fed.Appx. 774, 776 (3d Cir. 2009), a civil rights and Title VII case, affirmed a decision to dismiss a plaintiff‟s complaint because the plaintiff failed to plead facts explaining why he believed his national origin was the basis for the termination of his employment.

Therefore, when deciding a motion to dismiss under Rule 12(b)(6), the district court should apply the following rules. The facts alleged in the complaint, but not the legal conclusions, must be taken as true and all reasonable inferences must be drawn in favor of plaintiff. Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 555. We may not dismiss a complaint merely because it appears unlikely or improbable that plaintiff can prove the facts alleged or will ultimately prevail on the merits. Id. at 556, 563 n.8. Instead, we must ask whether the facts alleged raise a reasonable expectation that discovery will reveal evidence of the necessary elements. Id. at 556. In short, the motion to dismiss should not be granted if plaintiff alleges facts which could, if established at trial, entitle him to relief. Id. at 563 n.8. Generally speaking, a complaint that provides adequate facts to establish "how, when, where, and why" will survive a motion to dismiss. See Fowler and Guirguis, supra.

III.Discussion

A.Defendants' Motion to Dissolve or Modify the Preliminary Injunction (Doc. No.15)

In support of their Motion to Dissolve or Modify the Preliminary Injunction (Doc. No.15), Defendants argue that the Court should dissolve the injunction because: (1) the injunction was granted despite insufficient service of the complaint; (2) the injunction was granted on same-day notice without an evidentiary hearing; (3) the injunction was granted without sufficient bond; (4) the injunction was granted despite Plaintiffs‟ failure to join interested and indispensable parties; (5) the injunction was granted despite the facts that Plaintiffs did not satisfy any of the elements necessary for the granting of the injunction; and (6) the injunction expired on its own terms on November 22, 2010. Doc. No. 16,1.

This Court presides over this case on the basis of diversity jurisdiction. Doc. No. 1-1. In a diversity case, the Court must apply the substantive law of Pennsylvania. Erie R.R. v. Tompkins, 304 U.S. 64, 78-79 (1938). As clarified in Gasperini v. Center for Humanities, 518 U.S. 415 (1996), the Federal Rules of Civil Procedure and the Federal Rules of Evidence continue to govern "procedural" matters in a diversity action.

Injunctions are deemed to be extraordinary remedies to be granted only in limited circumstances by both Pennsylvania and federal courts. See Instant Air Freight Co., v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1989); Hart v. O'Malley, 679 A.2d 222, 23 n. 1 (Pa. 1996). In exercising discretion to grant or deny a preliminary injunction, Pennsylvania courts weigh whether plaintiff has established each of the following: (1) an injunction is necessary to prevent immediate and irreparable harm; (2) greater injury would result from refusing an injunction than from granting it; (3) an injunction would properly restore the parties to their status immediately prior to the alleged wrongful conduct; (4) the movant is likely to prevail on the merits of the action; (5) the requested injunction is reasonably suited to abate the offending activity; and (6) an injunction would not adversely affect the public interest. Summit Towne Centre, Inc. v. Show Show of Rocky Mount, Inc., 828 A.2d 995, 1001 (Pa. 2003). Under Pennsylvania law, for a preliminary injunction to issue, "every one of the [] prerequisites must be established; if the petitioner fails to establish any one of them, there is no need to address the others." County of Allegeny v. Commonwealth, 544 A.2d 1305, 1307 (Pa. 1988). These factors closely resemble those employed by the United States Court of Appeals for the Third Circuit when considering a motion for a preliminary injunction. Vigilante v. Statharos, No. 08-3408, 2009 WL 414014 at *3 (E.D. Pa. 2009) citing Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharmas. Co., 290 F.3d 578, 586 (3d Cir. 2002).

Whenever an action is removed to a district court, "all injunctions, orders, and other proceedings had in such action prior to its removal shall remain in full force and effect until dissolved or modified by the district court." 28 U.S.C. § 1450. Such "full force and effect" promotes judicial economy by ensuring that proceedings had in state court need not be duplicated in federal court and also insures that interlocutory orders entered by the state court to protect various rights of the parties will not lapse upon removal. Granny Goose Foods, Inc., et al v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70 of Alameda County, etc., 415 U.S. 423, 435-36 (1974). However, the "full force and effect" provided to state court orders after removal "was not intended to be more than the force and effect the orders would have had in state court." Granny Goose, 415 U.S. at 436.

The standard that the district court must apply when considering a Motion to Dissolve an injunction is "whether the movant has made a showing that changed circumstances warrant the discontinuation of the order." Twp. of Franklin Sewerage Auth. v. Middlesex County Utils.

Auth., 787 F.2d 117, 121 (3d Cir. 1986). The United States Court of Appeals for the Third Circuit has held that reconsideration is appropriate where (1) the moving party demonstrates an intervening change in the controlling law; (2) additional facts are made available, which were not available when the court first considered the issue; or (3) there is a need to correct a clear error of law or fact or to prevent manifest injustice. Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). A party need only demonstrate one of the grounds to establish that reconsideration is appropriate. Id.

The Court will address Defendants‟ Motion to Dissolve the Preliminary Injunction because it is beyond November 22, 2010, when the state court would have determined whether the injunction should be made permanent or dissolved. Doc. No. 1-4. See also Granny Goose, 415 U.S. at 436 (the "full force and effect" was not was not intended to provide "more than the force and effect the orders would have had in state court."). Defendants contend that the extended period of time since the state court‟s entry of the injunction and their present Motion is a "changed circumstance". Doc. No. 19-1, n. 1. Twp. of Franklin Sewerage Auth., 787 F.2d at 121. Defendants argue that Plaintiffs "did not establish any of the five necessary elements based upon the allegations contained in the Complaint and the ten minute oral argument on the Motion for ...


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