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Southersby Development Corporation v. Borough of Jefferson Hills and William L. Mcvicker

January 18, 2011

SOUTHERSBY DEVELOPMENT CORPORATION, PLAINTIFF,
v.
BOROUGH OF JEFFERSON HILLS AND WILLIAM L. MCVICKER,
DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Cathy Bissoon*fn1

MEMORANDUM AND ORDER

I.MEMORANDUM

Pending before the Court are Plaintiff Southersby Development Corporation's Motion to Remand Plaintiff's State Law Negligence Claim (Doc. 50), and Plaintiff's Motion for Hearing on the Motion to Remand, or in the alternative for Leave to File Reply Brief (Doc. 54). For the reasons stated herein, the Court will grant Plaintiff's Motion to Remand and deny Plaintiff's Motion for Hearing as moot.

BACKGROUND

A.Factual Background

Plaintiff owns property in the Borough of Jefferson Hills ("Jefferson Hills"), approved for a residential development referred to as Patriot Pointe and subdivided into Patriot Pointe Phases I, II, and III. Am. Compl. ¶ 6 (Doc. 22). Plaintiff entered into contracts with Defendant Jefferson Hills for the planned development of Patriot Pointe Phases I and II. Id. at ¶¶ 8-9.

Plaintiff alleges that Plaintiff and Defendant Jefferson Hills exchanged drafts of, but have not entered into, a contract for the planned development of Patriot Pointe Phase III. Id. at ¶¶ 10-13.

With respect to Patriot Pointe Phases I and II, Plaintiff alleges that Defendant Jefferson Hills and Defendant McVicker, a former employee of Defendant Jefferson Hills, selectively enforced Borough ordinances and processes and state law against Plaintiff such that Plaintiff was treated differently from similarly situated individual land developers. Id. at ¶¶ 20-21. For example, Plaintiff alleges that Defendants subjected Plaintiff to road specifications and standards, storm sewer requirements, and fees that were not required of other developers. Id. at ¶¶ 21a, 21d, 21e. Plaintiff further alleges that Defendants have intentionally delayed execution of a contract regarding planned development of Patriot Pointe Phase III. Id. at ¶¶ 21l, 21m. Plaintiff alleges that Defendants' actions have interfered with Plaintiff's development of Patriot Pointe, resulting in financial harm and loss of good will. Id. at ¶¶ 22-32.

Plaintiff also alleges that Defendant Jefferson Hills failed to adequately maintain a sewer line and water course adjacent to Patriot Pointe Phase II, resulting in unnatural soil erosion that damaged Plaintiff's property. Id. at ¶¶ 44-55.

B.Procedural Background

Plaintiff brought this action in the Court of Common Pleas of Allegheny County, Pennsylvania, asserting claims under 42 U.S.C. § 1983 against Defendants Borough of Jefferson Hills ("Jefferson Hills") and William L. McVicker for denial of equal protection of the laws (Count I) and denial of substantive due process (Count II) in violation of the Fourteenth Amendment to the U.S. Constitution. Plaintiff also asserts state law claims against Defendant Jefferson Hills for negligence (Count III) and breach of contract (Count IV).

Defendants removed the state court action to this Court on February 19, 2009 pursuant to 28 U.S.C. § 1441(a). Notice of Removal ¶ 8 (Doc. 1). On March 4, 2009, Plaintiff moved to 2 remand the state law negligence claim to state court, asserting that this Court lacks subject matter jurisdiction over the negligence claim. Doc. 3. The Honorable Amy Reynolds Hay, who previously presided over this case, denied the motion to remand without prejudice to filing another motion to remand "at the time for filing summary judgment motions." Doc. 15. This Judge Hay subsequently dismissed Plaintiff's substantive due process claim for failure to state a claim. Docs. 32, 33.

Plaintiff filed the currently pending motion to remand (Doc. 50) on December 30, 2010, again arguing that this Court lacks subject matter jurisdiction over the state law negligence claim. ...


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