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The Constitutional Guided Walking Tours, LLC; Jonathan v. Independence Visitor Center Corporation; William W. Moore

March 31, 2011

THE CONSTITUTIONAL GUIDED WALKING TOURS, LLC; JONATHAN H. BARI; AND, LESLIE S. BARI PLAINTIFFS,
v.
INDEPENDENCE VISITOR CENTER CORPORATION; WILLIAM W. MOORE; NATIONAL PARK SERVICE; DENNIS REIDENBACH; CYNTHIA MACLEOD; AND, DARLA SIDLES DEFENDANTS.



The opinion of the court was delivered by: Jones, J.

MEMORANDUM

I. Background

The Constitutional Guided Walking Tours, LLC and its owners, Jonathan H. Bari and Leslie S. Bari (hereinafter collectively referred to as "Plaintiffs"), were engaged in the operation of a commercial walking tour of Independence National Historical Park (INHP) and the surrounding area between the years of 2005 and 2010.*fn1 Defendant National Park Service (NPS) is the federal agency charged with the general oversight of INHP. Defendants Reidenbach, MacLeod and Sidles are employees of the NPS.*fn2 Defendant Independence Visitor Center Corporation (IVCC) is a private entity contracted by the NPS to conduct the management activities of INHP since 1999 and Defendant William Moore was the President and CEO of IVCC from January, 1999 through January, 2009.

Plaintiffs allege that Federal Defendants have acted arbitrarily and capriciously, thereby subjecting them to restrictions and limitations not placed on their competitors. Plaintiffs also allege that the NPS unlawfully delegated management activities to the IVCC, that all Defendants deliberately misled Plaintiff and third parties regarding the relationship between the NPS and the IVCC, and that all Defendants refused to redress grievances raised by Plaintiffs.

Federal Defendants have filed a Motion to Dismiss Counts I, II and VIII on the grounds that: 1) the court lacks personal jurisdiction because none of the Federal Defendants has been properly served; 2) the court lacks subject matter jurisdiction over the NPS because Plaintiffs have failed to state a cause of action under the Administrative Procedures Act (5 U.S.C. § 701, et seq.); and 3) the individual Federal Defendants are entitled to qualified immunity from a Bivens action.*fn3 Defendants IVCC and William Moore are not parties to the Motion presently before this Court.

For the reasons set forth herein, Federal Defendants' Motion will be granted in part and denied in part.

II. Standards of Review & Jurisdiction

Federal Defendants base the instant Motion on several pleading deficiencies in Plaintiffs' Amended Complaint, including a general failure to provide "a short and plain statement of the claim showing that the pleader is entitled to relief," pursuant to Rule 8(a) of the Federal Rules of Civil Procedure. To that end, said Defendants seek dismissal of Plaintiffs' claims under Subsection (b)(6) of Rule 12 for failure to state a claim upon which relief can be granted. Additionally, they seek dismissal pursuant to Subsection (b)(1) of Rule 12, for lack of subject-matter jurisdiction; Subsection (b)(2) for lack of personal jurisdiction; and, Subsection

(b)(5) for insufficient service of process. Fed.R.Civ.P. 12(b).

A. Personal Jurisdiction / Insufficient Service of Process

Before this Court may address the merits of any substantive claims raised by the parties, it must determine whether or not it possesses jurisdiction in the first instance.

"In deciding a motion to dismiss for lack of [personal] jurisdiction, a court is required to accept the plaintiff's allegations as true, and is to construe disputed facts in favor of the plaintiff." Eurofins Pharma US Holdings v. BioAlliance Pharma SA, 623 F.3d 147, 155 (3d Cir. 2010) (internal citation omitted). Federal Defendants first move to dismiss Plaintiffs' Amended Complaint on the basis that none of them has been properly served. Subsection (i) of Rule 4 of the Federal Rules of Civil Procedure governs service of process in this matter and provides in pertinent part:

( i) Serving the United States and Its Agencies, Corporations, Officers, or Employees.

(1) United States. To serve the United States, a party must:

(A) ( i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought - - or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk - - or

(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office;

(B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and ( C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer.

(2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.

(3) Officer or Employee Sued Individually. To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g).*fn4

Fed.R.Civ.P. 4( i).

"'Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint' [and] technical defects 'do not justify dismissal unless a party is able to demonstrate actual prejudice'" however, notice alone is not always enough. Hechinger Liquidation Trust v. Porter-Cable Corp. (In re Hechinger Inv. Co. of Del., Inc.), 308 B.R. 683, 687 (Bankr. D. Del. 2003).

Additionally,

Although notice underpins Federal Rule of Civil Procedure 4 concerning service, notice cannot by itself validate an otherwise defective service. Proper service is still a prerequisite to personal jurisdiction. Inquiry into the propriety of service is separate from, and in addition to, the due process concerns present in an inquiry into the notice itself. A district court's power to assert in personam authority over parties defendant is dependent not only on compliance with due process but also on compliance with the technicalities of Rule 4. Notice to a defendant that he has been sued does not cure defective service, and an appearance for the limited purpose of objecting to service does not waive the technicalities of the rule governing service.

Grand Entertainment Group v. Star Media Sales, 988 F.2d 476, 492 (3d Cir. 1993).

Federal Defendants concede that copies of the summons and Amended Complaint have been delivered to the United States Attorney's Office. (Mot. to Dismiss, 8.) Furthermore, the exhibits attached to their Motion indicate service on the United States Attorney General via certified mail (Mot. to Dismiss, Ex. I), on Defendant Reidenbach via personal service to an agent (Mot. to Dismiss, Ex. F), on Defendant MacLeod via personal service to an agent (Mot. to Dismiss, Ex. D), and on Defendant Sidles via personal service (Mot. to Dismiss, Ex. C).*fn5 Any deficiencies evidenced by said documents are remedied by Plaintiffs' Affidavit of Service and attending exhibits, which were filed of record subsequent to the instant Motion to Dismiss. (Doc. No. 16.)

Based upon the foregoing legal precepts and this Court's review of the documentation cited herein, Federal Defendants' request for relief pursuant to Subsections (2) and (5) of Rule 12 must be denied.*fn6

B. Subject Matter Jurisdiction

Federal Defendants next assert that pursuant to Federal Rule of Civil Procedure 12(b)(1), subject matter jurisdiction in this case is lacking . . .

Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a complaint for "lack of subject-matter jurisdiction." Fed. R. Civ. P. 12(b)(1). A motion to dismiss under Rule 12(b)(1) therefore challenges the power of a federal court to hear a claim or case. See Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006). In the face of a 12(b)(1) motion, the plaintiff has the burden to "convince the court it has jurisdiction." Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000); see also Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) ("When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion.").

Stewart v. XRimz, LLC, 2011 U.S. Dist. LEXIS 27988, at *7 (M.D. Pa. Mar. 18, 2011).

Moreover,

A court must dismiss a complaint if it lacks subject matter jurisdiction over the claims because without subject matter jurisdiction the court does not have the power to hear the case. Fed. R. Civ. P. 12(b)(1); Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Because subject matter jurisdiction is central to a court's authority, a court can raise issues of subject matter jurisdiction sua sponte at any time. Fed. R. Civ. P. 12(h)(3).

Challenges to subject matter jurisdiction may be facial or factual. Mortensen, 549 F.2d at 891. The former proceeds like a motion under Rule 12(b)(6), where a court accepts the allegations in the complaint as true. Id. In the latter, a court is "free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id.

I.K. v. Sch. Dist. of Haverford Twp., 2011 U.S. Dist. LEXIS 28866, at **10-11 (E.D. Pa. Mar. 21, 2011).

Therefore,

In reviewing a facial attack, which addresses a deficiency in the pleadings, we must only consider the allegations on the face of the complaint, taken as true, and any documents referenced in the complaint, viewed in the light most favorable to the plaintiff. "The plaintiff must assert facts that affirmatively and plausibly suggest that the pleader has the right he claims (here, the right to jurisdiction), rather than facts that are merely consistent with such a right."

Church of the Universal Bhd. v. Farmington Twp. Supervisors, 296 F. App'x 285, 288 (3d Cir. ...


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