The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
Pro se Plaintiff, James L. Karn, brought this civil rights lawsuit generally claiming that his Fourteenth Amendment (equal protection and due process) rights were violated by Defendant, Borough of Ben Avon. Doc. no. 1, Count I. Plaintiff also claimed Defendant engaged in "conspiracy in restraint of trade" with respect to Plaintiff‟s ownership of real estate. Id., Count II. Finally, Plaintiff asserts that he has been the victim of a conspiracy between the municipal and state governments. Id., Counts II and III.
Presently before the Court is Defendant‟s Motion to Dismiss which this Court will grant for the reasons more specifically set forth below.
A. Rule 12(b)(1) -- Lack Of Subject Matter Jurisdiction
To confer original jurisdiction upon a District Court under the Constitution or laws of the United States, see 28 U.S.C. § 1331, 1337, plaintiff must assert a claim founded directly upon federal law. See Gully v. First Nat‟l Bank, 299 U.S. 109, 112 (1936). The federal right asserted "must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another." Id.
Furthermore, the claim must be essential to plaintiff‟s cause of action, Warrington Sewer Co. v. Tracy, 463 F.2d 771, 772 (3d Cir. 1972) (plaintiff‟s cause of action did not have, "as an essential element, a right . . . created by the Constitution or laws of the United States"), and must raise a substantial federal question, see Hagans v. Lavine, 415 U.S. 528, 536-538 (1974). For the claim to be substantial, it need not be one that will ultimately succeed on the merits. See, e.g., Lewis v. Am. Fed‟n of State, County and Mun. Employees, 407 F.2d 1185, 1188 n.3 (3d Cir. 1969). Provided that the federal claim is material, and not raised solely for the purposes of obtaining jurisdiction, and is not rendered frivolous by case law, a federal question will exist for purposes of sections 1331 and 1337. See Bell v. Hood, 327 U.S. 678, 682-83 (1946).
When a Court considers a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the first question is whether defendant is making a facial or factual jurisdictional attack. CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008). In a facial jurisdictional attack, where defendant asserts that the allegations of the Complaint are insufficient to establish jurisdiction, the Court may only consider the allegations of the Complaint, and must do so in the light most favorable to plaintiff. U.S. ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 513 (3d Cir. 2007). In a factual jurisdictional attack, where defendant argues that the Court lacks jurisdiction based on evidence outside of the pleadings, the Court may "consider and weigh evidence outside the pleadings . . .". Id. at 514. The burden of proof is on the plaintiff to establish jurisdiction. Id. Thus, when presented with a factual 12(b)(1) motion, the Court need only accept the plaintiffs‟ uncontroverted allegations as true, Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993)(citing Gibbs v. Buck, 307 U.S. 66, 72 (1939) and 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure " 1350, 1363, at 219-20, 457 (2d ed. 1990)). In short, a facial attack concerns an "alleged pleading deficiency." CNA, 535 F.3d at 139 (citation and internal quotation omitted). A factual attack, however, concerns "the actual failure of a plaintiff‟s claims to comport factually with the jurisdictional prerequisites." Id. (citation and internal quotation omitted).
B. Rule 12(b)(6) -- Failure to State a Claim
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 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. Id. at 1949. However, the court is ""not bound to accept as true a legal conclusion couched as a factual allegation.‟ " Iqbal, 129 S.Ct. 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 ...