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Dutchmen Mx Park, LLC v. Schuylkill County

September 23, 2011


The opinion of the court was delivered by: Judge James M. Munley United States District Court

(Judge Munley)


Before the court for disposition are motions to dismiss filed by both defendants, Schuylkill County, Pennsylvania and Washington Township. The motions are fully briefed and ripe for disposition.


Plaintiff Dutchmen MX Park, LLC (hereinafter "Dutchmen") is a Pennsylvania Limited Liability Company with its principal place of business in Pine Grove, Pennsylvania. (Doc. 1, Compl. ¶ 9). Plaintiff seeks to develop an adult entertainment establishment to feature live nude or partially nude female dancers. (Id. ¶ 12). The location for the proposed establishment is in Pine Grove, Washington Township, Schuylkill County, Pennsylvania. (Id. ¶ 13). Washington Township ("the Township") does not have a zoning ordinance, therefore, the Schuylkill County's ("the County") Zoning Ordinance applies to property within the township. (Id. ¶ 17). If the Township enacted its own zoning ordinance, then the County's zoning ordinance would not apply within the township. (Id. ¶ 18).

The plaintiff does not seek to present nudity for its own sake. (Id. ¶ 23). It seeks to have nude dancers "communicate a specific message of eroticism which includes both an intellectual component and an emotive component emphasizing sensuality, passion and excitement. . . . Plaintiff believes that providing this form of expressive communication to the public is a beneficial social activity which enhances individuals' conscious ability to assimilate and consider various issues involving sexual candor and interest in human sexuality that all human beings have to a greater or lesser degree." (Id. ¶¶ 20-21). Plaintiff further seeks to serve alcoholic beverages to the patrons who take part in this expressive communication. (Id. ¶ 12).

The Schuylkill County Zoning Ordinance places restrictions on the location of "adult uses." (Id. ¶ 25). The Zoning Ordinance also requires a special exception for adult uses. (Id. ¶ 26).

Based upon these facts the plaintiff filed the instant complaint pursuant to 42 U.S.C. § 1983 alleging constitutional violations. Plaintiff asks for declaratory and injunctive relief. The complaint is comprised of the following seven counts:*fn1 Count I, a First Amendment claim alleging that the Zoning Ordinance furthers no substantial government interest; Count II, a First Amendment claim alleging that the regulatory provisions within the Zoning Ordinance further no substantial governmental interest; Count III, a state law cause of action asserting that the regulatory provisions of the special exception section of the Zoning Ordinance violate the Pennsylvania Municipalities Planning Code, 53 PENN. STAT. 10101, et seq.; Count IV, a First Amendment claim against the County alleging insufficient avenues of communication in Schuylkill County; Count V, First Amendment claim against the County alleging that the special exception procedures are unconstitutional and render no sites available as a matter of right; Count VI, a First Amendment claim asserting that insufficient sites for adult uses are available in Washington Township; and Count VII, a Fourteenth Amendment claim alleging that ambiguities in the special exception regulations render them unconstitutional.

Both defendants have filed motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, bringing the case to its present posture.


As this case is brought pursuant to 42 U.S.C. § 1983, we have jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). We have supplemental jurisdiction over the plaintiff's state law claims pursuant to 28 U.S.C. § 1367.

Standard of review

This case is before the court pursuant to defendants' motions to dismiss for failure to state a claim upon which relief can be granted filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. When a 12(b)(6) motion is filed, the sufficiency of the allegations in the complaint is tested. Granting the motion is appropriate if, accepting as true all the facts alleged in the complaint, the plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," or put another way, "nudged [his or her] claims across the line from conceivable to plausible." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Third Circuit interprets Twombly to require the plaintiff to describe "enough facts to raise a reasonable expectation that discovery will reveal evidence of" each necessary element of the claims alleged in the complaint. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). Moreover, the plaintiff must allege facts that "justify moving the case beyond the pleadings to the next stage of litigation." Id. at 234-35.

In relation to Federal Rule of Civil Procedure 8(a)(2), the complaint need only provide "'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 upon which it rests,'" Twombly, 550 U.S. at 555 (citation omitted). "[T]he factual detail in a complaint [cannot be] so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8." Phillips, 515 ...

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