The opinion of the court was delivered by: James Knoll Gardner United States District Judge
The matter before the court is Defendant City of Reading's Motion to Dismiss the Complaint, which motion was filed December 19, 2011. *fn1 On January 16, 2012 plaintiff filed its Response to Motion to Dismiss. *fn2
For the following reasons, the City's motion to dismiss is granted in part and denied in part.
Specifically, the City's motion to dismiss is granted to the extent it seeks dismissal of Counts I, II, IV, and V. Counts I and IV are dismissed with prejudice. Counts II and V are dismissed without prejudice to file an amended complaint concerning those counts.
The City's motion to dismiss is denied to the extent that it seeks dismissal of Count III.
Jurisdiction in this case is contested. However, plaintiff alleges jurisdiction pursuant to 28 U.S.C. § 1331, which provides district courts with original jurisdiction of all civil actions "arising under the Constitution, laws, or treaties of the United States.
Venue is proper pursuant to 28 U.S.C. § 1391 because the parties reside within this judicial district and because a substantial part of the events giving rise to plaintiff's claims allegedly occurred within this judicial district.
On November 18, 2011 plaintiff MBR Construction Services Inc. filed a five-count Verified Complaint against defendants City of Reading; Hirneisen Electronic, Inc.; and Independence Lighting, Inc. *fn3
Also on November 18, 2011 plaintiff filed its Motion for Preliminary Injunction and Temporary Restraining Order of Plaintiff, MBR Construction Services, Inc.
A two-day hearing was scheduled for January 9 and 10, 2012 on plaintiff's motion for a preliminary injunction and temporary restraining order. However, on December 29, 2011 plaintiff filed a notice to withdraw its motion. *fn4 By Order dated and filed December 29, 2011 I approved the notice to withdraw and cancelled the January 9 and 10, 2012 hearing.
On December 19, 2011 defendant City of Reading filed the within motion to dismiss plaintiff's complaint. Also on December 19, 2011 defendant Hirneisen Electric, Inc. filed an answer to plaintiff's complaint. *fn5 On December 21, 2011 defendant Independence Lighting, Inc. filed its answer. *fn6
Defendant City of Reading ("the City") seeks dismissal of plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.
The City contends that this court lacks subject matter jurisdiction because plaintiff's two federal claims fail to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Accordingly, the City's motion pursuant to Rule 12(b)(1) is premised upon dismissal of plaintiff's two federal claims pursuant to Rule 12(b)(6).
However, the "failure to state a claim upon which relief can be granted does not mean that federal question jurisdiction is lacking." The Pitt News v. Fisher, 215 F.3d 354, 360 (3d Cir. 2000).
Rather, pursuant to 28 U.S.C. § 1367(a), a district court "shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution."
Further, 28 U.S.C. § 1367(c) provides that the "district court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if...the district court has dismissed all claims over which it has original jurisdiction" (emphasis added). Accordingly, this court's power to decline to exercise supplemental jurisdiction is discretionary, not mandatory.
Here, the City does not contend that plaintiff's state-law claims are unrelated to its federal claims. Nor does the City contend that the court lacks subject matter jurisdiction to decide plaintiff's claim brought pursuant to 42 U.S.C. § 1983. *fn7
Therefore, plaintiff has asserted claims "arising under" the Constitution and federal law. Accordingly, Rule 12(b)(1) does not provide a basis for the relief sought by the City, and I need not elaborate further on the standard of review for a motion to dismiss under Rule 12(b)(1). Because Rule 12(b)(1) does not provide a basis for the relief requested by the City, I deny the City's motion to the extent that it seeks dismissal of plaintiff's complaint for lack of subject matter jurisdiction. *fn8
Although Rule 12(b)(1) does not provide a basis for dismissal of plaintiff's complaint, the City also contends that each Count in plaintiff's complaint fails to state a claim upon which relief can be granted and therefore dismissal is warranted pursuant to Rule 12(b)(6).
A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." A Rule 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Generally, in ruling on a motion to dismiss, the court relies on the complaint, attached exhibits, and matters of public record, including other judicial proceedings. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2008).
Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Rule 8(a)(2) "[does] not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. at 1974, 167 L.Ed.2d at 949. *fn9
In determining whether a plaintiff's complaint is sufficient, the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading, the plaintiff may be entitled to relief." Fowler, 578 F.3d at 210 (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).
Although "conclusory or bare-bones allegations" will not survive a motion to dismiss, Fowler, 578 F.3d at 210, a complaint may not be dismissed "merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips, 515 F.3d at 231. Nonetheless, to survive a 12(b)(6) motion, the complaint must provide "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]." Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940) (internal quotation omitted).
The court is required to conduct a two-part analysis when considering a Rule 12(b)(6) motion. First, the factual matters averred in the complaint, and any attached exhibits, should be separated from legal conclusions asserted therein. Fowler, 578 F.3d at 210. Any facts pled must be taken as true, and any legal conclusions asserted may be disregarded. Id. at 210-211.
Second, the court must determine whether those factual matters averred are sufficient to show that the plaintiff has a "plausible claim for relief." Id. at 211 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950, 178 L.Ed.2d at 884).
Ultimately, this two-part analysis is "context-specific" and requires the court to draw on "its judicial experience and common sense" to determine if the facts pled in the complaint have "nudged [plaintiff's] claims" over the line from "[merely] conceivable [or possible] to plausible."
Iqbal,556 U.S. at 680, 129 S.Ct. at 1950-1951, 178 L.Ed.2d at 884-885 (internal quotations omitted).
A well-pleaded complaint may not be dismissed simply because "it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940-941.
Based upon the averments in plaintiff's Verified Complaint, which I must accept as true under the applicable standard of review discussed above, the pertinent facts are as follows.
On April 19, 2011 defendant City of Reading opened bidding for a public contract for the LED Street Lighting Retrofit ("Project"). The City's solicitation of bids required that all the contractors exclusively use "Leotek Green Cobra GCA1 Series" lighting fixture ("Leotek Fixture") as a component of the Project. Defendant Independence ...