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Gas Drilling Awareness Coalition v. James F. Powers

November 19, 2012

GAS DRILLING AWARENESS COALITION, PLAINTIFF
v.
JAMES F. POWERS, ET AL., DEFENDANTS



The opinion of the court was delivered by: William W. Caldwell United States District Judge

MEMORANDUM

I. Introduction

We are considering a motion to dismiss filed by Defendants, Institute of Terrorism Research and Response Foundation, Institute of Terrorism Research and Response, and Michael Perelman (collectively "ITRR defendants"). This matter relates to a contract between James Powers, former Director of the Pennsylvania Emergency Management Agency's Office of Homeland Security, and ITRR, whereby ITRR agreed to undertake surveillance and report potential threats against Pennsylvania's critical infrastructure. ITRR began surveilling plaintiff, Gas Drilling Awareness Coalition ("GDAC"), and reporting its activities through Pennsylvania Intelligence Bulletins ("PIB"). Plaintiff filed the instant action, alleging the bulletins are defamatory and that the ITRR defendants conspired to violate its civil rights.

II. Background

The following facts are set forth in Plaintiff's complaint and are taken as true, as they must be when considering a motion to dismiss. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). GDAC is an unincorporated organization that advocates regulation of natural gas drilling of Pennsylvania's Marcellus Shale. The group uses a grass-roots campaign to educate the public on the health and environmental impact of unregulated drilling.

Pursuant to its contract, ITRR identified GDAC as a potential threat to Pennsylvania's infrastructure and began surveillance of the organization. ITRR published bulletins (PIBS) that detailed the activities of the group and classified its threat level. The cover sheet of each bulletin explained, "The Pennsylvania Office of Homeland Security produces this informational/intelligence bulletin specifically for all potentially-affected stakeholders - whether public or private sector, federal or Commonwealth - of Pennsylvania-based Critical Infrastructures, Key Resources and Significant Special Events. Consider the information & intelligence contained herein in context with other known information, indicators, threats and warnings." (Doc. 73, ¶ 78).

The first of such bulletins which identified GDAC, dated July 30, 2010, contained a section titled "Update: Natural Gas Drilling Events That May Draw Unruly Crowds." (Id. at ¶ 61). This section listed five meetings "singled out by anti-drilling activists." (Id.) It went on to list six public events "cited by anti-drilling activists as appropriate venues for providing information or protesting." (Id.) Two of these events mentioned GDAC. The first involved an informational meeting held by the group in Dallas, PA. The other event was the "Cabot Community Picnic," referring to an event held by Cabot Oil and Gas. Next to this event was the following information: "Note: The Gas Drilling Awareness Coalition has released a special communication harshly ridiculing and criticizing this event." (Id.) Following the two lists of events, the bulletin contained an analysis section, in which ITRR classified the threat level of these events as "LOW-to-MODERATE."*fn1 The analysis explaining the threat level noted "The escalating conflict over natural gas drilling in Pennsylvania may define local fault lines and potentially increase area environmentalist activity or eco-terrorism. GDAC communications have cited Northeastern Pennsylvania counties, specifically Wyoming, Lackawanna and Luzerne, as being in real 'need of our help' and as facing a 'drastic situation.'" (Id. at ¶ 74).

In a separate bulletin, PIB No. 123, dated August 11, 2010, ITRR details the potential plans of GDAC to protest at the Cabot Community Picnic. The section, titled "Adversarial Protest Strategizing," explains "As noted in PIB No. 118, Gas Drilling Awareness Coalition has released a special communication harshly ridiculing and criticizing this event. However, the activists themselves are far from agreed as to the course of action." (Id. at ¶ 78). It goes on to quote opinions of activists about whether to protest at the event and how to do so.*fn2

PIB No. 126 reports that GDAC's supporters discussed "the implicit dangers of gas tankers traveling the same roads as school buses in Lake Lehman." (Id. at ¶ 81). ITRR found, however, that there are no "indications that parents of schoolchildren in Lake Lehman are planning protest actions over the natural gas trucks using their roads." (Id. at ¶ 82). The final bulletin, PIB No. 127, does not mention GDAC, but it explains that activists in New York and Pennsylvania are sharing information, including "the specific activities of trucks and personnel of natural gas drilling companies." (Id. at ¶ 88). The analysis portion of this PIB explains "As noted in previous PIB, (sic) analysts have not yet seen indications that local residents faced with natural gas drilling activities are prepared to take the next step toward direct action attacks; however, there has been discussion of the advisability of 'civil disobedience' actions to stop the drilling companies." (Id. at ¶ 89). Defendants distributed these bulletins to the natural gas industry and other potentially-affected industries.

Plaintiff filed the instant action on September 27, 2010. On November 18, 2010, ITRR defendants moved to dismiss. Plaintiff improperly filed an amended complaint on January 21, 2011, which was stricken on July 29, 2011. On December 12, 2011, we granted ITRR defendants' motion to dismiss. Plaintiff filed an amended complaint on May 7, 2012. Presently before the court is ITRR's motion to dismiss the amended complaint.

(Id. at 78).

III. Discussion

A. Standard of Review

Rule 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." Under Rule 12(b)(6), we 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 of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint need only contain "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d. 929 (2007), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Id.at 570. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 ...


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