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Cynthia Davis v. City and County of Philadelphia

January 11, 2013


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



Cynthia Davis brings this lawsuit against the City and County of Philadelphia, the Ritz-Carlton Company, the Ritz-Carlton Philadelphia, and Marriott International for damages related to a trip and fall incident on a sidewalk outside of the Ritz-Carlton Hotel in Philadelphia. The sole federal claim in this case is a 42 U.S.C. § 1983 claim against the City, which the City has moved to dismiss. The Court grants the City's motion and dismisses Ms. Davis's § 1983 claim. Because there is no diversity of citizenship,*fn1 the Court will decline to exercise supplemental jurisdiction over the remaining state claims in the absence of any federal claim.*fn2


According to Ms. Davis's Amended Complaint, which the Court accepts as true for the purposes of this memorandum, on July 11, 2011, Ms. Davis tripped and fell while walking on a sidewalk next to the Ritz-Carlton Hotel in Philadelphia allegedly due to the sidewalk's dangerous cracked condition. As a result of her fall, she suffered various injuries. She also alleges that the City engaged in "illegal favoritism" by instituting a custom or policy of failing to insure that the Corporate Defendants properly maintained their sidewalks and failing to issue any citations to the Corporate Defendants for the condition of the sidewalks.

Ms. Davis's Amended Complaint contains one federal claim against the City, a § 1983 Monell claim alleging a violation of her Fourteenth Amendment due process rights, and several state claims against both the City and the Corporate Defendants, including negligence, bad faith insurance claims, and intentional infliction of emotional distress.


A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint. Although Rule 8 of the Federal Rules of Civil Procedure requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2), in order to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and quotations omitted) (alteration in original), the plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (citation omitted).

To survive a motion to dismiss, the plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Specifically, "[f]actual allegations must be enough to raise a right to relief above the speculative level . . ." Twombly, 550 U.S. at 555 (citations omitted). The question is not whether the claimant will ultimately prevail but whether the complaint is "sufficient to cross the federal court's threshold." Skinner v. Switzer, ------ U.S. --------, --------, 131 S.Ct. 1289, 1296 (2011) (citation omitted). An assessment of the sufficiency of a complaint is thus "a context-dependent exercise" because "[s]ome claims require more factual explication than others to state a plausible claim for relief." W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 98 (3d Cir. 2010) (citations omitted).

In evaluating the sufficiency of a complaint, the Court adheres to certain well-recognized parameters. For one, the Court "must only consider those facts alleged in the complaint and accept all of the allegations as true." ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994) (citing Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)); see also Twombly, 550 U.S. at 555 (stating that courts must assume that "all the allegations in the complaint are true (even if doubtful in fact)"); Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) ("[A] court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents."). Concomitantly, the Court also must accept as true all reasonable inferences that may be drawn from the allegations, and view those facts and inferences in the light most favorable to the non-moving party. See Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir. 1989); see also Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 134 (3d Cir. 2010). Nonetheless, the Court need not accept as true "unsupported conclusions and unwarranted inferences," Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183--84 (3d Cir. 2000) (citations and quotations omitted), or the plaintiff's "bald assertions" or "legal conclusions," Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (citations and quotations omitted).


A. Motion to Dismiss

As an initial matter, in her opposition to the City's Motion, Ms. Davis argues that the City's Answer was due no later than March 1, 2012, that the Motion to Dismiss was filed without leave to do so, and that the Motion is "not a proper pleading" in response to her Amended Complaint. First of all, because the original complaint was not filed until April 10, 2012, the Court presumes that Ms. Davis meant that an Answer was due on May 1, 2012. Even that, however, is not correct because, as the docket reflects, the City's response to Ms. Davis's Complaint was initially due on May 2, 2012. Ms. Davis then filed an Amended Complaint before that date -- on April 18, 2012 -- and served the Amended Complaint on April 20, 2012. That pushed the due date for the City's response to Ms. Davis's Amended Complaint to May 4, 2012.*fn3 The City filed its motion to dismiss the Amended Complaint on May 8, 2012*fn4 and its Answer to the claims not addressed in the Motion on May 7, 2012. Ms. Davis does not explain how this very short delay prejudiced her in any way, nor does she even mention the word "prejudice" in her brief. Thus, to the extent these filings were untimely, the Court will excuse this untimeliness and consider the motion on its merits.*fn5

To the extent that Ms. Davis implies that the City needed to seek leave of Court to move to dismiss, such an argument is contrary to the Federal Rules of Civil Procedure. Ms. Davis cites to no authority supporting such a requirement, nor is there any such rule. Federal Rule of Civil Procedure 12 allows several issues to be raised by motion, including failure to state a claim, and says nothing about a need to seek leave. Finally, the Court notes that a motion to dismiss is not a pleading. ...

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