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Gach v. Fairfield Borough

United States District Court, M.D. Pennsylvania

February 5, 2013

Robert J. GACH, Jr., and Ventura's Restaurant & Pizzeria, LLC, Plaintiffs,
v.
FAIRFIELD BOROUGH, Robert Stanley, Carroll Valley Borough, Ron Harris, and Richard Hileman II, Defendants.

Page 372

Joseph C. Korsak, Law Office of Joseph C. Korsak, York, PA, for Plaintiffs.

Meredith A. Kirschner, Wendi D. Barish, Weber Gallagher Simpson Stapleton Fires & Newby LLP, Philadelphia, PA, for Defendants.

MEMORANDUM

JOHN E. JONES III, District Judge.

Pending before the Court in this civil rights action is the Defendants' Motion to Dismiss the Plaintiffs' Amended Complaint. (Doc. 26). The Motion has been fully briefed and is thus ripe for our review. Because we conclude that the Plaintiffs have failed to state facts to support any of the claims in their Amended Complaint, we will grant the said Motion in its entirety.

I. PROCEDURAL HISTORY

Plaintiffs Robert J. Gach, Jr., and Ventura's Restaurant & Pizzeria, LLC, commenced this lawsuit with the filing of three-count Complaint (doc. 1) on August 9, 2012. The Defendants' responded with

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a Motion to Dismiss (doc. 16) filed October 12, 2012. Thereafter, on October 26, 2012, the Plaintiffs filed an Amended Complaint (doc. 23), effectively mooting the then-pending motion. Therein, the Plaintiffs assert claims for civil rights violations pursuant to 42 U.S.C. § 1983, conspiracy to commit civil rights violations pursuant to 42 U.S.C. § 1985(3), and negligence in failing to prevent civil conspiracy pursuant to 42 U.S.C. § 1986. On November 9, 2012, the Defendants filed the presently pending Motion to Dismiss (doc. 26) and accompanying brief (doc. 27). The Plaintiffs filed opposition papers (doc. 28) on November 21, 2012, and the Defendants elected not to file a reply. The Motion is thus fully briefed and ripe for our review.

II. STANDARD OF REVIEW

In considering a motion to dismiss pursuant to Rule 12(b)(6), courts " 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." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.2008) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.2002)). In resolving a motion to dismiss pursuant to Rule 12(b)(6), a court generally should consider only the allegations in the complaint, as well as " documents that are attached or submitted with the complaint, ... and any matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir.2006).

A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain 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." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss need not contain detailed factual allegations, it must contain " sufficient factual matter, accepted as true, to ‘ state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). To survive a motion to dismiss, a civil plaintiff must allege facts that " raise a right to relief above the speculative level ...." Victaulic Co. v. Tieman, 499 F.3d 227, 235 (3d Cir.2007) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Accordingly, to satisfy the plausibility standard, the complaint must indicate that defendant's liability is more than a " sheer possibility." Iqbal, 129 S.Ct. at 1949. " Where a complaint pleads facts that are ‘ merely consistent with’ a defendant's liability, it ‘ stops short of the line between possibility and plausibility of entitlement to relief.’ " Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955).

Under the two-pronged approach articulated in Twombly and later expounded upon and formalized in Iqbal, a district court must first identify all factual allegations that constitute nothing more than " legal conclusions" or " naked assertions." Twombly, 550 U.S. at 555, 557, 127 S.Ct. 1955. Such allegations are " not entitled to the assumption of truth" and must be disregarded for purposes of resolving a Rule 12(b)(6) motion to dismiss. Iqbal, 129 S.Ct. at 1950. Next, the district court must identify " the ‘ nub’ of the ... complaint— the well-pleaded, nonconclusory

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factual allegation[s]." Id. Taking these allegations as true, the district judge must then determine whether the complaint states a plausible claim for relief. See id.

However, " 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 (citing Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955). Rule 8 " does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 234.

III. FACTUAL AND PROCEDURAL BACKGROUND

In accordance with the standard of review applicable to a Motion to Dismiss, the following facts are derived from the Plaintiffs' Amended Complaint (doc. 26) and viewed in a light most favorable to the Plaintiffs. Plaintiff Robert J. Gach, Jr. (" Gach" ), is the owner of property located at 100 East Main Street in Fairfield, Pennsylvania, and the owner and manager of Ventura's Restaurant and Pizzeria, LLC (" Ventura's" ) situated on said property. (Doc. 23, ¶ 4). Defendant Richard Hileman II (" Hileman" ) is and was the Police Chief of the Police Department for the Defendant Carroll Valley Borough at all relevant times. ( Id. ¶ 5). Also at all relevant times, Defendant Ron Harris (" Harris" ) is and was the mayor of the Defendant Carroll Valley Borough and Defendant Robert Stanley (" Stanley" ) is and was the mayor of Defendant Fairfield Borough. ( Id. ¶¶ 7, 9). Pursuant to a contractual agreement, the Defendant Borough of Carroll Valley supplies police protection to the Defendant Fairfield Borough. ( Id. ¶ 11).

The general premise of the Amended Complaint is that the Plaintiffs believe and aver that the Carroll Valley police officers have engaged in a campaign of harassment against both Plaintiffs. The Amended Complaint sets out several incidents of alleged harassment. First, the Plaintiffs allege that the Carroll Valley police officers have prohibited one of Gach's female African American tenants from using a public parking space which has no signage limiting parking. ( Id. ¶¶ 15, 17). Second, Gach asserts that in June of 2011, he suffered a loss of income anticipated from an outdoor live band performance when Defendant Hileman threatened to arrest the property owner whose land Gach had secured for the performance. ( Id. ¶¶ 21-23). Gach asserts that another local establishment had been permitted to hold an outdoor live band performance one year prior. ( Id. ¶ 24).

After this incident, Gach hired counsel to contact both municipalities about the conduct of the police officers during the summer of 2012. ( Id. ¶ 25). Gach's counsel sent letters to both Mayors Harris and Stanley concerning the harassment being carried out by the Carroll Valley police officers in Fairfield Borough. ( Id. ¶¶ 26-27). Neither Mayor took action to discipline the officers for their conduct. ( Id. ¶¶ 30-31). Within a few days of the letters' mailing, Defendant Hileman came to Ventura's to warn Gach " to watch his back." ( Id. ¶ 28). Thereafter, the Carroll Valley police officers began ticketing trucks delivering product to Ventura's whether parked legally or not. ( Id. ¶ 33). The Carroll Valley police officers have also begun to wait near Ventura's restaurant to follow customers and initiate traffic ...


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