The opinion of the court was delivered by: (Judge Brann)
This civil rights action, brought pursuant to 42 U.S.C. §§ 1983 and 1988, was commenced on December 21, 2010 and proceeds on the Amended Complaint. Before the Court is defendants' Motion to Dismiss Plaintiffs' Amended Complaint. ECF No. 94. The motion will be granted in part and denied in part as discussed herein.
I. Factual and Procedural Background
This action principally arises from a zoning dispute between the parties over the use of certain commercially-zoned property which is located adjacent to plaintiffs' property.*fn1 Plaintiffs are residents of Moosic Borough, Lackawanna County, Pennsylvania, where they have lived since 1994. From 2005 and continuing through the filing of the operative complaint, plaintiffs have been engaged in ongoing disputes with the Moosic Borough Planning Commission and other defendants over the use of this commercially-zoned property and how it has affected plaintiffs' property. Plaintiffs have been involved with protesting and petitioning defendants in connection with the zoning restrictions placed on this property and, in response, plaintiffs claim that they have been retaliated against in violation of their constitutional rights.
Plaintiffs commenced the instant litigation claiming violations of their First and Fourteenth Amendment rights, along with federal and state conspiracy claims and state claims of adverse possession and quiet title. See Compl., ECF No. 1. In its July 19, 2011 Order granting and denying in part defendants' motion to dismiss, the Court dismissed allegations of conduct that occurred before December 21, 2008, except those which supported plaintiffs' First Amendment retaliation claim. See ECF No. 26. The Court also dismissed plaintiffs' substantive due process claims that were based on the zoning decisions of the defendants or on plaintiffs' claimed property interest in the business contract with plaintiff Correctional Care, Inc. Id. Subsequent to this Order and following various discovery disputes, plaintiffs moved to amend their complaint on August 20, 2012 to add two defendants and additional factual allegations of ongoing conduct. ECF No. 74. The motion was granted on December 5, 2012, but was subject to certain instructions. ECF No. 86. Plaintiffs responded to the order by filing their Amended Complaint on December 18, 2012, ECF No. 87, which defendants moved to dismiss on December 31, 2012, ECF No. 94.
A motion to dismiss pursuant to Fed. R. Civ. Pro. 12(b)(6), tests the legal sufficiency of a claim, see Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Petruska v. Gannon University, 462 F.3d 294, 302 (3rd Cir. 2006), and "streamlines litigation by dispensing with needless discovery and fact finding." Neitzke, 490 at 326-27. A complaint should only be dismissed if, accepting as true all of the allegations in the complaint, plaintiff has not pled enough facts to state a claim to relief that is plausible on its face. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). At the motion to dismiss stage, the court considers whether plaintiff is entitled to offer evidence to support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000).
"Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 662, 129 S.Ct. 1937 (2009). In considering a Fed. R. Civ. P. 12(b)(6) motion, it must be taken into account that federal courts require only notice pleading, as opposed to the heightened standard of fact pleading. Hellmann v. Kercher, 2008 WL 2756282, *3 (W.D. Pa. July 15, 2008) (Lancaster, J.) Fed. R. Civ. P. 8 "requires only 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 on which it rests," Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)).
However, even under this lower notice pleading standard, a plaintiff must do more than recite the elements of a cause of action, and then make a blanket assertion of an entitlement to relief under it. Hellman, 2008 WL 2756282 at *3. Instead, a plaintiff must make a factual showing of his entitlement to relief by alleging sufficient facts that, when taken as true, suggest the required elements of a particular legal theory. Twombly, 550 U.S at 555. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - - but it has not "shown" - - "that the pleader is entitled to relief." Iqbal, 556 U.S. at 662 (citing Fed. R. Civ. P. 8(a)). A court may dismiss a claim under Fed. R. Civ. P. 12(b)(6) where there is a "dispositive issue of law." Neitzke, 490 U.S. at 326. If it is beyond a doubt that the non-moving party can prove no set of facts in support of its allegations, then a claim must be dismissed "without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one." Id. at 327.
"In deciding a Rule 12(b)(6) motion, 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." Mayer v. Belichick, 605 F.3d 223, 230 (3rd Cir. 2010). In the matter at hand, plaintiffs have attached, as an exhibit, the municipal claim filed on February 29, 2008 against the Zaloga's property in the Court of Common Pleas of Lackawanna County, Pennsylvania. See Amd. Compl., Exh. A, ECF No. 88.
Defendants do not object to this exhibit and, indeed, both parties cite to it in their respective motions. The Court will therefore consider this document in resolving the parties' motions.
Defendants move to dismiss the Amended Complaint on the following grounds: (1) factual allegations previously dismissed by the court in its July 19, 2011 order continue to appear in the Amended Complaint, (2) there is no requirement that defendants provide notice of the municipal lien filed against plaintiffs' property; and (3) even if notice was required, defendant Brazil is ...