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Bolus v. Pennsylvania Office of Attorney General

United States District Court, Third Circuit

January 13, 2014

ROBERT C. BOLUS, SR. Plaintiff,
v.
PENNSYLVANIA OFFICE OF THE ATTORNEY GENERAL, et al., Defendants.

MEMORANDUM OPINION

ROBERT D. MARIANI, District Judge.

I. Introduction and Procedural History

Plaintiffs Complaint (Doc. 1) contains four counts: (1) a civil Racketeer Influenced and Corrupt Organizations Act ("RICO Act") violation under 18 U.S.C. § 1962(c), (2) conspiracy to violate RICO under 18 U.S.C. § 1962(d), (3) conspiracy to violate civil rights under 42 U.S.C. § 1985(3), and (4) failure to prevent a violation of a§ 1985(3) violation under 42 U.S.C. § 1986.

After Plaintiff filed his Complaint, four Defendants moved to dismiss. On October 25, 2013, Defendant Nationwide Mutual Insurance Company filed a Motion to Dismiss (Doc. 15) with supporting brief (Doc. 16). On October 28, 2013, Defendant Motorist Mutual Insurance Companies filed a Motion to Dismiss (Doc. 17) with supporting brief (Doc. 18). On November 4, 2013, Defendants Corbett and the Pennsylvania Office of Attorney General ("Commonwealth Defendants") filed a Motion to Dismiss (Doc. 19) and filed a supporting brief on November 18, 2013 (Doc. 22). Finally, Defendant Pascucci filed a Motion to Dismiss (Doc. 20) joining the other three motions to dismiss on November 9, 2013. Plaintiff never filed a brief in opposition to any of the above four motions to dismiss. In addition, Plaintiff never responded to a Show Cause Order issued by this Court on December 20, 2013 (Doc. 29) as to why the motions should not be deemed unopposed. Accordingly, the Court entered an Order on January 8, 2014 (Doc. 34) noting Attorney Moses's failure and deemed the pending motions as unopposed. Nevertheless, the Court considered the substance of the motions to dismiss instead of granting them purely on the basis of being unopposed. For the reasons set forth below, the Court will grant each of the pending motions to dismiss but will also grant Plaintiff leave to amend after he obtains new counsel.

II. Factual Allegations

In relevant part, the Complaint alleges that on June 30, 2011, Plaintiff appeared in county court for a Preliminary Hearing on the criminal charges of (1) False/Fraudulent/Incomplete Insurance Claim and (2) Theft by Deception - False Impression. (Compl. at ¶¶ 1-2).

He claims that agents of the Commonwealth and insurance defendants approached him ( id. at ¶ 5) and offered to "forgo filing criminal charges on a separate matter if Plaintiff waived his right to the [June 30, 2011] Preliminary Hearing." ( Id. at ¶ 6). Plaintiff agreed to the proposal, but Defendants allegedly reneged on the agreement and filed those separate charges against him on June 30, 2011. ( Id. at ¶¶ 7-10). Plaintiff claims that "[w]hile these charges were withdrawn on June 30, 2011, the same day they were filed, the offer not to file them was fraudulent, deceptive, and was the only reason Plaintiff waived his Preliminary Hearing." ( Id. at ¶ 11). The separate charges, "although withdrawn, still appear on a criminal background check of Plaintiff." ( Id. at ¶ 15).[1]

III. Standard of Review

A complaint must be dismissed under FED. R. CIV. P. 12(b)(6), if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The plaintiff must aver "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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).

"Though a complaint does not need detailed factual allegations, ... a formulaic recitation of the elements of a cause of action will not do.'" DelRio-Mocci v. Connolly Prop. Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words, "[f]actual allegations must be enough to raise aright to relief above the speculative level" Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (internal citations and quotation marks omitted). A court "take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but... disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ethypharm S.A. France v. Abbott Laboratories, 707 F.3d 223, 231, n. 14 (3d Cir. 2013) (internal citations and quotation marks omitted).

Twombly and Iqbal require [a district court] to take the following three steps to determine the sufficiency of a complaint: First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).

"[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 show[n]-that the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citations and quotation marks omitted). This "plausibility" determination will be a "context-specific task ...


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