United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION ON MOTION TO DISMISS
before the Court is a motion filed by intervenor-plaintiff
PIOGA, requesting dismissal of a counterclaim filed by
defendant Grant Township pursuant to Federal Rule of Civil
12(b)(6) permits a party to respond to a pleading by filing a
motion to dismiss for "failure to state a claim upon
which relief can be granted." To survive a motion to
dismiss, a party's claim must allege facts that
'"raise a right to relief above the speculative
level.'" Victaulic Co. v. Tieman, 499 F.3d
227, 234 (3d Cir. 2007) quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A complaint, or in
this case, a counterclaim, 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, 678 (2009) quoting
Twombly. 550 U.S. at 570). A court \ identifies
first those factual allegations that constitute nothing more
than "legal conclusions" or "naked
assertions." Twombly, 550 U.S. at 555, 557.
Such allegations are "not entitled to the assumption of
truth" and must be disregarded. Iqbal, 556 U.S.
at 679. Then, a court assesses the remaining
"'nub' of the plaintiff['s] claim-the
well-pleaded, noneonclusory factual allegation[s]"-to
determine whether the claim states a plausible claim for
need not accept inferences drawn by a plaintiff if they are
unsupported by the facts as set forth in the complaint. See
California Pub. Employee Ret. Sys. v. The Chubb
Corp., 394 F.3d 126, 143 (3d Cir. 2004) citing Morse
v. Lower Merion Sch. Dist.. 132 F.3d 902, 906 (3d Cir.
1997). Nor must the Court accept legal conclusions set forth
as factual allegations. Twombly 550 U.S. at 555.
citing Papasan v. Allain. 478 U.S. 265, 286 (1986).
See a]so McTernan v. City of York, Pennsylvania, 577
F.3d 521, 531 (3d Cir. 2009) ("The tenet that a court
must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions."). A
plaintiffs factual allegations "must be enough to raise
a right to relief above the speculative level."
Twombly. 550 U.S. at 556, citing 5 C.
Wright & A. Miller, Federal Practice and
Procedure § 1216, pp. 235-236 (3d ed. 2004).
Although the United States Supreme Court does "not
require heightened fact pleading of specifics, [the Court
does require] enough facts to state a claim to relief that is
plausible on its face." Id. at 570.
other words, at the motion to dismiss stage, a plaintiff is
"required to make a 'showing' rather than a
blanket assertion of an entitlement to relief."
Smith v. Sullivan, 2008 WL 482469, at * 1 (D. Del.)
quoting Phillips v. County of Allegheny. 515 F.3d
224, 231 (3d Cir. 2008). "This '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." Phillips, 515 F.3d at
234, quoting Twombly. 550 U.S. at 556 n.3.
Third Circuit has expounded on the Twombly/Iqbal
line of cases:
determine the sufficiency of a complaint under
Twombly and Iqbal, we must take the
following three steps:
First, the court must 'tak[e] 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.'
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221
(3d Cir. 2011) quoting Santiago v. Warminster Two..
629 F.3d 121, 130 (3d Cir. 2010).
to State a § 1983 Claim
Township asserts in its counterclaim, by way of 42 U.S.C.
§ 1983, that PIOGA, the Pennsylvania Independent Oil and
Gas Association, violated its purported constitutional right
to local community self-government, as set out in the
Township's Community Bill of Rights Ordinance. To state a
§ 1983 claim, a claimant must plead that the other party
acted "under the color of state law." Curlew.
Klem, 298 F.3d 271, 277 (3d Cir. 2002). "The
ultimate issue in determining whether a person is subject to
suit under § 1983 is the same question posed in cases
arising under the Fourteenth Amendment."
Rendell-Baker v. Kohn. 457 U.S. 830, 838, (1982).
Whether PIOGA acted as a state actor or under color of state
law "is a threshold issue; there is no liability under
§ 1983 for those not acting under color of state
law." Groman v. Township of Manalapan. 47 F.3d
628, 633 (3d Cir. 1995).
determine whether PIOGA, a private entity, acted under color
of state law, "[t]he principal question at stake is
whether there is such a close nexus between the State and the
challenged action that seemingly private behavior may be
fairly treated as that of the State itself." Leshko
v. Servis, 423 F.3d 337, 339 (3d Cir. 2005). The
analysis of this question depends on "the peculiar facts
or circumstances present." Burton v. Wilmington
Parking Auth. 365 U.S. 715, 861-862(1961).
Township's counterclaim fails because its factual
allegations against PIOGA are not sufficient to establish
that PIOGA is a state actor. ...