United States District Court, E.D. Pennsylvania
TOLLHOUSE INVESTMENTS, LLC in its own right and derivatively on behalf of Ferry Street Holdings, LLC and Ferry Street Hospitality, LLC Plaintiff
STEVEN E. LAU, et al., Defendants
MEMORANDUM OPINION INTRODUCTION
I. QUIÑONES ALEJANDRO, J.
this Court are the motions to dismiss filed by
Defendants Steven E. Lau (“Lau”), [ECF 23], and
Frank DeLuca (“DeLuca”), [ECF 21], (collectively
“Defendants”) pursuant to Federal Rule of Civil
Procedure (“Rule”) 12(b)(6), which seek the
dismissal of the civil rights claims asserted in Plaintiff
Tollhouse Investments, LLC's (“Plaintiff”)
amended complaint. Plaintiff has opposed both motions. [ECF
27, 29]. The issues raised in the motions to dismiss have
been fully briefed and are ripe for disposition. For the
reasons stated herein, Defendants' motions to dismiss are
December 15, 2016, Plaintiff filed an amended complaint in
its own right and derivatively on behalf of Ferry Street
Holdings, LLC (“Holdings”), and Ferry Street
Hospitality, LLC (“Hospitality”), pursuant to 42
U.S.C. § 1983 (“§1983”) against
Defendants, asserting that Defendants violated their Fourth
and Fourteenth Amendment rights by unlawfully seizing certain
property. [ECF 19]. In their motions to dismiss, Defendants
argue, inter alia, that Plaintiff lacks standing to
bring this action, and that Plaintiff has failed to allege
facts sufficient to show the requisite constitutionally
protected interest for Fourth and Fourteenth Amendment
claims. [ECF 21, 23].
ruling on Defendants' motions to dismiss, this Court must
accept as true all factual allegations in the amended
complaint and construe them in the light most favorable to
Plaintiff. Fowler v UMPC Shadyside, 578 F.3d 203,
210-11 (3d Cir. 2009). The relevant facts averred in
Plaintiffs amended complaint are summarized as follows:
Plaintiff is a limited liability company organized and
existing under the laws of Pennsylvania. (Am. Compl.
¶5). Defendant Lau is an individual who resides in Bucks
County, Pennsylvania. (Id. ¶6). Defendant
DeLuca is a resident of Pennsylvania and is employed as a
Pennsylvania State Constable. (Id. ¶7)
Plaintiff and Defendant Lau are the sole members of two
limited liability companies, Holdings and Hospitality, both
of which are organized under the laws of Pennsylvania.
(Id. ¶¶11-13). Holdings owns “the
real estate and all improvements that situate on what is
known as” the Ferry Street Premises (the
“Premises”), and Hospitality leases the Premises
to operate a bar/restaurant. (Id.
Previous to this action, Plaintiff filed a declaratory
judgment action in state court, currently pending, to resolve
a legal dispute between Plaintiff and Defendant Lau over the
percentage of ownership interest each holds in Holdings and
Hospitality. (Id. ¶¶16, 37-39).
On October 13, 2016, two Hospitality employees, John Ramirez
(“Ramirez”) and Jake Brogan
(“Brogan”) (collectively the “Hospitality
Employees”), and Michelle Churchill
(“Churchill”), Plaintiffs duly authorized agent,
were at the Premises to conduct interviews of potential
employees for Hospitality's bar/restaurant. (Id.
¶23). Plaintiff alleges that Churchill was reasonably
and rightfully permitted to be on the Premises to conduct the
business dealings of Holdings and Hospitality. (Id.
On that same day, Defendant DeLuca, wearing his Pennsylvania
State Constable uniform and badge, hand-delivered
“cease and desist” letters (the “Cease and
Desist Letters”) at the Premises, (Id.¶
¶55-57). The Cease and Desist Letters were personally
addressed to Brogan, Ramirez, and Churchill, but utilized the
street address of the Premises. (Id.
¶¶30-36). The three letters were drafted by
Defendant Lau's attorney, Edward Kang
(“Kang”), on his official letterhead, and were
captioned, “Legal Notice, Cease and Desist - No
Trespass” in bold font. (See Am. Compl. Ex.
A). The letters were identical and contained the following
I represent Steven Lau, who, as you know, is the owner and
manager of the above-referenced property, including the
building located thereon (the “Premises”); as
well as the owner, operator, and manager of Ferry Street
Holdings LLC and Ferry Street Hospitality LLC.
By receipt of this letter, you are hereby placed on notice
that you have no right, expressed or implied, to enter upon,
or to remain, in any place upon which this notice of trespass
is given (namely, the Premises), at any time whatsoever, or
for any purpose.
Any attempt by you to access the Premises will be regarded as
trespass, and my client will pursue any and all legal