United States District Court, M.D. Pennsylvania
MEMORANDUM & ORDER
John E. Jones, Jugde.
Roque “Rocky” De La Fuente
(“Plaintiff”) brings this action against
Defendants Pedro A. Cortés and Jonathan Marks
(“Defendants”), in their official capacities as
Secretary of the Commonwealth of Pennsylvania and
Commissioner of the Bureau of Commissions, Elections, and
Legislation, respectively. Plaintiff brings his claims
pursuant to 42 U.S.C. § 1983, alleging 12 counts of
violations of his constitutional rights under the First and
Fourteenth Amendments, as well as the Qualifications Clause
of Article II, Section I of the United States Constitution.
Presently pending before the Court is Defendants' Motion
to Dismiss Plaintiff's Complaint Pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 34).
For the reasons that follow, this Motion shall be granted.
initiated this action by filing a Complaint on August 15,
2016, followed by an Amended Complaint on August 18, 2016.
(Docs. 1, 4). Defendants initially filed a Motion to Dismiss
for Failure to State a Claim on August 25, 2016. (Doc. 10).
However, we stayed the case by Order dated September 14,
2016, (Doc. 15), pending resolution of unsettled state law in
state court. Following a decision by the Commonwealth Court
of Pennsylvania, we issued an Order lifting the stay on
November 15, 2016. (Doc. 18). Defendants subsequently filed
another Motion to Dismiss for Failure to State a Claim on
December 1, 2016. (Doc. 21). Plaintiff filed a Motion for
Leave to File a Second Amended Complaint on January 9, 2017,
(Doc. 25), which we granted by Memorandum and Order on April
24, 2017. (Doc. 32). Plaintiff filed a Second Amended
Complaint on May 14, 2017. (Doc. 33). Defendants subsequently
filed the present Motion to Dismiss on May 26, 2017. (Doc.
34). Defendants filed their supporting brief on June 8, 2017,
(Doc. 37), Plaintiff filed his opposition brief on June 22,
2017, (Doc. 40), and Defendants filed their reply brief on
June 30, 2017. (Doc. 41).
been fully briefed, the matter is ripe for review.
Second Amended Complaint, Plaintiff has set forth the facts
of this case as follows. Plaintiff was a candidate in the
2016 election for President of the United States. (Doc. 33,
¶ 20). He sought the Democratic nomination during the
primaries and subsequently entered the general election as an
independent candidate. (Id. at ¶¶ 20, 22).
In Pennsylvania, Plaintiff was on the primary ballot seeking
the Democratic nomination. (Id. at ¶ 23).
Plaintiff ultimately was unsuccessful in his bid to receive
the Democratic nomination. Following the primary election in
Pennsylvania, Plaintiff submitted to Defendants nomination
papers to appear as an independent candidate in the general
election. (Id. at ¶ 24). Because Plaintiff
previously had been a candidate for the Democratic
nomination, Defendants rejected Plaintiff's nomination
papers pursuant to 25 P.S. § 2911(e)(5). (Id.
at ¶ 25). Plaintiff has announced that he intends to run
in the 2020 presidential election either as a Democratic
nominee or as an independent. (Id. at ¶¶
the 2016 campaign, registered Republicans were prevented from
circulating Plaintiff's nomination petitions pursuant to
25 P.S. § 2869(a). (Id. at ¶ 50). In
addition, unregistered qualified electors were prohibited
from circulating nomination petitions for Plaintiff pursuant
to 25 P.S. §§ 2869(a) and 2911(d). (Id. at
¶ 51). Plaintiff intends to hire the same professional
circulators in 2020 that he used in 2016. (Id. at
STANDARD OF REVIEW
have moved to dismiss Plaintiff's Complaint for both lack
of subject matter jurisdiction and failure to state a claim
under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6),
Rule 12(b)(1), Defendants argue that Plaintiff's claims
are not ripe and moot, that Plaintiff lacks standing, and
that Plaintiff's federal claim against § 2911(e)(5)
is barred by the doctrine of res judicata. A Rule
12(b)(1) challenge comes in two fundamental forms: facial or
factual attacks. In re Horizon Healthcare Servs. Inc.
Data Breach Litig., 846 F.3d 625, 632 (3d Cir. 2017).
“The former challenges subject matter jurisdiction
without disputing the facts alleged in the complaint, and it
requires the court to ‘consider the allegations of the
complaint as true.'” Davis v. Wells Fargo,
824 F.3d 333, 346 (3d Cir. 2016) (quoting Petruska v.
Gannon Univ., 462 F.3d 294, 302 n. 3 (3d Cir. 2006)). A
factual challenge, by contrast, “attacks the factual
allegations underlying the complaint's assertion of
jurisdiction.” Davis, 824 F.3d at 346. In a
factual challenge, “the court ‘is free to weigh
the evidence and satisfy itself as to the existence of its
power to hear the case.' … ‘[N]o presumptive
truthfulness attaches to [the] plaintiff's
allegations.'” Id. (quoting Mortensen
v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884,
891 (3d Cir. 1977)). In the instant case, Defendants have not
challenged the factual allegations of Plaintiff's
Complaint, but have argued that, even if those facts are
true, Plaintiff has not sufficiently pled jurisdiction. Thus,
we conclude that Defendants have raised a facial challenge
and will proceed with the same standard of review as a
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. Cty. 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 to
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).
12(b)(6) motion tests the sufficiency of the complaint
against the pleading requirement 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 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a
complaint attacked by 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,
678 (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). Accordingly, to satisfy
the plausibility standard, the complaint must indicate that
defendant's liability is more than “a sheer
possibility.” Iqbal, 556 U.S. at 678.
“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).
the two-pronged approach articulated in Twombly and
later 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. Such allegations are “not entitled to the
assumption of truth” and must be disregarded for
purposes of resolving a 12(b)(6) motion to dismiss.
Iqbal, 556 U.S. at 679. Next, the district court
must identify “the ‘nub' of the …
complaint - the well-pleaded, nonconclusory 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
“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). 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.
alleges that 25 P.S. § 2911(e)(5) (Counts I and IV),
§ 2911(e)(6) (Counts II and V), and § 2911.1
(Counts III and VI) violate the First and Fourteenth
Amendments and the Qualifications Clause in Article II,
Section I of the United States Constitution. Plaintiff also
alleges that 25 P.S. § 2869(a) (Counts VII, VIII, IX,
and X) and § 2911(d) (Counts XI and XII) violate the
First and Fourteenth Amendments both facially and as applied.
Defendants have moved to dismiss Plaintiff's Complaint on
several grounds: (1) Plaintiff's claims are moot and not
ripe, (2) Plaintiff lacks standing, (3) res judicata
bars any claim against § 2911(e)(5), and (4) each of the
challenged laws is constitutional under controlling case law.
begin with Defendants' jurisdictional arguments that
Plaintiff's claims are moot and not ripe, that Plaintiff
lacks standing, and that res judicata acts as a bar
to the § 2911(e)(5) challenge.
Rule 12(b)(1) - ...