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Kovarik v. South Annville Township

United States District Court, M.D. Pennsylvania

March 22, 2018

JAROMIR KOVARIK, et al., Plaintiffs
v.
SOUTH ANNVILLE TOWNSHIP, et al., Defendants

          MEMORANDUM

          Yvette Kane, District Judge

         Before the Court are: Defendants' motions to dismiss Plaintiffs Jaromir Kovarik (“Mr. Kovarik”), and Daria Kovarikova's complaint (Doc. Nos. 11, 14, 15); Plaintiffs' “Renewed Motion for Leave to Amend[, ] or in the Alternative[, ] to Consider This Submission as a Brief in Opposition to Defendants' Motions to Dismiss” (Doc. No. 51); Defendants' motion to stay discovery (Doc. No. 72); and Plaintiffs' “Cross Motion in Opposition to Defendants' Motion to Stay Discovery and for Contempt Sanctions” (Doc. No. 73). Additionally pending before the Court are the parties' cross-motions for sanctions filed pursuant to Federal Rule of Civil Procedure 11. (See Doc. Nos. 24, 25, 43, 53, 54, 55.) For the reasons provided herein, the Court will: (1) grant the motions to dismiss Counts I, II, IV, and V of Plaintiffs' complaint asserting federal causes of action under 42 U.S.C. § 1983 and the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. with prejudice, and decline to exercise supplemental jurisdiction over Plaintiffs' ancillary state law claims pursuant to 28 U.S.C. § 1367(c)(3); (2) deny Plaintiffs' motion for leave to amend their complaint; (3) deny as moot both Defendants' motion to stay discovery and Plaintiffs' motion for “contempt sanctions;” (4) lift the stay on briefing with regard to Defendants' motions for sanctions; and (5) deny Defendants' and Plaintiffs' motions for sanctions.

         I. BACKGROUND[1]

         A. Factual Background

         Mr. Kovarik, a licensed attorney and serial pro se litigant, is no stranger to this Court. This action marks Mr. Kovarik's latest challenge to the adoption, design, construction, and enforcement of South Annville Township's sewer facilities plan and is brought against a tortured backdrop of continuing litigation in both state and federal court spanning over a decade.

         In the most recent chapter of this protracted litigation saga, Plaintiffs have lodged a six-count, 45-page complaint against: South Annville Township (the “Township”), several members of the Township's Board of Supervisors, [2] the Township's Municipal Authority[3] (the “Authority”), and two of the Authority's board members[4] (collectively referred to herein as the “Municipal Defendants”); the Pennsylvania Intergovernmental Risk Management Association (“PIRMA”), [5] and its chairperson[6] (collectively referred to herein as the “PIRMA Defendants”); and H. A. Thomson Company[7] and its executive vice president[8] (collectively referred to herein as the “H. A. Thomson Defendants”). (Doc. No. 1.) In the complaint, Plaintiffs endeavor to weave “disparate events, committed by [several] actors, together into a seamless web of retaliation” dating back to 2005 by “ascribing some retaliatory motive to virtually every action” relating to the Township's sewer facilities plan. (Id. ¶ 124(b)); see Chinniah v. E. Pennsboro Twp., No. 1:15-CV-02240, 2016 WL 5799048, at *7 (M.D. Pa. Aug. 10, 2016), report and recommendation adopted, No. 1:15-CV-02240, 2016 WL 5719830 (M.D. Pa. Sept. 30, 2016), reconsideration denied, No. 1:15-CV-02240, 2017 WL 5517512 (M.D. Pa. Mar. 6, 2017). Indeed, the complaint details an alleged conspiracy concocted by Defendants to abridge Plaintiffs' “freedom of speech by . . . adopting, implementing, and continuing a policy or custom to retaliate against” them. The factual averments forming the basis of this complaint are as follows.

         1.The Pennsylvania Sewage Facilities Act

         According to the complaint's allegations, Pennsylvania municipalities are required under the Pennsylvania Sewage Facilities Act (“Act 537”), and the regulations adopted by the Pennsylvania Department of Environmental Protection (“DEP”), to develop and implement an approved sewage facility plan and continuously update the plan as circumstances change. (Id. ¶ 21.) In approximately 2000, the DEP directed the Township to submit a sewage facility plan update in light of their discovery that the Township was not in compliance with Act 537. (Id. ¶ 36.) In response to this directive, the Defendants initially proposed an ordinance authorizing the execution of an inter-municipal agreement with a neighboring township to provide sewage services, which, to Plaintiffs, was the more environmentally friendly and cost effective approach to bringing the Township into compliance with Act 537. (Id. ¶ 37.)

         However, due to increased pressure from certain real estate developers, the Township began soliciting alternative sewage facility plans, ultimately adopting a proposed sewage facility plan designed to account for the Township's projected growth from future large-scale industrial and residential developments (hereinafter referred to as the “Act 537 Plan Update”). (Id. ¶¶ 39-40.) According to Plaintiffs, the Act 537 Plan Update was a cost-prohibitive alternative for homeowners, as it was anticipated to serve five times the number of households that existed in the Township at that time and was projected to exceed $5.6 million for a community with an annual tax base of less than $1.0 million. (Id. ¶¶ 49-52.) Concerned that the proposed design for the Township's sewer system benefited only certain developers at the expense of local residents, approximately 150 residents formed an unincorporated group referred to as the Concerned Citizens of South Annville (the “CCSA”), appointing Mr. Kovarik, a professional engineer and attorney, to represent their interests before the Township. (Id. ¶ 46.)

         2. 2005 Litigation

         On July 8, 2005, the CCSA, represented by Mr. Kovarik, filed suit against the Municipal Defendants in the Lebanon County Court of Common Pleas (herein referred to as the “2005 litigation”), opposing the design, implementation, funding, and cost of the state-approved Act 537 Plan Update. (Id. ¶ 46.) The action, proceeding on a fifth amended complaint, was ultimately dismissed on preliminary objections by the Lebanon County Court of Common Pleas on April 3, 2007, and the dismissal was affirmed on appeal on June 20, 2008. Strohl v. S. Annville Twp., No. 878 C.D. 2007, 2008 WL 9406465, at *1 (Pa. Commw. Ct. June 20, 2008). Following its dismissal of Plaintiffs' fifth amended complaint, the Lebanon Court of Common Pleas, on the motion of the Municipal Defendants, imposed sanctions against Plaintiffs in the amount of $25, 000.00. (Id. ¶ 56.) The CCSA appealed the order imposing sanctions, which was vacated in a decision by the Commonwealth Court of Pennsylvania on April 13, 2011. Strohl v. S. Annville Twp., No. 2162 C.D. 2009, 2011 WL 10858400, at *5 (Pa. Commw. Ct. Apr. 13, 2011). Specifically, the appellate court found that the trial court was without jurisdiction to act on the request for sanctions, as the motion had been filed more than thirty days after the trial court dismissed the fifth amended complaint on April 3, 2007.[9] (Id.) According to Plaintiffs, Defendants retaliated against them for exercising their right to access the courts for redress by engaging in litigation misconduct, including belatedly requesting sanctions. (Doc. No. 1 ¶ 80.)

         3. Sewer System Connection and Water Service Disconnection

         In the aftermath of the 2005 litigation, a dispute arose concerning the connection of Plaintiffs' property to the newly constructed sewer lines. (Id. ¶ 84.) As alleged in the complaint, the lateral line connecting Plaintiffs' property to the sewer system was deliberately set at a shallow depth to prevent service to Plaintiffs' basement, while neighbors' laterals were installed at proper depths that allowed for gravity flow. (Id. ¶¶ 84-89.) According to Plaintiffs, neighbors whose residences were located “below the road grade, ” and unable to connect to the sewer system by gravity, were offered free sewage grinder pumps to assist in connecting to the gravity main. (Id. ¶ 91.) However, Plaintiffs aver that because their house “is[, ] in fact[, ] on the highest grade in the neighborhood, ” they were not furnished with a free sewage grinder pump. (Id. ¶ 91 n.10.) Furthermore, Plaintiffs allege that “an abrupt turn in the sewer line was placed against [their] . . . house[, ] causing vibration and noise during the operation of the sewer system pumps.” (Id. ¶ 92.) Plaintiffs insist that Defendants subjected them to retaliation for their involvement in the 2005 litigation by installing the sewer lines in a manner that would place undue financial burdens on Plaintiffs as compared to other residents. (Id. ¶ 84 (“Although the sewer system within the existing South Annville residences designated for the connection has been constructed, [Plaintiffs'] conditions for connection were deliberately conditioned on injury to their interests and property.”)).

         Plaintiffs allege that they attempted to resolve the issues surrounding their connection to the sewer line during this time period by requesting estimates for connection to the sewer system and through proposing several mitigating alternatives. (Id. ¶¶ 96-97.) However, despite Plaintiffs' “good faith” efforts, “Defendants refused to discuss the matter.” (Id. ¶ 97.) Instead, on April 5, 2013, Defendants allegedly caused the Pennsylvania American Water Company to disconnect water service to Plaintiffs' property without first providing Plaintiffs with proper notice and damaged the access to the shut-off valve in the process.[10] (Id. ¶ 98.) By Plaintiffs' account, they were current on their water bill at all relevant times. (Id. ¶ 99.) Plaintiffs claim that the disconnection of water service to their property was improper and retaliatory in nature.

         4. June 2013 Municipal Claim Litigation

         Thereafter, on June 14, 2013, the Authority filed a municipal claim and lien against Plaintiffs' property in the Lebanon County Court of Common Pleas to collect unpaid sewer tapping and rental fees in the amount of $8, 010.90 (herein referred to as the “June 2013 municipal claim litigation”). (Id. ¶¶ 103, 104.) By Plaintiffs' assessment, the Authority “caused an improper entry of judg[ ]ment and facially defective municipal lien to be entered in the Lebanon Court of Common Pleas for sewer connection and processing at [Plaintiffs'] property without any basis in law or fact.” (Id. ¶ 103.) Consequently, on July 18, 2013, Plaintiffs removed the case to the United States District Court for the Middle District of Pennsylvania, later claiming, as a defense to removal, that the municipal lien action was filed in retaliation for Plaintiffs' exercise of their First Amendment rights. S. Annville Twp., Lebanon Cty. Auth. v. Kovarik, Civ. No. 1:13-cv-01780 (M.D. Pa. June 28, 2013). The Authority promptly filed a motion to remand the action to state court. On June 24, 2014, following several briefing extensions, and after denying Plaintiffs' request to conduct jurisdictional discovery, the Court granted the Authority's motion and remanded the matter to state court on the basis that Plaintiffs lacked an objectively reasonable basis for removal. In a separate Order, the Court entered an award of attorneys' fees and costs in the amount of $17, 310.66 pursuant to 28 U.S.C. § 1447(c). As it concerns this phase of the June 2013 municipal claim litigation, Plaintiffs contend that Defendants deprived them of their constitutionally-protected rights under the First Amendment by “interfer[ing] with [their] request to” conduct jurisdictional discovery, which would have revealed some basis upon which this Court could exercise federal question jurisdiction over the municipal claim action and would have invalidated any request for attorneys' fees. (Id. ¶ 107.)

         Plaintiffs ultimately appealed the Court's Order awarding attorneys' fees to the United States Court of Appeals for the Third Circuit. (Id. ¶ 110.) Plaintiffs allege that during the pendency of that appeal, the Authority withdrew its state court claim against Plaintiffs on January 14, 2015, leaving intact the statutory municipal lien placed on Plaintiffs' property, which precipitated Plaintiffs' filing of a motion under Federal Rule of Civil Procedure 60(b) for relief from judgment as to the attorney fee award on March 13, 2015. (Id. ¶ 111.) The Court denied Plaintiffs' motion for relief from judgment on August 4, 2015. See S. Annville Twp., Lebanon Cnty. Auth. v. Kovarik, Civ. No. 1:13-cv-01780 (M.D. Pa. June 28, 2013). Shortly thereafter, Plaintiffs filed a second appeal of the Court's Order denying their Rule 60(b) motion. Id. In an Opinion dated June 3, 2016, the Third Circuit consolidated both appeals and affirmed this Court's award of attorneys' fees. See S. Annville Twp. v. Kovarik, 651 Fed.Appx. 127, 128 (3d Cir.), cert. denied sub nom. Kovarikova v. S. Annville Twp., Lebanon Cty. Auth., 137 S.Ct. 580, (2016). According to Plaintiffs, the withdrawal of the municipal lien was yet another act of retaliation on the part of Defendants.

         In essence, the above-captioned action is founded on Plaintiffs' conviction that “the conduct of the Defendants . . . is and has been motivated or substantially caused by [Plaintiffs'] exercise and intent to exercise in the future the rights secured to them under the First and Fourteenth Amendments to the Constitution of the United States.” (Doc. No. 1 ¶ 126.) Indeed, Plaintiffs signal throughout their complaint that “unlike any other property owners to be serviced by the sanitary system, [Plaintiffs] have been required to both pay extraordinary costs to exercise their protected rights through unnecessary attorney's fees, legal costs, loss of reputation, damage to credit, loss of local clients for Mr. Kovarik and other damages.” (Id. ¶ 117.) The complaint demands “compensatory, equitable[, ] liquidated, nominal, treble, punitive and other damages to the maximum extent allowed by law, ” as well as “injunctive relief, ” and “mandamus relief” for alleged violations of federal and state law. (Id. at 42.)

         B. Procedural History

         Plaintiffs commenced this lawsuit on January 17, 2017. (Doc. No. 1.) On March 17, 2017, the parties entered into and docketed a stipulation to allow Plaintiffs to file an amended complaint within twenty-one days of the Court's Order approving the stipulation, and to permit Defendants to respond to Plaintiffs' amended complaint within twenty-one days from their receipt of Plaintiffs' amended complaint. (Doc. No. 8.) On March 20, 2017, while awaiting a ruling on their joint stipulation, Defendants filed the pending motions to dismiss Plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. Nos. 11, 1415.) The Court approved the stipulation on March 22, 2017. (Doc. No. 16.)

         Plaintiffs elected not to file an amended complaint by April 12, 2017-twenty-one days from the date the Court approved the joint stipulation on March 22, 2017. As a result, Defendants proceeded to file briefs in support of their respective motions to dismiss (Doc. Nos. 37, 38, 41).[11] In the midst of briefing their motions to dismiss, Defendants moved for the imposition of sanctions under Federal Rule of Civil Procedure 11 (Doc. Nos. 24, 25, 43). Specifically, the Municipal Defendants and the PIRMA Defendants each filed motions for sanctions on April 13, 2017 (Doc. Nos. 24, 25), submitting briefs in support of their motions on April 27, 2017 (Doc. Nos. 30, 31). The H.A. Thomson Defendants filed a motion for sanctions on May 3, 2017 (Doc. No. 43), and a supporting brief on May 17, 2017 (Doc. No. 46). On May 15, 2017, Plaintiffs filed a motion captioned: “Plaintiffs['] Amended Motion to Dismiss or in the Alternative Hold in Abeyance Defendants' Fed.R.Civ.P. 11 Motions.” (Doc. No. 44.) In their motion, Plaintiffs requested, inter alia, that the Court deny Defendants' motions for Rule 11 sanctions as prematurely filed, or alternatively, stay further briefing and defer its ruling on the motions for sanctions pending the Court's disposition of Defendants' motions to dismiss. On May 16, 2017, Plaintiffs requested an extension of time to file an amended complaint, or alternatively, for leave to file an amended complaint. (Doc. No. 45.)

         In an Order dated May 23, 2017, the Court denied Plaintiffs' motion for an extension of time to file an amended complaint or alternatively, for leave to file an amended complaint, clarifying that Plaintiffs were foreclosed from filing an amended complaint as a matter of course, and consequently, they were required under Local Rule 15.1(a) to obtain leave of Court through filing a properly-supported motion for leave to file an amended complaint together with an attached proposed amended pleading. (Doc. No. 50.) Plaintiffs were directed to file briefs in opposition to Defendants' motions to dismiss no later than June 6, 2017, and were cautioned that a failure to file oppositional briefs within that timeframe would result in the Court deeming Defendants' motions unopposed. (Id. at 5.) In addition, the Court stayed briefing on Defendants' Rule 11 motions pending a decision on the motions to dismiss. (Id.)

         On June 6, 2017, Plaintiffs filed a “renewed motion for leave to amend or[, ] in the alternative[, ] to consider this submission as a brief in opposition to Defendants' motions to dismiss” (Doc. No. 51), together with a supporting brief (Doc. No. 52).[12] On June 20, 2017, Defendants collectively filed a brief in opposition to Plaintiffs' alternatively-styled motion to amend (Doc. No. 59), and on July 5, 2017, Plaintiffs filed a reply brief (Doc. No. 64).

         Meanwhile, no sooner did the Court stay Defendants' motions for sanctions than Plaintiffs filed cross-motions for sanctions on June 12, 2017. (Doc. Nos. 53, 54, 55.) On June 26, 2018, while the stay was still in effect, Plaintiffs filed “[B]rief[s] in Opposition to . . . Defendants' Motion[s] [for Sanctions] and in Support of [their] Cross-Motion[s] for . . . Sanctions Pursuant to Fed.R.Civ.P. 11 Against the . . . Defendants.” (Doc. Nos. 60, 61, 62, 63.) Shortly thereafter, Defendants filed briefs in opposition to Plaintiffs' cross-motions for sanctions on July 10, 2017. (Doc. Nos. 65, 66, 67.) On July 25, 2017, Plaintiffs filed reply briefs to Defendants' briefs in opposition to Plaintiffs' cross-motions for sanctions. (Doc. Nos. 68, 69, 70.) To date, the stay remains in place.[13]

         Having been fully briefed, the pending motions are now ripe for disposition.

         I. LEGAL STANDARD

         A. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)

         Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The legal standards governing pleading practice in federal court have shifted to a “more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.” See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). To avoid dismissal, all civil complaints must set out “sufficient factual matter” to show that the claim is facially plausible. Id. The plausibility standard requires more than a mere possibility that the defendant is liable for the alleged misconduct. Indeed, “where 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.'” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (citing Fed.R.Civ.P. 8(a)(2)). Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         The United States Court of Appeals for the Third Circuit has identified the following steps a district court must take when evaluating the sufficiency of a complaint's allegations as tested against a Rule 12(b)(6) motion: (1) identify the elements a plaintiff must plead to state a claim; (2) discard any conclusory allegations contained in the complaint “not entitled” to the assumption of truth; and (3) determine whether any “well-pleaded factual allegations” contained in the complaint “plausibly give rise to an entitlement to relief.” See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (citation and quotation marks omitted).

         In evaluating whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all factual allegations in the complaint, and construe all reasonable inferences to be drawn therefrom in the light most favorable to the plaintiff. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). A court “need not credit a complaint's ‘bald assertions' or ‘legal conclusions' when deciding a motion to dismiss, ” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997), and must disregard any “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Additionally, a court may not assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). In deciding a Rule 12(b)(6) motion, the court may consider, in addition to the facts alleged on the face of the complaint, any exhibits attached to the complaint, “any matters incorporated by reference or integral to the claim, items subject to judicial notice, [and] matters of public record.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (citation and quotation marks omitted).[14]

         As a final matter, the court must be mindful of its obligations to liberally construe documents filed pro se. Estelle v. Gamble, 429 U.S. 97, 106 (1976). Indeed, a pro se complaint, “however inartfully pleaded, ” is generally held to “less stringent standards than formal pleadings drafted by lawyers” and can be dismissed for failure to state a claim only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Pro se attorney-litigants such as Mr. Kovarik, however, “typically ‘cannot claim the special consideration which the courts customarily grant to pro se parties.'” Allegrino v. Conway E & S, Inc., No. CIVA 09-1507, 2010 WL 1687558, at *6 (W.D. Pa. Apr. 26, 2010) (quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 82 n.4 (2d. Cir. 2001)); see Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001) (“While we are generally obliged to construe pro se pleadings liberally, . . . we decline to do so here because [plaintiff] is a licensed attorney.”) (citation omitted); Holtz v. Rockefeller & Co., 258 F.3d 62, 82 n.4 (2d Cir. 2001) (“[P]ro se attorneys such as [plaintiff] typically cannot claim the special consideration which the courts customarily grant to pro se parties.”) (internal quotations omitted); Godlove v. Bamberger, Foreman, Oswald, and Hahn, 903 F.2d 1145, 1148 (7th Cir. 1990) (“Ordinarily, we treat the efforts of pro se applicants gently, but a pro se lawyer is entitled to no special consideration.”). Thus, irrespective of Mr. Kovarik's status as a pro se litigant, the Court declines to afford him the substantial degree of latitude it would otherwise extend to non-licensed pro se litigants given his representation that he is a licensed attorney admitted to practice in Pennsylvania.

         B. Motion for Leave to File an Amended Complaint under Federal Rule of Civil Procedure 15(a)

         Federal Rule of Civil Procedure 15(a) embodies a liberal approach to amendment of pleadings, instructing that a “court should freely give leave [to amend a pleading] when justice so requires.” Fed.R.Civ.P. 15(a)(2); see Foman v. Davis, 371 U.S. 178, 182 (1962) (“[T]his mandate is to be heeded.”). Indeed, “[l]eave to amend must generally be granted unless equitable considerations render it otherwise unjust.” Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir. 2006). Among the grounds that may justify a court's denial of leave to amend are “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Foman, 371 U.S. at 182. A pleading will be deemed futile if, as amended, it fails to state a claim upon which relief may be granted. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997); Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988) (“Amendment of the complaint is futile if the amendment will not cure the deficiency in the original complaint or if the amended complaint cannot withstand a renewed motion to dismiss.”). In assessing “futility, ” a court applies the standard of legal sufficiency set forth under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

         II. DISCUSSION

         A. Motions to Dismiss Plaintiffs' Complaint

         Plaintiffs advance six causes of action in their complaint. (Doc. No. 1.) Count I asserts a First Amendment retaliation claim under 42 U.S.C. § 1983.[15] Count II asserts a claim of civil conspiracy, although it does not identify the statutory or constitutional basis for such claim. Count III asserts violations of the Pennsylvania Constitution. Count IV raises a claim under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (“RICO”). Count V asserts an abuse of process claim, although it is unclear whether this claim is brought under federal or state law. Lastly, Count VI alleges a state law claim of “wrongful use of civil proceedings.” Significantly, unlike Count I of the complaint, which asserts a claim of “[r]etaliation under [Section] 1983, ” and Count VI of the complaint, which clearly references violations of 42 Pa. Cons. Stat. § 8351, Counts II and V of the complaint do not specify the source of law giving rise to Plaintiffs' claims of civil conspiracy and abuse of process. In light of this glaring ambiguity, and out of an abundance of caution, the Court analyzes Counts II and V under Section 1983.

         1. First Amendment Retaliation (Count I) & Abuse of Process (Count V) under Section 1983

         Defendants move to dismiss Counts I and V of the complaint as time-barred.[16] (Doc. No. 38 at 15.) Count I of Plaintiffs' complaint sets forth a claim of “[r]etaliation under [Section] 1983.” (Doc. No. 1 at 29.) Plaintiffs claim in Count I that they have endured a pattern of ongoing deprivations of their First Amendment rights, beginning with the unsuccessful 2005 litigation that was brought by Mr. Kovarik in his capacity as legal counsel for the CCSA, and culminating in Defendants' discontinuation of their municipal claim action against Plaintiffs on January 14, 2015.

         Similarly, Count V of Plaintiffs' complaint, asserting a claim of abuse of process, alleges, in pertinent part, that:

162. Defendants started proceedings against Mr. Kovarik for the legal fees and sanctions more than a month after [the 2005 litigation] was concluded on false grounds, using false affidavits and statements, when they knew or should have known that the court had no authority to adjudicate [their request for sanctions].
. . .
165. Defendants continued their abuse of process when they started new proceedings in the [June 2013 municipal claim litigation] . . . [, ] procur[ing] improper judgment against [Plaintiffs] and their property based on [a] false affidavit without proper basis in fact or law.
166. Defendants continued the proceedings in the United States District Court for the Middle District of Pennsylvania . . . to amass legal fees and costs exceeding more than two times the amount in controversy to ...

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