United States District Court, E.D. Pennsylvania
MICHAEL B. SELIG, Plaintiff,
NORTH WHITEHALL TOWNSHIP ZONING HEARING BOARD, CHAIRMAN RICHARD BENJAMIN, and EUGENE WOLFGANG, Defendants.
G. SMITH, J.
pro se plaintiff brought the instant action against
a township zoning hearing board and two of its members for
violations of his due process rights and conspiracy to
violate his constitutional rights when the board refused to
grant his application for a special use permit for a heliport
in two separate zoning proceedings. The plaintiff seeks
damages and injunctive relief. The defendants have moved to
dismiss the complaint because (1) the statute of limitations
bars the claims, (2) the court lacks subject-matter
jurisdiction based on Rooker-Feldman, and (3) the
claims are not ripe for judicial review. The defendants also
assert that the plaintiff has failed to state a cognizable
claim for money damages and the court should abstain from
exercising jurisdiction over the demand for equitable relief.
court grants the defendants' motion on several grounds.
First, the plaintiff fails to state plausible claims for
violation of his substantive due process rights or conspiracy
to violate his constitutional rights. In addition, these
claims are so weak that amendment of the complaint would be
futile. Second, the plaintiff lacks standing to bring any
claims based on the first zoning proceeding because he did
not own the relevant property at the time of the proceeding.
Even if he did somehow have standing, the statute of
limitations would bar his claims because his purported
constitutional injury occurred more than two years before he
brought this lawsuit. Finally, although the complaint does
not explicitly reference a claim for a procedural due process
violation (contrary to the multiple references to substantive
due process in the complaint), at the plaintiff's urging
the court has considered whether the complaint states a claim
for procedural due process and finds that it does not.
October 10, 2017, the pro se plaintiff, Michael B.
Selig (“Selig”), filed a complaint asserting that
the defendants, North Whitehall Township Zoning Hearing Board
(the “Board”), Chairman Richard Benjamin
(“Benjamin”), and Eugene Wolfgang
(“Wolfgang”), violated his substantive due
process rights and that they conspired to violate his
constitutional rights.Compl., Doc. No. 1. The defendants filed a
motion to dismiss the complaint on October 31, 2017. Mot. to
Dismiss, Doc. No. 4. The motion to dismiss raised five
grounds for dismissal. See Br. in Supp. of
Def.'s Rule 12(b)(6) Mot. to Dismiss the Compl.
(“Defs.' Br.”), Doc. No. 4-1. Selig filed a
response in opposition to the motion on November 22, 2017,
the defendants filed a reply to the response on December 3,
2017, and Selig filed a sur-reply brief on December 7, 2017.
Doc. Nos. 7, 9, 11. On January 4, 2018, the court heard oral
argument on the motion to dismiss. During the oral argument,
Selig asserted that his complaint also raises a procedural
due process claim despite the lack of a specific reference to
such a claim in the complaint. The motion to dismiss is now
ripe for adjudication.
Standards of Review
Motions to Dismiss Under Rule 12(b)(1)
courts are courts of limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,
377 (1994)). “They possess only that power authorized
by Constitution and statute, which is not to be expanded by
judicial decree.” Id. (citations omitted).
“[F]ederal courts are without power to adjudicate the
substantive claims in a lawsuit, absent a firm bedrock of
jurisdiction.” Carlsberg Res. Corp. v. Cambria Sav.
& Loan Ass'n, 554 F.2d 1254, 1256 (3d Cir.
1977). Therefore, “[w]hen the foundation of federal
authority is, in a particular instance, open to question, it
is incumbent upon the courts to resolve such doubts, one way
or the other, before proceeding to a disposition of the
court must grant a motion to dismiss [under Rule 12(b)(1)] if
it lacks subject-matter jurisdiction to hear a claim.”
In re Schering Plough Corp. Intron/Temodar Consumer Class
Action, 678 F.3d 235, 243 (3d Cir. 2012). “In
evaluating a Rule 12(b)(1) motion, a court must first
determine whether the movant presents a facial or factual
attack.” Id. (citation omitted). A
jurisdictional challenge is factual if “it concerns not
an alleged pleading deficiency, but rather the actual failure
of [the plaintiff's] claims to comport with the
jurisdictional prerequisites[.]” U.S. ex rel.
Atkinson v. Pennsylvania Shipbuilding Co., 473 F.3d 506,
514 (3d Cir. 2007) (quotation marks and citation omitted). A
jurisdictional challenge is facial if it “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) (citations and internal quotation marks omitted). On
the other hand, “a factual challenge attacks the
factual allegations underlying the complaint's assertion
of jurisdiction, either through the filing of an answer or
‘otherwise present[ing] competing facts.'”
Id. (quoting Constitution Party of Pa. v.
Achiele, 757 F.3d 347, 358 (3d Cir. 2014)). When a
jurisdictional challenge is factual, a court may “weigh
and consider evidence outside the pleadings.”
Id. (citation and internal quotation marks omitted).
Motions to Dismiss Under Rule 12(b)(6)
Rule of Civil Procedure 12(b)(6) allows a party to move for
dismissal of a complaint or a portion of a complaint for
failure to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule
12(b)(6) tests “the sufficiency of the allegations
contained in the complaint.” Kost v.
Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (citation
omitted). As the moving party, “[t]he defendant bears
the burden of showing that no claim has been
presented.” Hedges v. United States, 404 F.3d
744, 750 (3d Cir. 2005) (citation omitted).
general, a complaint is legally sufficient if it contains
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). “The touchstone of [this] pleading standard is
plausibility.” Bistrian v. Levi, 696 F.3d 352,
365 (3d Cir. 2012). Although Rule 8(a)(2) does “not
require heightened fact pleading of specifics, ” it
does require the recitation of “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “A claim has facial plausibility when the
plaintiff pleads 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, 678 (2009) (citation omitted). In
other words, “[t]he plausibility standard is not akin
to a ‘probability requirement, ' but it asks for
more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quotation omitted).
Ultimately, a complaint must contain facts sufficient to
nudge any claim “across the line from conceivable to
plausible.” Twombly, 550 U.S. at 570.
the plaintiff is proceeding pro se, the court must
liberally construe the allegations in the complaint. See
Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002)
(explaining that courts must liberally construe pro
se complaints and “apply the applicable law,
irrespective of whether [the] litigant has mentioned it by
name”). Although the court must accept as true the
factual allegations in the complaint, the court need not do
so with conclusory allegations of law. Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
Additionally, the court may consider “only the
complaint, exhibits attached to the complaint, matters of
public record, as well as undisputedly authentic documents if
the complainant's claims are based upon these
documents.” Mayer v. Belichick, 605 F.3d 223,
230 (3d Cir. 2010).
2012, Selig used a holding company, Aerotierra, L.L.C.
(“Aerotierra”), to purchase a 50-acre plot of
land located at 5471 Route 309, Schnecksville, Pennsylvania
(the “Property”) to use as a heliport.
See Compl. at 3. In purchasing the Property, Selig
relied on an assertion by the prior North Whitehall Township
zoning manager that his “proposal [for a heliport]
meets the requirements of the Zoning Ordinance.”
Id. at 4. Selig applied for a special exception to
use the Property as a heliport and, after holding a hearing
on the application, the Board denied the application in 2013.
See Id. Selig believes that the defendants violated
his due process rights in this zoning proceeding because (1)
the solicitor, Steven Miller, had a conflict of interest
because he was Selig's “non-amicably released
divorce attorney, ” (2) the Board panel did not have a
tie-breaking vote because it was composed of two, instead of
three members, in violation of 53 P.S. § 10906, (3) the
chairman of the board, Benjamin, had a conflict of interest
because he is Selig's “across the street
neighbor” from the Property, and (4) the Board's
denial of his application was inconsistent with governing law
and the Board's prior decisions which permitted heliports
in two locations. See Id. at 4, 5, 10.
then appealed the Board's decision to the state courts.
See Id. at 5-7; see also Selig v. Zoning Hearing
Bd. of N. Whitehall Twp., No. 180 C.D. 2014, 2014 WL
3586255, at *1 (Pa. Commw. July 22, 2014). The Court of
Common Pleas initially determined that Selig lacked standing
and dismissed the appeal, and the ...