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Germantown Cab Co. v. The Philadelphia Parking Authority

United States District Court, E.D. Pennsylvania

June 27, 2018



          John R. Padova, J.

         Germantown Cab Company's (“GCC”) Third Amended Complaint (“TAC”) alleges claims under 42 U.S.C. § 1983 for First Amendment retaliation (Count I) and retaliation conspiracy (Count II) against the Philadelphia Parking Authority (“PPA”), William Schmid and Christine Kirlin. The claims arise out of allegedly retaliatory actions taken against GCC for the exercise of its right to petition the government, specifically its filing of lawsuits challenging the authority of the PPA to regulate the taxicabs of “partial rights operators” (“PROs”) in Philadelphia. Presently pending is the Defendants' Motion for Summary Judgment. Defendants have filed a statement of allegedly undisputed facts (“DSOF”). GCC has filed (1) a counterstatement asserting that the bulk of the Defendants' assertions are in genuine dispute, and (2) its own statement of allegedly undisputed facts (“PSOF”). Defendants have not filed a response to the PSOF. The parties also filed a joint appendix (“J.App.”) and a factual stipulation (“Stip.”) in the related case of Rosemont Taxicab Co., Inc., v. The Philadelphia Parking Auth., et al., Civil Action 16-3601.

         For the following reasons, we find that genuine issues of material fact bar the entry of summary judgment for the PPA on the two Section 1983 claims. However, we conclude that Defendants Schmid and Kirlin are entitled to qualified immunity since GCC has failed to meet its summary judgment burden to show that they violated a right that was clearly established at the time of their alleged misconduct. Accordingly, we grant Defendants' Motion as to Schmid and Kirlin only.


         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). An issue is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “material” if it “might affect the outcome of the suit under the governing law.” Id.

         “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record that] it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by “pointing out to the district court [ ] that there is an absence of evidence to support the nonmoving party's case.” Id. at 325. After the moving party has met its initial burden, the nonmoving party has the burden of identifying specific facts to show that, to the contrary, a genuine issue of material fact exists for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). That is, summary judgment is appropriate if the nonmoving party fails to rebut by making a factual showing “sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

         “In evaluating the evidence, we take the facts in the light most favorable to the nonmoving party . . . and draw all reasonable inferences in [their] favor.” Morton Int'l, Inc. v. A.E. Staley Mfg. Co., 343 F.3d 669, 680 (3d Cir. 2003) (internal quotation omitted). “Speculation, conclusory allegations, and mere denials are insufficient to raise genuine issues of material fact.” Boykins v. Lucent Techs., Inc., 78 F.Supp.2d 402, 408 (E.D. Pa. 2000). Indeed, evidence introduced to defeat or support a motion for summary judgment must be capable of being admissible at trial. Callahan v. AEV, Inc., 182 F.3d 237, 252 n.11 (3d Cir. 1999) (citing Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1234 n.9 (3d Cir. 1993)).


         In order to succeed on a Section 1983 claim, a plaintiff must show that (1) a defendant acted under color of state law; (2) violated the plaintiff's federal constitutional or statutory rights; and (3) the violation of rights caused an injury. Elmore v. Cleary, 399 F.3d 279, 281 (3d Cir. 2005). To establish a First Amendment retaliation claim pursuant to Section 1983, a plaintiff must establish three elements: “(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action.” Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006).[1]

         Recognizing that causation is rarely proved by direct evidence, the United States Court of Appeals for the Third Circuit has provided three methods by which causation may be proved circumstantially. First, “a suggestive temporal proximity between the protected activity and the alleged retaliatory action can be probative of causation.” Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (citing Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001)). However, “the timing of the alleged retaliatory action must be unusually suggestive of retaliatory motive before a causal link will be inferred.” Id. (quoting Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003)); see also Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 178 (3d Cir. 1997) (“It is important to emphasize that it is causation, not temporal proximity itself, that is an element of plaintiff's prima facie case, and temporal proximity merely provides an evidentiary basis from which an inference can be drawn.”). Alternatively, causation may be circumstantially shown through “a pattern of antagonism coupled with timing to establish a causal link” (the “pattern of antagonism” method) or “from the ‘evidence gleaned from the record as a whole'” from which a fact finder should infer causation (also called the “catch-all” method). Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (citing Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503-04 (3d Cir. 1997); Woodson v. Scott Paper Co., 109 F.3d 913, 920-21 (3d Cir. 1997); and quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000)). A pattern of antagonism has been described as a “constant barrage” of antagonistic conduct. Robinson v. Se. Pa. Transp. Auth., 982 F.2d 892, 895 (3d Cir. 1993). “Allegations regarding a pattern of antagonism that commenced prior to the plaintiff engaging in protected activity, however, are insufficient to state a First Amendment retaliation claim as they fail to establish a causal link between the protected activity and the allegedly retaliatory conduct.” Carroll v. Clifford Twp., Civ. A. No. 12-0553, 2012 WL 5932069, at *4 (M.D. Pa. Nov. 27, 2012) (citing Kriss v. Fayette Cnty., 827 F.Supp.2d 477, 495 (W.D. Pa. 2011) (pattern of antagonism “refers to intervening antagonism between the time of the protected activity and the time of the alleged retaliatory conduct”).

         The catch-all method of demonstrating causation requires a plaintiff to show that “the protected speech was a substantial or motivating factor in the alleged acts of retaliation.” Buck Foston's New Brunswick LLC v. Cahill, Civ. A. No. 11-3731, 2013 WL 5435289, at *15 (citing Shehee v. City of Wilmington, 67 Fed.Appx. 692, 694 (3d Cir. 2003)). The Third Circuit has further explained that “a plaintiff need not show that the decision was motivated solely by anti-speech animus, or even that the illegal animus was the dominant or primary motivation for the retaliation. This is less than a showing that a plaintiff's protected conduct was the ‘but for' cause of the challenged actions.” Shehee, 67 Fed.Appx. at 694 (citing Suppan v. Dadonna, 203 F.3d 228, 236 (3d Cir. 2000). Evidence that regulators engaged in selective enforcement or were inconsistent in their rationale for adverse actions has been held probative of causation under this method. See Holder v. City of Allentown, 987 F.2d 188, 197-98 (3d Cir. 1993) (“a public official may engage in unconstitutional retaliation . . . ‘by selective enforcement of an extremely broad prohibitory statute.'”) (quoting Cox v. Louisiana, 379 U.S. 536, 557-558 (1965)); Farrell, 206 F.3d at 280-81 (holding that a plaintiff may establish causation by showing inconsistent reasons for termination) (citing Waddell v. Small Tube Prods., Inc., 799 F.2d 69, 73 (3d Cir. 1986)).

         If a plaintiff meets its summary judgment burden to demonstrate First Amendment retaliation, a defendant may defeat the claim “by showing that it would have taken the same action even if the plaintiff had not engaged in the protected activity.” DeFlaminis, 480 F.3d at 267 (citing Ambrose v. Twp. of Robinson, 303 F.3d 488, 493 (3d Cir. 2002). “This is often referred to as the ‘same decision defense.'” Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016), cert. denied sub nom. Coutts v. Watson, 137 S.Ct. 2295 (2017). However, where the record “supports conflicting inferences regarding [a defendant's] motive” in taking an allegedly retaliatory conduct, entering summary judgment is not appropriate. Id. at 423. Moreover, the Third Circuit has cautioned that “a plaintiff can make out a retaliation claim even though the charge against him may have been factually supported.” Id. at 426 (citing Hill v. City of Scranton, 411 F.3d 118 (3d. Cir. 2005); see also Hill, 411 F.3d at 130-32 (denying summary judgment on claims brought by police officers that the city had retaliated against them by selectively enforcing an ordinance to punish them for a lawsuit that they had brought even though it was clear that the three officers violated the relevant ordinance).


         Defendants argue that a substantial portion of the conduct undergirding GCC's First Amendment claims occurred outside of the limitations period for a Section 1983 action. Section 1983 does not contain a limitations provision. Rather the statute of limitations applicable to Section 1983 actions is the limitation period applicable to personal injury claims in the state where the cause of action arose. See Wallace v. Kato, 549 U.S. 384, 387 (2007). Since GCC's claims arose in Pennsylvania, we apply Pennsylvania's two-year limitations period for personal injury claims. See 42 Pa. Cons. Stat. § 5524(2); Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017) (stating that “[t]he statute of limitations applicable to § 1983 claims in Pennsylvania is two years” (citation omitted)).

         A. Relation Back

         The TAC was filed on March 9, 2016. (Docket No. 51.) Accordingly, any claim in the TAC that accrued prior to March 9, 2014 is untimely unless it is deemed to relate back to the original Complaint pursuant to Fed.R.Civ.P. 15(c)(1)(B). GCC's original Complaint was filed on August 9, 2014. (Docket No. 1.) Under the Rule, an amendment to a pleading relates back to the date of the original when “the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading.”[2] Fed.R.Civ.P. 15(c)(1)(B). “[T]he purpose of relation back . . . [is] to balance the interests of the defendant protected by the statute of limitations within the preference expressed in the Federal Rules of Civil Procedure in general, and Rule 15 in particular, for resolving disputes on their merits.” Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 550 (2010). “Courts . . . allow relation back when the new claim is based on the same facts as the original pleading and only changes the legal theory.” 3 James Wm. Moore et al., Moore's Federal Practice ¶ 15.19[2] (3d ed. 2011); see also Roseberry v. City of Philadelphia, Civ. A. No. 14-2814, 2016 WL 826825, at *8 (E.D. Pa. Mar. 3, 2016) (concluding that plaintiff's First Amendment retaliation claim in the amended pleading “clearly relate[d] back to the origination of the lawsuit, ” where it was based on the identical conduct that formed the basis of plaintiff's employment discrimination claims in the original complaint); 6A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1497 (3d ed. 2010) (“The fact that an amendment changes the legal theory on which the action initially was brought is of no consequence if the factual situation upon which the action depends remains the same and has been brought to defendant's attention by the original pleading.”).

         We find that GCC's First Amendment retaliation claims contained in the TAC relate back to its original Complaint naming the same defendants. The original Complaint alleged a Due Process violation (Count I) and sought injunctive relief (Count II) arising from Defendants' failure to provide a pre-deprivation hearing before suspending GCC's rights to provide taxicab service. (See Docket No. 1 at ¶ 1.) In Count I, GCC alleged inter alia that “the PPA is motivated by a retaliatory animus against [GCC] resulting from [GCC's] multiple challenges to the PPA regulatory authority, spread over 22 reported Westlaw reported [sic] decisions.” (Id. ¶ 56 (emphasis added).) Following our decision granting in part Defendants' Rule 12(b)(6) Motion and permitting GCC to file an amended complaint (Docket Nos. 25, 26), GCC filed an Amended Complaint (“AC”) on May 6, 2015 (Docket No. 28). In that version of the Complaint GCC asserted retaliation claims against the same Defendants, specifically enumerating four of the “22 reported Westlaw” decisions mentioned in the original complaint, detailed other instances where it challenged the PPA's regulatory authority, and alleged retaliatory conduct. (See AC ¶¶ 21-29.) Since the original Complaint alleged Defendants were motivated by a retaliatory animus and Plaintiff's later pleaded retaliation claims arose out of the same regulatory activity, the appropriate date to judge timeliness is the date of the original Complaint, August 9, 2014. Thus, any claim must have accrued after August 9, 2012 to be considered timely.

         B. Accrual

         Federal law determines the question of when a Section 1983 claim accrues. Wallace, 549 U.S. at 388. A claim “accrues when the plaintiff knew or should have known of the injury upon which its action is based.” Sameric Corp. of Del. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998). “The cause of action accrues even though the full extent of the injury is not then known or predictable.” Wallace, 549 U.S. at 391 (citations omitted). Moreover, plaintiffs asserting First Amendment retaliation claims may not employ a “continuing violation” theory to rely upon or revive time barred conduct.[3] O'Connor v. City of Newark, 440 F.3d 125, 127-28 (3d Cir. 2006) (holding that because “First Amendment retaliation claims are always individually actionable, even when relatively minor” - so long as they are sufficient to deter a person of ordinary firmness from exercising his or her First Amendment rights - a claim “will lie for any individual act which meets this ‘deterrence threshold'”). Thus, each act that meets the deterrence threshold is a separate First Amendment retaliation claim, and later claims cannot resurrect untimely ones under a continuing violation theory. Id. at 127 (stating that, for First Amendment retaliation claims arising from a public employment context, the principle that “individually actionable allegations cannot be aggregated is of particular import”).

         Defendants argue that GCC's retaliation claims are untimely even if they relate back because they accrued more than two years before Plaintiff brought its original Complaint. They cite testimony from Joseph Gabbay, GCC's principal and corporate designee, who stated he first concluded that PPA was retaliating against GCC after the Pennsylvania courts decided Blount v. Philadelphia Parking Authority, 920 A.2d 215 (Pa. Commw. Ct. 2007), more than five years before the original Complaint was filed.[4] Because Gabbay knew or should have known GCC had a retaliation claim, Defendants argue that the claims are time barred in their entirety. We find that Gabbay's testimony is insufficient to bar all of GCC's claims. Rather, only acts of retaliation that occurred more than two years before the filing of the original Complaint are time barred. Since each act of retaliation is sufficient in itself to create a claim, see O'Connor, 440 F.3d at 128, any retaliatory conduct occurring within the statute of limitation period is timely, even if the course of retaliatory conduct began before the limitations period or other specific retaliatory acts are time barred.


         A. Protected Activity

         We find that GCC has met its burden of showing that it engaged in protected activity within the limitations period. This activity comprises its litigating cases against the PPA and expressing its opinions about the PPA's activities at public meetings. GCC's timely litigation activity against the PPA includes its participation in the prosecution of Sawink v. Philadelphia Parking Authority before the Pennsylvania Commonwealth Court and the Pennsylvania Supreme Court. While this action was filed before the limitations period commenced, GCC engaged in protected activity litigating the case until it was finally resolved by the Pennsylvania Supreme Court on December 17, 2012, which lies within the limitations period. Sawink, Inc. v. Philadelphia Parking Auth., 34 A.3d 926 (Pa. Commw. Ct. 2012) (“Sawink”) (holding that the PPA exceeded its statutory authority when it impounded plaintiffs' taxicabs) aff'd Sawink, Inc. v. Philadelphia Parking Auth., 57 A.3d 644 (Pa. 2012). GCC was also a plaintiff in Bucks Cnty. Servs., Inc. v. Philadelphia Parking Authority, 71 A.3d 379 (Pa. Commw. Ct. 2013) (the “Second Regulation Litigation”). Although this suit was filed before the Commonwealth Court on November 23, 2011, more than two years before this lawsuit, protected litigation activity continued until the Commonwealth Court issued a decision in the case on November 14, 2014, within the limitations period. See Bucks Cty. Servs., Inc. v. Philadelphia Parking Auth., 104 A.3d 604 (Pa. Commw. Ct. 2014). GCC also participated in MCT Transp. Inc. v. Philadelphia Parking Authority, 60 A.3d 899, 901 (Pa. Commw. Ct. 2013), aff'd, 81 A.3d 813 (2013), and 83 A.3d 85 (2013) (“MCT Transp.”) (holding that budget provisions of Act 94, the Parking Authorities Law, 53 Pa. Con. Stat. § 5707, was an unconstitutional delegation of legislative power), which was filed on July 23, 2012. Protected litigation activity continued in that case until the Pennsylvania Supreme Court affirmed the Commonwealth Court's decision granting summary judgment in part to plaintiffs on November 20, 2013. Finally, GCC filed Germantown Cab Co. v. Philadelphia Parking Authority, Court of Common Pleas No. 140100293 (the “Fifth State Court Action”) on January 6, 2014, within the limitations period.[5] The record also includes at least one instance within the limitations period where GCC made comments to a public agency about the PPA's activities (see Def. Ex. 136 (May 2, 2013 comments to Independent Regulatory Review Commission (“IRRC”)[6] and other instances where GCC challenged the PPA's actions in various courts. (See Def. Ex. 109 (motion for preliminary injunction regarding the PPA's August 2014 “out of service” designation); Def. Ex. 118 (July 22, 2012 motion for preliminary injunction)).

         B. Retaliatory Actions

         GCC has met its summary judgment burden to show genuine issues of material fact that Defendants took retaliatory actions against it during the limitations period. First, on January 18, 2013, PPA began the process to draft an amended regulation to remove GCC's ability to pick up “street hails” in Philadelphia under its vice-versa rights granted by the Pennsylvania Public Utility Commission (“PUC”).[7] (Pl. Ex. L (1/18/13 Weldon email).) Second, in March 2014, the PPA placed GCC out of service (the “March OOS”) on the asserted ground that it failed to file a timely fiscal year 2014 PRO registration renewal form (See Def. Ex. 163 (3/4/14 Letter from PPA to GCC).) Third, in August 2014, the PPA again placed GCC out of service (the “August OOS”) for its asserted failure to timely file a FY 2015 registration, even though GCC submitted a copy of its 2014 form for 2015 claiming they were identical, and PPA used the identical FY 2014 filing to calculate an estimate of GCC's FY 2015 monetary assessment. (Def. Ex. 177 (8/8/14 Letter from Schmid to Germantown).) Finally, GCC has produced evidence that the PPA targeted it for an undercover operation, sending a PPA employee named Steven Marshall to apply for work as a GCC driver in order to obtain one of GCC's vehicles to conduct an inspection of the vehicle without GCC's knowledge. (Stip. ¶¶ 94-109 (“the Marshall Incident”).[8])

         C. Causation

         1. ...

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