United States District Court, E.D. Pennsylvania
OPINION DEFENDANTS' MOTION TO DISMISS, ECF NO.
F. Leeson, Jr. United States District Judge
Edgar and Maria Riveros-Sanchez own a residential rental
property in Easton, Pennsylvania. After an inspection by city
officials revealed that the property lacked a fire alarm
system, the City of Easton required Plaintiffs to install a
fire alarm before they would be permitted to rent the
property. According to Plaintiffs, they installed an alarm as
required and passed a City inspection; however, the City
never issued a certificate of rental suitability. As a
result, Plaintiffs could not rent their property and
defaulted on their mortgage, and the property was scheduled
for foreclosure sale. Plaintiffs brought this civil rights
action against the City, the chief of the fire department,
and rental housing inspector, alleging violations of
substantive and procedural due process rights and various
state law tort claims. Defendants moved to dismiss. For the
reasons discussed below, the motion is granted.
allege that this action arises from the “unlawful
condemnation” of their property located at 723
Washington Street in Easton, Pennsylvania. Complaint ¶
6, ECF No. 1. Plaintiffs allege that they bought the
multiunit property in 2003 and rented it to various tenants
over the next several years. Compl. ¶¶ 8-9. In
August 2014, they applied for a renewal of their rental
registration, which was granted. Compl. ¶ 10.
allege that around July 28, 2015, an inspection by the
License and Inspection Department of the Defendant City of
Easton forced their tenants to vacate the property after the
inspectors determined that the Plaintiffs had not installed a
fire alarm system as required. Compl. ¶¶ 11-13.
Plaintiffs worked with Tyco Fire Alarm System to install a
fire alarm in the fall of 2015; Plaintiffs' account
executive from Tyco sent an email to Defendant Elizabeth
Gehman, a rental housing inspector for the City of Easton, to
inform the City of the installation. Compl. ¶¶
December 3, 2015, Plaintiffs' property manager sent an
e-mail to Gehman to schedule an appointment to inspect the
property. Compl. ¶ 16. The next day, the property
manager “communicated with” the City and Gehman
to inform them that a new alarm system had been installed and
to request a re-inspection of the property. Compl. ¶ 17.
The property passed the fire alarm inspection with the
City's Codemaster, who separately reported the result of
the inspection to the City. Compl. ¶ 18.
confirmed by e-mail on December 22 that the City had
Plaintiffs' “document on their file showing that
they passed the inspection.” Compl. ¶ 19. However,
the “Fire Department Defendants” did not issue a
certificate of rental suitability for the property. Compl.
¶ 20. Plaintiffs claim that, “[a]s a result of
Defendants' failure to issue the certification,
Plaintiffs were unable to rent the [P]roperty and lost their
source of income and were unable to pay the mortgage of the
[P]roperty.” Compl. ¶ 21. Plaintiffs claim that,
consequently, the property was foreclosed and scheduled to be
sold at a sheriff's sale on November 9, 2017. Compl.
filed a complaint in the Court of Common Pleas of Northampton
County on August 6, 2018, naming Defendants the City of
Easton, Elizabeth Gehman, individually and in her official
capacity, and John Bast, individually and in his official
capacity as the Chief of the Easton Fire Department.
Plaintiffs bring federal claims under 42 U.S.C. § 1983
for both substantive and procedural due process violations
and state law claims for negligence and tortious interference
with contractual relations.
February 6, 2019, Defendants removed this action to this
Court. See Notice of Removal, ECF No. 1. Defendants
moved to dismiss the complaint and argue that Plaintiffs'
claims against Bast are time-barred and that the complaint
fails to state a claim upon which relief can be granted. ECF
No. 4. After several stipulated extensions of the time for
Plaintiffs to respond to the motion, Plaintiffs' counsel
filed a motion to withdraw based on nonpayment of fees on
March 27, 2019. On May 3, 2019, the Court granted the motion,
gave Plaintiffs thirty days to seek substitute counsel, and
directed them to file any response to the motion to dismiss
by June 10, 2019. ECF No. 11. On June 10, Plaintiffs filed a
response detailing their dispute with their former counsel;
however, they did not otherwise respond to the motion to
dismiss as directed. ECF No. 12. The Court granted Plaintiffs
one final opportunity to respond to the motion to dismiss and
directed them to file a response by July 10, 2019. ECF No.
13. On July 9, 2019, Plaintiffs filed a response that once
again explained their position concerning their dispute with
their former counsel but did not address the motion to
dismiss. ECF No. 14.
rendering a decision on a motion to dismiss under Rule
12(b)(6), this Court must “accept all factual
allegations as true [and] construe the complaint in the light
most favorable to the plaintiff.” Phillips v. Cnty.
of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting
Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7
(3d Cir. 2002)) (internal quotation marks omitted). Only if
“the ‘[f]actual allegations . . . raise a right
to relief above the speculative level'” has the
plaintiff stated a plausible claim. Id. at 234
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 540,
555 (2007)). However, “the tenet that a court must
accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(explaining that “[d]etermining whether a complaint
states a plausible claim for relief . . . [is] a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense”). The
defendant bears the burden of demonstrating that a plaintiff
has failed to state a claim upon which relief can be granted.
Hedges v. United States, 404 F.3d 744, 750 (3d Cir.
2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc.,
926 F.2d 1406, 1409 (3d Cir. 1991)).
did not respond to Defendants' motion to dismiss, even
after the Court twice ordered them to do so. Local Rule 7.1
provides that, in the absence of timely response, a court may
grant a motion as uncontested. See E.D. Pa. L.R.
7.1. However, the Third Circuit Court of Appeals discourages
dismissing a pro se civil rights action based only on a
plaintiff's failure to respond to a motion to dismiss
without considering the merits. See Stackhouse v.
Mazurkiewicz,951 F.2d 29, 30 (3d Cir. 1991);
Blackshear v. Verizon, DE, LLC, No. CIV.A. 11-1036,
2011 WL 5116912, at *1 (E.D. Pa. ...