United States District Court, W.D. Pennsylvania
PARADISE BAXTER, United States District Judge.
these consolidated civil actions, pro se Plaintiff
Mel Marinkovic sued several former Armstrong County
officials in connection with his attempts to purchase
county-held properties through a private bidding process.
Pending before the Court in Civil Action 1: 14-cv-49 is the
Defendants' motion for summary judgment and Plaintiffs
counter-motions to reopen discovery and to strike
Defendants' exhibits. Pending in Civil Action No.
2:18-cv-388 is Defendants' motion to dismiss Plaintiffs
claims, pursuant to Federal Rules of Civil Procedure 12(b)(5)
reasons that follow, Defendants' motion for summary
judgment will be granted, and Plaintiffs motions to reopen
discovery and to strike exhibits will be denied. Further, the
claims in Civil Action No. 2:18-cv-388 will be dismissed
without leave to amend.
2011 to 2013 Plaintiff made inquiries to the Armstrong County
Treasurer's Office about the process for buying
county-held residential properties through means other than
public auctions. Plaintiff claims he was informed about a
direct, confidential private bid process and, thereafter, he
visited and inspected dozens of properties and eventually
made offers to buy several properties. He alleges that,
despite being told by the Tax Claim Bureau staff that there
were no competing bids on these properties, his efforts to
acquire them were stymied in each case because of other
buyers stepping forward at the last minute to outbid him.
According to Plaintiff, this occurred because the County Tax
Claim Bureau staff informed other government officials of
Plaintiff s offers so that these insiders could then secretly
make higher bids. Eventually, Plaintiff wrote a letter to the
Armstrong County Commissioners complaining of this process,
but the process allegedly continued until the County
Commissioners decided to end the private sale process
initially brought a litany of constitutional and state-law
claims against Armstrong County and three of its former
Commissioners: David K. Battaglia, Robert T. Bower, and
Richard L. Fink (at times hereafter, the "Defendant
Commissioners"). ECF No. 31. By Memorandum Opinion and
Order dated July 8, 2016, the Court dismissed all claims
against the County and all but two claims against the
Defendant Commissioners. As a result, the only remaining
claims are: (a) a First Amendment claim predicated on the
theory that Defendants unlawfully retaliated against
Plaintiff by cancelling his outstanding bids on certain
properties in response to his constitutionally-protected
petitioning activity; and (b) a "class of one"
equal protection claim premised upon an allegation that
Plaintiff was the only individual bidding on properties held
by the Tax Claim Bureau who was not permitted to see the
amount of other buyers' bids.
pleadings closed on September 23, 2016, and discovery then
proceeded through April 12, 2018. On September 17, 2018, the
undersigned became the presiding district judge in these
January 11, 2019, Defendants filed their motion for summary
judgment relative to the two remaining claims in Civil Action
No. 1:14-cv-49. ECF No. 165. Defendants' motion was
accompanied by a Concise Statement of Material Facts in
support of their motion, ECF No. 167, as well as a memorandum
of law, ECF No. 166, and an appendix of exhibits, ECF No.
April 1, 2019, after receiving a six-week extension of time
for responding to the Defendants' motion, Plaintiff filed
his "Opposition to Motion for Summary Judgment and
Motion to Strike Defendants' Exhibits, " ECF No.171,
along with a "Motion to Reopen Discovery and Motion to
File Rule 56(f) Affidavit under Seal, " ECF No. 172.
Appended to the former document was a "Statement of
Material Facts in Opposition to Summary Judgment, " ECF
No. 171 -1, which is in the nature of a declaration by
Plaintiff. Despite this Court having expressly advised
Plaintiff that his filings must comply with Federal Rule of
Civil Procedure 56 and the local rules of this Court,
Plaintiffs oppositional papers fail to do so. In particular,
Plaintiff did not adhere to Local Rule 56's requirement
that he submit:
A separately filed concise statement, which responds to each
numbered paragraph in the moving party's Concise
Statement of Material Facts by:
a. admitting or denying whether each fact contained in the
moving party's Concise Statement of Material Facts is
undisputed and/or material;
b. setting forth the basis for the denial if any fact
contained in the moving party's Concise Statement of
Material Facts is not admitted in its entirety (as to whether
it is undisputed or material), with appropriate reference to
the record (See LCvR 56.B.1 for instructions regarding format
and annotation); and
c. setting forth in separately numbered paragraphs any other
material facts that are allegedly at issue, and/or that the
opposing party asserts are necessary for the Court to
determine the motion for summary judgment;
56(C)(1). As a result, any alleged material facts set forth
in Defendants' Concise Statement of Material Facts, which
are claimed to be undisputed, will be deemed admitted for
purposes of this memorandum opinion, except to the extent
they are specifically denied or otherwise competently
controverted by Plaintiffs non-conforming Statement of
Material Facts. LCvR 65(E).
2013 and 2014, Plaintiff submitted bids to the Armstrong
County Tax Claim Bureau relative to five properties that the
Bureau was holding in its repository. Def.s' Concise
Statement of Material Facts ("DCSMF"), ECF No. 167,
at ¶1. All bids submitted to the Tax Claim Bureau were
subject to the review and approval of the County Tax
Assessor. Id. ¶2. A minimum bid of $400.00 was
required. Id. ¶3. Pursuant to Pennsylvania law,
upon receipt of a bid, the Tax Claim Bureau was obligated to
seek the consent of the local taxing bodies to the sale of
the property to that bidder. Id. ¶32 (citing 72
Pa. Stat. §5860.627). Accordingly, before it accepted an
offer on any property, the Tax Claim Bureau provided notice
of the bid to the local taxing entities. Id.
¶33. The amount of the bid was not disclosed.
Id. Instead, the Tax Claim Bureau advised the local
taxing authorities only of the fact of a bid and the identity
of the purchaser. Id. ¶34. The Tax Claim Bureau
also did not disclose the amount of any bids, including the
amounts of Plaintiffs bids, to other buyers. Id.
¶35. As Armstrong County Commissioners, the
Defendants' only involvement in the sale of properties
held in the Tax Claim Bureau repository was to provide final
approval of the sale following the County Assessor's
acceptance of an offer. Id. ¶31.
April 24, 2013, Plaintiff submitted a private bid for the
"Borland" property, control number 18-0-010292, in
the minimum amount of $400.00 DCSMF ¶4. The County
Assessor rejected Plaintiffs offer on the "Borland"
property because a higher bid was submitted by another
person. Id. ¶5. The Tax Claim Bureau advised
Plaintiff that the Assessor had rejected his bid by
correspondence dated June 11, 2013. Id. ¶6.
August 6, 2013, Plaintiff submitted a bid for the minimum
amount of $400.00 on the "Metro Housing, LLC"
property, control number 01-0-000160. DCSMF ¶7. The
County Tax Assessor rejected Plaintiff s bid on October 4,
2013, due to the fact that the Assessor had received a higher
offer of $1, 500.00 on August 22, 2013. Id.
¶¶8-9. Defendants Bowers and Fink, acting as
County Commissioners, approved the sale of the Metro Housing,
LLC property to the higher bidder. Id. ¶10.
November 19, 2013, Plaintiff submitted a minimum bid of
$400.00 and up to $1, 000.00 on the "Imagine America,
LLC" property, control number 14-0-007328. DCSMF kll.
The Assessor noted that this property was worth $1, 000.00.
same day, Plaintiff submitted a minimum bid of $400.00 and up
to $ 1, 000.00 on the "Bell" property, control
number 14-0-007591. DCSMF ¶19. Another
individual, Michael Zaffuto, submitted a competing bid for
that same properly on December 13, 2013 in the amount of $2,
000.00. Id. ¶20.
December 23, 2013, Plaintiff served Defendants with a copy of
a draft complaint against the County and correspondence
advising that Plaintiff perceived his civil rights had been
violated in connection with his submissions of bids to the
Tax Claim Bureau. DCSMF |24. Defendants acknowledge receipt
of these documents on or around that same date. Id.
January 17, 2014, the County Tax Assessor rejected Plaintiffs
bid relative to the Bell property and accepted the higher
offer of Michael Zaffuto. DCSMF ¶21. All three
Defendant Commissioners later approved the sale of the
"Bell" property to Zaffuto. Id. ¶22.
Via correspondence dated January 21, 2014, Plaintiff was
informed of the fact that the County had accepted a higher
bid on the property in lieu of his own. Id.
the approval of the Tax Claim Bureau's Director, and upon
the recommendation of the county solicitor, the "Imagine
America, LLC" property was awarded to Plaintiff on
January 22, 2014, per his bid of $1, 000.00. DCSMF
¶15. The County Board of Commissioners, through
Defendants Bower and Fink, approved the sale of the
"Imagine America, LLC" property, to Plaintiff.
Id. ¶16. Plaintiff was informed of the
Board's approval of his bid via correspondence dated
February 5, 2014, and the sale was later consummated on or
about July 19, 2014. Id. ¶¶17-18.
on January 17, 2014, Plaintiff had submitted a bid on the
"Hartzell" property, control number 10-0-065394 for
a minimum bid of $400.00 and up to $1, 000.00. DCSMF
¶26. The County Tax Assessor accepted the bid
of $1, 000.00 on February 4, 2014. Id. ¶27. The
Defendant Commissioners approved the sale of the
"Hartzell" property to Plaintiff, and Plaintiff was
so notified by correspondence dated February 19, 2014.
Id. ¶¶28-29. Plaintiff later advised the
Tax Claim Bureau that he would not be buying the
"Hartzell" property. Id. ¶30.
point in early 2014, the Tax Claim Bureau implemented a new
procedure of holding public auctions, rather than private
paper bids, for the sale of properties held in the
repository. Defendants contend that this occurred in February
2014 and that the first public auction was held on February
20, 2014. DCSMF ]fl3. Plaintiff claims that, "[i]n the
3rd week ofl January 2014" he was told by a member of
the Tax Claim Bureau staff that the private bidding process
was being terminated as of the close of business that same
day. ECF No. 171-1, ¶5.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [ECF No.
Standard of Review
Rule 56 of the Federal Rules of Civil Procedure, summary
judgment shall be granted 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). A factual dispute 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). In
analyzing a motion under Rule 56, the Court must construe the
evidence and all reasonable inference arising therefrom in
the light most favorable to the non-movant. Scott v.
Harris, 550 U.S. 372, 378 (2007).
Plaintiff's Motion to Strike Defendants' Exhibits
[ECF No. 171]
the Court will address Plaintiffs challenges to
Defendants' exhibits. See ECF No. 171. Plaintiff
asserts that the exhibits were filed in violation of the
local rules of this Court and in violation of an order
entered by Chief U.S. District Judge Mark R. Hornak, who
previously presided over this litigation. Plaintiff also
argues that Defendants' exhibits have not been properly
authenticated. Positing that the Defendants' exhibits are
thus "useless, " Plaintiff reasons that the
Defendants' Concise Statement of Material Facts - which
relies on those same exhibits - is likewise
"useless." ECF No. 171 at 4. These objections lack
merit and will be overruled.
first argument is that Defendants were precluded, under the
local rules of this Court, from filing discovery answers in
support of their Rule 56 motion. This line of argument
confuses the general rule against filing discovery materials,
as set forth in Federal Rule of Civil Procedure 5(d)(1) and
Local Civil Rule 5.4, with the use of such materials in
support of a summary judgment motion, as contemplated by
Federal Rule 56 and Local Rule 56. As a general proposition,
litigants are not permitted to file discovery requests and
responses with the Court, except as necessary to decide a
motion or as otherwise ordered by the Court. See
Fed. R. Civ. P. 5(d); LCvR 5.4(A)-(B). Consistent with this
rule, Judge Hornak previously denied Plaintiffs request to
file discovery materials when the stated purpose was merely
to demonstrate service of same upon the Defendants, ECF No.
Ill. at 10-11; ECF No. 112. By contrast, both Federal Rule 56
and Local Rule 56, expressly contemplate - and even require
-- parties to file discovery-related materials in support of,
or in opposition to, a motion for summary judgment.
See Fed. R. Civ. P. 56(c)(1)(A); LCvR 56(B)(1) &
(3); LCvR 56(C)(1) & (3). Defendants therefore did not
violate any rule or order of this Court in submitting the
exhibits that are included in their appendix. Moreover,
Defendants did not need permission from this Court prior to
filing their exhibits, nor did they need Plaintiffs
permission, as he seems to suggest. Plaintiffs contention
that the Defendants somehow violated his privacy rights by
including his discovery responses in their appendix is
next argument is that Defendants' exhibits are
inadmissible because they were not properly authenticated.
Under the Federal Rules of Evidence, the proponent of an
exhibit "has an 'incredibly slight' burden"
relative to authentication, "which may be satisfied by
simply producing evidence sufficient to support a finding
that the item is what the proponent claims it is."
Heyman v. Citimortgage, Inc., No. 14-1680-KM-MAH,
2019 WL 2642655, at *16 (D.NJ. June 27, 2019) (quoting
Blunt v. Lower Merion Sch Dist., 767 F.3d 247, 330
(3d Cir. 2014) (citing Fed.R.Evid. 901(a))). This showing
"may be accomplished by the testimony of a witness with
knowledge." Cordance Corp. v. Amazon.com, Inc.,
639 F.Supp.2d 406, 432 (D. Del. 2009).
it is not entirely clear, Plaintiff appears to be primarily
challenging certain records from the Tax Claim Bureau that
were appended to the declaration of Rebecca Snyder.
See ECF No. 168 at 6-33. In her declaration, Ms.
Snyder attests that:
• she is the current Director of the Armstrong County
Tax Claims Bureau (¶1);
• prior to January 18, 2011, she held the position of
Supervisor within the Tax Claims Bureau (id.);
• in her capacity as Director of the Tax Claim Bureau,
she handles the sale and disposition of county properties
held in the Tax Claim Bureau's repository (id.
• she was involved in the review and processing of
Plaintiff s bids on repository properties in 2013 and 2014
¶• the information in her declaration is
based upon her personal recollection of her contacts with
Plaintiff as well as the records maintained by the Bureau
(id. |3); • the records attached to her
declaration are "[t]rue and correct copies of all
pertinent Tax Claim Bureau records, " and she personally