Opinion
Civil Action No. 03-CV-04347
March 29, 2004
JOAN R. SHEAK, ESQUIRE, for Plaintiffs
MAURA E. FAY, ESQUIRE, on behalf of Defendants Bethlehem Medical Arts, L.P., Bethlehem Medical Arts, LLC; and Kevin T. Fogarty, M.D
ROBERT J. RAY, ESQUIRE, and RICHARD A. O'HALLORAN, ESQUIRE, Roth Marz Partnership, P.C., and Mark R. Thompson, on behalf of Defendants
OPINION
This matter is before the court on the Motion of Bethlehem Medical Arts, L.P., Bethlehem Medical Arts, LLC, and Kevin T. Fogarty, M.D. to Dismiss Plaintiffs' Complaint, which motion was filed August 20, 2003 and the Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) on Behalf of Defendants, Roth Marz Partnership, P.C. and Mark R. Thompson, Individually and as Vice President of Roth Marz Partnership, P.C. filed September 10, 2003.
On September 15, 2003, Plaintiffs' Memorandum of Law in Opposition to Motion to Dismiss Complaint, which memorandum opposed the motion to dismiss filed by the Bethlehem Medical Arts, L.P., Bethlehem Medical Arts, LLC and Kevin T. Fogarty, M.D. ("Bethlehem defendants"), was filed. On September 24, 2003, Plaintiffs' Answer to Motion to Dismiss Complaint Filed by Defendants Roth Marz Partnership, P.C. and Mark Thompson, and brief in support thereof, was filed.
Because we determine that Gazi Abdulhay, M.D., Gynecologic Oncology Associates of Lehigh Valley, Inc. ("Lehigh Valley"), and Bethlehem Ambulatory Surgery Center, LLC ("BASC") were not parties to the contract with which the Bethlehem defendants are alleged to have interfered, we conclude that these plaintiffs lack standing to state a claim under either 42 U.S.C. § 1981 or § 1982. We further determine that a claim under 42 U.S.C. § 1981 or § 1982 may be the basis for a claim under 42 U.S.C. § 1985(3). Accordingly, we conclude that Abdulhay Associates, L.P. ("Abdulhay") may state a Section 1985(3) claim. Hence, we grant in part and deny in part the Bethlehem defendants' motion to dismiss.
Because we determine that Dr. Abdulhay and Abdulhay were not parties to a contract with defendants Roth Marz Partnership, P.C. and Mark R. Thompson ("Marz defendants"), we conclude that these plaintiffs lack standing to raise a claim under 42 U.S.C. § 1981. However, we further conclude that Lehigh Valley and BASC have stated a claim of alleged illegal discrimination to contractual rights by defendants Roth Marz Partnership, P.C. and Mark R. Thompson ("Marz defendants").
Therefore, we conclude that Lehigh Valley's and BASC's claim under 42 U.S.C. § 1981 may be the basis for a claim under 42 U.S.C. § 1985(3). Moreover, we conclude that plaintiffs have adequately pled a claim pursuant to 42 U.S.C. § 1985(3). Accordingly, we grant in part and deny in part the Marz defendants' motion to dismiss.
PROCEDURAL HISTORY
The within civil action was initiated on July 25, 2003 when plaintiffs filed a ten-count Complaint. In Count One all plaintiffs claim a violation of 42 U.S.C. § 1981 by the Bethlehem defendants. In Count Two, all plaintiffs aver a violation of 42 U.S.C. § 1981 by the Marz defendants. In Count Three, all plaintiffs assert a 42 U.S.C. § 1982 claim against the Bethlehem defendants. In Count Four, all plaintiffs claim a violation of 42 U.S.C. § 1985(3) by all defendants. In Count Five, Abdulhay asserts a breach of contract claim against Bethlehem Medical Arts, L.P.
In Count Six, Lehigh Valley and BASC aver breach of contract against Roth Marz Partnership, P.C. Count Seven is a defamation claim by Dr. Abdulhay against the Marz defendants. In Count Eight, all plaintiffs aver an intentional interference with a contract claim against the Marz defendants. In Count Nine, Abdulhay asserts an intentional interference with a contract claim against the Bethlehem defendants. In Count Ten, all plaintiffs accuse all defendants of conspiring to engage in the above alleged conduct.
This action is before the court on federal question jurisdiction.See 28 U.S.C. § 1331. The court has supplemental jurisdiction over plaintiff's pendent state law claims. See 28 U.S.C. § 1367. Venue is appropriate because plaintiff alleges that the facts and circumstances giving rise to the causes of action occurred in Northampton County.See 28 U.S.C. § 118, 1391. Plaintiff demands a trial by jury.
FACTS
Based upon the allegations in plaintiffs' Complaint, which we must accept as true for the purposes of this motion, the operative facts are as follows. Plaintiff Gazi Abdulhay, M.D. is a licensed physician and surgeon with a speciality in gynecological oncology. Dr. Abdulhay is a United States citizen of Syrian and Turkish descent and claims to be an Arab-American. He is the General Partner of Abdulhay, President of Lehigh Valley, and President and Managing Partner of BASC.
Complaint, paragraph 12.
Complaint, paragraph 58.
Complaint, paragraph 13.
On April 23, 2001, Abdulhay entered into a Lease Agreement with Bethlehem Medical Arts, L.P. ("BMA") for 6,000 net rentable feet of space on the first floor of a medical office building located at 5325 Northgate Drive, Bethlehem, Pennsylvania. ("Building"). Subsequently, Abdulhay leased an additional 3,800 net rentable feet of space on the second floor of the Building and an additional 1,500 net rentable feet of space on the first floor of the Building. (The space which Abdulhay leased from BMA is collectively referred to as the "Leased Premises".)
Complaint, paragraph 17 and Exhibit 1.
Complaint, paragraph 19.
All of the leased areas were subject to the agreements in the Lease Agreement ("Lease"). Pursuant to the terms of the Lease, Abdulhay purchased shares in Bethlehem Medical Associates, L.L.C., the business which through Dr. Fogarty managed the Building.
Complaint, paragraph 20.
Complaint, paragraphs 18, 19.
The Leased Premises were unfinished at the time of the Lease. The Lease contains no time limit for Abdulhay to complete improvements on the Leased Premises. Improvements to the Leased Premises are governed by Section 7 of the Lease. Dr. Abdulhay, Abdulhay, and the Bethlehem defendants agreed that Dr. Abdulhay, Abdulhay, and BASC would developed the Leased Premises as both medical offices and an ambulatory surgery center.
Complaint, paragraph 22.
Complaint, paragraph 25.
Complaint, paragraph 24.
Complaint, paragraph 23.
The intent of plaintiffs and the Bethlehem defendants was that Dr. Abdulhay, BASC and other physicians located by Dr. Abdulhay would occupy the Leased Premises after improvements to the Leased Premises were complete and extend medical care to patients of Dr. Abdulhay, Lehigh Valley, and BASC. There is no allegation that the agreements regarding Dr. Abdulhay, Lehigh Valley, and BASC were reduced to writing or executed by the parties.
Complaint, paragraph 23.
Because Suites 103 and 200 of the Leased Premises were to be fitted as an ambulatory surgery center, plaintiffs were required to obtain approval of the planned improvements from the Pennsylvania Department of Health ("DOH"). Plaintiffs were required to comply with a complex set of DOH regulations before construction could begin.
Complaint, paragraph 34.
Plaintiffs needed an architect to design the improvements to the Leased Premises. The Bethlehem defendants introduced Dr. Abdulhay to Roth Marz Partnership, P.C. The Bethlehem defendants had a longstanding relationship with Roth Marz Partnership. Dr. Abdulhay, as President of Lehigh Valley and BASC, entered into a contract with Roth Marz Partnership for improvements to the Leased Premises at the Building.
Complaint, paragraph 29.
Complaint, paragraph 28.
Complaint, paragraph 26.
On November 2, 2001, an initial set of plans for the project was submitted to, and approved by, DOH. On December 18, 2002, DOH approved revised plans for the project.
Complaint, paragraph 35.
In Spring 2003, all defendants conspired and implemented a plan to stop the plaintiffs from continuing with the improvements. Defendants collectively created a sham default of the lease. On or after May 6, 2003, the Bethlehem defendants, in concert with the Marz defendants implemented a strategy to force Dr. Abdulhay and Abdulhay to abandon the improvements and vacate the Building. This strategy was implemented to prevent Dr. Abdulhay, Abdulhay, Lehigh Valley, and BASC from occupying the Leases Premises.
Complaint, paragraphs 37, 39.
In the course of the conspiracy, the following occurred. The Marz defendants, who were in possession of the original DOH-approved plans for the Leased Premises, refused to surrender the plans to BASC. As a result, BASC was forced to resubmit plans to DOH on May 27, 2003. The resubmitted plans were approved on May 27, 2003.
Complaint, paragraph 41.
Complaint, paragraph 43.
Abdulhay and BASC submitted this second set of plans to Hanover Township, Northampton County, Pennsylvania, to obtain a building permit. This permit was granted on June 3, 2003. However, on June 6, 2003, the Marz defendants sent a letter to Jim Sterner, the Township Manager of Hanover Township, falsely claiming that Dr. Abdulhay had tampered with the plans submitted to obtain the building permit. The Marz defendants claimed that the DOH certification was invalid.
Complaint, paragraph 44.
Complaint, paragraph 46 and Exhibit 6.
Meanwhile, on May 23, 2003, BMA demanded that Dr. Abdulhay and Abdulhay agree to abandon the Leased Premises.
Complaint, paragraph 40.
Instead of vacating the Leased Premises, Abdulhay submitted the DOH-approved plans to BMA in June 2003. On June 9, 2003, BMA notified Abdulhay that the June 6, 2003 letter from the Marz defendants had raised questions regarding the validity of the plans and the building permits and declined to review the plans until those questions were resolved.
Complaint, paragraph 45.
Complaint, paragraph 47.
Nevertheless, Abdulhay obtained financing, hired Serfass Construction, and instructed Serfass Construction to begin work on June 10, 2003 at the Leased Premises in accordance with the DOH-approved plans and the building permits. On June 10, 2003, the Bethlehem defendants demanded that construction on the Leased Premises be halted. The Bethlehem defendants reiterated that construction would not be permitted until they had reviewed the plans and that they would not review the plans until the questions raised by the Marz defendants' June 6, 2003 letter had been resolved to their satisfaction.
Complaint, paragraph 48, 49.
Complaint, paragraph 50.
Complaint, paragraph 51.
On June 19, 2003, BMA, through Dr. Fogarty, informed Abdulhay that Abdulhay was in default of the Lease. BMA invoked the rent acceleration and confession of judgment clauses of the Lease. Additionally, BMA refused to abide by Section 17.1.3 of the Lease, which permits Abdulhay 30 days to cure any default.
Complaint, paragraph 52.
On June 30, 2003, the Bethlehem defendants terminated "oral leases" for Suites 200 and 202, ordered Abdulhay to vacate the building, and stated that Dr. Abdulhay would not be permitted to enter the building after July 31, 2003.
Complaint, paragraph 53.
Other tenants in the Building with substantially the same obligations have not completed improvements to their leased premises, but have not been subject to the treatment that the defendants inflicted upon plaintiffs. Defendants treated plaintiffs differently because of Dr. Abdulhay's race, national origin or ethnicity.
Complaint, paragraph 56.
STANDARD FOR MOTION TO DISMISS
When considering a motion to dismiss 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. Jurimex Kommerz Transit G.M.B.H. v. Case Corp., 65 Fed.Appx. 803, 805 (3d Cir. 2003) (citing Lorenz v. CSX Corp., 1 F.3d 1406, 1411 (3d Cir. 1993)). A Rule 12(b)(6) motion should be granted "if it appears to a certainty that no relief could be granted under any set of facts which could be proved." Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir. 1997) (citing D.P. Enter. Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir. 1984)). But a court need not credit a complaint's "bald assertions" or "legal conclusions" when deciding a motion to dismiss.Morse, 132 F.3d at 906. (Citations omitted.)DISCUSSION
In their motion, the Bethlehem defendants seek to dismiss Counts One, Three and Four of plaintiffs' Complaint. The Bethlehem defendants seek to dismiss Count One because plaintiffs have failed to prove intent to discriminate in the Complaint, because there is no evidence of discrimination, and because Dr. Abdulhay, Lehigh Valley Women's Cancer Center and Bethlehem Ambulatory Surgery Center lack standing to bring a Section 1981 claim.
The Bethlehem defendants also move to dismiss Counts Five, Nine and Ten (the state law causes of action). Each of the Bethlehem defendants' attempts to dismiss the state law causes of action from plaintiffs' Complaint is premised upon their allegation that plaintiffs failed to establish elements of the respective claims in the Complaint.
However, plaintiffs correctly respond that Rule 8(a) of the Federal Rules of Civil Procedure requires only notice-pleading. Plaintiffs are not burdened to prove their case as they might at trial. Rather, plaintiffs must, and we determine have, set forth a "short and plain statement of the claim showing that the pleader is entitled to relief". Fed.R.Civ.P. 8(a); See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Accordingly, we deny the Bethlehem defendants' motion to dismiss these counts.
They further contend that Count Two, plaintiffs' Section 1982 claim, should be dismissed because plaintiff cannot prove racial animus or discrimination. Finally, they assert that Count Four must be dismissed because a violation of Sections 1981 and 1982 may not be the basis for a Section 1985(3) action.
The Marz defendants' motion seek to dismiss Counts Two and Four of plaintiff's Complaint. The Marz defendants argue that plaintiff may not assert an action under 42 U.S.C. § 1985(3) because alleged violations of 42 U.S.C. § 1981 and 1982 may not serve as the basis for such a claim. Furthermore, they contend that the Section 1985(3) claims should be dismissed because plaintiffs have not adequately pled a conspiracy.
The Marz defendants also move to dismiss Count Seven of the Complaint. However, because they do not set forth any argument to support their motion to dismiss Count Seven, we deem this aspect of the motion waived. See E.D.Pa.R.Civ.P. 7.1.
The Marz defendants also assert that the Section 1981 action must be dismissed because they characterize plaintiffs' Complaint as asserting discrimination on the basis of national origin as opposed to race. Finally, they aver that the Section 1981 action must be dismissed because they characterize plaintiffs' Section 1981 cause of action to be under the "full and equal benefit" clause of the act.
42 U.S.C. § 1981, 1982
Defendants's motion to dismiss plaintiffs' claims under Sections 1981 and 1982 may be reduced to two assertions. First, defendants contend that those plaintiffs who were not in privity to a contract at issue must be dismissed from the respective counts. Second, they contend that plaintiffs have failed to aver sufficient facts to prove their claims.
Defendants' contention that plaintiffs must prove their claims in the Complaint is without merit. Plaintiffs are required only to aver facts sufficient to put defendants on notice of the claims against them. Fed.R.Civ.P. 8(a); See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).
The averments in the Complaint and the reasonable inferences therefrom, clearly notify defendants that they stand accused of individually and collectively discriminating against the organizations in which Dr. Abdulhay is a principle because of invidious racial, national origin, or ethnic bias. Accordingly, we deny defendants' motion on this basis.
There is no basis for the Marz defendants' assertion that plaintiffs Section 1981 claim should be dismissed because plaintiffs aver the discrimination occurred because of Dr. Abdulhay's national origin. "The principle that individuals should not be discriminated against on the basis of traits for which they bear no responsibility makes discrimination against individuals on the basis of immutable characteristics repugnant to our system." Novotny v. Great American Federal Savings Loan Association, 584 F.2d 1235, 1243 (3d Cir. 1978), vacated on other grounds by Great American Savings Loan Association v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979). Discrimination on the basis of national origin, ethnicity and ancestry clearly fall within the realm of Section 1981 claims. St. Francis College v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 2028, 95 L.Ed.2d 582, 592 (1987).
However, we agree with defendants that only parties to a contract may bring suit for a violation of Sections 1981 or 1982. "Someone who is not a party to a contract . . . does not have standing to make a § 1981 claim for interference with their right to make and enforce that contract." North American Roofing Sheet Metal Company v. Building and Construction Trades Council of Philadelphia Vicinity, AFL-CIO, Civ. No. 99-2050, 2000 U.S. Dist. Lexis 2040, *11, 2000 WL 230214, *3 (E.D. Pa. February 29, 2000). By analogy, only those having a property interest may bring suit for alleged interference with the right to inherent, purchase, lease, sell, hold and convey that property.
In Counts I and III, plaintiffs aver that Abdulhay entered into the Lease with the Bethlehem defendants. However, plaintiffs assert that, although Abdulhay was the only party to the Lease, the parties entered into the Lease with the knowledge that Lehigh Valley and BASC would utilize the Leased Premises.
Plaintiffs' argument fails because the Lease contains an integration clause which states that the Lease is the sum of all agreements between the parties. Where the language of the contract is clear, a court is required to give the words their ordinary meaning. Atlantic Mutual Insurance Co. v. Brotech Corporation, 857 F. Supp. 423, 427 (E.D. Pa. 1994),aff'd, 60 F.3d 813 (3d Cir. 1995).
Clause 29.3 of the Lease states, in pertinent part:
Prior Agreements; Amendments. This Lease constitutes the entire agreement between the parties relating to the subject matter contained herein. Neither party hereto has made any representations or promises to the other except as expressly contained herein. This Lease supercedes all prior negotiations. . . . No agreement hereinafter made shall be effective to change, modify, discharge or effect an abandonment of this Lease, in whole or in part, unless such agreement is in writing and signed by the party against whom enforcement of the change, modification, discharge or abandonment is sought.
Because the contract does not provide for use of the Leased Premises by Lehigh Valley, BASC, or Dr. Abdulhay, in his individual capacity, and because plaintiffs provide no document signed by the Bethlehem defendants authorizing use of the Leased Premises by these plaintiffs, we conclude that Lehigh Valley, BASC, and Dr. Abdulhay were not parties to the contract between Abdulhay and the Bethlehem defendants. Accordingly, we dismiss the claims of Dr. Abdulhay, Lehigh Valley, and BASC from Counts I and III of the Complaint.
In Count II, plaintiffs assert that Lehigh Valley and BASC entered into a contract with the Marz defendants. Although Dr. Abdulhay signed these agreements, he was acting in his capacity as a principal of Lehigh Valley and BASC and not as an individual. There is no allegation that Abdulhay was a party to the contracts with the Marz defendants. Accordingly, the claims of Dr. Abdulhay and Abdulhay are dismissed from Count II of the Complaint.
42 U.S.C. § 1985(3)All defendants contend that plaintiffs may not state a claim under Section 1985(3) because, as a matter of law, plaintiffs may not assert a Section 1985(3) claim for the private actions alleged and because plaintiffs have not asserted any state action that deprived them of the equal protection of the law. For the reasons expressed below, we conclude that plaintiffs have adequately plead a Section 1985(3) claim.
In support of this argument, defendants rely on dicta fromBrown v. Phillip Morris, Inc., 250 F.3d 789, 805 (3d Cir. 2001). In Brown, the United State Court of Appeals for the Third Circuit opined, without deciding, that claims pursuant to Title 42, Sections 1981 and 1982 could not be the predicate for a Section 1985(3) action. For the reasons expressed below, we find that the weight of persuasive authority from both the United States Supreme Court and the Third Circuit permits a Section 1981 or 1982 claim to be the basis for a Section 1985(3) claim.
"It is well established that § 1985(3) does not itself create any substantive rights; rather, it serves only as a vehicle for vindicating federal rights and privileges which have been defined elsewhere."Brown, 250 F.3d at 805. Thus, the question presented is which rights and privileges may serve as the basis for a Section 1985(3) action.
In determining the reach of Section 1985(3), we begin with the text of the statute itself.
If two or more persons in any State or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protections of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; . . . in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.42 U.S.C. § 1985(3).
"On their face, the words of the statute fully encompass the conduct of private persons." Griffin v. Breckenridge, 403 U.S. 88, 96, 91 S.Ct. 1790, 1795, 29 L.Ed.2d 338, 344-345 (1971).
The United States Supreme Court further noted that a
century of Fourteenth Amendment adjudication has . . . made it understandably difficult to conceive of what might constitute a deprivation of the equal protection of the laws by private persons. Yet there is nothing inherent in the [statute] that requires the action working the deprivation to come from the State. See, e.g., United States v. Harris, 106 U.S. 518, 643. Indeed, the failure to mention any such requisite can be viewed as an important indication of congressional intent to speak in § 1985(3) of all deprivations of 'equal protection of the laws' and 'equal privileges and immunities under the laws,' whatever their source.Griffin v. Breckenridge, 403 U.S. 88, 97, 91 S.Ct. 1790, 1796, 29 L.Ed.2d 338, 345 (1971).
In considering whether individual conduct fell within the scope of Section 1985(3), the Griffin Court compared it to the section's exact criminal counterpart. The Court noted that in United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290 (1882), it had "observed that the statute was 'not limited to take effect only in case of [state action],' . . . but 'was framed to protect from invasion by private persons, the equal privileges and immunities under the laws, of all persons and classes of persons.'" Griffin, 403 U.S. at 97-98, 91 S.Ct. at 1796, 29 L.Ed.2d at 345 (quoting Harris, 106 U.S. at 637, 1 S.Ct. at 607, 27 L.Ed. at 293.
The Griffin Court further noted that in United States v. Williams, 341 U.S. 70, 71 S.Ct. 581, 95 L.Ed. 758 (1951), "the Court considered the closest remaining criminal analogue to § 1985(3), 18 U.S.C. § 241." Griffin, 403 U.S. at 98, 91 S.Ct. at 1796, 29 L.Ed.2d at 345. In Williams, the plurality, without contravention, found that there was nothing in the terms of § 241 to indicate "that color of State law was to be relevant to prosecute under it." Griffin, 403 U.S. at 98, 91 S.Ct. at 1796, 29 L.Ed.2d at 346 (quoting Williams, 341 U.S. at 78, 71 S.Ct. at 585, 95 L.Ed. at 765).
In addition to examining the criminal counterparts of Section 1985(3), the Griffin Court also examined the companion statutory provisions of Section 1985(3) in order to determine the extent of the statute. The Court analyzed these provisions as follows:
There appear to be three possible forms for a state action limitation on § 1985(3) — that there must be action under color of state law, that there must be interference with or influence upon state authorities, or that there must be a private conspiracy so massive and effective that it supplants those authorities and thus satisfies the state action requirement. The Congress that passed the Civil Rights Act of 1871, 17 Stat. 13, § 2 of which is the parent of § 1985(3), dealt with each of these three situations in explicit terms in other parts of the same Act. An element of the cause of action established by the first section, now 42 U.S.C. § 1983, is that the deprivation complained of must have been inflicted under color of state law. To read any such requirement into § 1985(3) would thus deprive that section of all independent effect. As for the interference with state officials, § 1985(3) itself contains another clause dealing explicitly with that situation. And § 3 of the 1871 Act provided for military action at the command of the President should massive private lawlessness render state authorities powerless to protect the federal rights of classes of citizens, such a situation being defined by the Act as constituting a state denial of equal protection. 17 Stat. 14. Given the existence of these three provisions, it is almost impossible to believe that Congress intended, in the dissimilar language of the portion of § 1985(3) now before us, simply to duplicate the coverage of one or more of them.Griffin, 403 U.S. at 98-99, 91 S.Ct. at 1796-1797, 29 L.Ed.2d at 346 (footnotes omitted).
To the extent that Congressional intent can be understood from the legislative history, this source also supports the conclusion that Section 1985(3) was meant to counter invidious discrimination perpetuated by individuals without regard to whether state action was implicated. The bill which ultimately included the provisions that became Section 1985(3) originally began as only a criminal provision outlawing similar conduct.
Before the amendment which added the provision that became Section 1985(3) was introduced, "Representative Shanks urged, 'I do not want to see [this measure] so amended that there shall be taken out of it the frank assertion of the power of the national Government to protect life, liberty, and property, irrespective of the act of the State.'"Griffin, 403 U.S. at 101, 91 S.Ct. at 1997-1798, 29 L.Ed.2d at 347 (quoting Cong. Globe, 42d Cong., 1st Sess., App. 141 (1871)).
After the amendment was introduced, Representative Shellabarger thus explained the amendment:
The object of the amendment is . . . to confine the authority of this law to the prevention of deprivations which shall attach the equality of rights of American citizens; that any violation of the right, the animus and effect of which is to strike down the citizen, to the end that he may not enjoy equality of rights as contrasted with his and other citizen's rights, shall be within the scope of the remedies of this section.Griffin, 403 U.S. at 100, 91 S.Ct. at 1997, 29 L.Ed.2d at 347 (quoting Cong. Globe, 42d Cong., 1st Sess., App. 478 n. 8 (1871).
After the amendment was proposed in the House, Senator Pool supported the amendment in the Senate by stating, "Congress must deal with individuals, not States. It must punish the offender against the rights of the citizen . . . " Griffin, 403 U.S. at 101, 91 S.Ct. at 1798, 29 L.Ed.2d at 347-348 (quoting Cong. Globe, 42d Cong., 1st Sess., App. 608 (1871).
However, the Griffin court left unresolved the rights which, upon violation thereof, a citizen could file suit under Section 1985(3). "[In] the context of actions brought against private conspirators, the Supreme Court has thus far recognized only two rights protected under § 1985(3): the right to be free from involuntary servitude and the right to interstate travel." Brown 250 F.3d at 805. However, in enunciating these two sources, the Supreme Court cautioned that it was not excluding other sources. Griffin, 403 U.S. at 107, 91 S.Ct. at 1801, 29 L.Ed.2d at 351. Moreover, the Supreme Court found that "since the allegations of the complaint bring this cause of action so close to the constitutionally authorized ore of the statute, there has been no occasion here to trace out its constitutionally permissible periphery." Id.
The United States Court of Appeals for the Third Circuit resolved this question in Novotny v. Great American Federal Savings Loan Association, 584 F.2d 1235 (3d Cir. 1978), vacated on other grounds by Great American Savings Loan Association v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979), wherein that court held that the violation of either Constitutional or statutory rights may form the basis for a Section 1985(3) claim. "Whatever else 'equal privileges and immunities' or 'equal protection' may mean . . . we conclude that a deprivation of equal privileges and immunities under § 1985(3) includes the deprivation of a right secured by a federal statute . . . "Novotny, 584 F.2d at 1247; see e.g. Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 107 S.Ct. 2019, 95 L.Ed.2d 594 (1987).
In Lake v. Arnold, the United States Court of Appeals for the Third Circuit noted that "[w]hile our holding in Novotny that Title VII can be the source of a right asserted in an action brought pursuant to section 1985(3) was vacated by the Supreme Court inGreat American Savings Loan Association v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979), our analysis of the history of section 1985(2) and our discussion of the classes to which it extends were unaffected." Lake v. Arnold, 112 F.3d 682, 686 n. 6 (3d Cir. 1997).
In Novotny, plaintiff asserted a Section 1985(3) claim with a Title VII claim. In vacating that decision, the Supreme Court held that Congress had created in the Equal Employment Opportunity Commission a specialized framework which employment discrimination actions must transverse and that to permit a plaintiff to assert a Section 1985(3) claim under those circumstances would permit such a plaintiff to circumvent that framework.
In the instant case, plaintiffs claim that the violation of their statutory rights established under 42 U.S.C. § 1981 and 1982 permit their Section 1985(3) claim. Congress has not created a specialized framework to resolve violations of the rights created by these statutes. Therefore, we find the Third Circuit's thorough reasoning enunciated inNovonty persuasive.
But in securing the fundamental of equal protection under the law, we must take care to avoid expanding the statute beyond the parameters which Congress created. The act requires that there be a conspiracy to deprive a person or a class of equal protection under the law or of equal privileges and immunities under the law. "The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all." Griffin, 403 U.S. at 102, 91 S.Ct. at 1798, 29 L.Ed.2d at 348 (footnotes omitted).
A claim asserted under Sections 1981 and 1982 of Title 42 is required to allege the requisite violations of equal protection necessary to state a claim under Section 1985. Section 1981 requires that "All persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens". Likewise, Section 1982 requires that "All citizens . . . shall have the same right . . . as is enjoyed by white citizens . . . [to] purchase, lease, sell, hold, and convey real and personal property."
These provisions unequivocally require an equal application of the law and protect citizens from the acts by the State or by individuals which abridge these fundamental equal protection statutes. Accordingly, we conclude that either Section 1981 or 1982 may serve as the basis for a Section 1985(3) claim.
In the instant case, plaintiffs have adequately pled a Section 1985(3) claim.
In order successfully to bring an action under § 1985(3) for private conspiracy, a plaintiff must show, inter alia, "(a) that a racial or other class-based invidious discriminatory animus lay behind the coconspirators' actions, (b) that the coconspirators intended to deprive the victim of a right guaranteed by the Constitution [or federal statute] against private impairment, and (c) that the right was consciously targeted and not just incidentally affected."Brown, 250 F.3d at 805.
While we need not analyze the various permutations by which plaintiffs may seek to prove their case, we note that, as we concluded above, plaintiffs have adequately pled their Section 1981 and 1982 causes of action. These causes of action form the basis upon which the Section 1985(3) claim is founded.
Because we concluded that Dr. Abdulhay could not bring a claim upon which relief could be granted under Sections 1981 and 1982, we conclude that Dr. Abdulhay does not possess a right which defendants could have violated even if the conspiracy allegations are true. Therefore, we dismiss Dr. Abdulhay from Count IV. Accordingly, in regard to Count IV, only plaintiffs Abdulhay, Lehigh Valley and BASC may bring the Section 1985(3) claim.
Additionally, plaintiffs have provided ample notice of their claim that all defendants conspired to interfere with Abdulhay Associates' contract with the Bethlehem defendants, and with Lehigh Valley's and BASC's contract with the Marz defendants. Finally, plaintiffs aver that the object of defendants' conspiracy was to discriminate against Dr. Abdulhay on the basis of his race, national origin or ethnicity. Accordingly, we conclude that plaintiffs have adequately pled a Section 1985(3) claim.
Even if defendants are correct and plaintiffs may not state a cause of action under Section 1985(3) for the private conduct alleged, plaintiffs averment that defendants' conspiracy interfered with the state's equal application of law provides a sufficient nexus to permit Count Four. Plaintiffs aver that defendants' conspiracy interfered with plaintiffs' ability to obtain building permits from state agencies. Plaintiffs contend that defendants caused their difficulty in obtaining State permits and then used that difficulty as a pretext for their discriminatory conduct. Implicit in this allegation is that the defendants conspiracy had the "purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws". Accordingly, we conclude that at this stage, taking all allegations in the light most favorable to the plaintiffs, we must sustain Count IV of the Complaint.