Opinion
CIVIL 1:24-CV-241
04-17-2024
OMAR EWIDEH, et al., Plaintiffs v. HOMESITE INS. CO. OF THE MIDWEST, et al., Defendants
Munley Judge
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge
I. Factual Background
A. The Plaintiffs' History of Litigation Misconduct
This case is part of a troubled trilogy of related cases involving Omar Ewideh and Nivertiti Geaith as pro se litigants and Homesite Insurance Company. See Homesite Insurance v. Ewideh, Civil No. 1:22-CV-1664; Ewideh v. Homesite Insurance, Civil No. 1:23-CV-812; Ewideh v. Homesite Insurance, Civil No. 1:24-CV-241.
As we have previously noted, Ewideh and Geaith have engaged in a breathtaking array of litigation mayhem and misconduct in these cases. Moreover, the plaintiffs have, to an astonishing and unprecedented degree, been derelict in their duties as litigants. Thus, Ewideh and Geaith have repeatedly disobeyed or ignored court orders; have failed to respond to pleadings; and have persistently declined to provide discovery. The staggering array of defaults by Ewideh and Geaith have been thoroughly documented in our prior decisions and Reports and Recommendations, which are incorporated by reference in this order. See e.g., Ewideh v. Homesite Ins. Co. of the Midwest, No. 1:23-CV-812, 2023 WL 5170379, at *1 (M.D. Pa. July 17, 2023); Ewideh v. Homesite Ins. Co. of the Midwest, No. 1:23-CV-812, 2023 WL 4552888, at *1 (M.D. Pa. July 14, 2023); Homesite Ins. Co. of the Midwest v. Ewideh, No. 1:22-CV-1664, 2023 WL 4471489, at *1 (M.D. Pa. July 11, 2023); Homesite Ins. Co. of the Midwest v. Ewideh, No. 1:22-CV-1664, 2023 WL 3794509, at *1 (M.D. Pa. June 2, 2023); Homesite Ins. Co. of the Midwest v. Ewideh, No. 1:22-CV-1664, 2023 WL 4138328, at *1 (M.D. Pa. May 30, 2023); Homesite Ins. Co. of the Midwest v. Ewideh, No. 1:22-CV-1664, 2023 WL 3035313, at *1 (M.D. Pa. Mar. 7, 2023), report and recommendation adopted sub nom. Homesite Ins. Co. of Midwest v. Ewideh, No. 1:22-CV-1664, 2023 WL 3866607 (M.D. Pa. Apr. 24, 2023); Homesite Ins. Co. of the Midwest v. Ewideh, No. 1:22-CV-1664, 2023 WL 426923, at *1 (M.D. Pa. Jan. 26, 2023).
Notably, we are not alone in finding that Ewideh and Geaith have engaged in serious misconduct in the course of this litigation. Quite the contrary, prior to transferring Ewideh v. Homesite Insurance, Civil No. 1:24-CV-241 to this court, the presiding judge in the Eastern District of Pennsylvania condemned this misconduct and explicitly found that Ewideh had been dishonest, stating that:
Here, Mr. Ewideh's actions squarely fit within the type of conduct the Court warns in its Policies & Procedures is not tolerated. Mr. Walsh and Ms. Fisher stated on the record during the hearing on the motion to enforce civility that the statements they claim Mr. Ewideh made regarding Ms. Fisher are accurate as to what Mr. Ewideh stated. Such language is neither excusable nor tolerated. Although Mr. Ewideh may be frustrated by the way his insurance dispute has proceeded, that does not give Mr. Ewideh the right to use profane, anti-semitic, and egregious language to Mr. Walsh or Ms. Fisher. His language targeted at Ms. Fisher is especially noteworthy for its lack of civility and professionalism. Such language to any person, including Ms. Fisher, is not warranted under any circumstances.
Not only is Mr. Ewideh warned to no longer use such language with Mr. Walsh or Ms. Fisher, nor any other party or third party in any way connected to this litigation, but he is also warned that he must be truthful in his representations to the Court. Mr. Ewideh sent an e-mail communication to the Court on January 10, 2024, stating that he and Ms. Geaith were “requesting] a continuance of today's hearing[,] as we [the plaintiffs] did not receive notice of the hearing[.]”
The Court is not persuaded that this is an accurate, truthful statement. The Court sent notice of the hearing on December 5, 2023. Doc. No. 26. Approximately two weeks later on December 18, 2023, Mr. Ewideh and Ms. Geaith filed a motion to strike in one of the cases pending in the Middle District of Pennsylvania. Mot. to Strike, Doc. No. 182, Homesite Ins. Co. of the Midwest v. Geaith, et al., No. 1:22-cv-1664-JKM-MCC (M.D. Pa. Dec. 18, 2023). In that motion, the plaintiffs averred that “[p]resently there is a hearing scheduled before the HONORABLE Judge Pratter in the Eastern District of Pennsylvania in early January to address these allegations.” Id. at 2. The only hearing scheduled in this litigation was the one regarding the hearing on the motion for enforcement of civility. Thus, there can be no doubt that the plaintiffs did have notice of the hearing on January 10, 2024, and that the communication Mr. Ewideh sent that day to this Court was neither truthful nor accurate.Ewideh v. Homesite Ins. Co. of the Midwest, No. CV 23-2590, 2024 WL 247056, at *2 (E.D. Pa. Jan. 23, 2024).
B. The Plaintiffs' Complaint and Litigation Misconduct in this Case.
Cast against this backdrop, the plaintiffs initially filed the instant lawsuit in the United States District Court for the Eastern District of Pennsylvania, as part of an effort which we found was “tantamount to judge shopping.” Homesite Ins. Co. of Midwest v. Ewideh, No. 1:22-CV-1664, 2024 WL 554126, at *3 (M.D. Pa. Feb. 12, 2024). The plaintiffs' complaint named some eight individual and institutional defendants. Notably, the complaint recited that both the plaintiffs and many of the named defendants resided in Pennsylvania. (Doc. 1). Thus, on the face of the complaint, complete diversity of citizenship-a prerequisite for federal diversity jurisdiction-was lacking.
The complaint alleged a series of claims against all defendants including breach of contract, violations of the federal Fair Housing Act, bad faith denial of insurance benefits, tortious interference with contracts, conspiracy, racketeering violations, libel, and slander. (Id.) The factual basis for this array of claims is somewhat murky. To be sure, the plaintiffs' complaint described some property damages they sustained, alleged that they cooperated with the defendants, but asserted that the defendants unreasonably failed to fully compensate those claims. (Id. ¶¶15-74). Notably, however, the complaint fails to clearly identify which defendants are allegedly liable on the various and sundry counts of the complaint. Instead, some counts simply name “all insurers,” other counts refer to “all defendants,” and a number of counts of the complaint do not identify who is being sued at all. Further, the plaintiffs' Fair Housing Act claim is presented in an opaque fashion with Ewideh and Geaith simply alluding to discrimination based upon the otherwise unidentified “health conditions of plaintiff,” and complaining that a claims adjuster used a slur regarding the sexuality of the plaintiff. (Id. ¶¶ 93-99). Likewise, the plaintiffs' racketeering allegations are advanced without any well-pleaded allegations which satisfy the elements of this claim. On the basis of these sweeping averments, the plaintiffs sought wide-ranging relief, including a declaratory judgment in their favor along with compensatory and punitive damages. (Id.)
Upon the transfer of Ewideh v. Homesite Insurance, Civil No. 1:24-CV-241, to this court, Ewideh and Geaith filed motions seeking a pretrial schedule in this case and requesting that this lawsuit be expedited. There was an element of perhaps unintended irony in the request to expedite since Ewideh and Geaith had consistently delayed proceedings in the past through their failures to comply with court orders. Nonetheless, we agreed that a schedule and expedited resolution of some threshold issues was warranted here. Therefore, we granted the motions to expedite, and set the following pretrial schedule in this case:
First, on or before February 20, 2024, the parties shall file brief submissions of no greater than five pages addressing the question of
whether this case and Ewideh v. Homesite Insurance, Civil No. 1:23-CV-812 should be consolidated for further proceedings in order to expedite the efficient resolution of these cases.
Second, on or before February 27, 2024 , the parties shall file brief submissions of no greater than five pages addressing the following additional questions:
1. Given that a number of named defendants in this case are identified in the complaint as residents of Pennsylvania does complete diversity exist here and can the court exercise diversity subject matter jurisdiction over these state law claims?
2. To what extent would the entry of a default judgment in Homesite Insurance v. Ewideh, Civil No. 1:22-CV-1664 constitute res judicata with respect to any of these state law claims?
Third, to the extent that any party intends to file an early dispositive motion in the nature of a motion to dismiss, or a motion for a preliminary injunction, such motions and accompanying briefs should be filed on or before March 11, 2024 .(Doc. 48).
Despite specifically requesting this expedited schedule, Ewideh and Geaith have violated every aspect of this scheduling order by failing to address the questions posed by the court and neglecting to file any pleadings as directed. Thus, the plaintiffs are wholly non-complaint with their duties as litigants.
In contrast, the defendants filed a timely motion to dismiss and accompanying brief. (Docs. 62, 63). We then instructed the plaintiffs in clear and precise terms that:
[T]he plaintiffs are advised that they must file a response in opposition to the defense motion to dismiss filed in case number 1:24-cv-241 on or before March 25, 2024. Failure to file a timely response may result in the court deeming the motion to be unopposed.(Doc. 64).
The plaintiffs failed to comply with this clear directive that they submit a brief in opposition to this motion, choosing instead to file a random set of photographs and excerpts from correspondence. (Docs. 65, 66). In the absence of an intelligible response from the plaintiffs this motion will be deemed ripe for resolution
For the reasons set forth below, it is recommended that the motion to dismiss be granted.
II. Discussion
A. Under The Rules of This Court the Defense Motion Should Be Deemed Unopposed and Granted .
At the outset, the plaintiffs' failure to comply with court orders and file a meaningful response to this dispositive motion has direct and adverse consequences for these feckless litigants. under the Local Rules of this Court the plaintiffs should be deemed to concur in this motion, since the plaintiffs have failed to timely oppose the motion or otherwise litigate this case. This procedural default completely frustrates and impedes efforts to resolve this matter in a timely and fair fashion, and under the rules of this Court warrants dismissal of the action, since Local Rule 7.6 of the Rules of this Court imposes an affirmative duty on the plaintiffs to respond to motions and provides that:
Any party opposing any motion, other than a motion for summary judgment, shall file a brief in opposition within fourteen (14) days after service of the movant's brief, or, if a brief in support of the motion is not required under these rules, within seven (7) days after service of the motion. Any party who fails to comply with this rule shall be deemed not to oppose such motion. Nothing in this rule shall be construed to limit the authority of the court to grant any motion before expiration of the prescribed period for filing a brief in opposition. A brief in opposition to a motion for summary judgment and LR 56.1 responsive statement, together with any transcripts, affidavits or other relevant documentation, shall be filed within twenty-one (21) days after service of the movant's brief. Local Rule 7.6 (emphasis added).
It is now well settled that “Local Rule 7.6 can be applied to grant a motion to dismiss without analysis of the complaint's sufficiency ‘if a party fails to comply with the [R]ule after a specific direction to comply from the court.'” Williams v. Lebanon Farms Disposal, Inc., No. 09-1704, 2010 WL 3703808, at *1 (M.D. Pa. Aug. 26, 2010) (quoting Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991)). In this case, the plaintiffs have not complied with the local rules, or this Court's order, by filing a timely response to this motion. Therefore, these procedural defaults by the plaintiffs compel the court to consider:
[A] basic truth: we must remain mindful of the fact that “the Federal Rules are meant to be applied in such a way as to promote justice. See Fed.R.Civ.P. 1. Often that will mean that courts should strive to resolve cases on their merits whenever possible. However, justice also requires that the merits of a particular dispute be placed before the court in a timely fashion ....” McCurdy v. American Bd. of Plastic Surgery, 157 F.3d 191, 197 (3d Cir.1998).Lease v. Fishel, 712 F.Supp.2d 359, 371 (M.D. Pa. 2010).
With this basic truth in mind, we acknowledge a fundamental guiding tenet of our legal system. A failure on our part to enforce compliance with the rules, and impose the sanctions mandated by the rules when such rules are repeatedly breached, “would actually violate the dual mandate which guides this Court and motivates our system of justice: ‘that courts should strive to resolve cases on their merits whenever possible [but that] justice also requires that the merits of a particular dispute be placed before the court in a timely fashion.'” Id. Therefore, we are obliged to ensure that one party's refusal to comply with the rules does not lead to an unjustified prejudice to those parties who follow the rules.
These basic tenets of fairness apply here. In this case, the plaintiffs have failed to comply with Local Rule 7.6 by filing a timely and proper response to this motion. This failure now compels us to apply the sanction called for under Rule 7.6 and deem the motion to be unopposed.
B. Dismissal of this Case Is Warranted Under Rule 41.
Moreover, the plaintiffs' latest failure to comply with court orders by responding to this defense motion is simply the latest in a cascading array of refusals to abide by court orders. In fact, the plaintiffs have failed to comply with every court ordered deadline in this case, including multiple deadlines that they expressly asked the court to set. Further, these multiple defaults are set against the backdrop of a breathtaking array of litigation mayhem and misconduct in this and other related cases. Under these circumstances dismissal of this case may also be warranted pursuant to Rule 41.
Rule 41(b) of the Federal Rules of Civil Procedure authorizes a court to dismiss a civil action for failure to prosecute, stating that: “If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” Fed.R.Civ.P. 41(b). Decisions regarding dismissal of actions for failure to prosecute rest in the sound discretion of the Court and will not be disturbed absent an abuse of that discretion. Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002) (citations omitted). That discretion, however, while broad is governed by certain factors, commonly referred to as Poulis factors. As the United States Court of Appeals for the Third Circuit has noted:
To determine whether the District Court abused its discretion [in dismissing a case for failure to prosecute], we evaluate its balancing of the following factors: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir.1984).Emerson, 296 F.3d at 190.
In exercising this discretion, “there is no ‘magic formula' that we apply to determine whether a District Court has abused its discretion in dismissing for failure to prosecute.” Lopez v. Cousins, 435 Fed.Appx. 113, 116 (3d Cir. 2011) (quoting Briscoe v. Klaus, 538 F.3d 252 (3d Cir. 2008)). Therefore, “[i]n balancing the Poulis factors, [courts] do not [employ] a . . . ‘mechanical calculation' to determine whether a District Court abused its discretion in dismissing a plaintiff's case.” Briscoe, 538 F.3d at 263 (quoting Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992)). Consistent with this view, it is well settled that “‘no single Poulis factor is dispositive,' [and it is] clear that ‘not all of the Poulis factors need be satisfied in order to dismiss a complaint.'” Id. (quoting Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003); Mindek, 964 F.2d at 1373). Moreover, recognizing the broad discretion conferred upon the district court in making judgments weighing these six factors, the Court of Appeals has frequently sustained such dismissal orders where there has been a pattern of dilatory conduct by a pro se litigant who is not amenable to any lesser sanction. See, e.g., Emerson, 296 F.3d 184; Tillio v. Mendelsohn, 256 Fed.Appx. 509 (3d Cir. 2007); Reshard v. Lankenau Hospital, 256 Fed.Appx. 506 (3d Cir. 2007); Azubuko v. Bell National Organization, 243 Fed.Appx. 728 (3d Cir. 2007).
In this case, a dispassionate assessment of the Poulis factors weighs heavily in favor of dismissing this action. At the outset, a consideration of the first Poulis factor, the extent of the party's personal responsibility, shows that the failure to prosecute is entirely attributable to the plaintiffs who have failed to abide by court orders and properly litigate this case.
Similarly, the second Poulis factor- the prejudice to the adversary caused by the failure to abide by court orders-also calls for dismissal of this action. Indeed, this factor-the prejudice suffered by the party seeking sanctions-is entitled to great weight and careful consideration. As the Third Circuit has observed:
“Evidence of prejudice to an adversary would bear substantial weight in support of a dismissal or default judgment.” Adams v. Trustees of N.J. Brewery Employees' Pension Trust Fund, 29 F.3d 863, 873-74 (3d Cir. 1994) (internal quotation marks and citation omitted). Generally, prejudice includes “the irretrievable loss of evidence, the inevitable dimming of witnesses' memories, or the excessive and possibly irremediable burdens or costs imposed on the opposing party.” Id. at 874 (internal quotation marks and citations omitted). . . . However, prejudice is not limited to “irremediable” or “irreparable” harm. Id.; see also Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003); Curtis T. Bedwell & Sons, Inc. v. Int'l Fidelity Ins. Co., 843 F.2d 683, 693-94 (3d Cir. 1988). It also includes “the burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy.” Ware, 322 F.3d at 222.Briscoe, 538 F.3d at 259-60. In this case, the plaintiffs' failure to litigate these claims, or to comply with court orders, now wholly frustrates and delays the resolution of this action. In such instances, the defendant is plainly prejudiced by the plaintiff's continuing inaction and dismissal of the case clearly rests in the discretion of the trial judge. Tillio, 256 Fed.Appx. 509 (failure to timely serve pleadings compels dismissal); Reshard, 256 Fed.Appx. 506 (failure to comply with discovery compels dismissal); Azubuko, 243 Fed.Appx. 728 (failure to file amended complaint prejudices defense and compels dismissal).
When one considers the third Poulis factor-the history of dilatoriness on the plaintiff's part-it becomes clear that dismissal of this action is now appropriate. In this regard, it is clear that “‘[e]xtensive or repeated delay or delinquency constitutes a history of dilatoriness, such as consistent non-response . . ., or consistent tardiness in complying with court orders.'” Briscoe, 538 F.3d at 260-61 (quoting Adams, 29 F.3d at 874) (some citations omitted). Here, the plaintiffs have failed on countless occasions to comply with court orders and properly litigate their claims. Thus, the plaintiffs' conduct displays “[e]xtensive or repeated delay or delinquency [and conduct which] constitutes a history of dilatoriness, such as consistent non-response . . ., or consistent tardiness in complying with court orders.” Adams, 29 F.3d at 874.
The fourth Poulis factor-whether the conduct of the party or the attorney was willful or in bad faith-also cuts against the plaintiffs in this case. In this setting, we must assess whether this conduct reflects mere inadvertence or willful conduct, in that it involved “strategic,” “intentional or self-serving behavior,” and not mere negligence. Adams, 29 F.3d at 875. At this juncture, when the plaintiffs have failed to comply with instructions of the Court, have neglected court-ordered deadlines, and have refused to file pleadings as directed, we are compelled to conclude that the plaintiffs' actions are not isolated, accidental, or inadvertent but instead reflect an ongoing disregard for this case and the Court's instructions.
While Poulis also enjoins us to consider a fifth factor, the effectiveness of sanctions other than dismissal, cases construing Poulis agree that in a situation such as this case, where we are confronted by pro se litigants who will not comply with the rules or court orders, lesser sanctions may not be an effective alternative. See, e.g., Briscoe, 538 F.3d at 262-63; Emerson, 296 F.3d at 191. This case presents such a situation where the plaintiffs' status as pro se litigants severely limits the ability of the court to utilize other lesser sanctions to ensure that this litigation progresses in an orderly fashion. In any event, by entering our prior orders and counseling the plaintiffs on their obligations in this case, we have endeavored to use lesser sanctions, but to no avail. The plaintiffs still ignore their responsibilities as litigants. Since lesser sanctions have been tried, and have failed, only the sanction of dismissal remains available to the Court.
Finally, under Poulis, we are cautioned to consider one other factor, the meritoriousness of the plaintiff's claims. In our view, however, consideration of this factor cannot save these particular plaintiffs' claims since the plaintiffs are now wholly non-compliant with the court's instructions. The plaintiffs cannot refuse to comply with court orders which are necessary to allow resolution of the merits of these claims, and then assert the untested merits of these claims as grounds for declining to dismiss the case. Furthermore, it is well settled that “‘no single Poulis factor is dispositive,' [and it is] clear that ‘not all of the Poulis factors need be satisfied in order to dismiss a complaint.'” Briscoe, 538 F.3d at 263 (quoting Ware, 322 F.3d at 222; Mindek, 964 F.2d at 1373). Therefore, the untested merits of the non-compliant plaintiff's claims, standing alone, cannot prevent dismissal of a case for failure to prosecute.
In any event, as discussed below, many of these claims either fail on their merits, have not been adequately stated or simply may not be entertained in federal court due to the lack of subject matter jurisdiction.
C. The Plaintiffs Have Failed to State Cognizable Claims That Fall Within the Jurisdiction of This Court.
The defendants have filed a motion to dismiss this complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). With respect to this benchmark standard for the legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our
opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)], and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, BU.S-, 129 S.CT. 1937 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a plaintiff must provide some factual grounds for relief which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do.” Id., at 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id., at 679. According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id., at 678. Rather, in conducting a review of the adequacy of a complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id., at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions; it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The
District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to “show” such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
As the court of appeals has observed:
The Supreme Court in Twombly set forth the “plausibility” standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts “merely consistent with” a defendant's liability, [ ] “stops short of the line between possibility and plausibility of ‘entitlement of relief.' ”Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied, 132 S.Ct. 1861 (2012).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id., at 1950. Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1950).
In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider “undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered.” Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002) (holding that “[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment”). However, the court may not rely on other parts of the record in determining a motion to dismiss, or when determining whether a proposed amended complaint is futile because it fails to state a claim upon which relief may be granted. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
In addition, we have placed the parties on notice that subject matter jurisdiction may be lacking over the plaintiffs' state law claims due to the lack of complete diversity among the parties. We placed the parties on notice of these concerns mindful of the fact that:
[B]ecause subject matter jurisdiction is non-waivable, courts have an independent obligation to satisfy themselves of jurisdiction if it is in doubt. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). A necessary corollary is that the court can raise sua sponte subject-matter jurisdiction concerns.Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 76-77 (3d Cir. 2003).
These tenets guide our consideration of the instant case, and the defendants' motion to dismiss.
1. The Plaintiffs' State Law Claims All Fail.
Turning first to the plaintiffs' state law claims, a number of these claims appear to fail on their merits with respect to many of the defendants named in this complaint. For example, the gist of the plaintiffs' complaint is an allegation that Homesite has breached its insurance agreement by failing to make timely and proper payment of their policy claims. While this allegation may support a claim against Homesite, it is unclear if Ewideh and Geaith are attempting to name other defendants in this count of their complaint. To the extent that the plaintiffs are attempting to name defendants beyond Homesite in the breach of contract claim, the claim fails as a matter of law since these other defendants are not parties to this contract. See Sovereign Bank v. BJ's Wholesale Club, Inc., 395 F.Supp.2d 183, 188 (M.D. Pa. 2005), aff'd, 533 F.3d 162 (3d Cir. 2008).
Similarly, Ewideh and Geaith may not maintain tortious interference with contract claims against all of the parties named in this complaint since under Pennsylvania law, a party cannot tortiously interfere with its own contract; Duran v. Cnty. of Clinton, 380 F.Supp.3d 440, 455 (M.D. Pa. 2019), and the actions of a principal's agent are afforded a qualified privilege from liability for alleged tortious interference with the principal's contract. See Maier v. Maretti, 671 A.2d 701, 707 (Pa. Super. 1995); Daniel Adams Assocs. v. Rimbach Pub., Inc., 519 A.2d 997, 1000 (Pa. Super. 1987).
Moreover, and more fundamentally, these state law claims all encounter the same jurisdictional obstacle. The plaintiffs' complaint named some eight individual and institutional defendants. Notably, the complaint recited that both the plaintiffs and many of the named defendants resided in Pennsylvania. (Doc. 1). It is well-settled that federal courts are courts of limited jurisdiction. As a general rule, there are two primary grounds for federal district court jurisdiction over a civil lawsuit. First, “district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between-(1) citizens of different States.” 28 U.S.C. § 1332(a)(1). This ground of federal jurisdiction is known as diversity jurisdiction. The second principal ground for invoking the jurisdiction of a federal court is known as federal question jurisdiction. Under this ground of jurisdiction, “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
With respect to the plaintiffs' state law claims, we can only entertain these claims under our diversity jurisdictions. However, it is axiomatic that diversity jurisdiction only exists when there is complete diversity among all parties. “Complete diversity requires that, in cases with multiple plaintiffs or multiple defendants, no plaintiff be a citizen of the same state as any defendant.” Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 419 (3d Cir. 2010). As all parties now concede, on the face of the complaint complete diversity of citizenship-a prerequisite for federal diversity jurisdiction-was lacking. Therefore, we lack subject matter jurisdiction over these state law claims and they should be dismissed.
For their part, the defendants concede that we lack subject matter jurisdiction over these state law claims, but nonetheless urge us to exercise supplemental jurisdiction of these claims as this case progresses. We should decline this invitation. Instead, because we are recommending dismissal of this case in its entirety, including the plaintiffs' federal claims, we should in the exercise of our discretion decline to exercise supplemental jurisdiction over these state law claims. See Doe v. Mercy Cath. Med. Ctr., 850 F.3d 545, 567 (3d Cir. 2017)
2. The Plaintiffs Have Failed to Adequately Plead Any Federal Claims.
Further, we conclude that the plaintiffs have failed to adequately plead any federal claims over which we may exercise subject matter jurisdiction. Liberally construed, the plaintiffs' complaint advances two claims: an alleged Fair Housing Act violation, and a civil RICO racketeering claim. However, neither of these claims are articulated in a fashion which meets federal pleading standards.
At the outset, the plaintiffs' civil RICO claims are utterly deficient. Ewideh and Geaith face exacting and precise burdens of pleading and proof when advancing federal RICO claims. As this court has observed:
Four elements are required for a § 1962(c) claim: “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). “Racketeering activity” is conduct proscribed by a number of specifically identified provisions under Title 18 of the United States Code, which include mail fraud (§ 1341) and wire fraud (§ 1343). 18 U.S.C. § 1961. A pattern of racketeering activity requires “at least two acts of racketeering activity within a 10-year period.” H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 229, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989) (internal citations omitted).Wilson v. Parisi, 549 F.Supp.2d 637, 658-59 (M.D. Pa. 2008). Likewise, the elements of a civil RICO conspiracy claim are that:
(1) Defendant is a person who conspired to violate §§ 1962(b) or (c); (2) Defendant understood the nature or unlawful character of the conspiratorial plan; (3) Defendant agreed to join with others to achieve the objective of the conspiracy during the relevant period; (4) Defendant agreed that the enterprise would be conducted through a pattern of racketeering activity. This means that the commission of at
least two predicate crimes by the conspiracy was contemplated.Arunachalam v. Int'l Bus. Machines Corp., 243 F.Supp.3d 526, 529-30 (D. Del. 2017), aff'd, 759 Fed.Appx. 927 (Fed. Cir. 2019).
Furthermore, the RICO statute proscribes racketeering by an “enterprise.” Therefore, to establish a RICO violation, the plaintiff must plead facts which plausibly allege the existence of some criminal enterprise. On this score:
An “ ‘enterprise' includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). “[A]n association-in-fact enterprise must have at least three structural features: [1] a purpose, [2] relationships among those associated with the enterprise, and [3] longevity sufficient to permit these associates to pursue the enterprise's purpose.” Boyle v. United States, 556 U.S. 938, 946, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009). “[A]n association-in-fact enterprise is ‘a group of persons associated together for a common purpose of engaging in a course of conduct.' ” Id. (quoting United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981)).Irish v. Ferguson, 970 F.Supp.2d 317, 344 (M.D. Pa. 2013).
In the instant case, the plaintiffs have failed to identify a RICO enterprise; have neglected to set forth well-pleaded facts describing a pattern of racketeering activity; and have failed to identify any RICO predicate offenses allegedly committed by any defendant. Therefore, this civil RICO claim fails.
The plaintiffs' Fair Housing Act claim is also advanced in an enigmatic fashion but presents a somewhat closer case. On this score, Ewideh and Geaith's current pleadings, which simply allege discrimination based upon the otherwise unidentified “health conditions of plaintiff,” and complain that a claims adjuster used a slur regarding the sexuality of the plaintiff, are insufficient to state a claim. (Id. ¶¶ 93-99). Yet, while the defendants have moved to dismiss this Fair Housing Act claim, they have done so in a fairly summary fashion, without any detailed discussion or analysis of the statute's reach. Moreover, although the plaintiffs have advanced this Fair Housing Act claim in their complaint, albeit in a cursory fashion, they have failed to respond to the motion to dismiss that claim despite being ordered to do so. Given the enigmatic presentation of this claim by Ewideh and Geaith, and their refusal to defend this claim despite being ordered to do so, we recommend that this claim be dismissed, but that the dismissal of the claim be without prejudice to the plaintiffs attempting to file a proper amended complaint which meets federal pleading standards.
We reach this conclusion mindful of the fact that in civil rights cases pro se plaintiffs often should be afforded an opportunity to amend a complaint before the complaint is dismissed in its entirety, see Fletcher-Hardee Corp. v. Pote Concrete Contractors, 482 F.3d 247, 253 (3d Cir. 2007), unless granting further leave to amend is not necessary because amendment would be futile or result in undue delay. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). Given the reach of the Fair Housing Act, and the meager presentations by the parties, we cannot state at this junction that granting leave to amend would be wholly futile. In this regard, we note that the Fair Housing Act generally forbids discrimination in housing based upon race, color, religion, sex, familial status, national origin, or disability. 42 U.S.C. §3604. Thus:
The FHA makes it unlawful to “refuse to sell or rent ... or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(a). A dwelling can be made otherwise unavailable by, among other things, action that limits the availability of affordable housing. See, e.g., Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 928-29, 938-39 (2d Cir.1988); Smith v. Town of Clarkton, 682 F.2d 1055, 1059, 1062-64 (4th Cir.1982); Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 130 (3d Cir.1977). The FHA can be violated by either intentional discrimination or if a practice has a disparate impact on a protected class. Cmty. Serv., Inc. v. Wind Gap Mun. Auth., 421 F.3d 170, 176 (3d Cir.2005).
Disparate impact claims, which do not require proof of discriminatory intent, see Rizzo, 564 F.2d at 147-48, permit federal law to reach “[c]onduct that has the necessary and foreseeable consequence of perpetuating segregation[, which] can be as deleterious as purposefully discriminatory conduct in frustrating the national commitment to replace the ghettos by truly integrated and balanced living patterns.” Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1289-90 (7th Cir.1977). In order to determine whether action of this sort was “because of race” we look to see if it had a “racially discriminatory effect,” i.e., whether it disproportionately burdened a particular racial group so as to cause a disparate impact. Rizzo, 564 F.2d at 146-48; see also Lapid-Laurel, LLC v. Zoning Bd. of Adjustment of Twp. of Scotch Plains, 284 F.3d 442, 466-67 (3d Cir.2002) (featuring claims of a disparate impact on handicapped persons in violation of 42 U.S.C. § 3604(f)). This is called a prima facie case of discrimination. Rizzo, 564 F.2d at 148 & n. 31. If such a case is established, then we look to see whether the defendant has a legitimate, non-discriminatory reason for its actions. Id. at 148. If it does, the defendant must then also establish that “no alternative course of action could be adopted that would enable that interest to be served with less discriminatory impact.” Id. at 149. Finally, if the defendant makes this showing, the burden once
again shifts to those challenging the action, who must demonstrate that there is a less discriminatory way to advance the defendant's legitimate interest. Id. at 149 n. 37.Mt. Holly Gardens Citizens in Action, Inc. v. Twp. of Mount Holly, 658 F.3d 375, 381-82 (3d Cir. 2011).
In the instant case, because of the paucity of the plaintiffs' pleadings, we cannot discern whether they are pursuing an intentional discrimination claim, a disparate impact claim, or both. We also cannot divine whether their claim rests upon allegations of disability discrimination, discrimination grounded upon sexuality, or both. Further, to the extent that the plaintiffs are alleging disability discrimination they have failed to clearly state what that disability might be. Simply put, more is needed here to state a colorable Fair Housing Act claim. Therefore, it is recommended that this claim be dismissed without prejudice to the plaintiffs endeavoring to state an FHA claim upon which relief may be granted.
III. Recommendation
For the foregoing reasons IT IS RECOMMENDED that the Defendants' Motion to Dismiss, (Doc. 62), be GRANTED.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party
shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.