Opinion
Civil Action 20-822
06-30-2021
WILLIAM G. TOMKO, JR., t/d/b/a MISSIONARY PARTNERS, LTD., Plaintiff, v. BALDWIN BOROUGH, et al., Defendants.
Judge Stickman
REPORT AND RECOMMENDATION
PATRICIA L. DODGE United States Magistrate Judge
I. Recommendation
It is respectfully recommended that Defendants' motion to dismiss the Second Amended Complaint (ECF No. 32) be granted with respect to Counts I and II, and that Count III be dismissed without prejudice under 28 U.S.C. § 1367(c)(3).
II. Report
Plaintiff William G. Tomko, Jr. (“Tomko”) individually and on behalf of Missionary Partners, Ltd. (“Missionary Partners”) brings this civil rights action under 42 U.S.C. § 1983 against Defendants Baldwin Borough (“the Borough”), Borough Manager Robert Firek (“Firek”) and Borough Engineer Jason Stanton (“Stanton”). The claims arise out of certain actions allegedly undertaken by Defendants regarding property in the Borough owned by Tomko and Missionary Partners “collectively or individually.”
The caption of the Second Amended Complaint identifies the Plaintiff as “William G. Tomko, Jr., t/d/b/a Missionary Partners, Ltd.” The pleading alleges in its introductory paragraph that Tomko brings this lawsuit on his own behalf and on behalf of Missionary Partners as its general partner.
Pending before the Court is Defendants' motion to dismiss the Second Amended Complaint. For the reasons below, their motion should be granted with respect to Counts I and II and Count III should be dismissed under 28 U.S.C. § 1367(c)(3).
A. Relevant Procedural History
Tomko commenced this action in June 2020 and later filed an Amended Complaint. Federal question jurisdiction was based on his civil rights claims, 28 U.S.C. § 1331, and supplemental jurisdiction was asserted regarding the state law claim, 28 U.S.C. § 1367(a). The Amended Complaint alleged violations of Tomko's right to substantive due process as guaranteed by the Fourteenth Amendment to the United States Constitution (Count I) and the Pennsylvania Constitution (Count II), an inverse taking of property without compensation in violation of the Fifth Amendment (Count III), a conspiracy to violate his civil rights (Count IV), and a state law claim of breach of contract (Count V).
Tomko later agreed to dismiss Count II.
After Defendants moved to dismiss the Amended Complaint, a Report and Recommendation (“R&R”) was issued which recommended granting their motion with respect to Counts I through IV and dismissing the state law claim in Count V pursuant to 28 U.S.C. § 1367(c)(3). Tomko then filed objections to the R&R.
After considering Tomko's objections and Defendants' response, Judge Stickman entered an order (ECF No. 30) which essentially adopted the recommendations in the R&R, but permitted Tomko to replead the substantive due process, conspiracy and breach of contract claims. Tomko then filed the Second Amended Complaint (ECF No. 31), which alleges claims of substantive due process against all defendants (Count I), conspiracy against Stanton and Firek (Count II) and breach of contract against the Borough (Count III). Defendants now move to dismiss the Second Amended Complaint (ECF No. 32), which has been fully briefed. (ECF Nos. 34, 36).
Because it recommended the dismissal with prejudice of the federal claims, the R&R also recommended dismissing Count V without prejudice under § 1367(c)(3). “If a district court decides not to exercise supplemental jurisdiction and therefore dismisses state-law claims, it should do so without prejudice, as there has been no adjudication on the merits.” Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009). Judge Stickman adopted the recommendations of dismissal in the R&R, including the basis for dismissing Count V. However, because Judge Stickman permitted Tomko to amend two of his federal claims, Tomko also had the right to replead his state law claim. Thus, the Court finds that Judge Stickman did, in fact, intend to dismiss Count V without prejudice.
B. Facts Alleged in Second Amended Complaint
Tomko conducts business as the general partner of Missionary Partners, a Pennsylvania limited partnership. This dispute involves 80 acres of real property, consisting of 3 parcels, located in Baldwin Borough, Allegheny County (“Property”). It is mainly used as a fill site pending future commercial land development. Tomko became the owner of the Property in the 1980s, and Missionary Partners became the owner in 1997. (Second Amended Complaint ¶¶ 3, 8.)
For more than thirty years, Tomko, and then Missionary Partners, conducted grading and filling activity at the Property. Between 1989 and 2015, the Borough issued successive annual grading permits and took no enforcement action to restrain or restrict these activities. (Id. ¶¶ 9-10.) Missionary Partners and the Borough signed an agreement in 2008 in which they agreed, among other things, to cooperate with respect to the timely approval of permits so that land development activities on the Property could continue.
Missionary Partners submitted a Grading Permit Application to the Borough in January 2019 to be considered concurrently with a National Pollutant Discharge Elimination System Permit (“NPDES Permit”). At the time of Missionary's application, the NPDES permit application was pending with the Pennsylvania Department of Environmental Protection (“PA DEP”). In the parties' previous dealings, the Borough deferred approval on pending grading permit applications until a NPDES permit was issued that approved the scope of grading activity. (Id. ¶¶ 11-12.)
After three months of Borough inactivity, Missionary Partners provided information and drawings to Firek to support its Grading Permit Application. The Borough did not respond. Although the Borough began an initial review on May 10, 2019, it did not send any correspondence to Tomko or request additional information. (Id. ¶¶ 13-15.) While Tomko supplied supplemental documentation to provide its engineered plan to create a level site for future development, the Borough took no action over the course of the next several months to either review the pending Grading Permit Application or to take enforcement action against Tomko or Missionary Partners to cease grading and filling activities. (Id. ¶¶ 16-17.)
Tomko alleges that despite their 2008 agreement to cooperate with respect to the timely approval of permits, the Borough began a campaign in July 2019 to falsely attribute illegal conduct to Tomko in order to force him to pay for the relocation and upgrade of the Borough's outdated sewer system. The Borough did so by acting through its public employees, including Firek, and its professional engineer, Stanton. (Id. ¶¶ 32-33 & Ex. 1.) Stanton and Firek began to interfere with Tomko's use of the Property, including issuing a “stop work order.” Tomko later learned that Stanton, on behalf of his firm, Lennon, Smith, Souleret Engineering, Inc. (“LSSE”), sent correspondence to Firek directing him to issue the stop work order. Stanton's letter, which was sent to delay action on Tomko's pending application, materially misrepresented the history of operations by Tomko and Missionary Partners at the Property. (Id. ¶¶ 19, 34-35.)
On July 29, 2019, the PA DEP issued a NPDES permit approving grading and fill activities on the Property. Contrary to its past actions, however, the Borough did not issue a grading permit. Tomko then supplied documents, drawings and other materials to the Borough to rebut the allegations made in the stop work order. The Borough neither approved nor rejected the pending application, however. (Id. ¶¶ 20-23.)
Because the Borough did not hold a hearing on the 2019 Grading Permit Application within sixty days of the date of its receipt, Tomko requested a formal hearing before the Borough Council to address the status of his application. The Borough scheduled a hearing for September 17, 2019. (Id. ¶ 24.) Before the hearing, Stanton provided two more letters to the Borough with additional comments resulting from a “second review.” These letters mischaracterized Tomko's application and submittals, including a statement that: “…it is evident that the applicant is planning to continue to use the property as a continual dump site out of convenience without ever intending to develop the property.” (Id. ¶¶ 25-26.)
The Borough Council held a hearing as scheduled but did not address how Tomko could address deficiencies with the permit application. Instead, through Stanton and Firek, the Borough indicated that the grading permit was incomplete until Tomko agreed to provide detailed engineering to show the relocation of an existing sanitary sewer line that traverses the Property without an easement. Instead of taking action to either approve or deny the pending permit application, the Borough sought to impose conditions and requirements that exceeded its authority. (Id. ¶¶ 27-31.)
After the issuance of the first stop work order, Stanton and Firek continued to interfere with Tomko's use of the Property by issuing other “stop work orders, ” posting placards and erecting signs declaring the Property as closed. Later, they threatened to have the police arrest anyone working on the site. (Id. ¶ 18.) In August 2019, Borough officials, acting at the direction of Firek and Stanton, informed a driver moving stockpiled materials at the site that “the Baldwin P.D. were permitted to arrest anyone who is illegally dumping on the site.” Further, at the direction of Firek and Stanton, Borough officials engaged in unlawful surveillance of the Property, and recorded, photographed or otherwise clandestinely surveilled individuals working there. These efforts led to an action for injunctive relief in state court. (Id. ¶¶ 36-38.)
While unclear, the Second Amended Complaint appears reference a state court mandamus case filed by the Borough in October 2019 at ¶ 19-14398.
Thereafter and continuing on nearly a daily basis, Firek caused Borough officials or employees to engage in surveillance of the Property, and several times Borough employees drove beyond the gate that restricts access to the Property. Borough officials, at the direction of Firek and Stanton, threatened the manager of the site with arrest. Firek dispatched the Baldwin Borough Police to watch activity at the site. For an hour beginning at noon, an officer of the Baldwin Borough Police Department positioned his marked police vehicle at the entrance to site and conducted surveillance of the workers present. These actions were repeated on various dates in the months that followed.
In November 2019, the parties appeared before the Honorable Christine Ward of the Court of Common Pleas of Allegheny County, in connection with the Borough's petition to enjoin Missionary Partners from performing grading activity. Judge Ward modified the preliminary injunction that was previously entered and permitted Missionary Partners to continue to deposit fill in a pre-determined area upon provision of adequate insurance and the Borough's assent. However, the Borough refused to accept the certificates of insurance that were provided or to recognize the existing bonded amounts for the grading activities. Judge Ward later vacated the preliminary injunction, but Tomko and Missionary Partners were improperly denied the use and benefit of the Property by the Borough and the individual defendants for more than three months. (Id. ¶¶ 43-45.)
Missionary Partners filed a revised grading permit application in March 2020. The Borough and LSSE again sought surveys and evaluations and offered irrelevant engineering comments, as well as revisiting the topic of relocating the sewer line. Defendants also continued to engage in unlawful conduct directed at Missionary Partners. The Borough raised concerns of “late night dumping” and other complaints, and Firek stated that he would use the police department to surveil and monitor the individuals working at the site and file criminal charges. (Id. ¶¶ 46-50.)
Each time that Tomko met with Defendants to discuss purported deficiencies in the Grading Permit Application, Defendants refused to address these issues and instead demanded engineering and construction plans for a relocated sewer line. According to Tomko, Defendants engaged in this pattern of conduct to unlawfully compel Missionary Partners and/or Tomko to privately fund the relocation of a public sewer line. Tomko asserts that this aging sewer line is likely undersized for the number of residences and units it now serves. (Id. ¶¶ 53-56.)
Despite the fact that the 2008 agreement between the Borough and Missionary Partners does not require Missionary Partners to relocate the line at its sole expense, Defendants have refused to commit any funds to the relocation. Instead, Defendants have engaged in an unlawful course of conduct to compel Missionary Partners to pay for the design, relocation and construction of the line, a project that could cost several million dollars. Thus, Defendants have improperly linked the routine approval of a grading permit application to a commitment by Missionary Partners to privately pay for the public sewer line. (Id. ¶¶ 57-59.)
Tomko alleges that the use of police surveillance and the threat of pursuing criminal charges is an abuse of the Borough's powers and authority. The regular police presence, surveillance and threats of arrest have damaged the business relationships of Tomko and Missionary Partners and impaired their use of the Property. Tomko claims to have sustained various damages as a result. (Id. ¶ 52.)
Further, Tomko contends, by using its police power to coerce or force Missionary to fund the relocation of the line without authority or agreement to do so, the Borough is engaged in unlawful self-dealing. This corruption by the Borough is designed to shift a heavy public financial burden to a private property owner. (Id. ¶¶ 60-62.) Tomko further alleges that:
Defendants have engaged in a conscience shocking scheme to coerce Plaintiff to relocate and reconstruct a public sewer line with private funds through a pressure campaign consisting of contrived engineering, baselessly denied permits, legal actions, police surveillance, threatened use of police arrest powers, all of which have interfered with the constitutionally protected use of the property and unlawfully placed a public financial burden on a private property owner.” Defendants are unlawfully subjecting a private property owner to ongoing financial harm and depriving Plaintiff of the constitutional use of its property.(Id. ¶¶ 63-64.)
C. Discussion
1. Standard of Review
“Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). “This requires a plaintiff to plead “sufficient factual matter to show that the claim is facially plausible, ” thus enabling “the court to draw the reasonable inference that the defendant is liable for misconduct alleged.” Id. (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)). While the complaint “does not need detailed factual allegations ... a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. At 555. See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
As noted by the Third Circuit in Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011), a 12(b)(6) inquiry includes identifying the elements of a claim, disregarding any allegations that are no more than conclusions and then reviewing the well-pleaded allegations of the complaint to evaluate whether the elements of the claim are sufficiently alleged. If a claim “is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008) (citation omitted).
Tomko attached the 2008 Agreement between the Borough and Missionary Partners to the Second Amended Complaint. The Court of Appeals has held that “a court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.” Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Thus, the 2008 Agreement may be considered in deciding Defendants' motion to dismiss without converting it to a motion for summary judgment.
2. Substative Due Process Claim
Tomko alleges a Fourteenth Amendment substantive due process claim in Count I of the Second Amended Complaint. This claim is brought under 42 U.S.C. § 1983, that provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....42 U.S.C. § 1983. Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). “The first step in any such claim is to identify the specific constitutional right allegedly infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994). See also Baker, 443 U.S. at 140; Graham v. Connor, 490 U.S. 386, 394 (1989).
The Fourteenth Amendment prohibits a state actor from depriving “any person of life, liberty, or property, without due process of law.” “The substantive component of the Due Process Clause limits what government may do regardless of the fairness of the procedures that it employs.” Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 399 (3d Cir. 2000). This “guarantee[s] protect[ion] against government power arbitrarily and oppressively exercised.” County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998).
The Court of Appeals for the Third Circuit has held that in a land use case, a defendant's actions must be “conscience shocking” to support a substantive due process claim. United Artists Theatre Circuit, Inc. v. Township of Warrington, 316 F.3d 392, 399 (3d Cir. 2003). That test is not precise, see Lewis, 523 U.S. at 847, and “varies depending on the factual context, ” United Artists, 316 F.3d at 400. It is designed to avoid converting a federal court into a “zoning board of appeals.” Id. at 402.
Land ownership “is a property interest worthy of substantive due process protection.” Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008) (citation omitted).
What “shocks the conscience” is “only the most egregious official conduct.” Lewis, 523 U.S. at 846. As the court in United Artists concluded:
every appeal by a disappointed developer from an adverse ruling of the local planning board involves some claim of abuse of legal authority, but “[i]t is not enough simply to give these state law claims constitutional labels such as ‘due process' or ‘equal protection' in order to raise a substantial federal question under section 1983.”316 F.3d at 402 (quoting Creative Env'ts, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir. 1982)).
In Eichenlaub v. Township of Indiana, 385 F.3d 274 (3d Cir. 2004), the plaintiffs alleged the they were subjected to overly strict application of ordinances in comparison to other developers, delays in issuing permits and approvals, unannounced inspections and improper tax assessments. In holding that these actions did not represent conscience-shocking behavior, the
Third Circuit explained why the plaintiffs failed to support a violation of substantive due process:
. . . these complaints are examples of the kind of disagreement that is frequent in planning disputes. As counsel for appellants acknowledged during argument, there is no allegation of corruption or self-dealing here. The local officials are not accused of seeking to hamper development in order to interfere with otherwise constitutionally protected activity at the project site, or because of some bias against an ethnic group. There is no virtual “taking” as in Conroe [Creosoting Co. v. Montgomery County, 249 F.3d 339 (5th Cir. 2001)].Id. at 286. See also Associates in Obstetrics & Gynecology v. Upper Merion Twp, 270 F.Supp.2d 633 (E.D. Pa. 2003) (conscience-shocking behavior sufficiently alleged when municipality selectively closed plaintiff's medical office to block the provision of abortion services). That said, “a bad-faith violation of state law ... does not meet the [conscience-shocking] standard.” Highway Materials, Inc. v. Whitemarsh Twp., 386 Fed.Appx. 251, 257 (3d Cir. 2010). See also Lindquist v. Buckingham Twp., 106 Fed.Appx. 768, 774 (3d Cir. 2004) (same).
In opposing Defendants' motion to dismiss, Tomko argues that the basis for his claims go well beyond a land use dispute. Rather, he asserts, Defendants abused their power by using the permit process to force Tomko to pay for the relocation of the sewer line that runs through the Property. Tomko also highlights Defendants' actions at the Property site, including surveillance by police officers and threatening to arrest workers, which he claims far exceed normal zoning and code enforcement actions. According to Tomko, this behavior represents a conscience- shocking scheme and further, is evidence of self-dealing and corruption that only benefits the Borough. Thus, Tomko claims that these allegations sufficiently plead a due process claim.
These arguments are unavailing. Courts repeatedly have rejected the contention that a land-use decision is conscience-shocking because it stems from an improper motive. See United Artists, 316 F.3d at 402 (land use decisions “are matters of local concern, and such disputes should not be transformed into substantive due process claims based only on allegations that government official acted with ‘improper' motives.”) See also Locust Valley Golf Club, Inc. v. Upper Saucon Twp., 391 Fed.Appx. 195, 199 (3d Cir. 2010) (that township official's zoning actions may have been motivated by “spite or in remote hope that he might one day purchase the property himself” was insufficiently egregious to constitute a substantive due process violation).
Indeed, in United Artists the Third Circuit explicitly rejected “improper motives” in favor of the “shocks the conscience” test. See Eichenlaub, 385 F.3d at 286 n.9.
Courts have dismissed similar claims at the motion to dismiss stage because the allegations, even if true, do not represent conscience-shocking behavior. For example, in DB Enter. Developers & Builders, Inc., v. Miozzie, 394 Fed.Appx. 916 (3d Cir. 2010), a developer was working on a project on a street that bordered another township, and that township's mayor, along with a state representative, allegedly insisted that the developer perform work on the sewers on its side of the street, threatening to shut down its other work if it did not comply. They did not compensate the developer for this work and issued an improper stop work order. After the developer sued, the Third Circuit affirmed the dismissal of his § 1983 claim, noting that:
Even assuming that [the representative's] threats did interfere with [plaintiff's] use and enjoyment of its property, such “[d]eprivation violates due process only when it ‘shocks the conscience, '” an extremely difficult standard to meet. See Chainey [v. Street], 523 F.3d [200, ] 219 [(3d Cir. 2008)] (quoting United Artists, 316 F.3d at 400) (quotations omitted). In Eichenlaub v. Township of Indiana, we found that the township's efforts in selectively enforcing zoning laws, pursuing unannounced and unnecessary inspections, and improperly
increasing tax assessments were not such that they shocked the conscience, particularly because there were no allegations that the defendants were motivated by corruption, self-dealing, or bias against a particular ethnic group. 385 F.3d 274, 286 (3d Cir. 2004) …To the extent that [plaintiff] claims that the case before us “clearly involves corruption and self-dealing, ” its complaint does little to support such a contention. Indeed, there is no allegation that [the representative] had a financial or ownership interest in [the street's] sewers or their environs, and the only benefit to [the representative] that [plaintiff] alleges is that [the mayor's] political ambitions would be furthered by the improvement of those sewers and their environs.Id. at 919 (record citation omitted). See also Shamrock Creek, LLC v. Borough of Paramus, 2014 WL 4824353, at *5 (D.N.J. Sept. 24, 2014) (police harassment of plaintiff's agents and employees on its property failed to state a substantive due process claim); Strategic Env'tl Partners, LLC v. Bucco, 184 F.Supp.3d 108, 129-30 (D.N.J. 2016) (plaintiff's allegations that defendants obstructed their project through, among other things, targeted police stops, interference with plaintiff's efforts to address odor emissions, and raising its taxes were insufficient to state a claim).
Tomko does not address any of these cases or explain why they are not applicable here. Simply put, even if Defendants had an “improper motive” or a “self-serving purpose” of trying to force him to pay for moving the sanitary sewer line in order to obtain his permit, this is insufficient to state a claim as a matter of law.
While Tomko attempts to overcome these deficiencies by alleging that Defendants engaged “corruption” and “self-dealing, ” the factual allegations in the Second Amended Complaint fail to provide a sufficient factual basis to support such labels. “A pleading that offers ‘labels or conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). To survive a motion to dismiss for failure to state a claim, the complaint must allege “sufficient factual matter” to show that the claim is facially plausible. Fowler v. UPMS Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
Here, the factual allegations of wrongdoing are precisely the type of conduct that the Third Circuit has found to be insufficient to plead a substantive due process claim. Merely labeling Defendants' actions as “conscience shocking” is insufficient to state a claim, particularly given Tomko's failure to cite any authority that similar behavior has been found to meet the “conscience shocking” standard. Thus, in the absence of any support beyond his own conclusory labels, and given the well-established authority on this issue, the factual scenario alleged by Tomko, even if true, does not state a claim for relief.
Moreover, the term “self-dealing” is not applicable under the facts alleged. The Eichenlaub court identified Conroe as an example of a case that presented a “whiff of self-dealing” because in that case, local officials allegedly forced the unlawful sale of the plaintiff's property at auction and the principal defendant's friends were hired to perform auction services. Eichenlaub, 385 F.3d at 285 (citing Conroe, 249 F.3d at 342). By contrast, and assuming Tomko's allegations to be true, the Borough's motive to relocate an aging sewer line to better serve its constituents cannot be fairly characterized as self-dealing. Tomko cites no authority that Defendants' alleged attempt to coerce a private landowner to pay for the relocation of a public sewer line is “self-dealing.” Here, there are no allegations that the Borough, Firek or Stanton engaged in actions that would benefit them personally. See Maple Properties, Inc. v. Township of Upper Providence, 151 Fed.Appx. 174, 179 (3d Cir. 2005) (township's enactment of the zoning ordinance was not conscience shocking because there was “no evidence that individual members of the Township Board of Supervisors enjoyed financial gain from the ordinance or that the rezoning decision otherwise redounded to their personal advantage.”). See also Bucco, 184 F.Supp.3d at 130 (the facts did not show that the defendant had a financial interest in the plaintiffs' land or engaged in self-dealing); Honey Brook Estates v. Honey Brook Twp., 2012 WL 2076985, at *14-15 (E.D. Pa. June 7, 2012) (no evidence that any individual defendant sought to benefit personally by preventing the plaintiff from developing the property or that the Township would profit from denying its land development applications).
As Judge Cercone summarized in Kriss v. Fayette Cty., 827 F.Supp.2d 477, 494-95 (W.D. Pa. 2011) (some citations omitted), aff'd, 504 Fed.Appx. 182 (3d Cir. 2012):
Plaintiffs' characterizations aside, the alleged “corruption and self-dealing” amount to nothing more than “the politics and animosities that often animate local decision-making.” Maple Props., 151 Fed.Appx. at 180. The alleged actions of the County Defendants do not shock the conscience, even if those actions were “targeted selectively” at Plaintiffs. . . Further, accepting as true Plaintiffs' allegation that the County Defendants' motive was to assist the [neighbors] in a scheme to “eject” Plaintiffs from their property, such a motive is not sufficiently egregious as to shock the conscience.…While the alleged conduct of the County Defendants might be “unfair” or “improper, ” such conduct does not rise to the level of a substantive due process violation.In short, the facts pleaded in the Second Amended Complaint do not represent conscience-shocking behavior or support Plaintiff's bald characterizations of corruption and self-dealing. Because these allegations do not state a civil rights claim under the substantive due process clause of the Fourteenth Amendment, Defendants' motion to dismiss Count I against the Borough should be granted.
Because Tomko fails to state a claim against any of the Defendants for violation of his substantive due process rights, the Court need not address Defendants' alternative arguments that claims against Stanton and Firek in their official capacities are redundant of the claim against the Borough and that they are entitled to qualified immunity with respect to the claim asserted against them in their individual capacities.
3. Civil Conspiracy (Count II)
In Count II, Tomko alleges that Firek and Stanton engaged in a civil conspiracy to deprive him of his rights. Defendants contend that because Tomko cannot state a claim for deprivation of a constitutional right, he cannot state a claim for conspiracy. They are correct.
The Court of Appeals has held that “a § 1983 conspiracy claim only arises when there has been an actual deprivation of a right.” Perano v. Township of Tilden, 423 Fed.Appx. 234, 239 (3d Cir. 2011); see also Marchese v. Umstead, 110 F.Supp.2d 361, 371 (E.D. Pa. 2000). As explained above, because Tomko has failed to state a claim that his civil rights were violated by Stanton and Firek, his claim that they conspired to do so necessarily fails as well. Thus, Defendants' motion to dismiss Count II should be granted.
4. Breach of Contract (Count III)
In Count III, Tomko asserts a state law claim that the Borough breached the 2008 Agreement between the Borough and Missionary Partners. Given the recommendation that both of the federal claims should be dismissed, the Court must determine whether to exercise jurisdiction over this claim.
Defendants contend that Tomko cannot reassert his breach of contract claim in the Second Amended Complaint because it was dismissed “with prejudice” in the Court's February 22, 2021 order. As explained above, however, because Tomko was permitted to replead two of his federal claims, Judge Stickman clearly intended that the dismissal of the breach of contract claim was without prejudice.
The supplemental jurisdiction statute provides that:
in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.28 U.S.C. § 1367(a).
Tomko's breach of contract claim arises out of the same circumstances and is so related to the federal claims asserted in Counts I and II that it forms part of the same case or controversy. See Lyon v. Whisman, 45 F.3d 758, 761 (3d Cir. 1995). Subsection (c) of the supplemental jurisdiction statute, 28 U.S.C. § 1367(c), provides, however, that a district court may, in its discretion, decline to exercise jurisdiction if any of four conditions exist, one of which is if “the district court has dismissed all claims over which it has original jurisdiction.” § 1367(c)(3). The Court of Appeals has stated that “where the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendent state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (quoting Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)).
This case is at an early stage and there are no significant circumstances of judicial economy, convenience or fairness that justify retaining jurisdiction over the breach of contract claim. Thus, Count III should be dismissed pursuant to § 1367(c)(3) without prejudice. See Kach, 589 F.3d at 650.
III. Conclusion
A plaintiff should be granted leave to amend unless amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). Here, Tomko has already amended his complaint twice. Further, for the reasons explained above, the facts alleged in the Second Amended Complaint, even if true, cannot support a substantive due process claim as a matter of law. Given his failure to state a civil rights claim, Plaintiff similarly cannot sustain a claim for conspiracy to violate those rights. Thus, further amendment of his claims would be futile.
For the reasons explained above, it is respectfully recommended that Defendants' motion to dismiss the Second Amended Complaint (ECF No. 32) be granted with prejudice as to Counts I and II, and that Count III be dismissed without prejudice under 28 U.S.C. § 1367(c)(3).
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections by July 14, 2021. Any party opposing the objection shall file a response by July 28, 2021. Failure to file timely objections will waive the right of appeal.