Barnes Foundation v. Township of Lower Merion, Civ. A. No. 96-0372.

• Decision Date: 03 June 1996
• Docket Number: Civ. A. No. 96-0372.
• Citation: 927 F. Supp. 874
• Parties: The BARNES FOUNDATION, Plaintiff, v. TOWNSHIP OF LOWER MERION, et al. Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

927 F. Supp. 874

The BARNES FOUNDATION, Plaintiff, v. TOWNSHIP OF LOWER MERION, et al. Defendants.

Civ. A. No. 96-0372.

United States District Court, E.D. Pennsylvania.

June 3, 1996.

Richard P. McElroy, Robert J. Sugarman, Philadelphia, PA, for plaintiff.

Paul S. Diamond, William K. Pelosi, Larry D. Wood, Jr., Anchorage, AK, for defendants.

MEMORANDUM and ORDER

ANITA B. BRODY, District Judge.

Before me for disposition are the Motions to Dismiss filed by defendant Township of Lower Merion ("Township"), defendant Township Commissioners ("Commissioners"), and defendant neighbors ("Neighbors"). Oral argument on these motions was held on May 10, 1996. After reviewing the various arguments, I will grant the Neighbors' Motions to Dismiss on grounds of first amendment immunity (Noerr-Pennington doctrine), and will deny the Township's and the Commissioners' Motions to Dismiss the § 1983 and § 1985(3) claims. I refuse to abstain under Younger.

I. BACKGROUND

Plaintiff Barnes Foundation ("Barnes") filed this action in January, 1996, alleging that the Township, the Commissioners and the Neighbors had infringed upon Barnes' constitutional rights by acting in concert to discriminate against and harass Barnes. These actions included: enforcing existing parking, police, fire and zoning ordinances in a discriminatory manner; interfering with the reopening of Barnes in November 1995; "closely monitoring" the actions of Barnes, including picketing and videotaping the entrance to Barnes; preventing Barnes from creating a parking lot; interfering with existing and prospective business relationships; and filing a retaliatory law suit in state court. Through these actions, Barnes claims that the defendants infringed upon its fundamental liberty and property interests; violated its right to equal protection under the 14th amendment (by selectively enforcing local laws and treating Barnes differently than other similarly situated institutions); violated its substantive due process rights (by depriving Barnes of its property interest in an irrational manner); and infringed on its first amendment rights (by filing a retaliatory law suit). Barnes brings this action pursuant to § 1983 and § 1985(3), and seeks compensatory damages, punitive damages, an injunction, and attorneys' fees and costs.

II. DISCUSSION

Defendants move to dismiss Barnes' claims on 12(b)(6) grounds. Rule 12(b)(6) permits the court to dismiss an action for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). In considering such a motion, the court must accept as true all allegations in the complaint and all reasonable inferences that may be drawn therefrom, viewed in the light most favorable to the plaintiff. See Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir.1989). The claims may only be dismissed on 12(b)(6) grounds if Barnes cannot demonstrate any set of facts that would entitle it to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir.1994); Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir.1988).¹

A. § 1983 and § 1985(3) Claims

Barnes has provided enough of a factual basis in its Amended Complaint for the § 1983 and § 1985(3) claims against the Township and the Commissioners to survive the Motions to Dismiss under Rule 12(b)(6). The Motions to Dismiss the claims against the Township and the Commissioners are therefore denied.

The § 1983 and § 1985(3) claims against the Neighbors, although perhaps otherwise cognizable, are dismissed under the Noerr-Pennington Doctrine.²

B. First Amendment Immunity/Noerr-Pennington Doctrine

The Neighbors are dismissed from this action due to their first amendment immunity under the Noerr-Pennington doctrine.

The Noerr-Pennington doctrine protects citizens from being penalized for exercising their first amendment right to petition government. First recognized in the antitrust context by the Supreme Court in Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) ("Noerr") and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965) ("Pennington"), and further developed by the Supreme Court in City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991) ("Omni"), the Noerr-Pennington doctrine has been extended to protect citizens in a variety of contexts; for example, see Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993) (Noerr-Pennington doctrine applied to copyright infringement action); (NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) (Noerr-Pennington doctrine immunizes citizens from liability for exercising right to boycott); Video Int'l Prod., Inc. v. Warner-Amex Cable Communications, Inc., 858 F.2d 1075 (5th Cir.1988), cert. denied 490 U.S. 1047, 109 S.Ct. 1955, 104 L.Ed.2d 424 (1989) (Noerr-Pennington protects defendant from liability for claim of conspiracy with city in violation of civil rights under § 1983); Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607 (8th Cir.1980) (private citizens immune from liability in § 1983 claim regarding zoning dispute). Like these other courts, the Third Circuit has also applied the Noerr-Pennington doctrine outside of the anti-trust context, to protect citizens from liability for exercising their rights to petition. See e.g. Brownsville Golden Age Nursing Home, Inc. v. Wells, 839 F.2d 155 (3d Cir.1988) (applying Noerr-Pennington doctrine to immunize defendants in conspiracy action, on basis that defendants were exercising first amendment rights when alerting authorities to fact that nursing home was failing to comply with applicable regulations).³

The claims in this present action all stem from an alleged conspiracy between the various defendants. The crux of the allegations against the Neighbors hinges on their participation in meetings in which they aired their concerns about Barnes.⁴ Such behavior is a classic example of activity that the Supreme Court aimed to protect in developing the Noerr-Pennington doctrine. "In a representative democracy such as this, these branches of government act on behalf of the people and, to a very large extent, the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives. To hold that the government retains the power to act in this representative capacity and yet hold, at the same time, that people cannot freely inform the government of their wishes would ... be particularly unjustified". Noerr, 365 U.S. at 137, 81 S.Ct. at 529; see also Omni, 499 U.S. at 379-80, 383, 111 S.Ct. at 1353-54, 1355-56 (finding that the right to petition is both a constitutional right, and also a "political" right stemming from citizens' right to participate in government, and that Noerr-Pennington should be used to protect this right); see generally George W. Pring & Penelope Canan, SLAPP's — Getting Sued for Speaking Out 15-29 (1996) (the Noerr-Pennington doctrine is a shield that is properly wielded when litigation threatens to chill a petitioner's right to free speech).

It is irrelevant that the Neighbors' petitioning may have been motivated by racism. Under the Noerr-Pennington doctrine, it does not matter what factors fuel the citizen's desire to petition government. As long as there is petitioning activity, the motivation behind the activity is unimportant. See e.g. Noerr, 365 U.S. at 139, 81 S.Ct. at 530 ("The right of the people to inform their representatives in government of their desires with respect to the passage or enforcement of laws cannot properly be made to depend upon their intent in doing so"); Pennington, 381 U.S. at 670, 85 S.Ct. at 1593 ("Noerr shields ... a concerted effort to influence public officials regardless of intent of purpose"); Omni, 499 U.S. at 380, 111 S.Ct. at 1354 ("That a private party's political motives are selfish is irrelevant").

The only restriction placed on Noerr-Pennington immunity is that the petitioners must make a genuine effort to influence legislation or procure favorable government action, rather than simply using the petitioning process as a means of interference or harassment (known as "sham exception"). See Omni, 499 U.S. at 380, 111 S.Ct. at 1354 (defining "sham" petitioning as a situation in which "persons use the governmental process — as opposed to the outcome of that process —" as a "weapon")⁵; see also Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 500 n. 4, 108 S.Ct. 1931, 1937 n. 4, 100 L.Ed.2d 497 (1988) ("Private action that is not genuinely aimed at procuring favorable government action is a mere sham that cannot be deemed a valid effort to influence government action"); Noerr, 365 U.S. at 144, 81 S.Ct. at 533 (no immunity when petitioning activity "is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor"). When petitioning is a "sham", first amendment protections do not shield defendants from liability.

The sham exception is inapplicable here. The Neighbors petitioned their local government in order to influence policy and obtain favorable governmental action, thus satisfying the requirements for Noerr-Pennington immunity. (Indeed, the conspiracy allegation rests on this notion that the Neighbors petitioned the other defendants in order to influence the government's actions towards Barnes. See e.g. Amended Complaint at ¶¶ 71-80). Furthermore, Barnes never even alleges that the petitioning here was a sham. See Barnes' Response to the Motions to Dismiss at 53-65.

In spite of the above, Barnes argues that the Noerr-Pennington doctrine should not immunize the Neighbors from liability. In making its arguments, Barnes relies on the Third Circuit opinion in ...