Frank L. Rizzo Monument Comm. v. City of Philadelphia

• Decision Date: 12 January 2022
• Docket Number: Civil Action 20-3245
• Court: U.S. District Court — Eastern District of Pennsylvania
• Parties: FRANK L. RIZZO MONUMENT COMMITTEE, Plaintiff, v. CITY OF PHILADELPHIA and MAYOR JAMES KENNEY, Defendants.

FRANK L. RIZZO MONUMENT COMMITTEE, Plaintiff,
v.
CITY OF PHILADELPHIA and MAYOR JAMES KENNEY, Defendants.

Civil Action No. 20-3245

United States District Court, E.D. Pennsylvania

January 12, 2022

MEMORANDUM

C. DARNELL JONES, II J.

This matter was originally filed in the Philadelphia County Court of Common Pleas. It was removed to this Court by Defendants, who then filed a Motion to Dismiss Plaintiff's Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, Count III of Plaintiff's Complaint-raising a claim under 42 U.S.C. § 1983-will be dismissed, the Court will decline to exercise supplemental jurisdiction over Plaintiff's remaining state law claims, and the matter will therefore be remanded to state court.

I. FACTUAL AND PROCEDURAL BACKGROUND

A statue of former Philadelphia Mayor Frank Rizzo (the “Statue”) “once stood in front of the Municipal Services Building at 1401 John F. Kennedy Boulevard in Philadelphia.” Plaintiff's Complaint (“Compl.”) at ¶ 4. The Statue was commissioned by the Frank L. Rizzo Monument Committee (the “Committee” or “Plaintiff”), which donated the Statue to the City of Philadelphia pursuant to a “Donation and Maintenance Agreement” dated December 30, 1998 (the “Agreement”). Compl. at ¶ 6.

On June 2, 2020, Mayor James Kenney issued an executive order entitled: “Emergency Order to Remove the Frank Rizzo Statue from Display on City Property Due to Its Threat to

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Public Health, Safety, and Welfare” (the “Emergency Order”). Compl. at ¶ 7; Plaintiff's Opp'n at Ex. F. The Emergency Order stated, inter alia, that (i) “massive protests and demonstrations have erupted across the country, including here in Philadelphia, in response to the recent death of George Floyd, a Black man in Minneapolis who died after a white police officer knelt on his neck”; (ii) “the continued display of the Statue, because of its infamy and association with racism, bigotry, and police brutality, has enraged persons protesting Mr. Floyd's death and many others, and, once again, the Statue was subject to numerous attempts by enormous crowds [during the recent protests] to demolish, light on fire, excavate, smash, break, and topple it- risking severe injury and death to nearby persons and causing damage to other City property”; (iii) the City “expected [the Statue] to remain the target of further [such] attempts[, ] . . . risking injury and death, further damage to City property, and unnecessary diversion of City and other resources”; and, as a result (iv) “immediate removal of the Statue [wa]s necessary to protect the health, safety, and welfare of Philadelphians and City employees.” Pl.'s Opp'n at Ex. F. The Emergency Order also specified “that section 7(c) of the Agreement allows the City to immediately remove the State to protect the health, safety, and welfare of the public without notification to the Committee.” Pl.'s Opp'n at Ex. F.

The Statue was removed on June 3, 2020 pursuant to the Emergency Order. According to the Committee, “the Statue was removed under cover of night, with no process or input from the public or approval from the Philadelphia Art Commission.” Compl. at ¶ 8. “On June 15, 2020, [the Committee] sent a letter inquiring about the Statue's condition and whereabouts.” Compl. at ¶ 11. That letter expressed the Committee's desire and intention to recover the Statue from wherever it was being held by the City, citing Section 7(f) of the Agreement, which provides, in pertinent part, that “if the City shall at any time decide [] to remove the [Statue]

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from . . . public display, or [] dispose of the [Statue], it shall give notice to the [Committee] and offer the [Committee] a reasonable opportunity to recover the [Statue].” Pl.'s Opp'n at Exs. A-B. The City responded via letter dated June 24, 2020, stating that the Statue was being held in a secure City facility, and would not be made available for the Committee to either reclaim or inspect it. Pl.'s Opp'n at Ex. C.

Unsatisfied with the City's response, the Committee filed its Complaint in state court against both the City and Mayor Kenney (collectively, “Defendants”), “seeking an injunction and writ of mandamus in order to compel Defendants to comply with the Agreement.” Pl.'s Opp'n Br. at 3. The Committee's Complaint also included a claim under 42 U.S.C. § 1983, alleging that its due process rights had been violated. Compl. at ¶¶ 54-58. Defendants removed the case to this Court, invoking federal jurisdiction as a result of the Committee's due process claim. See Defs.' Notice of Removal.

In a worthwhile attempt to resolve this matter amicably, the parties agreed to pursue nonbinding mediation. The Court held multiple mediation sessions with the parties and their counsel, but, despite the good-faith efforts of all involved, no final resolution was reached.^[1]Accordingly, the Court now turns to Defendants' Motion to Dismiss Plaintiff's Complaint, which, for the reasons set forth below, will be granted in part.

II. STANDARD OF REVIEW

In ruling on a Rule 12(b)(6) motion, courts must “‘accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under

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any reasonable reading of the complaint, the plaintiff may be entitled to relief.'” Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). However, “‘threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'”...