Gera v. Borough of Frackville
| Decision Date | 06 February 2023 |
| Docket Number | Civil Action 3:20-CV-00469 |
| Parties | JOHN M. GERA, Plaintiff, v. BOROUGH OF FRACKVILLE, et al., Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
REPORT AND RECOMMENDATION
Pro se Plaintiff John M. Gera (“Gera”) commenced the above-captioned civil rights action on March 20, 2020 asserting various claims against the Borough of Frackville (the “Borough”) and four Borough officials Solicitor Mark Semanchik, Esq., Police Chief Richard Bell, Police Officer Devin Buccieri, and Secretary Brenda Deeter (collectively, “Defendants”). (Doc. 1, at 1-2). In Gera's amended complaint, which stands as the operative complaint in this case, Gera asserts claims for civil rights violations, criminal conspiracy, harassment, slander and defamation, pain and suffering, and intentional infliction of emotional distress (“IIED”) against the aforementioned Defendants. (Doc. 34, at 10-32). Before the Court are three motions: (1) Defendants' second motion to dismiss Gera's first amended complaint; (2) Gera's third motion for entry of default for Defendants' failure to answer his complaint; and (3) Gera's second motion for summary judgment. (Doc. 32; Doc. 35; Doc. 39). The motions have been fully briefed and are now ripe for disposition. (Doc. 32; Doc. 35; Doc. 36; Doc. 37; Doc. 38; Doc. 39; Doc. 40; Doc. 41; Doc. 42; Doc. 43; Doc. 44).
For the reasons that follow, it is respectfully recommended that: (1) Defendants' motion to dismiss be GRANTED, Gera's amended complaint be dismissed without prejudice, and he be granted leave to file a second amended complaint; (2) Gera's third motion for entry of default judgment be DENIED; and (3) Gera's second motion for summary judgment be DENIED without prejudice as premature. (Doc. 32; Doc. 35; Doc. 39).
Gera initiated this action by filing a complaint on March 20, 2020. (Doc. 1). Summons was issued and provided to Gera, who served Defendants by sending copies of the summons and complaint on March 27, 2020. Gera filed his first proof of service of process on April 10, 2020. (Doc. 4). Defendants filed a motion to dismiss Gera's complaint on May 5, 2020, and Gera filed a motion for entry of default on May 7, 2020. (Doc. 5; Doc. 8). On May 11, 2020, Gera filed a motion for summary judgment as well as a brief in support and statement of facts. (Doc. 10; Doc. 11; Doc. 12). On May 22, 2020, Gera filed a second proof of service reflecting that the Schuylkill Sheriff's Department had served Defendant in person on May 18, 2020. (Doc. 17). On May 29, 2020, Defendants filed a brief in opposition to Gera's motion for summary judgment. (Doc. 18). On February 8, 2021, the undersigned issued a report and recommendation in which it was recommended that the Court (1) grant Defendants' motion to dismiss without prejudice and grant Gera leave to file an amended complaint; (2) deny Gera's motion for summary judgment; and (3) deny Gera's motion for entry of default judgment as moot and premature. (Doc. 21). On April 4, 2022, the District Court adopted the undersigned's report and recommendation. (Doc. 31).
On March 30, 2021, Gera filed a second motion for entry of default and attached affidavit. (Doc. 24; Doc. 25). On April 13, 2021, Defendants filed a brief in opposition to Gera's second motion for entry of default. (Doc. 26). On April 21, 2022, Gera filed a reply brief. (Doc. 27). On April 29, 2021, Gera filed an objection to the undersigned's report and recommendation. (Doc. 28). On May 12, 2021, Defendants filed a reply brief to Gera's objection, and Gera filed a reply brief on May 26, 2021. (Doc. 29; Doc. 30).
On April 21, 2022, Gera filed second motion for entry of default and attached affidavit. (Doc. 32; Doc. 33). On May 3, 2022, Gera filed an amended complaint which stands as the operative complaint in this case. (Doc. 34). On May 18, 2022, Defendants filed a motion to dismiss Gera's amended complaint and brief in support on May 19, 2022. (Doc. 35; Doc. 36). On May 31, 2022, Gera filed a brief in opposition to Defendants' motion to dismiss (Doc. 37). Defendants filed a reply brief to Gera's motion on June 14, 2022. (Doc. 38). On June 23, 2022, Gera filed a motion for summary, a statement of facts, and a brief in support of his motion for summary judgement.[1] (Doc. 39; Doc. 40; Doc. 41). On July 13, 2022, Defendants filed briefs in opposition to Gera's motion for summary judgment. (Doc. 42; Doc. 43). On July 25, 2022, Gera filed a reply brief. (Doc. 44).
Because Gera's motion for entry of default judgment, if meritorious, would render moot Defendants' motion to dismiss and Gera's motion for summary judgment, the undersigned will first address the motion for entry of default. (Doc. 32). At the outset, it is difficult for the undersigned to construe the specific arguments Gera makes in support of his motion for entry of default. (Doc. 33). Gera broadly alleges that “Defendants never replied to Gera's second served summon and complaint.” (Doc. 33, ¶ 8).
Entry of default judgment is governed by Rule 55 of the Federal Rules of Civil Procedure. Under subsection (a) of that rule, the Clerk of Court is instructed to enter a default against a defendant who “has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise.” Fed.R.Civ.P. 55(a). “Entry of a default is a prerequisite to entry of a default judgment under Rule 55(b).” Sys. Indus., Inc. v. Han, 105 F.R.D. 72, 74 (E.D. Pa. 1985) (emphasis in original). However, “before a default can be entered, the court must have jurisdiction over the party against whom the judgment is sought, which also means that the party must have been effectively served with process.” Enigwe v. Gainey, No. CIV.A. 10-684, 2012 WL 213510, at *2 (E.D. Pa. Jan. 23, 2012) (quoting another source); see also Pergola v. Umar, No. 90-CV-1876, 1991 WL 152968, at *2 (E.D. Pa. Aug. 6, 1991) ().
Gera filed his amended complaint on May 3, 2022. (Doc. 34). On May 18, 2022, Defendants responded by filing a motion to dismiss, in accordance with Rule 12(a)(1)(A) of the Federal Rules of Civil Procedure. (Doc. 35); Fed.R.Civ.P. 12(a)(1)(A) (“A defendant must serve an answer: (i) within 21 days after being served with the summons and complaint; or (ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent”). Gera filed his second motion for entry of default and supporting declaration on April 21, 2022, based on Defendants' failure to timely submit a response. (Doc. 32; Doc. 33).
Defendants' response to the case was timely. See Fed.R.Civ.P. 12(a)(1)(A). As such, Gera's motion for entry of default judgment would not be appropriate as Defendants have defended the suit by filing a timely motion to dismiss and have otherwise participated in the litigation process. Lomma v. Ohio_Nat'l Life Assurance Corp., No. 3:16-CV-2396, 2018 WL 8344839, at *1 (M.D. Pa. Jan. 4, 2018) (determining entry of default judgment was not appropriate where Defendants have defended the suit by filing a timely motion to dismiss, a timely motion for summary judgment, and otherwise participated in the litigation process).
Accordingly, it is recommended that the Court deny Gera's motion for entry of default judgment.
Defendants first move to dismiss under Fed.R.Civ.P. 8(a), arguing that Gera's amended complaint, rather than curing the deficiencies of the original complaint, adds additional paragraphs that do not provide relevant factual background giving rise to Gera's varied causes of action and restates the same conclusory paragraphs of the original complaint. (Doc. 35; Doc. 36, at 23-24). In seeking dismissal under Rule 12(b)(6), Defendants argue that Gera's claims are barred by the Younger abstention doctrine and that his allegations fail to state a claim upon which relief can be granted.[2] (Doc. 36). In opposition, Gera argues that he has met the requirements of this rule and the amended complaint is “written this way, because of all the violations the Borough of Frackville did against Gera's civil and constitutional rights.” (Doc. 37, at 15). Upon consideration of the amended complaint, the undersigned finds that Gera's amended complaint should be dismissed for failure to state a claim under Rule 8(a) and Rule 12(b)(6).
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions which are not entitled to the assumption of truth, and finally determine whether the complaint's factual allegations, taken as true, could plausibly satisfy the elements of the legal claim. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule 12(b)(6) motion, the court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
After recognizing the required elements which make up the legal claim, a court should “begin by identifying pleadings that, because they are no more than...
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