Hazzouri v. West Pittston Borough, No. 3:18cv1982

CourtUnited States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
Writing for the CourtJAMES M. MUNLEY, JUDGE
Citation416 F.Supp.3d 405
Parties Richard HAZZOURI and Kimberly Hazzouri, Plaintiffs v. WEST PITTSTON BOROUGH, The Luzerne County Office of Development; Judy Aita; James Butera and Ellen Quinn, individually and in their capacity as members of the West Pittston Borough Council; and Thomas Blaskiewicz, individually and in his capacity as Mayor of West Pittston Borough, Defendants
Decision Date10 September 2019
Docket NumberNo. 3:18cv1982

416 F.Supp.3d 405

Richard HAZZOURI and Kimberly Hazzouri, Plaintiffs
v.
WEST PITTSTON BOROUGH, The Luzerne County Office of Development; Judy Aita; James Butera and Ellen Quinn, individually and in their capacity as members of the West Pittston Borough Council; and Thomas Blaskiewicz, individually and in his capacity as Mayor of West Pittston Borough, Defendants

No. 3:18cv1982

United States District Court, M.D. Pennsylvania.

Signed September 10, 2019


416 F.Supp.3d 410

Joseph A. Quinn, Jr., Michelle M. Quinn, Ryan M. Molitoris, Donald C. Ligorio, Lars Henry Anderson, Hourigan, Kluger and Quinn, P.C., Kingston, PA, for Plaintiffs.

David E. Heisler, Cipriani & Werner, P.C., Scranton, PA, for Defendants West Pittston Borough, Judy Aita, James Butera, Ellen Quinn, Thomas Blaskiewicz.

John G. Dean, Matthew G. Boyd, Samantha Hazen, Elliott Greenleaf & Dean, Scranton, PA, Mark W. Bufalino, Elliott Greenleaf & Dean, Wilkes-Barre, PA, for Defendant the Luzerne County Office of Community Development.

MEMORANDUM

JAMES M. MUNLEY, JUDGE

Before the court are motions to dismiss the plaintiffs' amended complaint in this due process violation case. (Docs. 21, 36, 37, 38, 39, 40). All motions have been fully briefed, and oral argument has been held. The motions are thus ripe for disposition.

Background

Plaintiffs Richard Hazzouri and Kimberly Hazzouri owned property located in West Pittston Borough, Luzerne County, Pennsylvania, which they used as their primary residence. (Doc. 19, Am. Compl. ¶ 23). Plaintiffs' property was substantially damaged in 2011 as a result of flooding caused by Hurricane Irene and Tropical Storm Lee. (Id. ¶ 26).

Because of the county-wide damage sustained from Hurricane Irene and Tropical Storm Lee, Luzerne County submitted a request to the United States Department of Housing and Urban Development for the release of a Community Development Block Grant Disaster Recovery to undertake a project known as the Luzerne County Flood Disaster Project (hereinafter "Project"). (Id. ¶ 17). The Project was created to acquire and demolish a number of properties in participating municipalities throughout Luzerne County in order to remove flood damaged structures. (Id. ¶ 18). West Pittston Borough was identified as a participating municipality for the Project. (Id. ¶ 19). The Luzerne County Office of Community Development (hereinafter

416 F.Supp.3d 411

"OCD"), which oversaw the Project, adopted a Disaster Recovery Buyout Operations Plan (hereinafter "Plan"). (Id. ¶ 13). The amended complaint does not specify when the plan was adopted, but it was evidently in 2012 or 2013.

Although the plaintiffs owned property within West Pittston Borough, the plaintiffs did not know about the Project until August 20, 2017, when they learned of its existence through friends. (Id. ¶ 38). Plaintiffs immediately contacted OCD, at which time they were informed that the Project was entering its final stage, thus the plaintiffs would have to contact West Pittston Borough for approval to apply. (Id. ¶ 40). Upon receiving approval, the plaintiffs filed their application for relief under the Project on January 30, 2018. (Id. ¶ 45).

On March 6, 2018, OCD informed the plaintiffs that because they did not apply for relief until the closing phase of the Project, it was unlikely that they would be selected for a buyout. (Id. ¶ 46). Plaintiffs' property was assigned to a "waiting list." (Id. ¶ 48). In the meantime, the plaintiffs discovered that another buyout program existed, a mitigation grant program being administered by the Luzerne County Flood Protection Authority (hereinafter "FPA"). (Id. ¶ 51). The FPA advised the plaintiffs that it had received a number of applications for participation from residents of West Pittston Borough and that their request would also be included. (Id. ¶ 53). On April 3, 2018, however, the FPA advised the plaintiffs that West Pittston Borough would not agree to allow the plaintiffs to participate in the FPA Program. (Id. ¶ 56). Consequently, the plaintiffs did not obtain a buyout. (Id. ¶ 57).

Based on the foregoing allegations, plaintiffs filed the instant complaint in the Court of Common Pleas for Luzerne County claiming denial of Procedural Due Process pursuant to 42 U.S.C. § 1983, denial of Substantive Due Process pursuant to 42 U.S.C. § 1983, and denial of Equal Protection of the Law pursuant to 42 U.S.C. § 1983. This matter was removed to this court on October 12, 2018. The defendants have each filed separate motions to dismiss. At the request of the plaintiff, a hearing was held on the motions on June 28, 2019, bringing this case to its present posture.

Jurisdiction

Because this case is brought pursuant to 42 U.S.C. § 1983, the court has jurisdiction pursuant to 28 U.S.C. § 1331. ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.").

Legal Standard

The defendants filed their motions to dismiss plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The court tests the sufficiency of the complaint's allegations when considering a Rule 12(b)(6) motion. All well-pleaded allegations of the complaint must be viewed as true and in the light most favorable to the non-movant to determine whether, " ‘under any reasonable reading of the pleadings, the plaintiff may be entitled to relief.’ " Colburn v. Upper Darby Twp., 838 F.2d 663, 665–66 (3d Cir. 1988) (quoting Estate of Bailey by Oare v. Cnty. of York, 768 F.2d 503, 506 (3d Cir. 1985) ). The plaintiff must describe " ‘enough facts to raise a reasonable expectation that discovery will reveal evidence of’ [each] necessary element" of the claims alleged in the complaint. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Moreover, the plaintiff must allege facts that "justify moving the case beyond the pleadings to the next stage of litigation." Id. at 234–35. In evaluating the sufficiency

416 F.Supp.3d 412

of a complaint the court may also consider "matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994) (citations omitted). The court does not have to accept legal conclusions or unwarranted factual inferences. See Curay–Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) ).

The federal rules require only that plaintiff provide "a short and plain statement of the claim establishing that the pleader is entitled to relief," a standard which "does not require detailed factual allegations," but a plaintiff must make "a showing, rather than a blanket assertion, of entitlement to relief that rises above the speculative level." McTernan v. N.Y.C., 564 F.3d 636, 646 (3d Cir. 2009) (citations and internal quotations and quotation marks omitted).

Discussion

Defendants West Pittston Borough, The Luzerne County Office of Community Development, Ellen Quinn, Judy Aita, James Butera, and Thomas Blaskiewicz have each filed separate motions to dismiss. After a review of the motions, it appears that Defendants Quinn, Aita, Butera, and Blaskiewicz (hereinafter "individual defendants") move to dismiss the complaint on the same grounds. As such, we will begin our review with Defendant West Pittston Borough's motion and conclude our review with the issues raised by the individual defendants' motions.

I. Defendant West Pittston Borough

We first address the motion to dismiss filed by Defendant West Pittston Borough. Initially, the plaintiffs contend that we should not even consider the merits of the Defendant West Pittston's motion because the defendant should have raised these issues in its motion to dismiss plaintiff's first amended complaint but did not. Defendant West Pittston also makes several substantive arguments in favor of dismissal. We will address these arguments in turn.

A. Rule 12(g) Violation

On October 12, 2018, this case was removed to the Middle District of Pennsylvania. Subsequently, on October 19, 2018, Defendant West Pittston Borough filed a motion to dismiss. (Doc. 3). Instead of responding to the defendant's motion to dismiss, the plaintiffs filed an amended complaint on November 21, 2018. (Doc. 6). The defendant immediately filed a motion to dismiss the plaintiff's amended complaint as untimely. (Doc. 7). The plaintiffs then moved the court for leave to file an amended complaint on December 4, 2018. (Doc. 11). On January 15, 2019, we issued an order granting the defendant's motion to dismiss the plaintiffs' amended complaint as untimely and also allowing the plaintiffs leave to amend. (Doc. 18). We dismissed defendant's first motion to dismiss as moot. (Doc. 20). In accordance with our order granting leave, the plaintiffs filed a second amended complaint on...

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2 practice notes
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    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 19 Septiembre 2019
    ...request for injunctive relief as well as their claims for breach of contract, implied warranty, express warranty, and fraudulent 416 F.Supp.3d 405 misrepresentation. We will deny the motion in all other respects. An appropriate order shall issue.--------Notes:1 Rite Aid also moves to dismis......
  • Pompey Coal Co. v. Borough of Jessup, CIVIL ACTION NO. 3:20-cv-00358
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 31 Marzo 2021
    ...Roth, 408 U.S. 564, 577 (1972); Kelly v. Borough of Sayreville, 107 F.3d 1073, 1077 (3d Cir. 1997); Hazzouri v. W. Pittston Borough, 416 F. Supp. 3d 405, 415 (M.D. Pa. 2019); see also DeKalb Stone, Inc. v. Cty. of DeKalb, 106 F.3d 956, 959 (11th Cir. 1997) ("It is well established that......
3 cases
  • Silva v. Rite Aid Corp., CIVIL ACTION NO. 1:18-CV-2135
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 19 Septiembre 2019
    ...request for injunctive relief as well as their claims for breach of contract, implied warranty, express warranty, and fraudulent 416 F.Supp.3d 405 misrepresentation. We will deny the motion in all other respects. An appropriate order shall issue.--------Notes:1 Rite Aid also moves to dismis......
  • Pompey Coal Co. v. Borough of Jessup, CIVIL ACTION NO. 3:20-cv-00358
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 31 Marzo 2021
    ...Roth, 408 U.S. 564, 577 (1972); Kelly v. Borough of Sayreville, 107 F.3d 1073, 1077 (3d Cir. 1997); Hazzouri v. W. Pittston Borough, 416 F. Supp. 3d 405, 415 (M.D. Pa. 2019); see also DeKalb Stone, Inc. v. Cty. of DeKalb, 106 F.3d 956, 959 (11th Cir. 1997) ("It is well established that land......
  • Detective Moses President v. Gov't of the V.I., 1:17-cv-00046 (CAK)
    • United States
    • United States District Courts. 3th Circuit. District of the Virgin Islands
    • 29 Noviembre 2022
    ...at the pleading stage as it is necessary to develop the factual record in the vast majority of cases.” Hazzouri v. W. Pittston Borough, 416 F.Supp.3d 405, 421 (M.D. Pa. 2019); see also Curley v. Klem, 298 F.3d 271, 278 (3d Cir. 2002) (“[A] decision on qualified immunity will be premature wh......

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