Pompey Coal Co. v. Borough of Jessup
| Decision Date | 04 May 2023 |
| Docket Number | Civil Action 3:20-cv-00358 |
| Parties | POMPEY COAL COMPANY, Plaintiff, v. BOROUGH OF JESSUP, et al., Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
This is a federal civil rights action concerning the adoption and application of a local land use ordinance. It was originally commenced in state court by the filing of a writ of summons on April 24, 2019. Doc. 2. The action was removed to federal court by the defendants on February 28, 2020.
The plaintiff, Pompey Coal Company (“Pompey Coal”) seeks damages and declaratory relief against the Borough of Jessup (the “Borough”) and seven current or former members of its Borough Council, each of whom is named as a defendant in both his or her personal and official capacities. In its pleadings, Pompey Coal has claimed that the defendants adopted a land use ordinance, Ordinance 3 of 2019 (“Ordinance 3”), and rezoned its property in an unconstitutional and tortious manner.
We previously considered and dismissed a similar set of federal civil rights claims asserted in the plaintiff's first amended complaint. See Pompey Coal Co. v. Borough of Jessup, Civil Action No. 3:20-cv-00358, 2021 WL 1212586 (M.D. Pa. Mar. 31, 2021), Doc. 32; see also Doc. 33. In doing so, we granted the plaintiff leave to amend. The plaintiff then filed the instant second amended complaint. Doc. 38.
The defendants, appearing jointly through counsel, have moved to dismiss the plaintiff's second amended complaint. Doc 39. That motion is fully briefed and ripe for decision. Doc 42; Doc. 47; Doc. 48. For the reasons stated below, the motion will be granted and the second amended complaint will be dismissed.
We have previously recounted the facts underpinning the plaintiff's claims in detail. See Pompey Coal, 2021 WL 1212586, at *1-*4. Generally the second amended complaint is substantively identical to the first amended complaint. The second amended complaint omits some of the facts alleged in the first amended complaint,[1]and it alleges a handful of new facts, which we will recount as necessary in our discussion below of the federal legal claims asserted by the plaintiff in its second amended complaint. But for the most part, the plaintiff's currently operative factual allegations are substantially the same as those previously alleged.
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). “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 the plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v Twombly, 550 U.S. 544, 555-56 (2007)). In deciding the 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). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept “unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required to credit factual allegations contradicted by indisputably authentic documents on which the complaint relies or matters of public record of which we may take judicial notice. In re Washington Mut. Inc., 741 Fed. App'x 88, 91 n.3 (3d Cir. 2018); Sourovelis v. City of Philadelphia, 246 F.Supp.3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F.Supp.2d 579, 588-89 (W.D. Pa. 2008).
The second amended complaint is comprised of six counts-three federal claims, numbered I through III, and three state-law claims, numbered V through VII.[2]In Count I, the plaintiff asserts a § 1983 retaliation claim under the First Amendment, contending that the defendants retaliated against Pompey Coal for the exercise of its First Amendment right to oppose and criticize the new zoning ordinance and map, Ordinance 3. In Count II, the plaintiff asserts a § 1983 takings claim under the Fifth Amendment, contending that the adoption of Ordinance 3 and rejection of a land development application by Pompey Coal constituted an unconstitutional regulatory taking without just compensation. In Count III, the plaintiff asserts a § 1983 equal protection claim under the Fourteenth Amendment, contending that Ordinance 3 treated Pompey Coal differently from other similarly situated property owners without a compelling state interest. In Count V, VI, and VII, the plaintiff asserts state-law civil conspiracy and intentional interference with existing and prospective contractual relations claims. For relief, the plaintiff seeks declaratory judgment and an award of compensatory and punitive damages.
Pompey Coal brings its federal civil rights claims, set forth in Counts I, II, and III, under 42 U.S.C. § 1983. Section 1983 provides in pertinent part:
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 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 does not create substantive rights, but instead provides remedies for rights established elsewhere. City of Oklahoma v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983 claim, the plaintiff must establish that the defendant, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995).
To avoid dismissal for failure to state a claim, a civil rights complaint must state the conduct, time, place, and persons responsible for the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).
In Count I, the plaintiff asserts a § 1983 retaliation claim. To plead a § 1983 retaliation claim, a plaintiff must allege: “(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action.” Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006).
In its first amended complaint, Pompey Coal had premised its § 1983 retaliation claim on a purported Fourteenth Amendment due process right to own, use, develop, and sell its real property. But, as we noted in our prior opinion, Pompey Coal, 2021 WL 1212586, at*6 (citations omitted).
In its second amended complaint, Pompey Coal has pivoted to assert a § 1983 retaliation claim based on its First Amendment free speech rights. With respect to the first element, the plaintiff points to its opposition and criticism of the proposed zoning ordinance and map, Ordinance 3, as the requisite constitutionally protected conduct. With respect to the second element, the plaintiff points to the Borough Council's adoption of the very same zoning ordinance and map as the requisite retaliatory action.
But it is the third element, causation, where the plaintiff's First Amendment claim falters. As alleged in the second amended complaint, the Borough Council first began to consider rezoning the property at issue in July 2018, apparently after learning that Pompey Coal was in negotiations to sell the property to a non-party, Northpoint, as the site of a new warehouse distribution center. On July 31, 2018, the Borough entered into a contract with a consultant to prepare a comprehensive plan and new zoning ordinance. Nine days later, on August 9, 2018, the consultant produced the draft zoning ordinance and map, which would ultimately be adopted as Ordinance 3, in which adjacent parcels owned by Pompey Coal were rezoned from an M-1A Business Park classification to R-2 (Residential) and IAC (Interchange Activity Classification) classifications. On August 22, 2018, the Borough Council preliminarily approved the draft zoning ordinance and map provided by the consultant without any comment or input from Pompey Coal. Two weeks later, on September 5, 2018, an attorney for Pompey Coal wrote a letter to the Borough solicitor to express, for the very first time, Pompey Coal's objection and opposition to the rezoning legislation. A public hearing on the proposed zoning ordinance and map was held on March 25, 2019, at which time Pompey Coal appeared and again expressed its objection and opposition to the rezoning legislation. On April 10, 2019, the Borough Council formally enacted Ordinance 3.
The zoning ordinance and map ultimately adopted by the Borough Council was proposed by its consultant and preliminarily approved by the council be...
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