# 1201 WEST GIRARD AVENUE, LLC v. CLARKE

> District Court, E.D. Pennsylvania · December 4, 2023

URL: https://www.frixlaw.com/law-library/cases/10406367

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** December 4, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10406367

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

1201WEST GIRARD AVENUE, LLC, : CIVIL ACTION
ORI FEIBUSH :
:
v. : NO. 23-3488
:
DARRELL L. CLARKE :

MEMORANDUM
KEARNEY, J. December 4, 2023
An experienced developer with zoning permits allowing it to alter a residential
neighborhood by replacing a long-standing pharmacy with a multi-family residential complex
must recognize it could face political opposition when the neighbors complain to their local
elected official. The elected official can oppose the planned change. The issue before us today is
whether the developer pleads an elected Philadelphia councilman challenging this type of change
in his district is personally benefiting from challenging the change beyond garnering cheers from
those who could vote for him. The developer alleges the councilman called the Zoning Board
chair and Board members off the record to lodge concerns, filed objections, and pursued policy
arguments eventually dismissed by both the zoning board and the state court on appeal. The
councilman’s steps allegedly caused the developer to pay higher interest rates on its borrowing
and lose opportunities. But the developer could not plead after two attempts (nor explain during
oral argument) why the councilman’s advocacy personally benefitted the councilman beyond
satisfying his voters. The developer does not plead facts suggesting corruption. The developer
also does not plead an equal protection claim. We dismiss the developer’s federal claims. We
decline to exercise supplemental jurisdiction over its (and its principal’s) state law abuse of
process and tort claims. We return those state law claims to the state court.
I. Alleged facts.
Property developer 1201 West Girard Avenue, LLC owns property at 1201 West Girard
Avenue in Philadelphia.1 Ori Feibush is a principal in 1201 LLC. A retail pharmacy long
occupied 1201 West Girard Avenue serving persons represented by Philadelphia City Council
President Darrell Clarke.2 1201 LLC announced plans to build residential housing at 1201 West

Girard Avenue consisting of 166 dwelling units and spanning 117,960 square feet.3
1201 LLC obtained as-of-right permits authorizing demolition and construction of
multifamily housing at 1201 West Girard Avenue on January 14, 2021.4 Those hoping to oppose
this development could file challenges to the permits until February 15, 2021.5
Council President Clarke challenges 1201 LLC’s zoning permits.
Council President Clarke opposed 1201 LLC’s permits before the City’s Zoning Board of
Adjustment.6 Council President Clarke based his challenge on the “introductory, preamble
section of the Philadelphia Zoning Code.”7 Council President Clarke brought the permits
challenge without Philadelphia City Council authorization at the hearing before the zoning
board.8 Council President Clarke conceded his challenge to 1201 LLC’s permits “may not

necessarily have anything to do with zoning.”9 The City’s lawyers contested Council President
Clarke’s arguments before the Zoning Board.10 The City’s lawyers argued there existed no valid
legal argument to challenge the permits’ issuance.11 Council President Clarke argued the City
should remap for zoning.12 The City has not remapped for zoning since 1971 and proposed
remapping may have little relationship to whether the City should have issued the as-of-right
permits to 1201 LLC.13
Council President Clarke calls the Zoning Board Chair during the hearing.
Council President Clarke called the Zoning Board Chair during the hearing challenging
1201 LLC’s permits because Council President Clarke grew frustrated the Zoning Board would
not agree to revoke the permits.14 Council President Clarke wanted the Zoning Board to uphold
his challenge to the permits.15 1201 LLC claims Council President Clarke’s phone call violated

Pennsylvania state law against ex parte communications during zoning hearings and the
Philadelphia Home Rule Charter’s proscription against Council President interference with city
official performance.16
The Zoning Board initially agreed with Council President Clarke’s challenge and revoked
1201 LLC’s permits.17 1201 LLC timely moved for reconsideration.18 Council President Clarke
continued to pressure the Zoning Board members to avoid forming a quorum to vote on 1201
LLC’s reconsideration motion.19 The Zoning Board eventually obtained a quorum and reinstated
1201 LLC’s permits on November 2, 2021.20
The Court of Common Pleas rejects Council President Clarke’s appeal.

Council President Clarke appealed the Zoning Board’s denial of his challenge to 1201
LLC’s permits.21 The Court of Common Pleas denied Council President Clarke’s appeal on
October 24, 2022.22 The trial judge highlighted the flaw in Council President Clarke’s argument
of relying on the “aspirational policy considerations” instead of the “actual language of the
various zoning provisions.”23
The litigation delay led to 1201 LLC needing to pay a higher interest rate and requiring
its principal Mr. Feibush to personally guarantee debt.24 They also incurred substantial attorney
fees and costs.25
1201 LLC and Mr. Feibush sue Council President Clarke.
1201 LLC and Mr. Feibush flush with victory turned around and sued Council President
Clarke in state court for interfering with 1201 LLC’s development of 1201 West Girard Avenue
by challenging the issued permits.26 Council President Clarke removed to our Court based on
1201 LLC’s claims he violated the substantive due process clause, equal protection clause, and is

otherwise liable under a municipal liability theory for violating its civil rights even though he is
an individual. 1201 LLC argues Council President Clarke corrupted the zoning process by
advancing baseless arguments to invalidate its permits.27 1201 LLC argues Council President
Clarke violated its substantive due process rights by challenging its permits, attempting to
illegally influence the Zoning Board vote on the permits, and preventing the Zoning Board from
achieving quorum to hear its motion for reconsideration.28 1201 LLC argues Council President
Clarke challenged its permits for his own political and personal gain of being more popular with
the people who voted for him.29
1201 LLC also claims Council President Clarke violated its rights to equal protection by
challenging the permits.30 1201 LLC argues Council President Clarke intentionally treated it

differently than other similarly situated development companies with similar development
permits by seeking to invalidate the permits.31 1201 LLC argues Council President Clarke lacked
a rational basis for seeking to invalidate its issued permits.32
1201 LLC sued Council President Clarke in his individual and official capacity. It also
sued him under a theory of municipal liability even though it is suing him in a direct capacity.
1201 LLC alleges Council President Clarke violated its constitutional rights because of the
City’s policy or custom of deference to councilmember decisions and the City’s failure to train
or supervise members of the Zoning Board and City Council.33 1201 LLC alleges the City
maintains a custom of failing to train members of the Zoning Board and City Council and this
failure to train caused 1201 LLC harm because the untrained Zoning Board members approved
Council President Clarke’s challenge to the permits before reconsidering and rejecting his
challenges.34
1201 LLC also alleges state law claims of abuse of process, wrongful use of civil

proceedings, and tortious interference with its contract rights.35 Mr. Feibush also claims Council
President Clarke tortiously interfered with his contract rights.36
II. Analysis
Council President Clarke moves to dismiss on several grounds.37 We need not address his
challenges to the state law claims as we decline to exercise supplemental jurisdiction over those
claims upon finding 1201 LLC cannot plead federal claims.38
Council President Clarke argues he did not violate 1201 LLC’s substantive due process
rights because the Philadelphia Code authorizes challenges to permit decisions before the Zoning
Board and challenges to Zoning Board decisions before the Court of Common Pleas.39

Adherence to a legally authorized process does not shock the conscience necessary to state a
substantive due process claim.40 Council President Clarke also argues he did not violate 1201
LLC’s equal protection rights because 1201 LLC fails to plead it is a member of a protected
class.41 Council President Clarke argues 1201 LLC cannot allege municipal liability against him
because municipal liability does not attach to individuals sued in their individual capacity.42
Council President Clarke argues 1201 LLC cannot allege municipal liability against him in his
official capacity because he is not a policymaker for purposes of imposing municipal liability.43
1201 LLC does not plead facts allowing us to plausibly infer a basis for substantive due
process, equal protection, or municipal liability claims. We dismiss 1201 LLC’s federal claims.
We remand 1201 LLC’s and Mr. Feibush’s state law claims.
A. 1201 LLC fails to plead a substantive due process claim.

1201 LLC alleges Council President Clarke violated its substantive due process rights by
challenging its permits in the Zoning Board and appealing an adverse decision to the
Pennsylvania trial court.44 1201 LLC argues it has a property interest in the permits.45 1201 LLC
argues Council President Clarke interfered with its property interest by advancing baseless
arguments to challenge the permits’ issuances.46 1201 LLC alleges Council President Clarke
corrupted the zoning process.47 1201 LLC alleges Council President Clarke’s legal challenge to
its permits, his attempts to influence the Zoning Board vote on the permits, and his attempts to
prevent the Zoning Board from achieving quorum to hear its motion for reconsideration shocks
the conscience necessary to state a substantive due process claim.48 1201 LLC broadly alleges
Council President Clarke challenged the permits for his own political and personal gain.49 But

1201 LLC could not identify a personal gain during oral argument and instead argued Council
President Clarke’s interference benefitted him by making him more popular with those voting for
him.
Council President Clarke counters he engaged in a lawfully authorized method to
challenge 1201 LLC’s permits.50 Council President Clarke argues adhering to lawfully
authorized process does not shock the conscience necessary to state a substantive due process
claim.51
We grant Council President Clarke’s motion to dismiss 1201 LLC’s substantive due
process claim. 1201 LLC does not plead facts Council President Clarke’s challenges to its
permits shock the conscience.
Our Court of Appeals requires developers asserting substantive due process claims to
allege a recognized constitutional right and the government’s deprivation of the right “shocks the

conscience.”52 Whether the complained-of behavior shocks the conscience sufficient to state a
substantive due process claim depends on the factual circumstances.53 Our Court of Appeals
considers allegations of corruption or self-dealing sufficient to meet the shock the conscience
standard.54 Violating state law in bad faith, with an improper motive, or “based on considerations
outside the actor’s jurisdiction” generally does not shock the conscience sufficient to state a
substantive due process claim.55
We are persuaded by Judge Mannion’s analysis dismissing a substantive due process
claim where the developer pleaded collusion among Borough officials to interfere with the
developer’s use of the land.56 The developer in Stemler previously sued the borough, a borough

councilmember, and the borough mayor for arbitrarily enforcing borough building codes and
zoning ordinances “to harass and damage him and his business interests.”57 The borough,
officials, and the developer settled the lawsuit.58 Several years after the settlement, the same
borough councilmember, borough mayor, and the borough zoning officer met and set a plan
seeking retribution against the developer to cause harm and damage to the developer and his
business interests.59 The borough issued nine separate notices, orders, or demands to the
developer regarding violations after the borough councilmember, mayor, and zoning officer met
to create their alleged scheme of harassment.60 The developer alleged the unlawful notices,
orders, or demands contained misrepresentations of fact sent to cause the developer financial
harm.61 The developer argued the borough enforced ordinances against him but failed to enforce
the ordinance against the “glaring violations relating to [the borough mayor’s] property.”62 Judge
Mannion granted the borough officials’ motion to dismiss holding the developer failed to plead
facts the borough officials “were motivated by self-interest and animosity” supporting an
inference of “corruption or self-dealing” to state a substantive due process claim.63 Judge

Mannion held the borough officials’ alleged violation of state law through inconsistent
enforcement of its zoning ordinances could not make a substantive due process claim.64
We are also persuaded by Judge Dodge’s analysis in dismissing a developer’s substantive
due process claim where the developer pleaded borough officials’ failure to vote on a permit
caused a work stoppage and forced the developer to pay to relocate a public sewer line.65 The
developer in Tomko used the property for grading and filling for thirty years and received annual
grading permits from the borough.66 The developer submitted the required permit application in
January 2019.67 The borough failed to respond for several months and then allegedly began a
campaign in July 2019 “to falsely attribute illegal conduct to Tomko in order to force him to pay
for the relocation and upgrade of the [b]orough’s outdated sewer system.”68 Borough officials

issued “stop work order[s]” on the property and ordered a hearing on the permit for September
2019.69 At the hearing, borough officials stated they could not adopt the permit without the
developer providing a proposal to relocate an existing public sewer line traversing the property.70
The officials did not rule on the permit during the September 2019 hearing.71 Borough officials
threatened to arrest the manager of the work site and others trying to complete work on the site.72
The developer submitted a revised permit application in March 2020 and the borough again
sought to compel the developer to privately fund the relocation of a public sewer line.73
The developer sued alleging the borough and its officials violated the developer’s
substantive due process rights by delaying work on the project and “coerc[ing]” the developer to
pay for the relocation of the public sewer line constituting unlawful self-dealing.74 Judge Dodge
granted a motion to dismiss the substantive due process claim holding elected officials engaging
in land-use decisions with an improper motive did not shock the conscience sufficient to state a

substantive due process claim.75 Judge Dodge also held the developer failed to allege the
officials engaged in self-dealing despite repeated requests the developer pay for the public sewer
line because the developer did not allege facts suggesting the officials would benefit personally
from the relocated public sewer line.76
We are also guided by the contrasts offered in Chief Judge Sánchez’s review of
sufficiently pleaded facts for a substantive due process claim in Grace Land II, LLC v. Bristol
Township.77 Two associated entities purchased land zoned for residential use from a bank to
operate an outpatient substance abuse and alcohol rehabilitation treatment facility.78 The bank
applied to have the land rezoned for commercial use when it owned the land.79 The township

council president did not oppose rezoning the land so long as the bank did not sell the property to
a drug and alcohol treatment provider.80 The township manager called the lawyer for the
associated entities after the associated entities purchased the land from the bank and warned the
lawyer the township did not want a drug treatment facility operating on the land.81 The township
council president suggested the associated entities purchase vacant school properties within the
district but the township outbid the associated entities for the vacant school properties.82 The
township denied the associated entities “Detox Application” explaining again the township did
not want a drug treatment facility operating on the land and explaining the township would not
have rezoned the land from residential to commercial had the township known the bank would
sell the property to a drug treatment facility.83 The associated entities again filed for a permits
supporting their use of the land for drug treatment and the township again denied the application
despite the associated entities explaining they could not operate any facility on the land without
the requisite permits.84 The associated entities appealed the township’s denials and the state court
reversed the denials.85

The associated entities sued the township arguing the repeated land use application
denials demonstrated “bias against recovering alcohol and drug addicts” and violated the entities’
substantive due process rights.86 Chief Judge Sánchez noted the township’s repeated denials
could be construed as serving the public interest against having a drug treatment facility.87 But
Chief Judge Sánchez allowed the substantive due process claim to proceed, finding pleaded facts
demonstrated “bias and discriminatory animus” sufficient to shock the conscience and plead a
substantive due process claim: the township repeatedly explained to the associated entities it did
not want a drug treatment facility on the property, the township attempted to persuade the
associated entities to purchase a different tract of land to develop the drug treatment facility but

the township ultimately purchased the suggested land and blocked the development, and the
township explained to the associated entities it would not have rezoned the land commercial if
the township knew the bank would sell it to a drug treatment facility operator.88
1201 LLC does not plead facts allowing us to plausibly infer Council President Clarke’s
actions are anything like the actions Chief Judge Sánchez reviewed in Grace Land II. The
associated entities in Grace Land II plead the township manager told the associated entities the
township did not want them operating a drug treatment facility in one location, the township
council president induced the associated entities to try to purchase land elsewhere but outbid the
entities for the suggested land, and the township explained to the associated entities it would not
have rezoned the land the associated entities purchased from residential to commercial had the
township known the previous owner would sell the land to a drug treatment facility.89 1201 LLC
can only plead (after two attempts) Council President Clarke challenged its permits for “political
and personal gain.”90 1201 LLC does not plead why Council President Clarke opposed its
permits other than claiming during oral argument they would find out in discovery but we should

somehow presume his conduct may make him more popular with those voting for him..91 1201
LLC does not plead Council President Clarke’s bias against 1201 LLC or its proposed
development.
1201 LLC’s allegations Council President Clarke violated state law by attempting to
influence the zoning board to accede to his permits challenge do not state a substantive due
process claim. 1201 LLC pleads Council President Clarke illegally interfered with the Zoning
Board’s deliberations by calling the Zoning Board Chair during the hearing.92 Judge Mannion
similarly considered an allegedly unlawful plan among a borough councilmember, borough
mayor, and borough zoning officer to issue unlawful notices and orders of violation on a
developer in Stemler.93 Judge Mannion dismissed the substantive due process claim reminding

the developer state law violations do not alone state a substantive due process claim.94 1201 LLC
cannot state a substantive due process claim by concluding Council President Clarke’s allegedly
unlawful call interfered with the Zoning Board’s decision on 1201 LLC’s permits which the
Zoning Board eventually approved.
1201 LLC, like the developer in Tomko, does not plead facts Council President Clarke
stood to benefit financially from challenging its permits.95 We pressed this issue during oral
argument. 1201 LLC’s counsel conceded he could not plead such facts. The developer in Tomko
sued arguing the borough’s failure to rule on its permit application and the borough’s requests
for plans to relocate the sewer line constitute “self-dealing.”96 Judge Dodge dismissed the
substantive due process claim because the developer did not allege how relocating the sewer line
personally benefitted the borough officials.97 1201 LLC pleads Council President Clarke
received some nebulous personal gain from challenging 1201 LLC’s permits.98 1201 LLC does
not plead how Council President Clarke’s challenge to its permits benefitted him financially.99

We are left to speculate how Council President Clarke received personal financial benefit from
challenging 1201 LLC’s permits. And we cannot speculate. We need a fact basis. 1201 LLC
pleads less information than Judge Dodge considered insufficient to allege a substantive due
process claim.
Substantive due process claims deal more in the elected official’s motives for acting than
in the elected official’s actions themselves.100 1201 LLC pleads several ways in which Council
President Clarke challenged its permits. But 1201 LLC does not plead facts (after two attempts)
allowing us to plausibly infer some unconstitutional bias for why Council President Clarke
challenged its permits. We grant Council President Clarke’s Motion to dismiss 1201 LLC’s

substantive due process claim.
B. 1201 LLC fails to plead an equal protection claim.
1201 LLC pleads Council President Clarke violated its equal protection rights when
challenging its permits.101 1201 LLC argues Council President Clarke intentionally treated it
differently than other similarly situated development companies with similar development
permits in Council President Clarke’s district by challenging 1201 LLC’s permits.102 1201 LLC
argues Council President Clarke lacked a rational basis for seeking to invalidate its issued
permits.103 Council President Clarke counters his challenge to 1201 LLC’s permits did not
violate the development company’s equal protection rights because 1201 LLC fails to plead it is
a member of a protected class.104 We grant Council President Clarke’s motion to dismiss 1201
LLC’s equal protection claim because 1201 LLC fails to plead a relevant comparator.
Our Court of Appeals permits landowners to bring two types of equal protection claims
against elected officials.105 A landowner can plead an equal protection claim by alleging “he
received different treatment than other similarly situated persons and that the disparate treatment

was based on his protected class status.”106 A landowner can also plead a “class of one” equal
protection claim by alleging “(1) the [elected official] treated him differently from others
similarly situated, (2) the [elected official] did so intentionally, and (3) there was no rational
basis for the difference in treatment.”107 In either case the landowner must plead facts about
similarly situated landowners and plead facts the similarly situated landowners are alike “in all
relevant aspects.”108 Our Court of Appeals explains it is “difficult” for a landowner to state an
equal protection claim against an elected official.109 Our Court of Appeals instructs it is “very
unlikely that a claim that fails the substantive due process test will survive under an equal
protection approach.”110

1201 LLC does not plead it is a member of a protected class.111 We review 1201 LLC’s
equal protection claim as a “class of one” claim.
Our Court of Appeals dismissed a landowner’s equal protection claim for failing to plead
facts about a similarly situated business receiving better treatment than the landowner.112 The
landowner in Joey’s Auto Repair & Body Shop sued Fayette County and its Commissioner
challenging zoning violations the County charged the landowner.113 The landowner pleaded the
county and its commissioner treated a similarly situated garden center, which abutted their
property, more favorably.114 The landowner pleaded the county did not issue the same citations
or complaints to the garden center.115 Our Court of Appeals affirmed Chief Judge Conti’s
dismissal holding even though the landowner identified a similarly situated business the
landowner failed to plead facts demonstrating how the garden center “[was] a similarly situated
entity.”116
We are also guided by Chief Judge Bumb dismissing a developer’s equal protection
claim against Sea Isle City where the developer plead unfavorable treatment as compared to

“similarly situated residential properties.”117 The developer in 8600 Landis, LLC sued Sea Isle
City and several city officials challenging a zoning officer’s “issuance of a Stop Work Order”
which delayed development and caused the developer to incur additional construction costs.118
The developer argued it pleaded “sufficiently identified similarly situated comparators” by
alleging the city failed to issue violations “to any other similarly situated properties aside from
[the developer] for allegedly violating the approved residential occupancy of R–2 or approved
zoning use by renting out the property with a rental permits.”119 Chief Judge Bumb dismissed the
developer’s class of one equal protection claim and considered its pleading of comparators as
“conclusory and overbroad.”120 The developer’s conclusory allegation of unfavorable treatment

compared to “similarly situated residential properties” did not allow Chief Judge Bumb to
determine the identity of these properties or whether these properties could be proper
comparators.121
1201 LLC offers no comparator. And it could not do so during oral argument which may
have allowed some leeway towards amendment. 1201 LLC does not plead which development
companies Council President Clarke treated differently. 1201 LLC pleads Council President
Clarke did not challenge similar development permits issued to similarly situated development
companies in Council President Clarke’s district.122 The developer in 8600 Landis, LLC alleged
the city treated it differently than “similarly situated residential properties” holding R-2
permits.123 1201 LLC pleads conclusory facts about comparators like those considered and
dismissed by Chief Judge Bumb. 1201 LLC’s failure to plead the name of comparators receiving
better treatment from Council President Clarke falls short of the standard recognized by our
Court of Appeals in Joey’s Auto Repair & Body Shop requiring specific reasons describing the
similarities between the comparator and 1201 LLC.

We dismiss 1201 LLC’s class of one equal protection claim with prejudice.
C. 1201 LLC cannot plead a Monell claim against Council President Clarke.

1201 LLC alleges Council President Clarke is personally liable on a municipal liability
theory arguing the City maintains a policy or custom of deference to councilmember decisions
and the City fails to train or supervise the Zoning Board and City Council.124 1201 LLC asks we
hold Council President Clarke liable for the City’s policy of councilmanic prerogative.125 1201
LLC argues the City’s policy of councilmanic prerogative violated 1201 LLC’s constitutional
rights because the policy allowed Council President Clarke to submit a “frivolous and
illegitimate” challenge to 1201 LLC’s permits.126 1201 LLC asks we hold Council President
Clarke liable for the City’s failure to train Zoning Board members and City councilpersons
which allowed Council President Clarke to violate 1201 LLC’s constitutional rights.127 But 1201
LLC sues only Council President Clarke and not the City of Philadelphia.128
Council President Clarke counters 1201 LLC cannot plead municipal liability against him
in his individual capacity because it only attaches to actions taken in one’s official capacity.129
Council President Clarke counters 1201 LLC cannot plead municipal liability against him in his
official capacity because he is not a policymaker.130 Council President Clarke argues we cannot
consider him a policymaker because the Zoning Board and the Court of Common Pleas had final
review over Council President Clarke’s challenges.131
We dismiss 1201 LLC’s municipal liability Monell claim against Council President
Clarke because 1201 LLC does not sue a municipal body.
The Supreme Court allows landowners to sue municipal entities under section 1983 for
constitutional violations committed by the entities’ employees.132 A landowner can sue a
municipal entity arguing the entity’s “policy or custom” carried out by the entity’s employee

caused the landowner’s constitutional harm.133 A landowner can sue a municipal entity for the
actions of governmental employees who possess “final, unreviewable discretion” to create and
implement the injurious “policies” causing the landowner’s constitutional harm.134
But 1201 LLC does not sue a municipal entity.135 Monell municipal liability does not
attach to Council President Clarke because he is an individual and not a municipal entity. We
dismiss 1201 LLC’s Monell claims against Council President Clarke.
D. We decline to exercise jurisdiction over 1201 LLC’s state law claims.

1201 LLC alleges state law wrongful use of civil proceedings, abuse of process, and
intentional tortious interference with prospective and existing contractual relations.136 We
exercise the discretion Congress gives us and the Supreme Court reaffirms to dismiss 1201
LLC’s state law claims without prejudice.
Congress requires we exercise supplemental jurisdiction over federal and state law claims
where the state law claims “form part of the same case or controversy under Article III.”137
Congress empowers us to decline exercising supplemental jurisdiction over state law claims if
we dismissed “all claims over which [we] ha[ve] original jurisdiction.”138 The Supreme Court
characterized this power as “purely discretionary.”139
We decline to exercise supplemental jurisdiction over 1201 LLC’s remaining state law
claims. We dismiss 1201 LLC’s state law claims without prejudice.
E. We remand Mr. Feibush’s tort claim.

Mr. Feibush alleges a state law tort claim against Council President Clarke.140 1201 LLC
and Mr. Feibush sued in the state court.141 Council President Clarke removed invoking our
federal question jurisdiction.142 But Mr. Feibush does not plead our subject matter jurisdiction
and brings his own claim separate from 1201 LLC.
We decline to exercise supplemental jurisdiction over Mr. Feibush’s state law claim.
III. Conclusion
Developer 1201 LLC cannot plead a federal claim after two attempts. Its principal Mr.
Feibush does not try. 1201 LLC does not like the arguments raised by Council President Clarke.
It persuaded the Zoning Board and a state court to reject those arguments. And it now wants
compensation for money allegedly lost in defeating Council President Clarke’s advocacy. But it
pleads no basis for us to plausibly infer Council President Clarke acted for his own personal gain
other than advocating for citizens and becoming more popular. Broadly alleging corruption and
personal gain without a single fact does not suffice in a court of law. There is no basis to

plausibly infer Council President Clarke violated 1201 LLC’s substantive due process or equal
protection rights. 1201 LLC cannot sue Counsel President Clarke as a municipal entity. We
decline to exercise supplemental jurisdiction over 1201 LLC’s and its principal’s state law
challenges to litigation strategies before a zoning board and state trial court.

1 ECF No. 12 ¶ 21. 1201 LLC attempts to avoid the undisputed fact it (and not Mr. Feibush)
owns and seeks to develop the property. We will accurately describe the owner as the entity 1201
LLC.

2 Id. ¶ 22.

3 Id. ¶¶ 22-23.

4 Id. ¶¶ 26-27.
5 Id. ¶ 29.

6 Id. ¶ 31.

7 Id. ¶ 32.

8 Id. ¶ 38.

9 Id. ¶ 41.

10 Id. ¶ 43.

11 Id. ¶ 45. (“What we’re talking about here is a disagreement about whether this project should
be by-right in this zoning classification or in this particular neighborhood or whether this
property should have been re-mapped, but both of those things are arguments about legislation
that are for City Council to address.”).

12 Id. ¶ 49.

13 Id.

14 Id. ¶ ¶ 52, 53.

15 Id.

16 Id. ¶ 54.

17 Id. ¶ 55.

18 Id. ¶ 63.

19 Id. ¶ 64.

20 Id. ¶ 65.

21 Id. ¶ 66. 1201 LLC alleges Council President Clarke knew his appeal was frivolous.

22 Id. ¶ 67.

23 Id. ¶ 68.

24 Id. ¶ 75.

25 Id. ¶ 76.
26 Id. ¶¶ 1-2.

27 Id. ¶ 164.

28 Id. ¶¶ 52, 163-171.

29 Id. ¶ 166. 1201 LLC’s counsel confirmed this purpose during oral argument.

30 Id. ¶¶ 174-183.

31 Id. ¶¶ 176-180.

32 Id. ¶ 176.

33 Id. ¶¶ 184-201.

34 Id. ¶ 195.

35 1201 LLC alleges Council President Clarke engaged in the wrongful use of civil proceedings
by challenging the permits “in a grossly negligent manner and/or without probable cause and
primarily for an [improper] purpose.” Id. ¶ 79. 1201 LLC alleges Council President Clarke knew
there existed no legal basis for his permits challenge and therefore acted with gross negligence
and without probable cause by challenging the permits, challenging 1201 LLC’s motion for
reconsideration, and appealing the Zoning Board’s reinstatement of the permits. Id. ¶¶ 83-88.
1201 LLC argues Council President Clarke engaged in ex parte communications with Zoning
Board members because he knew his challenge lacked merit. Id. ¶ 91. 1201 LLC alleges these ex
parte communications consisting of “threats, intimidation, and influence” demonstrate Council
President Clarke advanced his challenge with an improper purpose. Id.

1201 LLC alleges Council President Clarke abused process. Id. ¶¶ 97-119. 1201 LLC alleges
Council President Clarke committed abuse of process by “institut[ing] and prosecut[ing] a
meritless legal challenge” to invalidate its as-of-right permit. Id. ¶ 101. 1201 LLC alleges
Council President Clarke used the zoning board, a forum for addressing legitimate zoning
concerns, for his own political and personal reasons and to frustrate property rights and impede
the lawful use of one’s land. Id. ¶¶ 102-04. 1201 LLC alleges Council President Clarke
challenged its permit to financially hurt 1201 LLC and impeded and delayed development of the
property. Id. ¶ 108. 1201 LLC alleges Council President Clarke’s ex parte communications with
members of the zoning board demonstrate actual malice. Id. ¶ 114.

1201 LLC alleges Council President Clarke engaged in intentional tortious interference with
prospective and existing contractual relations. Id. ¶¶ 143-154. 1201 LLC alleges Council
President Clarke knew the development company had several prospective and existing
contractual relations while challenging the as-of-permit. Id. ¶¶ 145-46. 1201 LLC alleges
Council President Clarke knew these prospective and existing contractual relations “depende[d]”
on the permit’s validity. Id. ¶ 147. 1201 LLC alleges Council President Clarke lacked a privilege
or justification for interfering with its prospective or existing contractual relations. Id. ¶ 149.
1201 LLC alleges its existing contractual relations included obligations between the
development company and its preferred lender, contractors who would develop the property,
financial investors in the project, a subordinate lender, an acquisition loan, and “other contractual
relations.” Id. ¶ 151. 1201 LLC alleges its prospective contractual relations included a preferred
lender under certain terms, contractors, and “other prospective contractual relations dependent on
its by-right permits.” Id. ¶ 152.

36 Id. ¶¶ 120-142.

37 A complaint must state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The
purpose of Rule 12(b)(6) is to test the sufficiency of the factual allegations in a complaint.
Sanders v. United States, 790 F. App’x 424, 426 (3d Cir. 2019). If a plaintiff is unable to plead
“enough facts to state a claim to relief that is plausible on its face,” the court should dismiss the
complaint. Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also
Kajla v. U.S. Bank Nat’l Ass’n as Tr. for Credit Suisse First Boston MBS ARMT 2005-8, 806 F.
App’x 101, 104 n.5 (3d Cir. 2020) (quoting Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84
(3d Cir. 2011)). “A claim is facially plausible ‘when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.’” Klotz v. Celentano Stadtmauer and Walentowicz LLP, 991 F.3d 458, 462 (3d Cir.
2021) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). While “[t]he plausibility standard is
not akin to a ‘probability requirement,’” it does require the pleading show “more than a sheer
possibility … a defendant has acted unlawfully.” Riboldi v. Warren Cnty. Dep’t of Human Servs.
Div. of Temp. Assistance & Soc. Servs., 781 F. App’x 44, 46 (3d Cir. 2019) (quoting Iqbal, 556
U.S. at 678). “A pleading that merely ‘tenders naked assertion[s] devoid of further factual
enhancement’ is insufficient.” Id. (quoting Iqbal, 556 U.S. at 668).

In determining whether to grant a Rule 12(b)(6) motion, “we accept all well-pleaded allegations
as true and draw all reasonable inferences in favor of the plaintiff” but “disregard threadbare
recitals of the elements of a cause of action, legal conclusions, and conclusory statements.”
Robert W. Mauthe, M.D., P.C. v. Spreemo, Inc., 806 F. App’x 151, 152 (3d Cir. 2020) (quoting
City of Cambridge Ret. Sys. v. Altisource Asset Mgmt. Corp., 908 F.3d 872, 878–79 (3d Cir.
2018)). Our Court of Appeals requires us to apply a three-step analysis to a 12(b)(6) motion: (1)
we “‘tak[e] note of the elements a plaintiff must plead to state a claim’”; (2) we “identify
allegations that … ‘are not entitled to the assumption of truth’ because those allegations ‘are no
more than conclusion[s]’”; and, (3) “‘[w]hen there are well-pleaded factual allegations,’ we
‘assume their veracity’ … in addition to assuming the veracity of ‘all reasonable inferences that
can be drawn from’ those allegations … and, construing the allegations and reasonable
inferences ‘in the light most favorable to the [plaintiff]’…, we determine whether they ‘plausibly
give rise to an entitlement to relief.’” Oakwood Lab’ys LLC v. Thanoo, 999 F.3d 892, 904 (3d
Cir. 2021) (internal citations omitted); Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d
Cir. 2016).
38 We leave the state law claims for the state court upon remand. We also do not need to address
Council President Clarke’s argument qualified immunity shields him from 1201 LLC’s
substantive due process, equal protection, and municipal liability claims asserted against him in
his official capacity.

39 Id. at 23-25.

40 Id. at 24-25.

41 Id. at 25.

42 Id. at 26.

43 Id.

44 ECF No. 12 ¶¶ 155-173.

45 Id. ¶ 159.

46 Id. ¶ 164.

47 Id.

48 Id. ¶¶ 163-171.

49 Id. ¶ 166.

50 ECF No. 14 at 23-25.

51 Id. at 24-25.

52 Chambers ex rel. Chambers v. Sch. Dist. Of Philadelphia Bd. Of Educ., 587 F.3d 176, 190 (3d
Cir. 2009).

53 Hazzouri v. W. Pittston Borough, 416 F. Supp. 3d 405, 416 (M.D. Pa. 2019).

54 Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 286 (3d Cir. 2004).

55 E. Rockhill Twp. v. Richard E. Pierson Materials Corp., 386 F. Supp. 3d 493, 499 (E.D. Pa.
2019).

56 Stemler v. Borough of Parryville, No. 18-1763, 2020 WL 1849762 (M.D. Pa. Apr. 13, 2020).

57 Id. at *1.
58 Id.

59 Id.

60 Id. at *2.

61 Id.

62 Id.

63 Id. at *5.

64 Id.

65 Tomko v. Baldwin Borough, No. 20-822, 2021 WL 3610038 (W.D. Pa. June 30, 2021), report
and recommendation adopted sub nom. Tomko v. Baldwin Borough, No. 20-822, 2021 WL
3603431 (W.D. Pa. Aug. 13, 2021), aff'd sub nom. Tomko v. Baldwin Borough, No. 21-2593,
2022 WL 1772988 (3d Cir. June 1, 2022).

66 Id. at *2.

67 Id.

68 Id.

69 Id. at *3.

70 Id.

71 See id.

72 Id.

73 Id. at *3-4.

74 Id. at *4.

75 Id. at *6.

76 Id. at *8.

77 No. 18-5413, 2019 WL 4752026 (E.D. Pa. Sept. 30, 2019).

78 Id. at *1.
79 Id.

80 Id.

81 Id.

82 Id. at *2.

83 Id.

84 Id.

85 Id. at *4.

86 Id. at *6.

87 Id.

88 Id.

89 Id. at *1-2.

90 ECF No. 12 ¶ 166.

91 See id.

92 Id. ¶ 52.

93 Stemler, 2020 WL 1849762, at *1, 5.

94 Id. at *5.

95 See ECF No. 12.

96 Tomko, 2021 WL 3610038 at *4.

97 Id. at *8.

98 ECF No. 12 ¶ 166.

99 See ECF No. 12.

100 See Eichenlaub, 385 F.3d at 286.

101 ECF No. 12 ¶¶ 174-183.
102 Id. ¶¶ 176-180.

103 Id. ¶ 176.

104 ECF No. 14 at 25.

105 Vurimindi v. City of Philadelphia, 521 F. App'x 62, 66 (3d Cir. 2013); Joey's Auto Repair &
Body Shop v. Fayette Cnty., 785 F. App'x 46, 49 (3d Cir. 2019).

106 Vurimindi, 521 F. App’x at 66.

107 Joey’s Auto Repair & Body Shop, 785 F. App’x at 49.

108 Id.

109 Id. (quoting Eichenlaub, 385 F.3d at 287).

110 Eichenlaub, 385 F.3d at 287.

111 ECF No. 12 ¶¶ 174-183.

112 Joey’s Auto Repair & Body Shop, 785 F. App’x at 49.

113 Id. at 48.

114 Id. at 49.

115 Id.

116 Id.

117 8600 Landis, LLC v. City of Sea Isle City, No. 17-2234, 2018 WL 1509088, at *5 (D.N.J.
Mar. 27, 2018).

118 Id. at *2.

119 Id. at *5.

120 Id.

121 Id.

122 ECF No. 12 ¶¶ 176-180.
123 8600 Landis, LLC, 2018 WL 1509088 at *5.

124 ECF No. 12 ¶¶ 184-201.

125 Id. ¶ 189.

126 Id. ¶¶ 189-193.

127 Id. ¶ 195.

128 Id. ¶¶ 184-201.

129 ECF No. 14 at 26.

130 Id.

131 Id. at 27.

132 Monell v. Department of Social Services of City of New York, 436 U.S. 658, 691 (1978).

133 Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003).

134 Kelly v. Borough of Carlisle, 622 F.3d 248, 264-65 (3d Cir. 2010).

135 See ECF No. 12 (naming Council President Clarke as the sole defendant).

136 ECF No. 12 ¶¶ 78-96, 97-119, 143-154.

137 28 U.S.C. § 1367(a).

138 28 U.S.C. § 1367(c)(3).

139 Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009).

140 ECF No. 12 ¶¶ 120-142.

141 See ECF No. 1.

142 See id.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10406367. Public record. Not legal advice.