# Pompey Coal Company v. Borough Of Jessup

> District Court, M.D. Pennsylvania · May 4, 2023

URL: https://www.frixlaw.com/law-library/cases/10413133

## Case

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

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

POMPEY COAL COMPANY,

Plaintiff, CIVIL ACTION NO. 3:20-cv-00358

v. (SAPORITO, M.J.)

BOROUGH OF JESSUP, et al.,

Defendants.

MEMORANDUM
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.
, Civil Action No. 3:20-cv-00358,

2021 WL 1212586 (M.D. Pa. Mar. 31, 2021), Doc. 32; 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.
I. FACTUAL BACKGROUND

We have previously recounted the facts underpinning the plaintiff’s
claims in detail. , 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.
II. LEGAL STANDARD
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

1 The second amended complaint appears to have omitted facts
previously pleaded in support of state-law procedural claims that were
withdrawn in favor of parallel state-court litigation. ,
2021 WL 1212586, at *5 n.10. These state-law claims are also omitted
from the second amended complaint. The plaintiff’s state-court action for
judicial review of the Borough Council’s adoption of Ordinance 3 was
dismissed by the state court of common pleas in July 2020, and the
plaintiff does not appear to have appealed that decision.
, No. 2019-CV-2735, slip op. (Lackawanna Cnty.
(Pa.) C.C.P. dismissed July 28, 2020). The plaintiff’s state court action for
judicial review of the Borough planning commission’s rejection of its land
development plan appears to remain pending before the state court of
common pleas. , No. 2019-CV-
03224 (Lackawanna Cnty. (Pa.) C.C.P. filed May 30, 2019). A district
court, of course, may properly take judicial notice of state court records,
as well as its own. Fed. R. Evid. 201; , 502 F.3d
263, 268 (3d Cir. 2007); ,
108 F.3d 486, 498–99 (3d Cir. 1997); , 373 F.2d 771,
778 (3d Cir. 1967).
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.” , 643 F.3d 77, 84 (3d Cir.
2011) (citing , 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.” , 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.” , 719 F.3d 160, 165 (3d Cir. 2013) (quoting
, 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. , 741 Fed.
App’x 88, 91 n.3 (3d Cir. 2018); , 246 F.
Supp. 3d 1058, 1075 (E.D. Pa. 2017); , 568 F.

Supp. 2d 579, 588–89 (W.D. Pa. 2008).
III. DISCUSSION
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

2 The second amended complaint skips Counts IV and V. This
appears to be intended to maintain the same numbering used in prior
iterations of its complaint with respect to its state-law claims.
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.

A. Federal Civil Rights Claims
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.
, 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. , 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. , 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.” , 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, “it is that creates the property rights

protected by the Fourteenth Amendment. Some federal constitutional
rights may touch on these state-created property rights. . . . But the right
to own or use property itself does not implicate the exercise of a
substantive federal constitutional right.” , 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. , on
September 5, 2018, an attorney for Pompey Coal wrote a letter to the

Borough solicitor to express, , 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 Pompey Coal is alleged to have first engaged in any

protected speech. Pompey Coal argues that the Borough Council
“streamlined” the process as well, but that purportedly expedited part of
the process likewise the first plausibly alleged protected speech
by Pompey Coal in September 2018. Thus, the plaintiff has failed to

plausibly allege a causal link between the constitutionally protected
speech it has identified and the alleged retaliatory action by the Borough
Council. , Civil No. 1:16-CV-1180, 2017 WL 4681807, at

*9 (M.D. Pa. Apr. 4, 2017) (“[B]y definition[,] adverse actions which
some constitutionally protected behavior cannot be deemed to
have been caused by that exercise of some constitutional right.”);

, 120 F.3d 1286, 1301 (3d Cir. 1997) (finding
no causal connection where adverse employment action
protected employee activity in a Title VII retaliation case),

, 548 U.S. 53
(2006).
Accordingly, Count I of the second amended complaint, asserting a

§ 1983 First Amendment retaliation claim, will be dismissed for failure
to state a claim upon which relief can be granted.

In Count III, the plaintiff reasserts the same § 1983 “class of one”
equal protection claim raised in its first amended complaint. We
previously dismissed this same claim because the first amended
complaint alleged “no facts whatsoever upon which to base a plausible

claim that it was treated differently from others similarly situated.”
, 2021 WL 1212586, at *11. As we explained:
The [first] amended complaint mention[ed] a purchase
of land, also zoned M-1A, by Trammell Crow, which was
allegedly treated more favorably than Pompey Coal’s
anticipated sale to Northpoint, but there [were] no
facts alleged to suggest that these two land owners
were in any way similarly situated. The [first]
amended complaint [did] not allege facts regarding the
location of the parcel purchased by Trammell Crow, its
characteristics, the nature of Trammell Crow’s use of
that land, or that Trammell Crow sought approval of a
similar land development plan.

With respect to the plaintiff’s equal protection claim, the second
amended complaint is substantively identical to the first amended
complaint. In addition to the Trammell Crow property, it now references
the Jessup Small Business Center and the Valley View Trade Center, all
of which allegedly “lie[] within a contiguous M-1A Business Park zone
with Pompey Coal’s property,” and all of which allegedly received tax
incentives to assist in development of their parcels. But the second
amended complaint still fails to allege any facts to support a plausible
inference that these properties and their owners are similarly situated to
Pompey Coal. The mere fact that all of these parcels were zoned M-1A is

insufficient. Indeed, as the February 2004 zoning map attached
to the second amended complaint illustrates, much—if not most—of the
geographic area of the Borough was classified M-1A under the prior

zoning ordinance. Second Am. Compl. Ex. A, Doc. 38-1.
As noted above, in addition to the facts alleged on the face of the
second amended complaint, we may consider “documents incorporated

into the complaint by reference, and matters of which a court may take
judicial notice.” , 551 U.S. at 322. But consideration of such
materials further undermines the plaintiff’s equal protection case.

“A court ‘may, of course, take judicial notice of geography.’”
, 267 F. Supp. 3d 510, 520 n.6 (E.D. Pa. 2017) (quoting
, 342 U.S. 337, 344 (1952) (Jackson,

J., dissenting); , 349 Fed. App’x 727,
730 n.5 (3d Cir. 2009) (citing ). The Borough of Jessup
is bisected by the Casey Highway, U.S. Route 6. The Borough’s residential

population is concentrated in a low- and medium-density residential area
northwest of the Casey Highway and adjacent to the Lackawanna River.
The Jessup Small Business Center, the Valley View Trade Center, and
the Trammell Crow property are located on the southeast side of the

Casey Highway, in a higher elevation area separated from the Borough’s
residential areas. So is the Lackawanna Energy Center, a power plant
built on a parcel sold by Pompey Coal in 2016, an unpopular move which

allegedly serves as the genesis of the Borough’s hostility toward Pompey
Coal. Higher elevation areas further to the southeast are largely
undeveloped, including conservation lands.

Although it too was zoned M-1A at one time, the undeveloped
property presently at issue is located on the opposite, side of
the Casey Highway, adjacent to the residential areas of the Borough.

Second Am. Compl. Ex. F, Doc. 38-5, at 4. Based on its geographic
location, the rezoned Pompey Coal property is not “contiguous” to its
alleged comparators, which are located on the opposite side of a major

highway, away from residential areas of the Borough, nor is it similarly
situated to them.
Accordingly, Count III of the second amended complaint, asserting

a § 1983 Fourteenth Amendment equal protection claim, will be
dismissed for failure to state a claim upon which relief can be granted.
In Count II of the second amended complaint, the plaintiff asserts

for the first time a § 1983 Fifth Amendment takings claim.
The Takings Clause of the Fifth Amendment, made applicable to
the states through the Fourteenth Amendment, provides that

government shall not take private property for public use without just
compensation. U.S. Const. amend. V;
, 449 U.S. 155, 160 (1980). “The paradigmatic taking

requiring just compensation is a direct government appropriation or
physical invasion of private property.” , 544

U.S. 528, 537 (2005). But government regulation “may, in some instances,
be so onerous that its effect is tantamount to a direct appropriation or
ouster,” and “such ‘regulatory takings’ may be compensable under the

Fifth Amendment.”
Here, the plaintiff contends that the new zoning ordinance and
map, Ordinance 3, adopted by the Borough Council, and the Borough

planning commission’s rejection of the plaintiff’s land development plan,
constitute such a regulatory taking.
For a regulatory taking, there are two distinct tests.
The first is the so-called “per se” taking identified in
, [505 U.S.
1003, 1015 (1992)], pursuant to which “a regulation
which ‘denies all economically beneficial or productive
use of land’ will require compensation under the
Takings Clause” unless the challenged limitations
“inhere . . . in the restrictions that background
principles of the State’s law of property and nuisance
already placed upon land ownership. This is a difficult
test to satisfy: the court must find that the regulation
forces the plaintiffs to “leave their property
economically idle.”
, 528 F. Supp. 3d 252, 266–67 (D.N.J. 2021)
(quoting , 582 U.S. 383, 393, 405 (2017) (citations and
brackets omitted), , 45 F.4th 662 (3d Cir. 2022). But the second
amended complaint does not plausibly allege such a deprivation. Indeed,
as the second amended complaint and attached exhibits implicitly
acknowledge, one part of the property is eligible for medium-density
residential use, and the other part of the property is eligible for mixed
commercial and medium-density residential use. Thus, a per se
regulatory taking is not at issue here.
Absent a taking, a plaintiff may attempt to demonstrate a

taking under a second test:
The second regulatory taking test is a more fluid
evaluation known as the test, which
evaluates the alleged taking based on “a complex of
factors,” including “(1) the economic impact of the
regulation on the claimant; (2) the extent to which the
regulation has interfered with distinct investment-
backed explications; and (3) the character of the
governmental action.”
at 267 (quoting , 582 U.S. at 393);
, 438 U.S. 104, 124 (1978).

It is beyond question that the Borough’s adoption of the new zoning

ordinance and map and its rejection of the plaintiff’s land development
plan has had some economic impact on the plaintiff by preventing it from
consummating a $3.5 million sale agreement with Northpoint, which had

intended to build a warehouse distribution center on the property.
But “a regulation that merely “adversely affect[s] economic values”
is not sufficient to constitute a taking. , 91

F.3d 463, 468 (3d Cir. 1996). As the Third Circuit has observed, “the
Supreme Court ‘has required compensation only in cases in which the
value of the property was reduced .’” , 45 F.4th at 674

(emphasis added) (quoting , 616 F.2d 680, 692 (3d
Cir. 1980)). The plaintiff has not alleged the precise diminution of value

of the rezoned property. , 528 F. Supp. 3d at 272. Nor has the
plaintiff alleged a drastic reduction in the value of the property, such that
it would require compensation. , 45 F.4th at 674.

Thus, we conclude that this first factor weighs against finding a
compensable taking.

“The second factor is the extent to which the

regulation interferes with reasonable investment-backed expectations.”
, 492 F. Supp. 3d 33,
46 (E.D.N.Y. 2020). “Laws change, and there is no general right to

governmental consistency over time.” , 528 F. Supp. 3d at 274.
“[D]istinct, investment-backed expectations are reasonable only if they

take into account the power of the state to regulate in the public interest.”
, 808 F.2d 1023, 1033 (3d Cir. 1987). A
plaintiff does not suffer a taking requiring compensation merely because

“they have been denied the ability to exploit a property interest that they
heretofore had believed was available for development.” , 438
U.S at 130. “Zoning regulations are the ‘classic example’ of permissible

regulations that do not require compensation even where they prohibit
the most beneficial use of the property.” , 45 F.4th at 675 (quoting
, 438 U.S. at 125) (brackets and internal quotation marks
omitted). “To the extent Plaintiff[] argue[s] that a distinct investment-

backed expectation can take the form of an expectation that zoning laws
will remain unchanged during the life of their property ownership, such
is not supported by case law.”

, 790 F. Supp. 2d 1290, 1301 (W.D. Wash. 2011);
, 260 U.S. 393, 413 (1922) (“Government hardly could
go on if to some extent values incident to property could not be

diminished without paying for every such change in the general law.”);
, 503 F.3d 1266, 1288 (Fed. Cir. 2007)
(“One important aspect of investment-backed expectations is whether, in

the regulatory environment, it would be expected that the law might
change to impose liability.”).
Here, the second amended complaint fails to explain how the

Borough’s actions have interfered with Pompey Coal’s reasonable
investment-backed expectations.
[T]he reasonable expectations prong . . . requires that
the expectations be investment backed, and in this
regard, further analysis is required. The first step of
the analysis is to determine the actual investment that
the [owner] made in the property. The second step is to
determine the benefits that the owner[] reasonably
could have expected at the time [it] entered into the
investment. The third step is to determine what
expected benefits were denied or restricted by the
government action.
, 503 F.3d at 1289;
, 492 F. Supp. 3d at 46 (“[T]he nature of [the property owner’s]

investment-backed expectations depends on when they invested in the
property and what they expected .”) (emphasis added).
“Finally, the claimant must establish that it made the investment

because of its reasonable expectation of receiving the benefits denied or
restricted by the government action, rather than the remaining benefits.”

, 503 F.3d at 1289.
Although the plaintiff’s brief in opposition argues, in conclusory
fashion, that the introduction and passage of Ordinance 3 “undermined”

Pompey Coal’s investment-backed expectations, the second amended
complaint itself makes no reference whatsoever to these investment-
backed expectations, nor does it allege any facts whatsoever to support

any reasonable inference about any such investment-backed
expectations. The plaintiff’s brief notes that the property has ready
access to essential infrastructure, such as railroad tracks, a highway

thru-way, and electrical lines, but there is no argument and no factual
allegations to indicate that Pompey Coal constructed or otherwise made
any actual into this infrastructure. Neither the second

amended complaint nor the plaintiff’s opposition brief articulates any
facts whatsoever regarding Pompey Coal’s acquisition of the property at
issue, when it was acquired, the cost of acquisition and any

improvements made to the property in reliance on prior, more permissive
zoning classification, Pompey Coal’s expectations for use of the property
at the time of acquisition—including whether the construction of a

warehouse distribution center or a similar use was a part of those
expectations—or whether those expectations were reasonable in light of
the general and plenary regulatory authority of state and local

governments.3 As the Federal Circuit has observed:
[I]t is impossible to determine whether the owner[’s]
expectations were reasonable without knowing the

3 In its second amended complaint, the plaintiff alleges only that
Pompey Coal was formed in 1931 and is now a real estate holding
company. Based on public records and commonly known local historical
facts, we note that, in its earlier years, Pompey Coal was engaged in the
business of anthracite coal mining, including the operation of a colliery
and coal breaker in Jessup until the late 1960s. The 183-acre property at
issue is the remainder of a larger parcel acquired by Pompey Coal in the
1940s. Am. Compl., ,
No. 2002-CIVIL-2464 (Lackawanna Cnty. (Pa.) C.C.P. filed Jan. 4, 2005)
(summarizing provenance of Pompey Coal property in Jessup),
Lackawanna Cnty. (Pa.) Prothonotary, General Index, http://www.lpa-
homes.org/LPA_Public_Inquiries/Views/CAXPY_Views/PYS500D.aspx
(Case No. 2002-2464).
total value of the investment; its relationship to the
benefits available to the owner[], including any tax
benefits; and the anticipated benefits that were denied
or restricted by the government action.
, 503 F.3d at 1289; at 1288 (“[T]he burden is
on the owner[] to establish a reasonable investment-backed expectation
in the property at the time it made the investment.”).
Thus, we conclude that this second factor weighs against finding a

compensable taking.

Finally, ’s third factor considers the character of the

governmental action. “When considering this factor, courts determine if
the government action is closer to a compensable ‘classic taking’ or to
‘some public program adjusting the benefits and burdens of economic life

to promote the common good.’” , ___ F. Supp.
3d ____, 2023 WL 2432479, at *7 (E.D. Pa. Mar. 9, 2023), , No.
23-1644 (3d Cir. Apr. 7, 2023).

As the Supreme Court itself observed in ,
in instances in which a state tribunal reasonably
concluded that “the health, safety, morals, or general
welfare” would be promoted by prohibiting particular
contemplated uses of land, this Court has upheld land-
use regulations that destroyed or adversely affected
recognized real property interests. Zoning laws are, of
course, the classic example, which have been viewed as
permissible governmental action even when
prohibiting the most beneficial use of the property.
, 438 U.S. at 125 (citations omitted).
In this case, Ordinance 3 rezoned a large swath of land adjacent to
the Borough’s core residential area, downzoning it from a more
permissive M-1A classification, which broadly allowed industrial use, to

more restrictive R-2 residential and IAC mixed use classifications. Due
to the sheer size of Pompey Coal’s land holdings, the new zoning

ordinance affected only two property owners,4 but it was clearly and
expressly intended to increase the Borough’s residential housing stock by
promoting residential land use and complementary commercial land use

in areas adjacent to the already-developed residential neighborhoods of
Jessup Borough, while restricting industrial land uses generally
incompatible with residential land use to the less developed area

separated from that residential area by the Casey Highway. Based on the
pleadings and judicially noticed facts, the new zoning ordinance and map
at issue here, Ordinance 3, is a generally applicable public program

4 The second amended complaint does not identify the other
property owner.
seeking to adjust the benefits and burdens of economic life in order to

promote the common good.
Thus, we conclude that this third factor weighs against finding a
compensable taking.

Weighing all three factors, all three of which militate
against finding a compensable taking, we are compelled to find that the
second amended complaint fails to plausibly allege a compensable

regulatory taking.
Accordingly, Count II of the second amended complaint, asserting a

§ 1983 Fifth Amendment takings claim, will be dismissed for failure to
state a claim upon which relief can be granted.

The Third Circuit has instructed that, if a civil rights complaint is

vulnerable to dismissal for failure to state a claim, the district court must
permit a curative amendment, unless an amendment would be
inequitable or futile, , 293 F.3d 103, 108

(3d Cir. 2002). This instruction applies equally to plaintiffs and
those represented by counsel. , 363 F.3d 229, 235 (3d Cir.
2004). Having previously granted the plaintiff leave to amend, and the

plaintiff having failed to cure the pleading deficiencies of its claims, the
second amended complaint will be dismissed leave to amend, as
any further amendment appears to be futile.

B. State-Law Tort Claims
In addition to the federal civil rights claims set forth in Counts I,
II, and III, the second amended complaint has asserted state-law tort
claims in Counts V, VI, and VII. But where a district court has dismissed

all claims over which it had original jurisdiction, the Court may decline
to exercise supplemental jurisdiction over state-law claims. 28 U.S.C.

§ 1367(c)(3). Whether the Court will exercise supplemental jurisdiction
is within its discretion. , 589 F.3d 626, 650 (3d Cir. 2009).
That decision should be based on “the values of judicial economy,

convenience, fairness, and comity.” , 484
U.S. 343, 350 (1988). Ordinarily, when all federal law claims have been
dismissed and only state-law claims remain, the balance of these factors

indicates that these remaining claims properly belong in state court.
, 484 U.S. at 350. Finding nothing in the record to distinguish this
case from the ordinary one, the balance of factors in this case “point[s]
toward declining to exercise jurisdiction over the remaining state law

claims.” , 484 U.S. at 350 n.7. Therefore, upon dismissal of the
plaintiff’s federal civil rights claims, the remaining state-law claims will
be remanded to the Court of Common Pleas of Lackawanna County,

Pennsylvania, for further proceedings. , 484 U.S. at 357.
IV. CONCLUSION
For the foregoing reasons, the motion to dismiss will be granted,
the plaintiff’s federal civil rights claims will be dismissed, and the

plaintiff’s state-law tort claims will be remanded to state court for any
further proceedings.

An appropriate order follows.

Dated: May 4, 2023
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10413133. Public record. Not legal advice.