BASTIN TRUCK PARTS AND SERVICE v. EAST DEER TOWNSHIP

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

BASTIN TRUCK PARTS AND )

SERVICE d/b/a BASTIN TOWING; )

JOSEPH BASTIN; and PATRICIA )

BASTIN, )

)

Plaintiffs, )

)

v. )

)

EAST DEER TOWNSHIP, )

PENNSYLVANIA; ANTHONY )

TALIANI, JR., Chairman of the ) Civil Action No. 24-1538

East Deer Township Board of )

Commissioners; ALLEGHENY )

VALLEY REGIONAL POLICE )

DEPARTMENT; MICHAEL NAVIGLIA, )

Chief of Police; CRAIG CUMMINGS, )

Sergeant; CHRISTINE VACCA, Officer; )

DALTON VANWHY, Officer; and )

JOSHUA WILLFORD, Officer, )

)

Defendants. )

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiffs, Bastin Truck Parts and Service d/b/a Bastin Towing (“Bastin Towing”), Joseph

Bastin, and Patricia Bastin (collectively, “Plaintiffs”), bring this action alleging a claim of

retaliation in violation of the First Amendment to the Constitution of the United States, pursuant

to 42 U.S.C. § 1983, and a claim of tortious interference with contractual relations under

Pennsylvania law. Plaintiffs bring their claims against a number of Defendants, including: East

Deer Township, Pennsylvania (“East Deer” or the “Township”) and Anthony Taliani, Jr.,

Chairman of the East Deer Township Board of Commissioners (“Mr. Taliani”) (collectively, the

“East Deer Defendants”); and the Allegheny Valley Regional Police Department (the “AVR PD”),

Michael Naviglia, AVR PD Chief (“Captain Naviglia”), and AVR PD police officers Craig

Cummings (“Sergeant Cummings”), Christine Vacca (“Officer Vacca”), Dalton Vanwhy (“Officer

Vanwhy”), and Joshua Willford (“Officer Willford”) (collectively, the Officers and the AVR PD

are referred to herein as the “Police Defendants”).1

Presently before the Court are motions to dismiss Plaintiffs’ Third Amended Complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief

can be granted, filed by the East Deer Defendants (Docket No. 13), and by the Police Defendants

(Docket No. 15). After Plaintiffs failed to file any responses in opposition to Defendants’ motions,

the Court ordered Plaintiffs to show cause why those motions should not be granted and Plaintiffs’

claims in this matter should not be dismissed with prejudice (Docket No. 19). In response to the

Court’s Show Cause Order, Plaintiffs filed a fourth Amended Complaint (Docket No. 20), which

the Court struck, as Plaintiffs did not obtain the opposing parties’ written consent or the Court’s

leave prior to filing such amended complaint as required by Federal Rule of Civil Procedure

15(a)(2). (Docket No. 21). The Court again ordered Plaintiffs to show cause why Defendants’

motions should not be granted and Plaintiffs’ claims in this matter should not be dismissed with

prejudice (Docket No. 21), to which Plaintiffs filed a response opposing Defendants’ motions to

dismiss and, in the alternative, requesting the Court’s permission to file another amended

complaint (Docket No. 22). For the reasons set forth herein, Defendants’ motions to dismiss will

be granted.

1 Plaintiffs commenced this action in the Court of Common Pleas of Allegheny County, Pennsylvania, at Case

No. GD-23-013810. (Docket No. 1 at 1). The case was timely removed to this Court, pursuant to the procedures

authorized by 28 U.S.C. §1441(a), by the East Deer Defendants with the consent of the Police Defendants, based on

this Court having original jurisdiction of Plaintiffs’ Section 1983 claim pursuant to 28 U.S.C. §1331 and §1343 and

supplemental jurisdiction of Plaintiffs’ state claim pursuant to 28 U.S.C. § 1367. (Docket No. 1 at 2-3).

II. BACKGROUND

The Court will present an abbreviated version of the facts alleged in the Third Amended

Complaint (the “TAC”), in the light most favorable to Plaintiffs, that are relevant to Defendants’

motions. (Docket No. 11). As alleged in the TAC, Plaintiffs Joseph Bastin and Patricia Bastin,

husband and wife, are the owners and operators of Plaintiff Bastin Towing, which provides and/or

provided general, accident, and emergency vehicle towing services to private individuals and

several local municipalities, including East Deer. (Id. ¶¶ 1, 2). East Deer is a Pennsylvania

Township that is managed by its Elected Board of Township Commissioners, of which Defendant

Mr. Taliani is a Member and President. (Id. ¶¶ 3, 4). On February 3, 2022, East Deer adopted an

ordinance authorizing the Township to join Defendant AVR PD as a “participating member.” (Id.

¶ 6). Effective January 13, 2022, Defendant Chief Naviglia was appointed Interim Chief for the

Township of East Deer Police Department during its transition period to the AVR PD. (Id. ¶ 5).

Defendants Sergeant Cummings, Officer Vacca, Officer Vanwhy, and Officer Willford are or were

officers of the AVR PD at all relevant times. (Id. ¶ 13). Chief Naviglia is the current chief of the

AVR PD, and Mr. Taliani is also an authorized representative of the AVR PD. (Id. ¶¶ 4, 5).

Plaintiffs aver that Bastin Towing provided its vehicle towing services to East Deer “based

on the publicly acknowledged long-standing contract and business agreement” of “more than ten

years,” under which East Deer utilized Bastin Towing (along with another vehicle towing service)

on a monthly-alternating call out schedule. (Id. ¶ 2). According to Plaintiffs, municipal and

Township call out services are provided to individual vehicle owners and operators on an as-

needed basis, with vehicle owners and operators reserving the right to call their own towing service

as long as the towing service can deliver services within a reasonable period. (Id. ¶ 18).

Additionally, Plaintiffs allege that individual police officers have official discretion to make

decisions on who to call for towing services as they deem fit. (Id. ¶ 19).

On July 15, 2019, Plaintiffs filed a lawsuit against Chief Naviglia and another Pennsylvania

municipality, the Borough of Cheswick, in the Court of Common Pleas of Allegheny County,

Pennsylvania, at Case No. GD-19-009771. (Id. ¶ 20). Plaintiffs allege that, for the period

beginning January 13, 2022, through December 14, 2023, Chief Naviglia – without East Deer

Township Board authority and “in retaliation” – instructed, directed, ordered, and commanded

Sergeant Cummings, Officer Vacca, Officer Vanwhy, and Officer Willford to stop calling out

Bastin Towing for all towing services in East Deer. (Id. ¶ 28). Plaintiffs allege that the officers

complied with this order. (Id. ¶¶ 29-33).

Plaintiffs further allege that, on December 14, 2023, Mr. Taliani, “in retaliation,” stated at

a public East Deer Board of Commissioners meeting, “There is a situation that has come up that

legal counsel of the [AVR PD] has recommended that our officers have no interaction with Mr.

Bastin. Not because of his [Bastin Towing] service is doing nothing wrong but a legal suit he

has filed with Cheswick Boro and the Chief of Police.” (Id. ¶ 34 (emphasis in original)). That

same day, on a motion by two other Board Members, the East Deer Board of Commissioners

unanimously voted to “approve the use of Terry’s Towing for all accidents in East Deer

Township.” (Id. ¶ 35 (emphasis in original)). Plaintiffs allege that East Deer thus “took official

action at a public meeting and with unanimous approval of the Township of East Deer Board of

Commissioners, the Township of East Deer acted in retaliation against Plaintiffs . . . by terminating

All Towing Services between the Township of East Dee[r] and Plaintiffs . . . without valid reason,

lawful basis, valid grounds, or just cause and/or timely and proper notice.” (Id. ¶ 36). Plaintiffs

also allege that after such vote Chief Naviglia, as directed by Mr. Taliani, acted “in retaliation”

against Plaintiffs by improperly terminating all towing services “between the Township of East

Dee[r]” and by improperly notifying the Allegheny County Department of Emergency

Management 911 Call Center to stop call outs to Bastin Towing for East Deer. (Id. ¶¶ 37, 38).

Plaintiffs’ TAC contains two Counts against Defendants: Tortious Interference with

Contractual Relations (Count I); and Retaliation (Count II). Plaintiffs’ retaliation claim is based

on their contention that Defendants willfully violated Plaintiffs’ First Amendment rights under the

United States Constitution pursuant to 42 U.S.C. § 1983, based solely on the fact that Plaintiffs

had filed a lawsuit against a neighboring community and Chief Naviglia. (Id. ¶ 42). Plaintiffs’

claim for tortious interference with contractual relations is brought pursuant to Pennsylvania law.

(Id. at 6).

III. STANDARD OF REVIEW

A. Rule 12(b)(6)

In considering a Rule 12(b)(6) motion to dismiss, the factual allegations contained in the

complaint must be accepted as true and must be construed in the light most favorable to the

plaintiff, and the court must “‘determine whether, under any reasonable reading of the complaint,

the plaintiff may be entitled to relief.’” Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d

Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)); see Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007). While Federal Rule of Civil Procedure

8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled

to relief,” the complaint must “‘give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.’” Phillips, 515 F.3d at 231 (quoting Twombly, 550 U.S. at 555

(internal citation and quotation marks omitted)). Moreover, while “this standard does not require

‘detailed factual allegations,’” Rule 8 “demands more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555); Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).

It should be further noted, therefore, that in order to survive a motion to dismiss, “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). The Supreme

Court has noted that a “claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. (citing Twombly, 550 U.S. at 556). The standard “‘does not impose a probability

requirement at the pleading stage,’ but instead ‘simply calls for enough facts to raise a reasonable

expectation that discovery will reveal evidence of’ the necessary element.” Phillips, 515 F.3d at

234 (quoting Twombly, 550 U.S. at 556). Moreover, the requirement that a court accept as true all

factual allegations does not extend to legal conclusions; thus, a court is “‘not bound to accept as

true a legal conclusion couched as a factual allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 555 (internal citation and quotation marks omitted)).

To review a complaint under this standard, the Court proceeds in three steps. See Connelly

v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016). First, the Court notes the elements of a

claim. See id. (citing Iqbal, 556 U.S. at 675). Second, the Court eliminates conclusory allegations.

See id. (citing Iqbal, 556 U.S. at 679). And finally, the Court assumes the remaining well-pleaded

facts are true and assesses “whether they plausibly give rise to an entitlement to relief.” Id.

(quoting Iqbal, 556 U.S. at 679).

B. Qualified Immunity

The qualified immunity doctrine “shield[s] government officials performing discretionary

functions . . . ‘from liability from civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.’”

Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). Qualified immunity is not a “mere defense to liability” but rather it is “an entitlement not

to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

It is thus important to “resolv[e] immunity questions at the earliest possible stage in litigation.”

Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227

(1991)). In considering a claim of qualified immunity, a court must determine both whether the

plaintiff has shown a violation of a constitutional right, and whether the right was “clearly

established” at the time of the alleged constitutional violation. See id. (discussing Saucier v. Katz,

533 U.S. 194, 201 (2001)).

IV. DISCUSSION

A. Plaintiffs’ First Amendment Retaliation Claim Brought Pursuant to 42

U.S.C. § 1983 (Count II)

Plaintiffs bring their First Amendment retaliation claim pursuant to 42 U.S.C. § 1983,

which does not create any substantive rights, but rather provides a remedy for deprivations of rights

created by the Constitution of the United States or federal law. See City of Oklahoma City v. Tuttle,

471 U.S. 808, 816 (1985). Thus, “[t]o state a claim for relief in an action brought under § 1983,

[plaintiffs] must establish that they were deprived of a right secured by the Constitution or laws of

the United States, and that the alleged deprivation was committed under color of state law.”

American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). As previously noted,

Plaintiffs assert in their TAC at Count II that Defendants retaliated against them in violation of

their rights under the First Amendment to the Constitution of the United States, and at Count I that

Defendants tortiously interfered with their contractual relations under Pennsylvania law.

The Court notes initially that the TAC, despite being in its fifth iteration, is still somewhat

unclear. Therefore, it is difficult for Defendants to respond to Plaintiffs’ allegations, and it is

challenging for the Court to decipher and evaluate the plausibility of Plaintiffs’ claims. While

Plaintiffs allege two separate Counts, some of the allegations in the TAC seem to overlap and/or

appear out of place in Plaintiffs’ narrative, such that it is not entirely clear upon which allegations

each of Plaintiffs’ claims is based, nor is the nature of each claim evident. Additionally, Plaintiffs

do not differentiate among the Defendants in their allegations, so both claims appear to be lodged

against all Defendants, and many allegations refer to actions ostensibly taken by all Defendants,

although these may or may not have been Plaintiffs’ intentions in drafting their complaint.

Nevertheless, as noted above, the Court is able to discern that, at Count II, Defendants are

all alleged to have violated Plaintiffs’ First Amendment rights by stopping East Deer vehicle

towing call outs to Bastin Towing – thus terminating a contract between East Deer and Plaintiffs

– solely because Plaintiffs filed a lawsuit against a neighboring community and Chief Naviglia.

Plaintiffs assert broadly in the TAC that it is unlawful to retaliate against a contractor or service

provider for filing a legal action against a neighboring community, Cheswick Borough, and

another party.

In D & D Assocs., Inc. v. Board of Educ. of N. Plainfield, the Third Circuit considered the

claims of a contractor who entered into various contracts with a school board for school

renovations, and then later filed a number of civil rights, contract, and tort claims against the board

and its attorney, a construction management company, and an architect. See 552 F. App’x 110 (3d

Cir. 2014). The Third Circuit explained in D&D that “[t]o prevail on a First Amendment retaliation

claim under § 1983, ‘a plaintiff must prove (1) that he engaged in constitutionally-protected

activity; (2) that the government responded with retaliation; and (3) that the protected activity

caused the retaliation.’” 552 F. App’x at 114 (quoting Miller v. Mitchell, 598 F.3d 139, 147 (3d

Cir. 2010) (additional internal quotation marks and citation omitted)). The Third Circuit further

indicated that “[w]here the speaker is a government employee, that person ‘must show that he or

she spoke as a citizen on a matter of public concern.’” Id. (quoting Borough of Duryea, Pa., v.

Guarnieri, 564 U.S. 379, 386 (2011) (emphasis added)). The Third Circuit also noted that such

test, “‘adjusted to weigh the government’s interests as [a] contractor rather than as [an] employer,’

applies to government contractors,” like the plaintiff in that case. Id. (quoting Board of Cnty.

Comm’rs v. Umbehr, 518 U.S. 668, 673 (1996)).

Here, upon consideration of the allegations in the TAC, the Court finds Plaintiffs’ First

Amendment retaliation claim to be deficient in several respects. First, while government

contractors may allege First Amendment retaliation claims pursuant to Section 1983, Plaintiffs

have not alleged a plausible contractual relationship upon which to base such a claim. The

essential elements of a contract under Pennsylvania law are that: “(1) ‘both parties have

manifested an intent to be bound by the terms of the agreement,’ (2) ‘the terms are sufficiently

definite,’ and (3) there is consideration.” Fleming Steel Co. v. Jacobs Eng’g Grp., Inc., 373 F.

Supp. 3d 567, 582 (W.D. Pa. 2019) (quoting Johnston the Florist, Inc. v. TEDCO Constr. Corp.,

657 A.2d 511, 516 (Pa. Super. Ct. 1995)). A parties’ contract “shall be considered valid and

binding if all three elements exist.” Id.

Here, Plaintiffs allude only to a “publicly acknowledged, long-standing contract and

business agreement” (utilized for over ten years) that vehicle towing services for East Deer would

alternate monthly between Bastin Towing and another vehicle towing company, without also

averring facts to support such agreement being valid and binding as to any of the Defendants.

(Docket No. 11, ¶ 2). Notably, Plaintiffs have neither attached any agreement, nor have they

alleged the factual details of such agreement. For example, the TAC is lacking allegations such as

who the specific parties to the agreement were, how or when specifically the agreement was

entered into, the length of time the agreement was to last, how the agreement could be terminated,

how and whether the agreement could be renewed, whether the agreement had been renewed,

whether the agreement was ever reduced to writing, and consideration.

Moreover, even if the Court were to assume that the TAC plausibly alleges that Plaintiffs

were contractors (as Plaintiffs purport to aver), Plaintiffs’ retaliation claim fails on the first prong

of the First Amendment retaliation analysis, since it is not apparent from the TAC whether the

speech in question (here, the lawsuit) was allegedly made by Plaintiffs in their capacity as

contractors or as citizens, which is relevant in determining whether Plaintiffs have alleged speech

that is constitutionally protected. See D&D, 552 F. App’x at 114-15. Instead, Plaintiffs simply

claim that they were retaliated against for having filed a lawsuit against a different municipality

and Chief Naviglia, without providing any details about the lawsuit in question. Absent any factual

averments regarding such lawsuit, the Court cannot determine whether such speech involved a

matter of public concern, or whether it was made in an employee (or, here, a contractor) capacity

in which case it may not be protected by the First Amendment. See id. Because the TAC does not

allege facts showing underlying constitutionally protected speech to establish the first prong of the

retaliation analysis, it is unnecessary for the Court to reach the other steps of such analysis. See

id. at 115.

Accordingly, the Court finds that Plaintiffs have failed to state a plausible claim against

Defendants for First Amendment retaliation, and such claim will be dismissed without prejudice2

pursuant to Rule 12(b)(6).

B. Plaintiffs’ Tortious Interference with Contractual Relations Claim Under

Pennsylvania Law

In their TAC, Plaintiffs also allege a claim of tortious interference with contractual

2 In doing so, the Court is skeptical that granting leave for amendment is not futile.

relations against Defendants. Even if the TAC contains sufficient allegations to state a claim for

that tort under Pennsylvania law (regarding which the Court expresses no opinion), the Court could

only consider this claim under its supplemental jurisdiction, pursuant to 28 U.S.C. § 1367.

However, 28 U.S.C. § 1367(c) provides that district courts “may decline to exercise supplemental

jurisdiction over a claim . . . if . . . (3) the district court has dismissed all claims over which it has

original jurisdiction.” Furthermore, “where the claim over which the district court has original

jurisdiction is dismissed before trial, the district court must decline to decide the pendent state

claims unless considerations of judicial economy, convenience, and fairness to the parties provide

an affirmative justification for doing so.” Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788

(3d Cir. 1995).

Here, the Court finds that there is nothing unique about this case such that considerations

of judicial economy, convenience, and fairness provide an affirmative justification for exercising

supplemental jurisdiction over Plaintiffs’ state law claim if Plaintiffs’ federal question claim at

Count II is dismissed with prejudice. Accordingly, in this instance, if Plaintiffs do not amend their

complaint, the Court will decline to exercise supplemental jurisdiction over Plaintiffs’ state law

claim and will remand Count I of the TAC to state court.

C. Qualified Immunity

Although the Court is dismissing Count II for failure to state a claim upon which relief

can be granted, the Court will still consider the argument set forth by the individually named Police

Officer Defendants, Chief Naviglia, Sergeant Cummings, and Officers Vacca, Vanwhy, and

Willford (collectively, the “Officer Defendants”), that they are entitled to qualified immunity in

this matter. See Roth v. City of Hermitage, 709 F. App’x 733, 736 (3d Cir. 2017) (“Failing to

consider the qualified immunity defense before dismissing without prejudice on the merits was

error because the District Court failed to resolve a motion asserting qualified immunity . . . at the

earliest possible stage in the litigation.” (internal quotation marks and citation omitted)). In

addition to arguing that Plaintiffs fail to state cognizable claims against them under Rule 12(b)(6),

the Officer Defendants contend that they are entitled to qualified immunity for their actions at this

stage of the litigation because Plaintiffs’ claims do not establish the violation of any clearly

established Constitutional rights. (Docket No. 16 at 11-12). However, because the Officer

Defendants raise this argument in a somewhat cursory way (which is understandable given the

lack of clarity in the TAC), and do not fully develop the argument with citation to appropriate case

law, nor has any reply brief been filed, and since Plaintiffs are being given leave to amend their

claims if they wish to do so, the Court will address qualified immunity only briefly at this time.

“[G]overnment officials performing discretionary functions generally are shielded from

liability for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). A federal right is clearly established for qualified immunity purposes if its

contours are “sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). Additionally, qualified

immunity must be assessed in the context of each individual defendant’s specific conduct,

including “‘an analysis of the facts adduced concerning the conduct of the official’” claiming

immunity. Griffin-El v. Beard, 411 F. App’x 517, 519 (3d Cir. 2011) (quoting Brown v.

Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990)).

A Court may find that a municipal official is entitled to qualified immunity at the motion

to dismiss stage if “(1) the facts alleged show the [official’s] conduct did not violate a constitutional

right, or (2) the right violated was not clearly established in light of the specific context of the

case.” Taylor v. Rosa, 856 F. App’x 376, 378 (3d Cir. 2021) (citing Reedy v. Evanson, 615 F.3d

197, 223–24 (3d Cir. 2010)). Thus, “qualified immunity should only be granted on a motion to

dismiss when it is ‘established on the face of the complaint.’” Janowski v. City of North Wildwood,

259 F. Supp. 3d 113, 126 (D.N.J. 2017) (quoting Thomas v. Independence Twp., 463 F.3d 285,

291 (3d Cir. 2006)).

Here, the facts alleged in the TAC do not make clear that the Officer Defendants’ conduct

did not violate a constitutional right, or that such right was not clearly established. Because the

TAC does not show that the Officer Defendants’ actions did not violate a clearly established

constitutional right, dismissal on qualified immunity grounds is premature. See Thomas, 463 F.3d

at 291 (a dismissal based on qualified immunity will be upheld “only when the immunity is

established on the face of the complaint” (quoting Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir.

2001))). Additionally, in accordance with Plaintiffs’ request, the Court is permitting Plaintiffs to

amend their TAC if they choose to do so. Therefore, if Plaintiffs choose to amend their complaint

once more, they should provide a more definite statement of their claims, the specific right at issue

here, and the role of each Officer Defendant in the conduct alleged, so that the claims against each

Officer Defendant are clearly delineated and so that the qualified immunity issue may be resolved

expeditiously and without “subjecting the [i]ndividual [d]efendant[s] who may be immune from

suit to needless discovery and the other burdens of litigation.” Id. at 299-301.

Accordingly, at this juncture, the Court will decline to grant the Officer Defendants’ motion

to dismiss to the extent it is based on qualified immunity grounds. See Debrew v. Auman, 354 F.

App’x 639, 642 (3d Cir. 2009) (vacating order granting motion to dismiss certain claims on

qualified immunity grounds because the sparse complaint “failed to disclose whether the

defendants’ actions did not violate a clearly established constitutional right” and therefore

“dismissal on qualified immunity grounds was premature” (citing Thomas, 463 F.3d at 291)); see

also Newland v. Reehorst, 328 F. App’x 788, 791 n.3 (3d Cir. 2009) (cautioning against deciding

qualified immunity without a developed factual record). However, given that the Court is granting

their motion to dismiss Plaintiffs’ claims pursuant to Rule 12(b)(6), the Officer Defendants are

free to raise their qualified immunity argument, if appropriate, in response to a fourth amended

complaint if Plaintiffs choose to re-allege claims against them.

V. CONCLUSION

For the reasons stated, Defendants’ motions to dismiss Plaintiffs’ TAC are granted.

Plaintiffs’ Section 1983 claim alleging First Amendment retaliation at Count II will be dismissed,

without prejudice, pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be

granted. Plaintiffs will, however, be given leave to file a Fourth Amended Complaint. If Plaintiffs

do not file a Fourth Amended Complaint, their claim at Count II will be dismissed with prejudice,

and their state law claim for tortious interference with contractual relations at Count I will be

remanded to state court.

An appropriate Order follows.

Dated: September 5, 2025 s/ W. Scott Hardy

W. Scott Hardy

United States District Judge

cc/ecf: All counsel of record