Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RMJ, VENTURES, LLC :

Plaintiff, : CIVIL ACTION

:

v. : No. 25- 00947

:

QUAKERTOWN BOROUGH, et al., :

Defendants. :

:

:

:

:

MEMORANDUM

J. Younge June 24, 2026

I. INTRODUCTION

Plaintiff RMJ Ventures, LLC (“Plaintiff”) has filed this action against Defendants

Quakertown Borough, David Erwin, Scott McElree, Donald E. Rosenberger, L. James Roberts,

Jr., Michael Johnson, Douglas Propst, Dave Wilsey, Jonathan Sell, and Mae Wear (hereinafter

collectively “Defendants”), claiming that Defendants unlawfully denied Plaintiff access to the

Quakertown’s sewer facility (“Sewer Facility”). The Court dismissed Plaintiff’s Complaint

grounded in 42 U.S.C. § 1983 for discriminatory conduct in violation of the Equal Protection

Clause and denial of substantive due process rights afforded by the Fourteenth Amendment. (ECF

No. 22.) Plaintiff having filed their Amended Complaint within the twenty days permitted by the

Court’s December 5, 2025 Order, brings forth the same claims seeking remedies under 42 U.S.C.

§ 1983 for violations of their equal protection and due process rights provided by the Fourteenth

Amendment. (ECF No. 23.) Before the Court is Defendants’ Motion to Dismiss Plaintiff’s

Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6). (ECF No. 24.) The

Court finds this Motion appropriate for resolution without oral argument. Fed. R. Civ. P. 78; L.R.

7.1(f). For the reasons set forth in this Memorandum, the Court grants Defendants’ 12(b)(6) motion

dismissing Plaintiff’s Counts I and II with prejudice as leave to amend would be futile.

II. FACTUAL BACKGROUND

The Court has already summarized the factual background giving rise to Plaintiff’s claims

and assumes the reader’s familiarity with them.1 For purposes of this motion, however,

Defendants’ conduct in that history will be further explained. Plaintiff in its Amended Complaint

alleges that Defendants received guidance from the Pennsylvania Department of Environmental

Protection (“DEP”) to identify projects to be removed from the Corrective Management Plan

(“CMP”) that would make available previously reserved equivalent dwelling units (“EDUs”) for

other projects. (ECF No. 23.) Plaintiff alleges that such changes would “satisfy a substantial

portion of Plaintiff’s sewer capacity needs.” (Id.) Plaintiff further alleges that Defendants

internally discussed reserving the newly available EDUs for “future use,” but chose not to assign

the available units to Plaintiff’s “future use” project. (Id.) Defendants even refused to add

Plaintiff’s project to the CMP for future consideration. (Id.) In the CMP, Defendants identified 25

EDUs that were not assigned and elected to assign 23 of those EDUs to the construction of a car

wash in Quakertown. (Id.) Because this project was not on the CMP, Plaintiff alleges that

Defendants prevented other qualifying projects from being considered for the opportunity to

acquire the newly available EDUs. (Id.) Even more, Defendants were able to make available

additional EDUs from previously assigned projects. (Id.)

Defendants, however, refute Plaintiff’s claims that their conduct violated any right alleged

by Plaintiff. (ECF No. 24.) Defendants further argue that Plaintiff has failed to allege that they

were the only project denied access to its Sewer Facility. (ECF No. 24.) Defendants contend that

1 See ECF No. 21, The Court’s 12/5/2025 Memorandum dismissing Plaintiff’s Complaint.

Plaintiff’s allegations are fatal to its own claims because Plaintiff acknowledges the organic

overload has led DEP to impose limits on the number of connections to the Sewer Facility, DEP

is the only authority to change the CMP, and Plaintiff’s project exceeds any project identified on

the CMP. (Id.) To that end, Defendants move to dismiss Plaintiff’s Amended Complaint because

Plaintiff fails to state a claim upon which relief can be granted. (Id.)

III. LEGAL STANDARD

The standard for a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)

is examined in detail in Ashcroft v. Iqbal, 556 U.S. 662 (2009). After Iqbal, it is clear that

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice” to defeat a Rule 12(b)(6) motion to dismiss. Id. at 678; see also Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “To survive dismissal, ‘a complaint must contain

sufficient factual matter, accepted as true, to state a claim [for] relief that is plausible on its face.’”

Tatis v. Allied Interstate, LLC, 882 F.3d 422, 426 (3d Cir. 2018) (quoting Iqbal, 556 U.S. at 678).

Facial plausibility is “more than a sheer possibility that a defendant has acted unlawfully.” Id.

(quoting Iqbal, 556 U.S. at 678). Instead, “[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. (quoting Iqbal, 556 U.S. at 678). Thus, this Court must examine

Plaintiff’s claims to determine whether it can infer that Defendant is liable for the alleged

misconduct.

IV. DISCUSSION

This matter arises from the Court’s dismissal of Plaintiff’s Complaint alleging violations

of federal constitutional and statutory rights against Defendants. (ECF No. 22.) Complying with

the Court’s December 5, 2025 Order, Plaintiff filed their Amended Complaint within twenty days

against Defendants alleging the same constitutional violations of the Fourteenth Amendment and

seeking remedies under 42 U.S.C. § 1983. (ECF No. 23.) Subsequently, Defendants moved the

Court to dismiss Plaintiff’s Amended Complaint for failure to state a claim pursuant to Fed. R.

Civ. P. 12(b)(6). (ECF No. 24.) Construing the Amended Complaint in a light most favorable to

Plaintiff as the nonmoving party, the Court dismisses Plaintiff’s Counts I and II with prejudice and

without leave to file an amended complaint as the same would be futile.

A. Section 1983 Claims

Plaintiff’s constitutional claims in Count I and II are not actionable against Defendants

through 42 U.S.C. § 1983. Section 1983 states:

Every person who, under color of any statute, [. . .] 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 any new substantive rights but instead provides

a remedy for the violation of a federal constitutional or statutory right.” Gruenke v. Seip, 225 F.3d

290, 298 (3d Cir. 2000). A plaintiff has a viable claim under this section if shown that the

defendant, “through conduct sanctioned under the color of state law, deprived [the plaintiff] of a

federal constitutional or statutory right.” Id. A defendant acts under color of state law when he

exercises power “possessed by virtue of state law and made possible only because the wrongdoer

is clothed with the authority of state law.” West v. Atkins, 487 U.S. 42, 49 (1988); Bonenberger v.

Plymouth Township, 132 F.3d 20, 23 (3d Cir. 1997). This Court must determine whether Plaintiff

has alleged the deprivation of a right that either the Constitution or federal law protects.

Plaintiff asserts that Defendants violated Plaintiff’s rights and privileges under the

Fourteenth Amendment of the United States Constitution. (ECF No. 23.) Moreover, there is no

dispute that Defendants at all relevant times acted under color of state law. (ECF No. 24.) Plaintiff,

however, has not alleged facts to invoke the remedies for deprivations of its constitutionally

protected rights. Therefore, Counts I and II are dismissed with prejudice and without leave to file

an amended complaint.

Count I: Fourteenth Amendment Equal Protection “Class of One” Claim

Plaintiff claims that his rights under the Equal Protection clause were violated when

Defendants selectively enforced its sewer regulations imposed by DEP. Plaintiff raises the “class

of one” theory established by our Supreme Court in Village of Willowbrook v. Olech, 528 U.S. 562

(2000) (per curium). This theory requires a plaintiff claiming a violation of the Equal Protection

clause to allege that “(1) the defendant treated him differently from others similarly situated, (2)

the defendant did so intentionally, and (3) there was no rational basis for the difference in

treatment.” Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006).

Plaintiff’s claim requires a plausible factual allegation that the Plaintiff is similarly situated

to other comparable projects. Olech, 528 U.S. at 564. To be “similarly situated,” the comparable

parties must be “alike in all relevant aspects.” Startzell v. City of Philadelphia, 533 F.3d 183, 203

(3d Cir. 2008). “At the motion to dismiss stage, [the plaintiff] must allege facts sufficient to make

plausible the existence of such similarly situated parties.” Perano v. Township of Tilden, 423

Fed.Appx. 234, 238 (3d Cir. 2011) (citation omitted).

Plaintiff’s claim must fail because it does not allege the existence of similarly situated

projects permitted to connect to Defendants’ Sewer Facility. Plaintiff alleges that after Defendants

denied their request to connect 105 EDUs to the Sewer Facility, they allowed EDU connections of

other projects, who are described as similarly situated to Plaintiff “in that they seek to connect to

the Sewer Facility in the face of organic overload.” According to Plaintiff then, all projects

applying to connect to Defendants’ Sewer Facility are similarly situated to Plaintiff, because, by

the very nature of seeking to connect in the face of organic overload, every project is the same.

Suggesting parity between a massive request of 105 EDUs and much smaller projects already

conceded by Plaintiff to be significantly smaller than their project is untenable. This is absurd and

so the Court disagrees. Our Circuit requires some additional showing beyond Plaintiff’s bald

assertion that other comparable parties are of the same general category as Plaintiff and engaged

in the same act of seeking approval to connect to the Sewer Facility. See Rucci v. Cranberry

Township., Pa., 130 F. App’x 572 (3d Cir. 2005). Here, because Plaintiff fails to sufficiently show

that they were the only project denied approval to connect to the Sewer Facility in the face of

organic overload, Plaintiff will not be considered a “class of one.” Plaintiff further fails to set forth

allegations that plausibly establish they were singularly omitted from the CMP or excluded from

consideration. Moreover, the Third Circuit has reiterated that “the equal protection clause does not

require the state to treat all persons alike.” Price v. Cohen, 715 F.2d 87, 91 (3d Cir. 1983).

Under the rational basis test, “challenged legislation will be upheld unless a plaintiff can

demonstrate that the classification at issue does not bear a rational relationship to a legitimate

[municipal] interest.” Id. at 94 (citing Matthews v. Lucas, 427 U.S. 495, 510 (1976)). The Court

cannot say that the interests articulated by Defendants in this case are not legitimate. Defendants

have explained that, due to organic overload, DEP has restricted new connections to the Sewer

Facility under a CMP. (ECF No. 24.) To prevent further environmental violations, Defendants

were allowed to only assign a maximum of 25 EDUs to a given project. (ECF No. 24.) Whereas

here, Plaintiff sought 105 EDUs for a residential project, which significantly dwarfs any project

considered by Defendants. These are all legitimate municipal interests.

Therefore, Plaintiff cannot bring a class of one equal protection claim for selective

enforcement of sewer regulations because they have failed to show they are similarly situated.

Thus, Plaintiff’s Count I is dismissed for failure to state a claim.

Count II: Fourteenth Amendment Substantive Due Process Claim

The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive

any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.

This Court has previously determined that Plaintiff’s complained of conduct of Defendants are

non-legislative acts. See American Express Travel Related Services. v. Sidamon-Eristoff, 669 F.3d

359, 366 (3d Cir. 2012). Here, because the Third Circuit has consistently recognized land

ownership as a property interest worthy of substantive due process protection, Plaintiff has a

constitutionally protected property interest. Id. at 141. That being said, Plaintiff must then show

that its’ fundamental property interest was violated by arbitrary or irrational actions of Defendants

that “shock the conscience.” See County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998); see

also Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008). Only “the most egregious official conduct

can be said to “shock[] the conscience.” Eichenlaub v. Township of Indiana, 385 F.3d 274, 285

(3d Cir. 2004).

The alleged conduct of Defendants selectively enforcing its sewer regulations—allegations

the Court is required to accept as true at this stage, fails to sufficiently state a substantive due

process claim. Plaintiff contends that Defendants knowingly permit other parties to discharge

waste into the Sewer Facility at levels that cause significant organic overload, and such practices

have violated Plaintiff’s use and development of its property interest. Plaintiff further alleges that

the organic overload became a justification to deny its Project from connecting to Defendants’

Sewer Facility, while Defendants permitted other projects. While such practices as alleged should

not occur, and to the extent that Plaintiff claims that Defendants’ “scheme” was targeted and self-

enriching, its Amended Complaint does not square with that contention. Rather than amend or cut

its project down to an amenable size that comports with the constraints placed on Defendants by

DEP, Plaintiff continues to submit the same project request in futility. Because Plaintiff fails to

sufficiently establish at this stage Defendants’ conduct was motivated by “corruption or self-

dealing,” the Court cannot find that Defendants’ conduct “shocks the conscience.” Eichenlaub,

385 F.3d at 286. In Eichenlaub, the Third Circuit found that the “township selectively enforced its

zoning laws, pursu[ed] unannounced and unnecessary inspections, and improperly increase[ed]

tax assessments” and this conduct still did not “shock the conscience.” DB Enter. Devs. & Builders,

Inc. v. Micozzie, 394 F. App’x 916, 919 (3d Cir. 2010) (citing Id.). It therefore follows that

Plaintiff’s allegations fall short of conduct that would be conscience-shocking. Accordingly,

Plaintiff’s Count II fails to allege such facts in its Amended Complaint to invoke the remedies for

deprivations of its substantive due process rights and will be dismissed for failure to state a claim.

Amendment to Count I and II would be futile. Plaintiff has been given two opportunities

to allege facts sufficient to overcome dismissal at this stage. Having failed to assert any new facts

showing a plausible constitutional violation, granting leave to amend a third time would be an

exercise in futility. A court need not grant leave to amend when it would be an exercise in futility.

City of Cambridge Ret. Sys. v. Altisource Asset Mgmt. Corp., 908 F.3d 872, 879, 69 V.I. 1034 (3d

Cir. 2018) (“Leave to amend is properly denied if amendment would be futile, i.e., if the proposed

complaint could not ‘withstand a renewed motion to dismiss.”’) (quoting Jablonski v. Pan. Am.

World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988)); see also In re Burlington Coat Factory

Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) (recognizing that denial of leave to amend is not

an abuse of discretion where the pleadings before the court demonstrate that further amendment

would be futile). Since Plaintiff’s pleading cannot be cured with further amendment to Count I and

II, this claim is dismissed with prejudice and without leave to amend. See City of Cambridge Ret.

Sys., 908 F.3d at 879, 69 V.I. 1034; Grayson v. Mayview State Hosp., 293 F.3d 103, 112-113 (3d

Cir. 2002) (stating amendment should be granted unless it would be futile.).

V. CONCLUSION

In sum, Counts I and II are dismissed with prejudice.

An appropriate Order follows.

IT IS SO ORDERED.

BY THE COURT:

/s/ John Milton Younge

JOHN M. YOUNGE, J.