Opinion
Civil Action No. 04-927.
August 3, 2004
ORDER AND MEMORANDUM ORDER
AND NOW, this 3rd day of August, 2004, upon consideration of Defendant Ronald David Ashby's Motion to Dismiss Pursuant to F.R.C.P. 12(b) (Docket No. 4, filed April 13, 2004), Defendant Deliah Young's Motion to Dismiss Pursuant to F.R.C.P. 12(b) (Docket No. 5, filed April 13, 2004), plaintiff's Memorandum in Opposition to Motion for Summary Judgment Pursuant to F.R.C.P. 12(b) (Docket No. 8, filed May 12, 2004), Kenneth Goldstein and Weichert Co. of Pennsylvania, Inc.'s Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b) (Docket No. 6, filed May 3, 2004), Memorandum in Opposition to Motion [of Defendants Kenneth Goldstein and Weichert Realtors] for Summary Judgment Pursuant to F.R.C.P. 12(b) (Docket No. 11, filed May 20, 2004), Motion to Dismiss of Defendant Delaware County Board of Assessment Appeals (Docket No. 10, filed May 13, 2004) Memorandum in Opposition to Motion [of Defendant Delaware County Board of Assessment Appeals] for Summary Judgment Pursuant to F.R.C.P. 12(b) (Docket No. 12, filed May 27, 2004), and Motion of Defendant Delaware County Court of Common Pleas to Dismiss Plaintiff's Amended Complaint (Docket No. 13, filed July 26, 2004), IT IS ORDERED as follows:
Plaintiff misidentified the motions to which he is responding — Motions to Dismiss filed by Defendants Ronald David Ashby and Delilah Eva Young.
Plaintiff misidentified the motion to which he is responding — a Motion to Dismiss filed by Defendants Kenneth Goldstein and Weichert Co. of Pennsylvania, Inc.
Plaintiff misidentified the motion to which he is responding — a Motion to Dismiss filed by the Delaware County Board of Assessment Appeals.
(1) Kenneth Goldstein and Weichert Co. of Pennsylvania, Inc.'s Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b) (Docket No. 6) is DENIED WITHOUT PREJUDICE to their right to address the issues raised in the Motion after completion of relevant discovery in a motion for summary judgment;
(2) Defendant Ronald David Ashby's Motion to Dismiss Pursuant to F.R.C.P. 12(b) (Docket No. 4) is GRANTED WITHOUT PREJUDICE;
(3) Defendant Deliah Young's Motion to Dismiss Pursuant to F.R.C.P. 12(b) (Docket No. 5) is GRANTED WITHOUT PREJUDICE;
(4) Motion to Dismiss of Defendant Delaware County Board of Assessment Appeals (Docket No. 10) is GRANTED WITHOUT PREJUDICE; and
(5) Motion of Defendant Delaware County Court of Common Pleas to Dismiss Plaintiff's Amended Complaint (Docket No. 13) is GRANTED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that the caption and the Amended Complaint are AMENDED to substitute:
(1) "Weichert Co. of Pennsylvania, Inc.," for "Weichert Realtors" as a defendant;
(2) "Delaware County" for "Delaware County Tax Assessment" as a defendant and
(3) "Delaware County Court of Common Pleas" for "Delaware County Judicial Court" as a defendant. The caption, as amended, is as follows: K. James Carpenter, Plaintiff v. Deliah Eva Young, Ronald David Ashby, Delaware County Court of Common Pleas, Delaware County, Kenneth Goldstein and Weichert Co. of Pennsylvania, Inc., Defendants.
IT IS FURTHER ORDERED that Plaintiff is GRANTED LEAVE to file a second amended complaint within 30 days as to defendants Ronald David Ashby, Delilah Eva Young, Delaware County and the Delaware County Court of Common Pleas if warranted by the facts.
MEMORANDUM
Presently before the Court is a pro se Amended Complaint alleging criminal violations of the bankruptcy code and violations of plaintiff's civil rights. All six named defendants, Kenneth Goldstein and Weichert Co. of Pennsylvania, Inc., improperly identified as Weichert Realtors in the Amended Complaint, Ronald David Ashby, Delilah Eva Young, the Delaware County Board of Assessment Appeals, improperly identified as the Delaware County Tax Assessment in the Amended Complaint, and the Delaware County Court of Common Pleas, improperly identified as the Delaware County Judicial Court in the Amended Complaint, have moved to dismiss. For the reasons set forth below the Court denies the motion to dismiss of Kenneth Goldstein and Weichert Co. of Pennsylvania, Inc., and grants the motions to dismiss of defendants Ashby, Young, the Delaware County Board of Tax Assessment Appeals and the Delaware County Court of Common Pleas.
I. BACKGROUND
Plaintiff resides in Virginia and has a business in and is a "part-time resident" of Media Pennsylvania. The Amended Complaint references, without describing, a number of recent events in which plaintiff was involved including a bankruptcy proceeding, a lawsuit in state court involving a dispute over real property, a disputed tax assessment and the termination of plaintiff's employment with Weichert Co. of Pennsylvania, Inc. Plaintiff makes several claims related to each of these events against the six defendants.
II. LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b)(5) provides that a party may raise a defense of insufficient service of process in a Motion to Dismiss. When a party moves to dismiss under Rule 12(b)(5), "the party making the service has the burden of demonstrating its validity . . ." Reed v. Weeks Marine, Inc., 166 F. Supp. 2d 1052, 1054 (E.D. Pa. 2001) (citing Grand Entm't Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488-89 (3d Cir. 1993); Addanki v. Def. Logistics Agency Def. Personnel Support Ctr., No. 95-CV-696, 1996 WL 635590, at *1 (E.D. Pa. Oct. 31, 1996)).
"[A] summons shall be served together with a copy of the complaint. The plaintiff is responsible for service of a summons and complaint within the time allowed under subdivision (m) and shall furnish the person effecting service with the necessary copies of the summons and complaint." Fed.R.Civ.P. 4(c)(1). "[I]f service is not waived, the person effecting service shall make proof thereof to the court. If service is made by a person other than a United States Marshall or Deputy not a United States Marshall, the person shall make affidavit thereof." Fed.R.Civ.P. 4(1). Service upon a governmental organization is effected by delivering a copy of the summons and the complaint to the organization's chief executive officer or by serving the summons and complaint in the manner prescribed by state law. Fed.R.Civ.P. 4(j). Federal Rule of Civil Procedure 4(m) requires the plaintiff to serve a defendant with a copy of the summons and complaint within 120 days of the filing of the complaint.
B. Rule 12(b)(6)
Rule 12(b)(6) of the federal rules of civil procedure provides that, in response to a pleading, a defense of "failure to state a claim upon which relief can be granted" may be raised by motion. Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss under Rule 12(b)(6), a court must take all well pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Only those facts alleged in the complaint may be considered in deciding such a motion. ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994). A complaint should be dismissed if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations."Hishon v. King Spalding, 467 U.S. 69, 73 (1984). Therefore, the facts alleged in plaintiff's Amended Complaint are accepted as true in deciding this motion.
Plaintiff is proceeding pro se in this case. The Court is mindful of the instruction that it should broadly construe normal pleading requirements when handling pro se submissions. Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaint "to less stringent standards than formal pleadings drafted by lawyers").
III. DISCUSSION
A. Defendants Kenneth Goldstein and Weichert Co. of Pennsylvania, Inc.'s Motion to Dismiss
Plaintiff alleges that Defendants Weichert Co. of Pennsylvania, Inc., and Kenneth Goldstein ("Weichert defendants") terminated his employment because he was involved in a bankruptcy proceeding in violation of 11 U.S.C. § 525. Amended Complaint ¶ 33. Section 525 creates a private cause of action against an employer who discriminates against an employee because the employee is a debtor under the Bankruptcy Act.
11 U.S.C. § 525 provides:
* * *
(b) No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt, solely because such debtor or bankrupt —
(1) is or has been a debtor under this title or a debtor or bankrupt under the Bankruptcy Act;
(2) has been insolvent before the commencement of a case under this title or during the case but before the grant or denial of a discharge; or
(3) has not paid a debt that is dischargeable in a case under this title or that was discharged under the Bankruptcy Act.
The Weichert defendants have jointly moved to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that plaintiff has failed to state a claim upon which relief can be granted.
The Weichert defendants argue in their Motion to Dismiss that plaintiff's claim should be dismissed because he has failed to allege an employment relationship with Weichert Company of Pennsylvania or Kenneth Goldstein, identified in the Amended Complaint as an "associate broker and manager of Weichert Realtors." Weichert Mot. to Dismiss 3. That argument ignores the language of the Amended Complaint in which plaintiff alleges that the Weichert defendants discriminated against him by "terminating employment contract."Id. at ¶ 33. Thus, plaintiff has pled an employment relationship with the Weichert defendants.
The Weichert defendants further argue that, to the extent plaintiff alleges he is an independent contractor, courts routinely refuse to apply 11 U.S.C. § 525 to independent contractors. Weichert Mot. to Dismiss 3. However, plaintiff has not alleged he is an independent contractor in the Amended Complaint. Thus, this argument is rejected on the present state of the record.
The Court notes that in ¶ 21 of plaintiff's response to the Weichert defendants' Motion to Dismiss, he states that the Weichert defendants terminated his employment as an "independent contractor." For purposes of the Weichert defendants' Motion to Dismiss, the Court will base its decision on the allegations in the Complaint alone.
Plaintiff has pled facts against the Weichert defendants sufficient to withstand a motion to dismiss. Thus, the Weichert defendants' motion to dismiss is denied without prejudice to their right to raise all issues addressed in the motion by a motion for summary judgment after completion of relevant discovery and/or at trial.
B. Defendant Ronald David Ashby's Motion to Dismiss Pursuant to F.R.C.P. 12(b)
Plaintiff alleges defendant Ronald David Ashby submitted a fraudulent pleading in plaintiff's bankruptcy proceeding in violation of 18 U.S.C. §§ 1519, 152, 153 and 157. Section 1519 makes it a crime to destroy, alter or falsify records in a bankruptcy action. Section 152 makes it a crime to conceal assets, make false oaths or claims or commit bribery in a bankruptcy proceeding. Section 153 makes it a crime to embezzle funds from an estate. Section 157 makes it a crime to commit fraud in a bankruptcy proceeding.
18 U.S.C. § 1519 provides:
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
18 USC § 152. Concealment of assets; false oaths and claims; bribery
A person who —
(1) knowingly and fraudulently conceals from a custodian, trustee, marshal, or other officer of the court charged with the control or custody of property, or, in connection with a case under title 11, from creditors or the United States Trustee, any property belonging to the estate of a debtor;
(2) knowingly and fraudulently makes a false oath or account in or in relation to any case under title 11;
(3) knowingly and fraudulently makes a false declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, in or in relation to any case under title 11;
(4) knowingly and fraudulently presents any false claim for proof against the estate of a debtor, or uses any such claim in any case under title 11, in a personal capacity or as or through an agent, proxy, or attorney;
(5) knowingly and fraudulently receives any material amount of property from a debtor after the filing of a case under title 11, with intent to defeat the provisions of title 11;
(6) knowingly and fraudulently gives, offers, receives, or attempts to obtain any money or property, remuneration, compensation, reward, advantage, or promise thereof for acting or forbearing to act in any case under title 11;
(7) in a personal capacity or as an agent or officer of any person or corporation, in contemplation of a case under title 11 by or against the person or any other person or corporation, or with intent to defeat the provisions of title 11, knowingly and fraudulently transfers or conceals any of his property or the property of such other person or corporation;
(8) after the filing of a case under title 11 or in contemplation thereof, knowingly and fraudulently conceals, destroys, mutilates, falsifies, or makes a false entry in any recorded information (including books, documents, records, and papers) relating to the property or financial affairs of a debtor; or
(9) after the filing of a case under title 11, knowingly and fraudulently withholds from a custodian, trustee, marshal, or other officer of the court or a United States Trustee entitled to its possession, any recorded information (including books, documents, records, and papers) relating to the property or financial affairs of a debtor, shall be fined under this title, imprisoned not more than 5 years, or both.
18 USC § 153 provides:
(a) Offense. — A person described in subsection (b) who knowingly and fraudulently appropriates to the person's own use, embezzles, spends, or transfers any property or secretes or destroys any document belonging to the estate of a debtor shall be fined under this title, imprisoned not more than 5 years, or both.
(b) Person to whom section applies. — A person described in this subsection is one who has access to property or documents belonging to an estate by virtue of the person's participation in the administration of the estate as a trustee, custodian, marshal, attorney, or other officer of the court or as an agent, employee, or other person engaged by such an officer to perform a service with respect to the estate.
shall be fined under this title, imprisoned not more than 5 years, or both.
18 U.S.C. § 157 provides:
A person who, having devised or intending to devise a scheme or artifice to defraud and for the purpose of executing or concealing such a scheme or artifice or attempting to do so —
(1) files a petition under title 11;
(2) files a document in a proceeding under title 11; or
(3) makes a false or fraudulent representation, claim, or promise concerning or in relation to a proceeding under title 11, at any time before or after the filing of the petition, or in relation to a proceeding falsely asserted to be pending under such title,
shall be fined under this title, imprisoned not more than 5 years, or both.
Defendant Ashby has moved to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6), on the ground that plaintiff has failed to state a claim upon which relief can be granted.
Because plaintiff has brought suit citing criminal statutes that do not give rise to private causes of action, he has failed to state a claim upon which relief can be granted. Thus, defendant Ashby's Motion to Dismiss is granted and plaintiff's claims against defendant Ashby are dismissed with leave to file a second amended complaint within 30 days if warranted by the facts.
C. Defendant Deliah Young's Motion to Dismiss Pursuant to F.R.C.P. 12(b)
Plaintiff alleges defendant Young submitted altered documents in an unidentified proceeding, in violation of 18 U.S.C. § 152. Amended Complaint ¶ 16. Section 152 makes it a crime to conceal assets, make false oaths or claims or commit bribery in a bankruptcy proceeding. Plaintiff also alleges defendant Young concealed "Record Documents" from "the Settlement of November 5, 1999" in violation of 18 U.S.C. §§ 1519 and 157(3). Id. at ¶ 17. Section 1519 makes it a crime to destroy, alter or falsify records in a bankruptcy action. Section 157 makes it a crime to commit fraud in a bankruptcy proceeding.
18 USC § 1519 provides:
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
18 USC § 157 provides:
A person who, having devised or intending to devise a scheme or artifice to defraud and for the purpose of executing or concealing such a scheme or artifice or attempting to do so —
(1) files a petition under title 11;
(2) files a document in a proceeding under title 11; or
(3) makes a false or fraudulent representation, claim, or promise concerning or in relation to a proceeding under title 11, at any time before or after the filing of the petition, or in relation to a proceeding falsely asserted to be pending under such title, shall be fined under this title, imprisoned not more than 5 years, or both
Defendant Deliah Eva Young has moved to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) on the ground that plaintiff has failed to state a claim upon which relief can be granted.
Because plaintiff has brought suit citing criminal statutes that do not give rise to private causes of action, he has failed to state a claim upon which relief can be granted. Thus, defendant Young's Motion to Dismiss is granted and plaintiff's claims against defendant Young are dismissed with leave to file a second amended complaint within 30 days if warranted by the facts.
D. Motion to Dismiss of Defendant Delaware County Board of Assessment Appeals
Plaintiff alleges in paragraphs 31 and 32 of the Amended Complaint that the Delaware County Board of Assessment Appeals (the "Board"), improperly identified as Delaware County Tax Assessment in the Amended Complaint, has violated his constitutional rights under 42 U.S.C. §§ 1981, 1982 and 1983. In conclusory fashion, plaintiff alleges that the Board "committed Land and/or Tax Fraud by violating plaintiff's right to ownership for folio no. 26-00-00845-00. Plaintiff's deed shows plaintiff being the owner of folio no. 26-00-00845-00; however Ms. Young is collecting rents and insisted she has a deed for the property which was sold to plaintiff on December 15, 1994." Amended Complaint ¶ 31. The Amended Complaint, in paragraph 32, alleges that the property has a tax assessment of $230,000.00 "after the property was sold in 1994," and that the Board is ". . . committing tax fraud for overcharging property taxes on property on parcel of land 88×142 which was never subdivided." The Board has moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5) and (6).
Section 1981 authorizes suits arising out of racial discrimination in the making and enforcing of contracts. 42 U.S.C. § 1981. In order to state a claim under § 1981, a plaintiff "must allege facts in support of the following elements: (1) [that plaintiff] is a member of a racial minority; (2) intent to discriminate on the basis of race by the defendant; and (3) discrimination concerning one or more of the activities enumerated in the statute[,] which includes the right to make and enforce contracts. . . ." Brown v. Philip Morris, 250 F.3d 789, 797 (3d Cir. 2001). Section 1981 is enforceable against a local agency through 42 U.S.C. § 1983. Butts v. County of Volusia, 222 F.3d 891, 894 (11th Cir. 2000).
42 USC 1981 provides:
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) "Make and enforce contracts" defined
For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) Protection against impairment
The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
Section 1982 protects rights "to inherit, purchase, lease, sell, hold, and convey real and personal property." In order to bring an action under § 1982, a plaintiff "must allege with specificity facts sufficient to show or raise a plausible inference of (1) the defendant's racial animus; (2) intentional discrimination; and (3) that the defendant deprived plaintiff of his rights because of race."Brown, 250 F.3d at 797.
42 USC § 1982 provides:
All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.
Section 1983 makes "[e]very person who, under color of [state law], subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights . . . secured by the Constitution. . . ." liable to the party injured. 42 U.S.C. § 1983 (emphasis added). Section 1983 encompasses a broad range of actions sounding in tort, including injuries under color of state law to a person or his property and infringements of individual liberties. Goodmen v. Lukens Steel Co., 777 F.2d 113, 134 (3d Cir. 1985). To establish § 1983 liability against a local agency including a county under Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658 (1978), the plaintiff must show a violation of a constitutional right and that (1) the enforcement of a county policy was (2) the "moving force" behind the violation. Albright v. Oliver, 510 U.S. 266, 271 (1994); Polk County v. Dodson, 454 U.S. 312, 326 (1981).
The Board first argues that plaintiff's claims against it should be dismissed pursuant to Rule 12(b)(5) on the ground that he has failed to properly serve the Amended Complaint and Summons on the Board. Plaintiff has not made proof of service to the Court and the time for making service, 120 days from the filing of the Complaint, has expired. Fed.R.Civ.P. 4(m). However, the Court concludes it is unnecessary to rule on the question of service because, as set forth below, plaintiff has failed to state a claim against this defendant on which relief can be granted.
The Board asserts that it is an administrative agency of the County of Delaware and, as such, is not amendable to suit and thus plaintiff's claims should be dismissed pursuant to Rule 12(b)(6). Under Pennsylvania law, counties, including Delaware County, have the authority to sue and be sued. Pa.Cons.Stat.Ann. Title 16 § 201(2) (West 2001). Administrative agencies of the county are not similarly empowered. Thus, plaintiff's suit may only be properly maintained against Delaware County itself, not the Board. Nevertheless, because plaintiff is proceeding pro se, the Court will not dismiss plaintiff's claims against the Board on this ground. Instead, the Court will assume arguendo that Delaware County was substituted as a defendant for the Board and analyze plaintiff's claims on the merits.
The Board argues that plaintiff has failed to state a claim upon which relief can be granted under 42 U.S.C. § 1983 because plaintiff does not allege a constitutional violation. Mot. to Dismiss of Bd. of Assessment Appl 9-10. The only allegation in the Amended Complaint which purports to set forth a constitutional violation is paragraph 32. In that paragraph plaintiff alleges that the Board is, "violating plaintiff's rights pursuant to 42 U.S.C. 1981, 1982, 1983 or committing Tax Fraud."
The exact language of the relevant paragraph of the Amended Complaint is as follows:
32. Delaware County Tax Assessment is responsible for the correct tax assessments on properties in Delaware County and has a tax assessment of $230,000 after the property was sold in 1994 is violating plaintiff's rights pursuant to 42 USC 1981, 1982, 1983 or committing Tax Fraud for overcharging property taxes on property on parcel of land 88×142 which was never sub-divided.
Amended Complaint ¶ 32.
Without deciding the question of whether there is a constitutional violation, the Court concludes plaintiff has failed to plead sufficient facts against the Board to withstand a motion to dismiss under Monell. The Third Circuit recently summarized the liability of a local agency such as a county underMonell as follows:
Local governing bodies . . . may be sued directly under § 1983 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." In addition, local governments can be sued for "constitutional deprivations visited pursuant to governmental 'custom." Local governments are not liable "unless action pursuant to official policy of some nature caused a constitutional tort." In other words, a county (or its agencies) may not be sued under a respondeat superior theory. Therefore, a prima facie case against a county must involve an allegation of a policy or custom that directed or caused the constitutional deprivation.Marran v. Marran, ___ F.3d ___, 2004 WL 1576485 *9 (3d Cir. 2004). Even if plaintiff had properly pled a constitutional violation against the Board in the Amended Complaint, he did not allege that a policy or custom of the Board led to the violation. This is an essential part of a § 1983 claim against a county. Without an allegation of a policy or custom, plaintiff has not stated a prima facie case.
The Court notes without deciding that any claim against the Board is subject to a statute of limitations defense because it appears that the acts upon which plaintiff's claims against the Board are based occurred in 1994.
The Amended Complaint similarly fails to state how the Board has violated § 1981 and 1982 which created causes of action for racial discrimination in contracting and real property transactions. Plaintiff's only allegation against the Board is that it overcharged him for property taxes, not that it discriminated against him on the basis of race.
Thus, defendant Delaware County Board of Tax Assessment Appeals' Motion to Dismiss is granted and plaintiff's claims against the Board are dismissed with leave to file a second amended complaint within 30 days if warranted by the facts.
E. Plaintiff's Claims Against Delaware County Court of Common Pleas
Plaintiff names the Delaware County Court of Common Pleas, improperly identified as the Delaware County Judicial Court, as a defendant in the Amended Complaint. Although named as a defendant in the Amended Complaint, plaintiff makes no allegations against the Court of Common Pleas. That, without more, is a ground for dismissal. For that reason, the Court declines to address the Court of Common Pleas argument that it is entitled to immunity under the Eleventh Amendment.
The Court of Common Pleas has moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) on the ground that the Court lacks jurisdiction to over plaintiff's claims because the Court of Common Pleas, as an agency of the Commonwealth of Pennsylvania, is immune from suit under the Eleventh Amendment to the U.S. Constitution.
The Court also notes that plaintiff makes a series of accusations against "Judge Proud", who is not named as a defendant, in the Amended Complaint. The Court takes judicial notice of the fact that James F. Proud is a judge of the Court of Common Pleas of Delaware County. Fed.R.Evid. 201. Plaintiff takes issue with "Judge Proud's ruling", (without identifying what case plaintiff is referring to and what ruling Judge Proud made) claiming that it violated plaintiff's rights under 42 U.S.C. §§ 1981, 1982 and 1983. These allegations fail to state a claim against the Court of Common Pleas upon which relief can be granted.
The Court notes without deciding that any claims that might be asserted against Judge Proud would, on the present state of the record, be barred under the Rooker-Feldman doctrine which deprives a district court of jurisdiction where a claim was actually litigated in state court prior to the filing of the federal action or if the claim is "inextricably intertwined" with the state adjudication. Exxon Mobil Corp. et al. v. Saudi Basic Industries Corp., 364 F.3d 102 (3d Cir. 2004).
Thus, plaintiff's claims against the Delaware County Court of Common Pleas are dismissed with leave to file a second amended complaint within 30 days if warranted by the facts.
IV. CONCLUSION
For the reasons state herein, defendants Kenneth Goldstein and Weichert Co. of Pennsylvania, Inc.'s Motion to Dismiss is denied, defendant Ronald David Ashby's motion to dismiss is granted, defendant Delilah Eva Young's motion to dismiss is granted, defendant Delaware County Board of Tax Assessment Appeals' motion to dismiss is granted and defendant Delaware County Court of Common Pleas motion to dismiss is granted. Plaintiff is granted leave to file a second amended complaint within 30 days as to defendants Ronald David Ashby, Delilah Eva Young, Delaware County and the Delaware County Court of Common Pleas if warranted by the facts.