COLLURA v. CITY OF PHILADELPHIA et al
Filing
66
MEMORANDUM. SIGNED BY HONORABLE JAN E. DUBOIS ON 7/31/2013. 8/1/2013 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(amas)
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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JASON COLLURA,
Plaintiff,
v.
CITY OF PHILADELPHIA, P/O CEDRIC
WHITE, P/O JOSEPH CORVI, P/O
DANIEL DAVIS, P/O MARIA ORTIZRODRIGUEZ, P/O JERROLD BATES, In
Their Individual Capacities, ALLIED
BARTON, DANIEL ROSIELLO, and
DIANE KOLWASKI,
Defendants.
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CIVIL ACTION
NO. 2:12-cv-4398
DuBois, J.
July 31, 2013
MEMORANDUM
I.
INTRODUCTION
This case arises out of the arrest of pro se plaintiff Jason Collura on July 22, 2010. The
initial Complaint, which was removed from the Philadelphia Court of Common Pleas to this
Court on August 2, 2012, included both federal and state claims against defendants City of
Philadelphia, Police Officers Cedric White, Joseph Corvi, and Daniel Davis, Sergeant Maria
Ortiz-Rodriguez, Inspector Jerrold Bates, in their individual capacities (collectively “City
Defendants”), and Allied Barton Security Services LLC, (“Allied Barton”). 1 The federal claims
in the Complaint were asserted under 42 U.S.C. § 1983 for violation of the First, Fourth, and
Fourteenth Amendments of the U.S. Constitution. Plaintiff also set forth in the Complaint claims
1
AlliedBarton Security Services LLC is incorrectly identified as “Allied Barton” in the
Complaint.
under Pennsylvania law for false arrest, illegal imprisonment, intentional infliction of emotional
distress, and violation of the Pennsylvania Constitution.
City Defendants moved to dismiss certain claims and AlliedBarton moved to dismiss all
claims asserted against them. City Defendants also moved to strike impertinent and scandalous
allegations in plaintiff’s Complaint under Federal Rule of Civil Procedure 12(f); AlliedBarton
joined in the latter Motion.
The Court, by Memorandum and Order dated December 20, 2012, dismissed a number of
plaintiff’s claims for failing to state claims of: (1) false arrest and illegal imprisonment against
Sergeant Ortiz-Rodriguez, Inspector Bates, and AlliedBarton; (2) intentional infliction of
emotional distress against all City Defendants and AlliedBarton; (3) a violation of Article 1,
Section 8 of the Pennsylvania Constitution against all City Defendants; (4) a violation of the
Fourth Amendment of the U.S. Constitution against Sergeant Ortiz-Rodriguez and Inspector
Bates; (5) 42 U.S.C. § 1983 against Sergeant Ortiz-Rodriguez Inspector Bates, and AlliedBarton;
(6) a violation of Article I, Section 1 of the Pennsylvania Constitution against all City
Defendants; (7) a violation of the Fourteenth Amendment of the U.S. Constitution against
Sergeant Ortiz-Rodriguez and Inspector Bates; (8) a violation of Article I, Section 6 of the
Pennsylvania Constitution against all City Defendants; and (9) a violation of the First
Amendment of the U.S. Constitution against Sergeant Ortiz-Rodriguez and Inspector Bates. The
Court also concluded that plaintiff had failed to state a claim warranting equitable relief. The
dismissal was without prejudice to plaintiff’s right to re-assert all such claims if warranted by the
facts and the law.
In the Memorandum and Order dated December 20, 2012, the Court also granted City
Defendants’ Motion to Dismiss and to Strike Impertinent and Scandalous Allegations under
2
Federal Rule of Civil Procedure 12(f) and dismissed the remainder of the Complaint without
prejudice to plaintiff’s right to file an amended complaint consistent with the Memorandum and
Order within thirty (30) days.
Plaintiff responded to the Memorandum and Order with a number of submissions. First,
he filed a Motion for Reconsideration, which included a request for permission to file an
interlocutory appeal. Second, he filed a Notice to Stand on Complaint, in which he “announc[ed]
[his] intention to stand on his complaint and disavows any intention to reinstitute the
litigation…” Third, he filed a Motion for Recusal, in which he questioned the Court’s
impartiality. Fourth, he filed a Motion to Stay the Proceedings pending an interlocutory appeal.
Notwithstanding his Notice to Stand on Complaint, on January 18, 2013, plaintiff filed a
First Amended Complaint, in which he essentially re-asserted the same claims as were set forth
in the original Complaint. Those same claims were made against the same defendants and two
additional defendants, Daniel Rosiello and Diane Kowalski, both employees of AlliedBarton.
Plaintiff simultaneously filed a Motion to Stay his Amended Complaint, again citing his request
for an interlocutory appeal.
For a second time, City Defendants moved to dismiss certain claims and AlliedBarton
moved to dismiss all claims asserted against them in the First Amended Complaint. City
Defendants also filed an Answer to the Amended Complaint, and plaintiff filed a Motion to
Strike the affirmative defenses pursuant to Federal Rule of Civil Procedure 12(f).
The Court, by Memorandum and Order dated March 1, 2013, denied the Motion for
Reconsideration, denied plaintiff’s request for permission to file an interlocutory appeal, and
dismissed all the claims in the First Amended Complaint without prejudice to the filing of a
second amended complaint consistent with the Memoranda and Orders dated December 20, 2012
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and March 1, 2013 within thirty (30) days. The Court’s reasoning was based on the admittedly
non-compliant nature of the First Amended Complaint: plaintiff admitted in his opposition to
defendants’ motions to dismiss that he filed the First Amended Complaint “for the docket and
nothing else, as Plaintiff did not comply with any invalid and bogus advice from the [Court].”
(Pl.’s Opp. to Defs.’ Mots. To Dismiss, at 2-3.) The Court also denied as moot plaintiff’s request
to stay the Amended Complaint and his Motion to Strike City Defendants’ Affirmative Defenses.
By separate Order dated March 1, 2013, the Court denied plaintiff’s Motion for Recusal.
On March 28, 2013, plaintiff filed a Second Amended Complaint, in which he dropped
his federal claims. In that Complaint, plaintiff asserts only state law claims: (1) of false arrest
and illegal imprisonment against all defendants, (2) under the Pennsylvania Constitution, Article
I, Section 8 against the City Defendants, and (3) of intentional infliction of emotional distress
claims against all defendants.
Contemporaneously with the filing of his Second Amended Complaint, plaintiff filed a
Motion to Remand to Court of Common Pleas, in which he argues the Court lacks subject matter
jurisdiction over the state law claims. 2
On April 4, 2013, plaintiff filed a “Response to Memorandum and Order,” in which he
expressed his disagreement with the Court’s March 1, 2013 Memorandum and Order.
AlliedBarton, Rosiello, and Kowalski now move to dismiss all claims asserted against
them in plaintiff’s Second Amended Complaint. City Defendants separately move to dismiss the
Second Amended Complaint pursuant to Federal Rule of Civil Procedure 41(b). Alternatively,
City Defendants seek the dismissal of all claims except the false arrest and illegal imprisonment
2
In response to City Defendants’ opposition to the Motion to Remand, plaintiff filed a reply
brief styled a “Motion to Decline Supplemental Jurisdiction and Remand Under 28 U.S.C.
1367(c) / and Reply to Brief in Opposition to Remand.”
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claims asserted against Police Officers Cedric White, Joseph Corvi, and Daniel Davis.
For the reasons stated below, plaintiff’s Motion to Remand and Motion to Decline
Supplemental Jurisdiction are denied, AlliedBarton, Rosiello, and Kowalski’s Motion to Dismiss
is granted, and City Defendants’ Motion to Dismiss is denied in part and granted in part.
II.
BACKGROUND
The factual background is set forth in the Memoranda dated December 20, 2012 and
March 1, 2013. The Court will refer to the background in this Memorandum only when
necessary to explain its rulings.
III.
MOTION TO REMAND
A.
Legal Standard
It is well established that “[a] subsequent amendment to the complaint after removal
designed to eliminate the federal claim will not defeat federal jurisdiction.” Westmoreland Hosp.
Ass’n v. Blue Cross of W. Pa., 605 F.2d 119, 123 (3d Cir. 1979). After proper removal and the
subsequent dropping of federal claims, the Court has supplemental jurisdiction over the
remaining state-law claims. It may, however, decline to exercise its jurisdiction and remand the
remaining state claims to state court. See 28 U.S.C. § 1367(c). A court may decline to exercise
supplemental jurisdiction over a state-law claim where
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district
court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining
jurisdiction.
28 U.S.C. § 1367(c).
“In deciding whether to remand, the district court should consider what best serves the
principles of economy, convenience, fairness, and comity.” Trans Penn Wax Corp. v.
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McCandless, 50 F.3d 217, 233 (3d Cir. 1995). If a plaintiff tries to manipulate the forum, “the
court should take this behavior into account in determining whether the balance of factors to be
considered ... support a remand in the case.” Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343,
357 (1988). Such behavior is “but one factor to be considered among the factors of economy,
convenience, fairness, and comity.” Cabibbo v. Parsons Inspection & Maint. Corp., 2009 WL
3074731, at *7 (D.N.J. Sept. 23, 2009); accord Datto v. Thomas Jefferson Univ., 2009 WL
577458, at *3 (E.D. Pa. Mar. 4, 2009).
B.
Discussion
Plaintiff argues that he no longer seeks to assert any federal claims and therefore the
Court lacks subject matter jurisdiction over the remaining state law claims in the case.
Defendants argue that plaintiff is merely trying to manipulate the forum after two unfavorable
rulings and that the Court should retain supplemental jurisdiction over the case.
Although plaintiff claims to have “realized there [are] only two [sic] claims, all state” in
his Second Amended Complaint, it is apparent that this so-called realization is an attempt at
forum shopping. (Pl.’s Mot. to Remand at 2.) As an initial matter, plaintiff has made clear his
disagreement with the Court’s rulings and has attempted – unsuccessfully – to remove this Court
from the case. (See Pl.’s Mot. for Recusal, filed January 17, 2013 and the Court’s Order dated
March 1, 2013 denying that motion.) Further, the Court previously determined, inter alia, in its
Memorandum and Order dated December 20, 2012, that plaintiff had not alleged sufficient facts
to support his state law claims against AlliedBarton, City of Philadelphia, Sergeant Maria OrtizRodriguez, and Inspector Jerrold Bates. Instead of alleging additional facts to support those
claims or dropping them, plaintiff re-asserts them with no additional factual support and seeks a
new court to consider their viability. He cannot now forum shop through selective dismissal of
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only federal claims and re-assertion of previously dismissed state law claims in an attempt to
avoid dismissal of his unviable state law claims. Accordingly, this factor militates strongly in
favor of retaining jurisdiction.
Turning to the factor of economy, the Court is intimately familiar with the myriad filings
in this case, which militates toward retaining jurisdiction. Regarding convenience, both fora –
Philadelphia County Court of Common Pleas and this Court – are equally convenient.
Regarding fairness, it would be unfair to defendants to allow plaintiff to manipulate the forum
after an unfavorable ruling in a case that was properly before this Court. This factor therefore
militates toward retaining jurisdiction. Finally, there is little federal interest in determining the
boundaries of plaintiff’s rights under state law, which militates against retaining jurisdiction.
In conclusion, given plaintiff’s clear attempt to forum shop and the factors supporting the
exercise of supplemental jurisdiction, the Court exercises supplemental jurisdiction over the
remaining state law claims in plaintiff’s Second Amended Complaint. See Westmoreland Hosp.
Ass’n, 605 F.2d at 123. Plaintiff’s Motion to Remand and Motion to Decline Supplemental
Jurisdiction are therefore denied.
IV.
MOTIONS TO DISMISS
A.
Legal Standard
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. In analyzing a motion to dismiss pursuant to Rule 12(b)(6), the Court “accept[s] all
factual allegations as true, [and] construe[s] the complaint in the light most favorable to the
plaintiff ....” Phillips v. County of Allegheny, 515 F.3d 224, 231, 233 (3d Cir. 2008) (internal
quotations omitted).
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“To survive a motion to dismiss, a civil plaintiff must allege facts that ‘raise a right to
relief above the speculative level ....’” Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint must contain
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). To
satisfy the plausibility standard, a plaintiff's allegations must show that defendant's liability is
more than “a sheer possibility.” Id. “Where a complaint pleads facts that are ‘merely consistent
with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of
entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).
Plaintiff is proceeding pro se in this case. The Court is mindful of the instruction that it
should read the submissions of pro se litigants generously and construe formally imperfect
filings in accordance with the pro se litigant's substantive intent. See Haines v. Kerner, 404 U.S.
519, 520 (1972) (holding pro se complaint to “less stringent standards than formal pleadings
drafted by lawyers”). The Supreme Court has ruled post-Twombly that dismissing a case on the
basis that “allegations of harm [are] too conclusory to put these matters in issue” would violate
the liberal pleading standard for pro se plaintiffs. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)
(per curiam).
B.
Discussion
City Defendants move to dismiss certain claims and AlliedBarton move to dismiss all
claims asserted against them, respectively, in plaintiff’s Second Amended Complaint. Each
motion will be considered in turn.
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1.
City Defendant’s Motion to Dismiss
City Defendants argue that the Second Amended Complaint does not comply with the
Memoranda and Orders dated December 20, 2012 and March 1, 2013 and should be dismissed
pursuant to Federal Rule of Civil Procedure 41(b) for “failure of the plaintiff … to comply with
… any order of the court…” Specifically, they state that plaintiff has openly and explicitly
flouted the Court’s previous Orders by re-asserting previously dismissed claims with no new
factual support and that sanctions short of dismissal are not generally effective against pro se
parties. See Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008).
Alternatively, City Defendants incorporate by reference their arguments from their two
previous motions to dismiss and seek the dismissal of all claims except the false arrest and illegal
imprisonment claims asserted against Police Officers White, Corvi, and Davis.
Plaintiff counters that he has complied with the Court’s previous orders, although he has
sought to appeal the orders with which he disagrees, and that dismissal is not warranted. He also
refers to his Motion to Remand and argues that the Court lacks subject matter jurisdiction to
retain the case and consider the Motion to Dismiss.
The Court concludes that dismissal of the Second Amended Complaint pursuant to Rule
41(b) is not warranted. Plaintiff has been given two opportunities to file amended complaints
that set forth a sufficient factual basis to support his claims. His First Amended Complaint,
dated January 18, 2013, was admittedly noncompliant with the Memorandum and Order dated
December 20, 2012, and it was dismissed without prejudice for that reason. Given a second
opportunity to file a compliant complaint, plaintiff’s Second Amended Complaint, dated March
28, 2013, drops his federal claims in a “realiz[ation] [that] there are only two [sic] claims, all
state.” (Pl.’s Mot. to Remand at 2.) However, the Second Amended Complaint is still largely
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noncompliant with the prior Memoranda and Orders. In response to the Court’s striking of his
scandalous language pursuant to Rule 12(f), plaintiff repeatedly replaces the offending language
with “the what Plaintiff said before” when describing the various defendants, which reflects a
hyper-technical and disingenuous response to the Court’s Memorandum and Order. (See, e.g.,
Sec. Amend. Compl. ¶ 13.) In both prior Memoranda and Orders, the Court also found
objectionable plaintiff’s tirade against defendants, in which he threatened further litigation for
any perceived “retaliation.” (Compl. ¶ 32; First Amend. Compl. ¶ 34.) Plaintiff retains this
threat, albeit with a different ending, in the Second Amended Complaint. (Sec. Amend. Compl.
¶ 32.) Moreover, notwithstanding (1) the dismissal of plaintiff’s claims against the City of
Philadelphia, Sergeant Maria Ortiz-Rodriguez, and Inspector Jerrold Bates for false arrest and
illegal imprisonment, (2) the dismissal of claims against City Defendants for intentional
infliction of emotion distress and violation of the Pennsylvania Constitution, and (3) the
dismissal of all claims against AlliedBarton, plaintiff included in the Second Amended
Complaint all of those dismissed claims without providing any additional facts sufficient to meet
the requirements for asserting such claims. Nevertheless, the Court concludes that the part of the
City Defendants’ Motion which seeks a dismissal of the entire Second Amended Complaint
pursuant to Rule 41(b) is not warranted.
Turning to City Defendants’ alternative argument, the Court concludes that plaintiff has
not alleged any additional facts in support of the following claims: (1) false arrest and illegal
imprisonment claims against the City of Philadelphia, Sergeant Maria Ortiz-Rodriguez, and
Inspector Jerrold Bates; (2) the Pennsylvania Constitution, Article I, Section 8 claims against all
City Defendants; and (3) intentional infliction of emotional distress claims against all City
Defendants. Therefore, for the reasons set forth in the Court’s Memorandum and Order dated
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December 20, 2012, the Court dismisses all such claims, this time with prejudice. Because
plaintiff has demonstrated – in three complaints – that there is no factual basis for such claims,
he will not be given leave to amend as amendment would be futile. See Jablonski v. Pan Am.
World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988). Finally, for the reasons stated in that
Memorandum and Order, plaintiff is not entitled to declaratory judgment or injunctive relief.
The City Defendants did not move to dismiss the false arrest and illegal imprisonment
claims asserted against Police Officers White, Corvi, and Davis. Those claims were adequately
pled and will be allowed to proceed.
2.
AlliedBarton, Rosiello, and Kowalski Motion to Dismiss
AlliedBarton, Rosiello, and Kowalski move to dismiss plaintiff’s claims asserted against
them. In support of their motion, they incorporate by reference their and City Defendants’
previous arguments in support of the prior motions to dismiss. Plaintiff counters that the Court
lacks federal jurisdiction to consider the motion.
The Court concludes that plaintiff has failed to state claims for false arrest, illegal
imprisonment, and intentional infliction of emotional distress against AlliedBarton, Rosiello, and
Kowalski. Plaintiff has not alleged any new facts to support his claims that would serve to
change the Court’s prior determination that these claims against these defendants lack sufficient
factual support. Therefore, for the reasons set forth in the Court’s Memorandum and Order dated
December 20, 2012, the Court dismisses all claims against AlliedBarton, Rosiello, and Kowalski,
this time with prejudice. 3 Because plaintiff has demonstrated – in three complaints – that there is
3
Although no claims were asserted against Rosiello and Kowalski in the original Complaint, the
factual averments underlying the claims against AlliedBarton concerned only the individual
employees, and the Court – in the Memorandum and Order dated December 20, 2012 – assumed,
without deciding, that AlliedBarton would be vicariously liable for their actions. Therefore, the
Court’s reasons for concluding that plaintiff failed to state a claim against AlliedBarton applies
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no factual basis for such claims, he will not be given leave to amend as amendment would be
futile. See Jablonski, 863 F.2d at 292.
V.
CONCLUSION
The Court notes that plaintiff has deleted from the Second Amended Complaint most, but
not all, of the objectionable language that was present in his initial Complaint. Further, plaintiff
has continued to use inappropriate language in his other filings. For example, he labels Rosiello
a “monster” and calls the attorneys for defendants “worthless incompetent wannabe sharks.”
(Pl.’s Resp. to City Defs.’ Mot. to Dism. at 2; Pl.’s Resp. to Memorandum and Order at 4.)
Similarly, he calls this Court an “excuse of a court” when expressing his disagreement with the
Memorandum and Order dated March 1, 2013 and refers to that Memorandum and Order as a
“favor” to defendants. (Pl.’s Resp. to Memorandum and Order at 2, 4.) Such conduct warrants
consideration of sanctions by the Court. Nevertheless, the Court chooses not to sanction plaintiff
on the present state of the record.
The Court will not tolerate ad hominem attacks upon the parties or this Court, and
plaintiff’s continued use of such language risks sanctions under the applicable Federal Rules of
Civil Procedure, including dismissal of the case with prejudice. The parties shall proceed in this
case with proper regard for the dignity of the Court and the parties before it.
For the reasons set forth above, plaintiff’s Motion to Remand and Motion to Decline
Supplemental Jurisdiction are denied, and the Court retains supplemental jurisdiction over the
case. City Defendants’ Motion to Dismiss is denied in part and granted in part. All claims
against City Defendants, except the false arrest and illegal imprisonment claims asserted against
Police Officers White, Corvi, and Davis, are dismissed with prejudice. AlliedBarton, Rosiello,
with equal force to those same claims in the Second Amended Complaint asserted against
Rosiello and Kowalski.
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and Kowalski’s Motion to Dismiss is granted, and all claims asserted against them are dismissed
with prejudice.
What remains in the case are plaintiff’s claims of false arrest and illegal imprisonment
against Police Officers White, Corvi, and Davis. Plaintiff and counsel for defendant Police
Officers Cedric White, Joseph Corvi, and Daniel Davis shall meet and confer and provide the
Court with a Case Management Order pursuant to Federal Rule of Civil Procedure 26(f) on or
before August 30, 2013. Failure to comply with this directive will result in consideration by the
Court of the imposition of appropriate sanctions under the applicable Federal Rules of Civil
Procedure, including dismissal of the case with prejudice.
An appropriate order follows.
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