Clear Sky Car Wash LLC et al v. City of Chesapeake Virginia et al, No. 2:2012cv00194 - Document 47 (E.D. Va. 2012)

Court Description: OPINION AND ORDER granting 24 Motion to Dismiss for Failure to State a Claim; granting 24 Motion to Dismiss for Lack of Jurisdiction; granting 29 Motion to Dismiss for Lack of Jurisdiction; granting 31 Motion to Dismiss for Failure to State a Claim; granting 31 Motion to Dismiss for Lack of Jurisdiction; granting 7 Motion to Dismiss for Failure to State a Claim; granting 12 Motion to Dismiss for Lack of Jurisdiction; granting 12 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Mark S. Davis and filed on 12/18/12. (jcow, )

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FILED UNITED STATES DISTRICT EASTERN DISTRICT COURT OF VIRGINIA DEC 1 8 2012 Norfolk Division CLERK, US DISTRICT COURT CLEAR SKY CAR WASH, NORFOLK, VA LLC et al., Plaintiffs, Civil Action No. v. 2:12cvl94 CITY OF CHESAPEAKE, VIRGINIA, et al.. Defendants. OPINION AND This motions matter to is currently dismiss: (1) before Defendants ("Greenhorne") , Thomas Copeland Daniel Jones's to Civil Procedure Motion 12(b)(6) and 12(b)(6) to Dismiss and Federal (Docket No. ("Gillespie") Motion to Civil Procedure 12(b)(1) of pursuant Local 12); (3) Dismiss to Federal 12(b)(6) (Docket No. Rules 29); of and (5) 7 (Docket No. and of 7); ("City") Motion to Procedure 12(b)(1) Carole Gillespie's to Federal Rules of and upon the principle of Defendant United States ("USDOT") Civil Inc. Rule Defendant and 12(b)(6) O'Mara, Federal Civil pursuant several to Rule of & on Evelyn Jones, Virginia's Rules Transportation's pursuant Court Greenhorne Qualified Immunity (Docket No. 24) ; (4) Department the ("Copeland"), (2) Defendant City of Chesapeake, Dismiss pursuant ORDER Motion Procedure to Dismiss 12(b)(1) and Defendant Virginia Department of Transportation's Federal Rules No. 31) . for of decision. ("VDOT") Civil Motion Procedure to 12(b)(1) For the reasons 12(b)(6) to (Docket stated herein, Court GRANTS FACTUAL HISTORY1 Plaintiffs Cleary Sky Car Wash LLC Wash the to dismiss. I. Car and pursuant The motions have been fully briefed and are now ripe the above motions Sky Dismiss Operating LLC ("Clear ("Clear Sky") Sky and Clear Operating") are each limited liability companies duly authorized by the Commonwealth of Virginia. Plaintiffs Samuel Jacknin ("Jacknin") Einsmann ("Einsmann") managers of are Plaintiffs Additionally, Plaintiff co-founders, Clear Sky Jacknin acts and Charles co-organizers, and as Clear the Sky Sky business and Clear located at Sky Operating 920 Great have Bridge co- Operating. managing agent both Plaintiffs Clear Sky and Clear Sky Operating. Clear and operated Boulevard, of Plaintiffs a car wash Chesapeake, 1 The facts recited here are drawn from Plaintiff s' Complaint and are assumed true for the purpose of deciding the motions currently before the Court. They are not to be considered factual findings for any purpose other than consideration of the pending motions. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) ("[I]n evaluating a Rule 12(b)(6) motion to dismiss, a court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the complaint."); see also Clatterbuck v. City of Charlottesville, 841 F. Supp. 2d 943, 948 n.3 (W.D. Va. Jan. 18, 2012) (citing Warth v. Seldin, 422 U.S. 490, 501 (1975)) ("As with a motion to dismiss pursuant to 12(b)(6), in considering a motion to dismiss pursuant to Rule 12(b) (1) a court must accept as true all material factual allegations in the complaint and must construe the complaint in favor of the plaintiff.") Virginia since 2008. wash equipment, Plaintiff Clear Sky owns the land, car and all other aspects of the car wash business located at 920 Great Bridge Boulevard ("Clear Sky Car Wash"). Defendant City is Commonwealth of a duly incorporated municipality of Virginia. Defendant Carole Right of Way Manager for Defendant City. is a Maryland Defendants employees corporation Copeland, of Defendant authorized agency of and through Whirley, Sr. Evelyn its retained Jones, Greenhorne. Gillespie of the Defendant Greenhorne by and Defendant Daniel Defendant Highways, City. Jones VDOT the Commonwealth of Virginia, Commissioner is the is a are duly operated by presently Gregory Defendant USDOT is a duly organized agency of the United States government, operated by and through Secretary Ray LaHood. On or about November 26, approve a project widen Boulevard and Branch of the Elizabeth River project to to replace of Defendant the 2008, Defendant United States Route Steel Bridge over ("Project"). City resolved to 17/Dominion the Southern The Project was a VDOT managed under contract by Defendant City, including Defendant City's Right of Way Manager, Defendant Gillespie. Defendant including Defendants City Copeland, retained Defendant Evelyn Jones, Greenhorne, and Daniel Jones, to perform right of way acquisition and related services for the Project. The Project received funding from Defendant City, the Commonwealth such of funding, Virginia, the and Project the has federal government. Despite suffered funding allegedly shortfalls requiring Defendant City to seek various loans and to consider alternative sources of funding, such as the implementation of tolls. On or about approval of the VDOT's Chief February 17, 2009, Defendant Project's major design features Engineer. Such design features City received from Defendant contemplated the fee simple use of all of Plaintiff Clear Sky's land at 920 Great Bridge Boulevard ("Land"). Defendant City began parcels of land for the Project in June 2010. acquiring Defendant City first contacted Plaintiffs concerning Plaintiff Clear Sky's Land in October appraiser, 2010. Brian Plaintiffs Dundon permitted ("Dundon"), to Defendant enter the Land Plaintiffs provided additional information to Dundon. appraisal ("Dundon Report") appraisal calculated using square VDOT's Form"). footage Executive the was signed on April 16, value of valuation, Summary Plaintiff as Form, provided RW-45B and Dundon's 2011. Clear for City's Sky's Such Land in Defendant ("Executive Summary The Dundon Report valued Plaintiff Clear Sky's Land at $13 per square foot, for a total value of $416,728 based on the Land's 32,056 square footage. According to the Complaint, the same day that Dundon submitted his report, Defendant advised Plaintiffs, without explanation, that it on City required a second appraisal. Appraisers Bradley R. Stankus submitted the second appraisal about June value of 13, 2011. Plaintiff The Clear valued such Land at Sanford Sky's Neither appraisal method valuing of valuation was more ("Sanford Report") Report Land on or also calculated the square by $17 per square foot, $544,952. Sanford and David L. footage, but for a total value of considered whether an alternative Plaintiff Clear appropriate than Sky's the property pad square foot site valuation provided for by Defendant VDOT's Executive Summary form. On or about August 9, Dundon Report acquisition. and 2011, approved Defendant Gillespie signed the Plaintiff Sanford Report appraiser and Report for Sky's Land for Defendant Greenhorne communicated such information to Plaintiffs by letter the next day. the Clear that use in Such letter stated that had been rejected by an independent review the same appraiser had approved the determining the market value of Dundon Plaintiff Clear Sky's Land and just compensation for the Land. On or about August 30, 2011, Plaintiffs notified Defendants2 of their concerns regarding Defendant Greenhorne's letter, and asked ten questions regarding such letter and the Dundon report. 2 It is unclear to whom such letter was sent, as Plaintiffs refer in this section of the Complaint to "Defendants" generally with little to no additional specification. However, this section does contain some references to Defendants City, Greenhorne, Daniel Jones, and Gillespie, and to Dundon. These references, as well as the context of the Complaint's discussion, lead to the conclusion that "Defendants" refers generally to Defendant City and its agents and employees. Such questions included: value an actual actual (1) whether Defendants would assess and replacement replacement; (2) site why the and existing review equipment appraiser had for decided that the Sanford Report would not be used at all and was a less appropriate representation of Report; just compensation than the Dundon (3) why the Dundon Report and Defendant City used square footage valuation instead of pad site evaluation; the "based Dundon Report depreciation was on and an (4) IRA why cost recovery schedule ... accelerated over [seven] years for business tax on economic deduction purposes" Clear Sky Car Wash. Defendant City, discussed instead (Compl. of through Defendants Greenhorn and Daniel Jones, with respond to Plaintiffs' questions. Plaintiffs' Defendant Plaintiffs on or about October 19, expressed their response on October 24, 2011. on November 14, 2011 an internal meeting. on November 17, Plaintiffs and agreed to Plaintiffs agreed to wait for After twice reiterating its intent to respond to questions, Plaintiffs for 2011, letter U 112). life On August 31, Plaintiffs' such answers. the that City emailed its response to 2011. dissatisfaction with such Defendant City advised Plaintiffs it would address such concerns after Defendant City provided a lengthy response 2011.3 In such response, Defendant City noted 3 On the same date, Plaintiffs wrote to Defendant City's Mayor Krasnoff asking him to intercede and to direct Defendant City to comply with 6 its obligation to follow state and federal laws and regulations in its efforts noting, to obtain Defendant City relocation benefits, and payment of application continued and During had City's such that, Sky's if Land. In Plaintiffs so wanted such relocation benefits and noted that no such been January Defendant stated Clear they were required to apply for calculation made. corresponding into Plaintiff 2012 Plaintiffs throughout regarding appraisal of correspondence, and November Defendant City December 2011 concerns with and Plaintiffs' Plaintiff Defendant Clear Tim Sky's Copeland Land. advised Plaintiffs that he had conducted the appraisal reviews and that he also had oversight responsibility for Defendant Greenhorne's involvement in January 2012,4 Defendant 27, calculated just Project negotiations original Report."5 Following acquisitions. City advised Plaintiffs compensation unchanged, and calculations at $2.15 and the January 27, million analysis 2012 On that "based from letter, the it on Dundon Plaintiffs its legal obligations relating to Plaintiffs' relocation and to provide answers to Plaintiffs' questions. Plaintiffs reminded Mayor Krasnoff that Plaintiffs had refrained from hiring lawyers while awaiting Defendant City's responses to their questions. 4 The Court notes that the dates provided in this section of the Complaint are inconsistent with respect to the year in which the alleged events occurred. The context of the Complaint leads to the conclusion that all events described in Paragraphs 138 through 154 of the Complaint occurred in 2012. Therefore, the Court has adjusted the dates accordingly. 5 It is includes unclear what the $2.15 million just compensation in light of the prior allegation that the Dundon figure Report retained counsel who began communicating with Defendant City on behalf of Defendant appeal Plaintiffs. Plaintiffs' City's Deputy Defendant City City's counsel Attorney "calculation that of was advised Plaintiffs benefits" by could and was additionally directed not to communicate directly with Defendant City's employees and agents. further advised Plaintiffs' On March 13, 2012, Defendant City counsel in writing that it would not discuss settlement or take further action until having received an appraisal from Plaintiffs. On March 22, 2012, Defendant City filed a Take in the Circuit Court for the City of defeasible Sky. fee interest On March 30, directly to in the Land Certificate of Chesapeake to gain a owned by Plaintiff Clear 2012, Defendant City issued a written demand Plaintiffs, and not to Plaintiffs' counsel, requiring them to vacate and turn over possession of such Land no later than May 1, 2012.6 calculated the value of Plaintiff Clear Sky's Additionally, the Court notes the pleaded Greenhorne and Daniel Jones had previously Land at $416,728. facts that Defendants advised Plaintiffs on November 3, 2011 that the land valuation from the Sanford Report should replace the land valuation from the Dundon Report; that Defendant City had previously agreed in a meeting on December 20, 2011 that the Dundon Report's depreciation calculation was in error and should be changed in light of the condition of Clear Sky Car Wash; and that Defendant City had further advised that comparable properties outside of the area should be used, in light of certain problems with the comparable properties identified in the Dundon Report. 6 Additionally, on April 10, 2012, Plaintiffs' site employee discovered an employee or agent of Defendant City on Plaintiff Clear Sky's property inspecting buildings and equipment without authorization. When asked what he was doing, the employee said that he was inspecting 8 II. On April 11, PROCEDURAL 2 012, Plaintiffs HISTORY removed the Certificate of Take to this Court7 and simultaneously filed the separate instant action against Defendants, comply with the Acquisitions Assisted Programs allege statutory under United States under the Policies Act six Counts: Violations ("URA") and Defendants the Fifth Fourteenth in and of failed (3) to Rights §§ 1983, (conspiracy), Breach of Contract; and (6) URA; 1988 (2) the relief under to all the Violations States 42 (attorneys' against Process United Equitable Estoppel. injunctive Due Amendments Violations and violated Plaintiffs Protection to Federally so, rights. the Equal and doing Fourteenth Amendment (4) Civil and Federal and, (1) Violations Constitution; 1985 for constitutional Constitution; declaratory that federal Uniform Relocation Assistance and Real Property Plaintiffs' alleging U.S.C. fees); (5) Plaintiffs seek Defendants, as to determine whether rats were present in the building that would exit when the building on Plaintiff Clear Sky's Land was razed. 7 By Opinion remanded the and Order Certificate entered on of back Take September to the 5, 2012, Circuit this Court Court for the City of Chesapeake on the ground that this Court lacked subject matter jurisdiction over a condemnation proceeding instituted in state court and removed to federal court without a necessary federal question or individual right of action. City of Chesapeake, Va. v. Clear Sky Car Wash, LLC, No. 2:12cvl95, 2012 WL 3866508 (E.D. Va. Sept. 5, 2012). In so holding, the Court specifically addressed arguments raised in the briefs for the motions to dismiss currently before the Court in this case. As such, the Court will refer to its prior Opinion and Order ("Remand Order") and the findings contained therein throughout this Opinion and Order. well as damages judgment of not interest, less and than $9 attorneys' million, fees as pre- and all Defendants to post- except Defendant VDOT. All named Plaintiffs' Defendants Complaint. have filed motions Defendants Greenhorne, to dismiss Copeland, Evelyn Jones, and Daniel Jones filed their motion to dismiss on May 14, 2012. (Docket No. 7). Defendant dismiss on May 18, 2012. City (Docket No. 12). filed her motion to dismiss on June 14, Defendants USDOT dismiss on June motions have Court's and review. 25, been VDOT filed 2012. (Docket briefed Because all of 29, are the motion (Docket No. respective Nos. and its 31). now under Federal 12(b)(1), considered all the related briefs Court in has reaching its Rule of such for this motions seek Civil to dismiss and the Procedure such motions decision to All ripe pending 24). motions dismissal under Federal Rule of Civil Procedure 12(b)(6) majority seek dismissal to Defendant Gillespie 2012. their fully filed and their each count and claim in this matter. III. A. LEGAL STANDARD Subject Matter Jurisdiction Defendants City, Gillespie, USDOT, and VDOT seek to dismiss all of Plaintiffs' Procedure 12(b)(1), claims which pursuant to permits a dismissal of a claim due to the court's 10 Federal Rule defendant to of move Civil for lack of subject matter jurisdiction. A.W. F. Supp. 29, 2d 219, 31) . Having ex rel. 221 Wilson v. Fairfax Cnty. (E.D. filed Va. the 2008) ; see instant of proving Richmond, that this Fredericksburg 945 F.2d 765, 768 over addition each relief." Fed. a thereby 12, has subject Potomac R.R. seeking matter Co. v. jurisdiction. United States, complaint Claim subject must matter contain "a jurisdiction short and plain claim showing that the pleader is entitled to R. Civ. P. 8(a)(2). If a plaintiff fails P. 12(b)(6). to the complaint is subject to dismissal for failing to state a claim upon which relief can be granted. Civ. to 1991). establishing meet this requirement, R. 24, Plaintiffs bear the burden Failure to State a to claim, statement of the & (4th Cir. B. In Court Bd. , 548 (Docket Nos. action, invoke the jurisdiction of the Court, Sch. Fed. Defendants have moved for dismissal of all claims under Rule 12(b)(6). (Docket Nos. 7, 12, 24, 29, 31). A motion to dismiss for failure to state a claim should be granted if the complaint does not allege "enough facts to state a claim to relief that is plausible on its v. Twombly, 550 U.S. 544, 570 face." (2007) . Bell Atlantic Corp. A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable for the misconduct 678 (2009). "The inference alleged." that the Ashcroft v. plausibility 11 standard defendant Iqbal, is is liable 556 U.S. not akin 662, to a 'probability requirement, ' more than possibility that a defendant has acted unlawfully." Id. While a complaint, it the merits 12(b)(6) on a of judge's a claim, tests 550 U.S. 319, 327 (1989)). or for the a sheer sufficiency Id. of at 556 of a a alleged that can in be allegations." of 980 F.2d 943, complaint's ... defenses." 952 (4th Cir. dismissals based factual allegations." (quoting Neitzke v. Williams, 490 U.S. A complaint may therefore survive a motion to 'that a recovery is very remote and (quoting Scheuer v. the 232, 236 a court should "assume the truth of Accordingly, facts applicability does not countenance dismiss "even if it appears unlikely.'" the v. Martin, disbelief Twombly, P'ship, asks "does not resolve contests surrounding the facts, "Rule 12(b)(6) (1974)). it motion Republican Party of N.C. 1992). but all complaint proved, 180 unwarranted inferences, Mkts., (4th Cir. the facts alleged is assumed, conclusions drawn from the and the consistent Eastern Shore 213 F.3d 175, Rhodes, 416 U.S. existence with Inc. v. 2000). the J.D. of any fact complaint's Assocs. Ltd. While the truth of courts are not bound by the "legal facts" and "need not accept as unreasonable conclusions, true or arguments." Id. Pursuant are submitted 12(b)(6) to in motion, Rule 12(d), conjunction the court if matters with, must 12 or either outside in the pleadings opposition exclude such to, a materials from consideration summary or judgment. the converted, convert Fed. court R. the Civ. must motion P. afford into a If the 12(d). the parties motion motion a A. Federal is reasonable opportunity to present additional pertinent materials. IV. for Id. DISCUSSION Subject Matter Jurisdiction Generally district courts matter jurisdiction. 555 F.3d 337, 347 are courts of (4th Cir. 2009) Allapattah Servs. , Inc. , 545 subject Vuyyuru v. United States ex rel. limited Jadhav, (citing Exxon Mobile Corp. U.S. 546, 552 (2005)). v. They have authority to exercise "only the jurisdiction authorized them by the United States Constitution (citing Bowles v. Russell, forth a number assert this claims and causes pursuant jurisdiction over in the subject of federal statute." to (1) 28 jurisdiction Original U.S.C. rights § actions over 1331; to their question (2) pursuant they Original 28 U.S.C. (3) Original jurisdiction over claims against the United Original jurisdiction over condemnation United States pursuant to 28 U.S.C. review which federal States not exceeding $10,000 pursuant to 28 U.S.C. (4) Id. Plaintiffs set upon Complaint matter action: civil by 551 U.S. 205 (2007)). grounds Court's jurisdiction § 1343; of and of certain Administrative administrative Procedures Act § 1358; matters ("APA"), 13 5 § 1346(a)(2); actions (5) by the Federal judicial pursuant U.S.C. § 701 to et the seg. ; (6) Original jurisdiction under the Declaratory Judgment Act, U.S.C. §§ 2201-02; related claims and (7) pursuant Supplemental to 28 U.S.C. jurisdiction § 1367(a). 28 over Before considering its jurisdiction as to each alleged cause of action, the Court will address those alleged grounds that it finds do not provide jurisdiction as to any claim or cause of action. i. Abandoned Grounds for Original Subject Matter Jurisdiction - 28 U.S.C. §§ 1346(a)(2), 2201-02 The Court notes that issues raised in the Complaint but not briefed or argued are considered abandoned. See Supreme Court of Appeals of W. Va., 110 F.3d 1077, Cir. 1997) Parnell 1082 n.5 (declining to consider a claim on the v. (4th ground that "it was abandoned when the merits of the case were litigated in district court"). Because Plaintiff fails jurisdiction pursuant to 28 U.S.C. §§ 1346(a)(2) any the of its responsive briefs to Court deems such grounds abandoned.8 motions to address and 2201-02 in to dismiss, the Having filed the instant 8 The Court further notes that the Court would lack original subject matter jurisdiction as a matter of law under both 28 U.S.C. §§ 1346(a)(2) and 2201-2202 had Plaintiffs not abandoned such grounds. Although § 1346(a)(2) grants district courts original jurisdiction over civil actions or claims brought against the United States, such actions may "not exceed[] $10,000 in amount." 28 U.S.C. § 1346(a)(2). Plaintiffs seek "damages in a sum not less than $9 million" as to all Defendants except Defendant VDOT. Thus, Plaintiffs claims against the United States exceed $10,000, depriving the Court of original subject matter jurisdiction pursuant to 28 U.S.C. § 1346(a)(2). The Court also may not exercise original jurisdiction under the Declaratory Judgment Act, 28 U.S.C. § 2201. The Declaratory Judgment Act is a procedural statute that, alone, does not confer jurisdiction upon a 14 action and thereby seeking to invoke this Court's jurisdiction, Plaintiffs Richmond, had the burden of establishing Fredericksburg & Potomac R.R., abandoning the above grounds such 945 F. jurisdiction. 2d at for jurisdiction, 768. Plaintiffs By have failed to meet their burden as to those grounds and jurisdiction will not lie under 28 U.S.C. ii. §§ 1346(a)(2) and 2201-02. Jurisdiction over Condemnation Proceedings Pursuant to 28 U.S.C. Plaintiffs U.S.C. § have 1358. pled Section this 1358 § 1358 Court's gives jurisdiction district courts under 28 "original jurisdiction of all proceedings to condemn real estate for the use of the United States or its U.S.C. § 1358. The instant action, to condemn real estate. injunctive, and Rather, monetary allegedly available court. 616, 619 (4th Cir. 1997) Gibraltar, 463 relief however, it is or agencies." a suit related U.S. P.R., Inc. v. 28 is not a proceeding to for declaratory, certain to Plaintiffs prior to the district Vacation Trust, departments Otoki Grp., "rights" deprivation of Inc., 104 F.3d (citing Franchise Tax Bd. v. Constr. Laborers 1, 16-17 n.14 (1983)) ("[T]he DJA does not provide a source of jurisdiction which is independent of substantive federal law."). Rather, the Act "provides an additional remedy in cases with an independent basis of jurisdiction." Energy Recovery, Inc. v. Hauge, 133 F. Supp. 814, 818 (E.D. Va. 2000) (quoting Microstrategy, Inc. v. Convisser, et. al, No. CIV.A00-453-A, 2000 WL 554264, at *2 (E.D. Va. May 2, 2000)); see also 28 U.S.C. § 2201(a). Thus, the Court must have before it a properly pled claim over which it has an independent basis for exercising original jurisdiction before it may act pursuant to the Declaratory Judgment Act. Because the Court finds below that no such claim has been pled, it would lack jurisdiction to provide declaratory relief under the Declaratory Judgment Act, had Plaintiffs not abandoned such ground. 15 their property interests even if Court within claims the the estate," which jurisdiction read § 1358 meaning of does broadly not, it under Judiciary Act in Clear Sky Car Wash. enough "proceeding the 1358 because intended as was § a a Court to such condemn to bring real would "[t]his grant Additionally, still of the jurisdiction to of provision lack the district courts of actions brought by the United States and not of actions that might have against the government." 500 F.2d 26, 28 347 F. Supp. 336 reasons, Court finds the eminent Ledford v. (6th Cir. (E.D. an 1974) Pa. Thus, Court 28 U.S.C. the may it lacks original remaining 28 U.S.C. § subject matter claims and causes of action alleged jurisdiction causes of action are: to (1) 1331; over bases upon (2) Original jurisdiction judicial matters APA, 5 jurisdiction § 1367(a). for of certain U.S.C. § over The exercising administrative 701 related Court this claims or Federal question jurisdiction pursuant § 1343; the which Plaintiffs' civil rights actions pursuant to 28 U.S.C. review For these § 1358. only exercise brought Of Eng'rs of U.S., (emphasis added). jurisdiction over all of Plaintiffs' pursuant to Corps. nexus (citing Turtzo v. United States, 1972)) that domain will et seg; claims briefly jurisdiction (4) pursuant review under 16 and the these to over certain (3) Federal pursuant to Supplemental 28 legal U.S.C. standards grounds before considering its jurisdiction and the sufficiency of Plaintiffs' claims as to each alleged cause of action. iii. Federal Question Jurisdiction Pursuant to 28 U.S.C. District U.S.C. § courts 1331 Constitution, U.S.C. for "of of or civil Circuit, of the what it "[t]here means for Verizon Md. , Inc. 355, Cir. (4th actions treaties federal law." 362 jurisdiction pursuant arising United to under 28 the States." 28 According to the United States Court of Appeals Fourth definition' original all laws, § 1331. the have § 1331 Thompson, 478 U.S. 2004) 804, v. (quoting 808 is an no 'single, action to Global Naps, Merrell (1986)). Dow precise 'arise Inc., Pharm. under' 377 F.3d Inc. v. However, [t]he Supreme Court has recognized § 1331 jurisdiction in a variety of cases, such as (1) when a federal right or immunity forms an essential element of the plaintiff's claim; (2) when a plaintiff's right to relief depends upon the construction or application of federal law, and the federal nature of the claim rests upon a reasonable foundation; (3) when federal law creates the cause of action; and (4) when the plaintiff's right to relief necessarily depends on resolution of a substantial question of Id. iv. federal law. (internal citations and quotations omitted). Original Jurisdiction over Civil Rights Actions Pursuant to 28 U.S.C. District actions recover Courts "authorized by damages for have law § original to injury be jurisdiction commenced caused 17 1343 "by by any over civil any person" act done to in furtherance of any conspiracy mentioned in [42 U.S.C. § 1985]" and from any person who had knowledge that such an act was about to occur and the power to prevent such act but who failed to do so or otherwise aided § 1343(a)(1)-(2). The pursuant to § 1343 in providing of for the also equitable relief States rights..." protection of civil rights." is 97, 99 (D. original to Md. to and of by any actions Congress redress Act of for Congress damages providing or for the Id. § 1343(b) (3)- (4) . 1978) . It and over Nouse v. Nouse, provides § 1983 § 1343(a) (1)- (2); see also Crosby v. 635 634, n.5 (4th Cir. 2011). 450 jurisdiction civil rights 28 U.S.C. 639 to "the jurisdictional counterpart of certain § 1985 conspiracy claims F.3d U.S.C. jurisdiction actions or post-Civil War civil rights statutes." Supp. 42 privilege or immunity secured by the "under any Act Section 1343 commission. court's extends United equal act's district deprivations of "any right, Constitution the F. over claims. City of Gastonia, But "[i]n order for jurisdiction to exist under section 1343, a complaint must at a minimum seek Nouse, 450 Dist. Sch. recovery F. Supp. Bd., ("[S]ection 1343 at 534 under one 99; of the substantive see also Campbell v. F.3d 650, 653 n.3 jurisdiction is unavailable an appropriate cause of action. a claim under sections 1981, In this sense, 1983, 18 Gadsden Cnty. (5th in statutes." the Cir. 1976) absence of failure to state and 1985 or other appropriate legal authority has the effect of depriving federal courts of subject matter jurisdiction under section 1343."). v. Federal Judicial Review Pursuant to 5 U.S.C. The APA provides that because of agency action, agency action U.S.C. § 702. and final remedy court nature that are reviewed. are to has for judicial which subject made review to to there is judicial directly "preliminary, subject unlawfully suffering other review." reviewable procedural, review when no 5 the final adequate 5 U.S.C. statute or intermediate" in agency action is or by A court engaging in judicial review pursuant to the authority withheld or to: "(1) unreasonably compel agency delayed; and findings, based on certain findings such action, vi. wrong thereof." unlawful and set aside agency action, conclusions. legal or adversely affected or aggrieved by entitled not are Id. APA person Only " [a]gency action made reviewable by statute Actions actions the is agency action in a § 704. ... "a § 701 et seg. 5 U.S.C. regarding action (2) hold and conclusions" findings and § 706. Supplemental Jurisdiction Pursuant to 28 U.S.C. § 1367(a) If a district court has original jurisdiction over a claim in any civil action, claims pursuant it may exercise jurisdiction over state-law to 28 jurisdiction under § 1367(a) are so related to claims U.S.C. § 1367(a). The court's extends only to those claims "that in the 19 action within [the court's] original jurisdiction that they form part of the same case or controversy under Article II of the United States Constitution." 28 U.S.C. then § 1367(a). exercising If no supplemental would be improper, valid federal jurisdiction, claim is though asserted, permissible, for "[n]eedless decisions of state law should be avoided as a matter of comity and to promote justice between the parties, by applicable law." (1966). procuring them a surer-footed United Mine Workers v.Gibbs, Therefore, jurisdiction over Plaintiffs' for if the the it 383 U.S. 715, of 726 Court lacks original subject matter claims Complaint, reading and will causes of decline action to alleged exercise in subject matter jurisdiction over any related state-law claims. Having alleged cause of reviewed bases for the legal action in turn, for the the jurisdiction, standards will consider Court addressing both its remaining each jurisdiction and the sufficiency of each count for ease of reference. B. Count Plaintiffs' primary contention, incorporated in Counts II through VI, statute, affords enforceable in alternatively, them this certain Court I as stated in is that the URA, pre-deprivation a Count federal right rights of I and a federal that are action or, are reviewable in this Court pursuant to the APA. Defendants argue that alleged violations of the URA do not give rise to federally enforceable or reviewable rights in this case 20 and, because Plaintiffs' the URA, over all the remaining causes of action set forth in Complaint are premised solely upon claims founded on the Court lacks original subject matter jurisdiction such causes of action. i. Federal Question Jurisdiction over a Federal Right of Action The URA was created "in order to encourage and expedite the acquisition of real property by agreements with owners, litigation and consistent treatment and to promote practices..." relieve congestion for public 42 U.S.C. owners the the in confidence § 4651. in many in courts, to federal federal land to avoid assure programs, acquisition The Act's primary purpose is to ensure that "persons displaced as a direct result of programs or projects undertaken by a financial assistance ... [do] Federal agency or with Federal not suffer disproportionate injuries as a result of programs and projects designed for the benefit of the public as ultimately such seeks persons." subchapters: providing a whole." "to minimize U.S.C. § 4621(b). Subchapter hardship Act consists of II, which sets forth policies for displaced persons; and to displacement URA the assistance of The The Id. relocation 42 two on principal Subchapter III, which creates guidelines for federal agencies to apply in land acquisition proceedings. question of its The Court addresses the jurisdiction under both 21 Subchapters, reaching first its jurisdiction under Subchapter III in light of its prior Remand Order. a. Subchapter III - Land Acquisition Policies In remanding Defendant City's Certificate of the Circuit Court for the City of that it lacked subject matter Chesapeake, Wash, No. 2:12cvl95, this Court ruled jurisdiction acquisition policies Subchapter III of 2012 WL 3866508 under the URA. (E.D. Take back to Va. the land Clear Sky Car Sept. 5, 2012). The Court adopts its prior holding and incorporates the reasons stated in its Remand Order in again finding that it lacks subject matter jurisdiction under the land acquisition policies of the URA. See id. To summarize, which federal acquisitions, the states agencies all in Subchapter III sets forth nine provisions by should laid out § 4655. 42 be in § 4651 U.S.C. §§ Clear Sky did in the prior action, Defendants guidelines, violated most a number specifically guideline of 42 U.S.C. § 4651(2). guided during land and incorporated against 4651, 4655. As Plaintiff Plaintiffs again argue that of these the land acquisitions "independent appraisal" The URA specifies that "the provisions of section 4 651 ... create no rights or liabilities and shall not affect the validity of purchase or condemnation." any property acquisitions 42 U.S.C. § 4602(a). by Therefore, the Act itself appears to state that § 4651 does not create federal 22 rights in, or Additionally, history9 a federal neither support the right case of law Plaintiffs' action nor argument for, landowners. the URA's legislative that the URA's acquisition policies provide landowners such rights. Car Wash, 2012 WL 3866508, at *3-5 law and legislative history) . land Clear Sky (reviewing the relevant case Nor do the URA's land acquisition policies provide for a federal right of action when the statute is read (2002) . in light Id. at Subchapter III for a policies of incorporated Gonzaga *5-6 of federal of (applying the URA) . right § of 4651, against University action the from land federal via 536 U.S. 273 Gonzaga to the URA does not provide under by states Doe, guidance Because either the the v. § acquisition agencies 4655, the or Court as again finds that it does not have original subject matter jurisdiction pursuant to 28 U.S.C. § 1331 over actions alleged under such 9 As this Court previously noted, district courts in this Circuit are required to first examine the plain language of the statute before considering legislative history. Ignacio v. U.S., 674 F.3d 252, 25556 (4th Cir. 2012); U.S. v. Hatcher, 560 F.3d 222, 226 (4th Cir. The Hatcher court observed that, "[a]s a general rule, xwhen 2009). the terms of a statute are clear, its language is conclusive and courts are "not free to replace . . . [that clear language] with an unenacted legislative intent."'" Id. (quoting United States v. Mori son, 844 F.2d 1057, 1064 (4th Cir. 1988) (quoting INS v. CardozaThis Court previously considered Fonseca, 408 U.S. 421, 453 (1987))). this issue and found that, based on the clear statement in § 4602(a), the plain language of the URA does not appear ambiguous on the issue of whether a federal right of action is created on the part of landowners. Clear Sky Car Wash, 2012 WL 3866508, at *4-5. Despite its finding, this Court reviewed the relevant legislative history for purposes of completeness and because Clear Sky had argued legislative history in its brief. Id. at *4. 23 policies. This leaves only the question of question jurisdiction guidelines for under determining Subchapter the II Court's federal of the relocation assistance URA, the for displaced persons. b. Subchapter II - Relocation Payments and Assistance Policies The URA does not expressly create a private, of action. n.4 See Delancey v. (5th Cir. 2009) . City of Austin, Rather, 570 federal right F.3d 590, 593 Subchapter II directs the head of any displacing agency to provide certain monetary and advisory relocation assistance businesses.10 benefits 42 U.S.C. to §§ 4622, displaced 4625. and reestablishing] Laundry, Inc. (4th Cir. right to actual a replacement in business." Am. U.S. Dep't of Transportation, 1983); see also prompt payment for § 4633(b)(2). of 42 U.S.C. authorized payments Section services to entitled, assistance 4625 "in 722 exists a [and Cleaners F.2d 70, However, the 72 the and 42 advisory displaced person obtaining & only after a has been made. outlines which for Dry 4622(a). such expenses relocation assistance including § loss of tangible searching v. proper application U.S.C. expenses and Section 4622 entitles businesses to recover "actual moving expenses, property[,] individuals is becoming 10 The Court observes and clarifies for the benefit of the parties that the express limitation contained in § 4602(a) applies only to the land acquisition policies of Subchapter III and is therefore not applicable to the Court's analysis of Subchapter II's policies concerning monetary and advisory relocation assistance. 24 established in a suitable § 4625(c)(4); see Section benefits 4625 requirement Subchapter of II also § location." Am. Dry Cleaners, are not subject 4633(b) (2). appears displaced persons replacement to 722 to Although confer and businesses, does F.2d the U.S.C. at 73. application the not language of entitlements certain it 42 to address whether the URA gives Plaintiffs a federal right of action to pursue the statutorily authorized benefits. The federal not Supreme statute Court has automatically (1979). law, made clear been violated give favor of that person." 688 has rise to and a private Cannon v. Univ. "must be created by Congress." U.S. 560, some Federal rights of action, U.S. 275, 286 (2001) 578 that "the fact person cause of Chi., that harmed of does action 441 U.S. a in 677, like substantive federal Alexander v. Sandoval, 532 (citing Touche Ross & Co. v. Redington, 442 (1979)). Whether a statute expressly or implicitly creates such a right of action "is basically a matter of statutory construction." Lewis, 444 U.S. 11, 15 Transam. (1979). Thus, Mortg. it is Advisors, a Inc. v. function of the court "to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy." Id. (citing Lewis, 444 U.S. at 15). The URA does not expressly create a federal right of action under any of its provisions. For 25 the reasons stated in its Remand Order, the Court has found that the land acquisition policies stated in Subchapter III of the URA do not give rise to any rights or liabilities, of 42 U.S.C. 4602(a)'s § 4602(a). declaration liabilities" in accordance with the plain language As previously noted, that only applies the to URA however, "create[s] Subchapter Section no or and III rights does not similarly limit the relocation assistance policies of Subchapter II. Therefore, nothing addresses whether a in the plain federal right of language action is of the Act available under Subchapter II. The United States Court of Appeals has not directly ruled on the of action noted, exists an 524 of that intent assistance civil the issue of whether a federal right URA. But the to to Fourth Circuit has [URA] and implementing regulations adjudicate tenants proceedings." controversies v. Esposito, that could appropriately such controversies, the an seeking injunctive alleged questioning preliminary violations federal relocation 754 F.2d 521, Although it has not elaborated on the type proceedings action over administratively or by other appropriate United States (4th Cir. 1985). civil "[t]he adjudicate for Fourth Circuit in the context of reviewing the criminal prosecution of a holdover tenant, evince under for the of Fourth Subchapter jurisdiction over 26 be Circuit relief II of such a employed to has reviewed from eviction the cause URA without of action. Am. Dry Cleaners, grant of a 722 F.2d at 72 preliminary (reversing the District Court's injunction defendant had complied with its relocation assistance). explicitly considered And, the on ground that the obligation to provide advisory while the availability action under Subchapter II, the the Fourth of a Circuit not right federal has of Third Circuit has held that a federal right of action against state officials exists when such officials with fail the URA. F.2d 976, for to provide Pietroniro (3d Cir. 1985) violations comprehensive relocation of 42 v. assistance Borough of in accordance Oceanport, N.J., 764 (finding such a private cause of action U.S.C. enforcement § 4625 scheme" for "[i]n the absence of redressing violations a of the URA). More recently, Circuit) however, circuit courts (including the Third have questioned whether such a federal right of action exists under Subchapter II of the URA in light of the Supreme Court's 2002 decision in Gonzaga, Munoz v. City of Philadelphia, Cir. 2009) (unpublished) Gonzaga v. Doe, create a 563 private 570 F.3d at 595 U.S. right 536 U.S. 273. 346 Fed. App'x 766, ("We highly doubt whether, 273 (2002), enforceable 42 under U.S.C. § See, e.g. , 769 n.6 (3d in light of § 4625(a) 1983."); does Delancey, (holding that "the URA provision here[, § 4625,] does not evidence Congressional intent to create a private right of action for money damages" in light of 27 Gonzaga's guidance); Faylor v. (per Szupper, curiam) 411 Fed. (noting App'x 525, that "it is 531 n.7 unclear (3d Cir. whether 2011) the URA provides a private right of action for money damages" in of in Delancey, 594, the conflicting holdings Pietroniro, 764 F.2d considered whether a U.S.C. and § 1983 Privacy 980) . federal the circumstances of ("FERPA"). issue, under which the and "unless manifests rights," 280 that there an is the 'unambiguous' basis (1981)). 536 Court existed under 42 Educational Rights U.S. statute 276. In described Court 'speaks[s] intent for private (quoting Pennhurst State Sch. 1, 17 Family Supreme and at the gives rise to a The Court reemphasized its prior Congress no the action Gonzaga federal private right of action.11 holding of Gonzaga, a F.3d at In Gonzaga, right for violations Act considering at 570 light with a to clear voice,' confer individual enforcement...." & Hosp. v. Halderman, Id. at 451 U.S. To determine whether Congress had exhibited such an unambiguous intent to create a private right of action under FERPA, 11 the Although Gonzaga the Court Gonzaga Court considered three addressed whether primary a statute factors: created rights enforceable under 42 U.S.C. § 1983, the Court observed that "[a] court's role in discerning whether personal rights exist in the § 1983 context should ... not differ from its role in discerning whether personal rights exist in the implied right of action context. Both inquiries simply require a determination as to whether or not Congress intended to confer individual rights upon a class of beneficiaries. Accordingly, where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit...." Gonzaga, 536 U.S. at 285 (internal citations omitted). 28 (1) whether the Act included specific, (2) whether the and (3) the language had an individual or aggregate provisions Delancey, focus; audience to whom the language was directed and the strength of such language. Only rights-creating language; one federal in light Id. at 290. Circuit of Court Gonzaga. the Fifth Circuit has considered Delancey, 570 considered § 4625 the F.3d of URA's 590. In Subchapter II of the URA, which provides for advisory relocation assistance to qualifying displaced persons and businesses. Id. After reviewing the Gonzaga Court's guidance, at 594-95. the Fifth Circuit held that there was no Congressional intent to create a federal right of action under the URA. Id. at 595. In so holding, the Fifth Circuit rejected pre-Gonzaga cases offered to demonstrate the existence of such a right of action on the ground that such cases "predate [d] and conflict [ed] therefore "unpersuasive." This in Court Delancey when it right of action existed under the Subchapter III of the URA. at *5-6. The Court Fifth Circuit's considered the Fifth in considering the question of of exists Subchapter II. the whether Clear Sky Car Wash, again finds under and were relocation Specifically, 29 reasoning a federal land acquisition policies persuasive action Gonzaga" Id. at 595 n.7. previously found the persuasive with the in 2012 WL 3866508, Circuit's reasoning whether such a right assistance Court finds policies that in the provisions of advisory §§ 4622 relocation and 4625, assistance, any displacing agency' by the statute." provisions do are 570 "directed at the 'head of Further, such "rights-creating language." contain any see also Gonzaga, for monetary and rather than at the individuals benefited Delancey, not which provide F.3d Id. ; 536 U.S. at 290. at 594. "Instead, [they] prescribe[] a policy and practice for administering relocation assistance." Delancey, 42 570 F.3d at 595 U.S.C. "policy § 4622. and individual The Gonzaga practice" right also Delancey, that Congress (citing 42 U.S.C. of 570 did Court language action. F.3d not at is expressly held insufficient Gonzaga, 595. § 4625(b)); see also 536 U.S. Therefore, evidence an intent to that to at such create 288-89; this Court create right of action under Subchapter II of the URA and, a an see finds federal absent such intent, the URA does not create such a right of action. As the Fifth Circuit did in Delancey, cases predating and in conflict with this Court finds that Gonzaga, including Fourth Circuit's decision in American Dry Cleaners, and the Third Circuit's are unpersuasive and decision in uninstructive Pietroniro, on the issue the 722 F.2d 70, 764 F.2d of 976, whether a federal right of action exists under Subchapter II of the URA.12 12 American Dry Cleaners vacated the district court's grant of a preliminary injunction on the ground that the defendant in that case had not failed to comply with Subchapter II's requirements. 722 F.2d at 73. In so holding, the Fourth Circuit did not address the question of whether a federal right of action exists under the URA. 30 Although Instead, the Delancey, that the URA does not provide for a federal right of action II. under Court the holds, in relocation Although Subchapter II assistance benefits, Alexander, 532 U.S. it accordance assistance does set with Gonzaga policies of and Subchapter forth certain relocation does not create a private remedy. See at 286. This reading of Subchapter II is consistent with the URA's legislative history. The finding no federal right of the of Court plain language Reid v. Angelone, the considers such we as must the statute 369 F.3d 363, is 368 ambiguous (4th Cir. in history."); on 2004) the issue. (" [T] o the [the statute's relevant] consider other indicia of legislative history action under Subchapter II because extent that there is any ambiguity in terms, such congressional Hatcher, 560 F.3d intent, at 226 ("Only if ... the terms of a statutory provision are ambiguous [is a court] the then permitted to consider other evidence to interpret meaning history."). of the provision, including the legislative As Plaintiff Clear Sky argued when opposing remand, it may have assumed, for purposes of its decision, that such an action existed, it ultimately vacated the order of the district court. Id. at 74. The Third Circuit's decision in Pietroniro directly conflicts with Gonzaga in holding that "[i]n the absence of a comprehensive enforcement scheme within the regulatory scheme which encompasses the plaintiff's Complaint there exists a private cause of action against state officials for violations of ... the URA." 764 F.2d at 980. Gonzaga requires far more than the mere absence of a comprehensive enforcement scheme before a private cause of action may be implied. 536 U.S. at 290. And the guidance provided in Gonzaga, as reviewed in Delancey, counsels against implying a cause of action for violations of the URA. See Delancey, 570 F.3d at 594-95. 31 Plaintiffs claim that the legislative history evidences Congressional intent to allow claims under the URA and judicial review of such claims. The Court reviewed the Act's legislative history in its Remand Order. the most In so doing, noted opinion on the question, the Court considered Barnhart v. Brinegar, 362 F. Supp. 464 (W.D. Mo. 1973),13 and found such opinion to be well reasoned. is again argument. The Court again finds Barnhart unpersuaded The exhaustive by district review of Plaintiffs' court the URA's in review: (1) that Subchapter Ill's under no Barnhart history conducted an history and reached intent concerning judicial review would be available under land acquisition policies and no rights arise such policies; decisions judicial legislative legislative two conclusions regarding Congress's instructive and regarding replacement housing, [under Subchapter II] and (2) that relocation "judicial review payments and of agency assistance, and title transfer and litigation expenses was to be governed by the the Administrative Procedures Act." existing Id. 362 F. Supp. law, at 4 71-72. This Court agrees with Barnhart's conclusions and adopts them as 13 As this Court noted in its Remand Order, the Fifth, Seventh, Eighth, and Eleventh Circuit Courts of Appeals have analysis of the URA's legislative history. adopted the See, e.g., Barnhart Ackerley Commc'ns of Fla. , Inc. v. Henderson, 881 F.2d 990, 992 (11th Cir. 1989); United States v. 320.0 Acres of Land, More or Less in Monroe Cnty., State of Fla., 605 F.2d 762, 823 (5th Cir. 1979); Roth v. United States Dep't of Transp., 572 F.d 183, 184 (8th Cir. 1978); Rhodes v. City of Chi, for Use of Sch. , 516 F.2d 1373, 1378 (7th Cir. 1975). 32 the appropriate statements jurisdiction under of Congress's the URA.14 intent Specifically, concerning Subchapter II's relocation assistance policies are not enforceable in a federal right of judicial action. review those policies, See, e.g., intended To of agency extent Plaintiffs decisions are regarding entitled benefits to under such review is governed exclusively by the APA. Ackerley, that the the 881 F.2d at 993 Administrative ("We find Procedure that Act Congress would be the exclusive remedy for alleged violations of the URA."). Because no federal right of action exists under either Subchapter of the URA, the Court lacks jurisdiction over Count I pursuant to 28 U.S.C. § 1331.15 ii. Even Federal Review Jurisdiction Pursuant to the APA where this Court lacks original jurisdiction pursuant to 28 U.S.C. § 1331, jurisdiction to review pursuant to the APA, certain question it may still exercise administrative § 701 et seq. 5 U.S.C. federal agency actions The APA provides that "a person suffering legal wrong because of agency action, or adversely entitled to affected judicial or aggrieved review thereof." by agency action U.S.C § 702. 5 ... is Such 14 The Court does not here restate its conclusions regarding the URA's land acquisition policies, but instead refers again to its Remand Order. 15 The See Clear Sky Car Wash, Court Plaintiffs granted. 2012 WL 3866508, additionally makes have failed to state the a 33 at *4. alternative claim upon finding which below relief that can be jurisdiction is to review statute[,] other limited, only and conducting "[(1)] [(2)] adequate however; agency action made reviewable by final agency action for which there is no remedy judicial federal courts are authorized in a 5 authorized review court." U.S.C. by the § 704. APA, a When district court has authority to "compel agency action unlawfully withheld or unreasonably agency action, regarding § and findings, such to "hold unlawful and conclusions" actions, findings, and and set aside upon certain findings conclusions. 5 U.S.C. 706. As above, of delayed" explained land Sky Car expressly Court's acquisition Wash, provides that 42 Plaintiffs of connection with by reviewable policies 2012 liabilities." taken the Remand Order and reviewed the URA precludes judicial review for alleged violations the Clear in such the § 4602. against URA's agencies the 3866508, § 4561 U.S.C. any rights under WL stated land at in Subchapter *4. Section "create[s] Because federal or acquisition in accord with APA. Barnhart, those 362 no or deprives agencies policies, policies F. 4602(a) rights § 4602(a) state III. Supp. (holding that if no rights exist under Subchapter III, in actions are not at 472 "then one cannot be adversely affected or aggrieved by agency action," as required by § 702, which in turn "bars review of federal agency decisions under the [APA]"); see also 34 Clear Sky Car Wash, 2012 WL 3866508, at *3-6. jurisdiction pursuant agency actions leaves Thus, to the the APA Court to review alleged under Subchapter only the question of its finds III that federal of it lacks and state the URA. jurisdiction to This review agency actions under the relocation assistance provisions of Subchapter II. Unlike the land acquisition policies of Subchapter III, the relocation assistance assistance benefits businesses. 42 § 4602(a) of the policies for U.S.C. set qualifying §§ 4622, (clarifying that § 4651, URA, "create[s] forth no certain displaced 4625; see relocation persons also 42 and U.S.C. the land acquisition policies rights similarly limiting §§ 4622 and 4625). or liabilities" However, without as stated above, those rights are not enforceable via a federal right of action. Rather, they Ackerley, are enforceable 881 F.2d at 993 exclusively under 2d 710, 723 APA. E.g. , (holding that the APA is the exclusive remedy for violations of the URA); 298 F. Supp. the Wallace v. (N.D. 111. 2003) Chi. Hous. Auth., (addressing an alleged failure to provide relocation assistance and holding that "the Administrative Procedures Act ... is the exclusive remedy for URA claims....") ; Ledesma v. Urban Renewal Agency of City of Edinburg, Tex. , 432 ("While judicial review of property acquisition is precluded by statute, judicial review of F. Supp. agency 564, 566 decisions (D.C. Tex. regarding 35 1977) relocation payments and assistance Act."); ... is governed Barnhart, history and "judicial 362 finding review payments and jurisdiction Subchapter F. that of by the Supp. at Congress agency II's review the actions the legislative APA to govern regarding Therefore, to Procedures (reviewing decisions agency policies 471 intended assistance...."). to Administrative the Court that has pursuant taken extent relocation to such action satisfies the requirements of § 704. The APA authorizes judicial review only for agency actions made reviewable U.S.C. § 704. not made by statute and for final agency actions. Action taken under Subchapter II of reviewable by statute. Accordingly, the URA is the Court that a final agency action is required before Plaintiffs' to relocation assistance under Subchapter II of the 5 finds rights URA are subject to judicial review. To the extent that Plaintiffs have pled action such aggrieved, a final the Court agency has by jurisdiction which to they review have such been action under the APA. An agency action is final if "the initial decisionmaker has arrived at a definitive position on the issue that actual, concrete injury." (1993) (quoting Hamilton Bank of Darby v. Cisneros, Williamson Cnty. Johnson City, Reg'l 479 U.S. 509 U.S. Planning 172, inflicts an 193 137, 144 Comm'n v. (1985)). The finality requirement is conceptually distinct from the judicial 36 doctrine of exhaustion "generally refers which an of administrative remedies, which to administrative and judicial procedures by injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate." requirement is to Id. "provide[] The purpose of the exhaustion an agency with an opportunity 'to correct its own mistakes with respect to programs it administers before Corp. it is haled into federal v. U.S. Dep't of Labor, (quoting McCarthy v. court.'" Volvo GM Heavy Truck 118 F.3d 205, Madigan, 503 U.S. 209 (4th Cir. 140, 145 1997) (1992)). Although the concepts of finality and exhaustion are distinct, the Supreme Court has held that the APA 'explicitly requires "an action brought pursuant to exhaustion of all intra-agency appeals mandated either by statute or by agency rule.'" Id. (quoting Darby, 509 U.S. at 147). As a threshold matter, the factual allegations set forth in the Complaint address only relocation payments under Subchapter II.16 Plaintiffs allege no facts concerning any advisory 16 Upon careful review of Plaintiffs' Complaint, the Court finds only four paragraphs containing factual allegations related to relocation assistance. (Compl. Hfl 128, 144-46). Specifically, Plaintiffs allege that in Defendant City's November 17, 2011 letter, "Defendants stated ... that Plaintiffs still 'must apply' if they want calculation and payment of certain relocation benefits." on February 21, that 2012, Defendant "Defendants had made a (Compl. ^ 128). City's attorney 'calculation of advised benefits And, that Plaintiffs and provided a copy of related city regulations with strict deadlines because Plaintiff 'would like to appeal,'" which calculation Plaintiffs allege was neither made nor provided to Plaintiffs. 37 (Compl. 1M 144-46). relocation assistance under § 4625 and do not even allege that Defendants failed to provide them such advisory assistance.17 Therefore, the Court considers obligations with respect to only Plaintiffs' pleading § 4622 and does not address § 4625 in considering its jurisdiction under the APA. Section 4621 entitles relocation payments upon authorized for displaced person § 4633. denied such by [Subchapter certain for application to payment II]." 42 U.S.C. Plaintiffs do not allege that they applied for and were relocation assistance Plaintiffs concede relocation payments Because "proper individuals Plaintiffs in payments under the briefs that they their under failed to Subchapter even seek II URA. Rather, never from sought Defendants. such benefits, there is no agency action stating a "definitive position on the issue" of the relocation benefits available to Plaintiffs. See Darby, 509 Plaintiffs fail to specify which benefits are at issue in Paragraphs 144-46. Based on Plaintiffs allegations concerning their lengthy correspondence with Defendant City regarding the appraisal calculations, the Court believes that such benefits likely address the appraised value of Clear Sky Car Wash. The context of the Complaint and Plaintiffs' concession that they never applied for relocation assistance payments under § 4622 further compel this conclusion. Even if the Court assumed that the referenced benefits concern relocation assistance, which it does not, it is clear that the facts would be limited to relocation payments, based on the pleaded reference to their "calculation." Therefore, none of the pleaded facts address non-monetary assistance under § 4625. 17 Plaintiffs corresponding requirements. do cite to § 4625 and policies set regulations when detailing their view (Compl. W 162-63; 185-86). forth in its of the URA's But Plaintiffs plead no facts concerning such provisions and the Court is not bound by legal conclusions set forth in the Complaint. Eastern Shore Mkts., 213 F.3d at 180. 38 U.S. at 144. In the absence of any agency action under § 4622, this Court finds that there is no final agency action for it to review pursuant to its limited jurisdiction under the APA. United States v. 24 9.12 Acres of Land, & Cotton Counties, Okl. State (finding 1976) indication that of no Okl. , 414 final Defendants relocation assistance] holding that absent More or Less, F. action have Supp. where presented See in Stephens 933, 935 "there their (W.D. is no claim [for to the proper administrative agency" such a final action, and the matter could not "be maintained as a judicial review of an administrative action under the APA") . Because Plaintiffs have failed to seek any agency action as to relocation assistance payments under § 4622, this Court finds that it lacks jurisdiction under the APA, as there is no final agency action before it for review and the URA does See not 5 otherwise U.S.C. § make agency action reviewable by statute. 704. Plaintiffs contend that the Court has jurisdiction under the APA despite their failure to apply for relocation assistance payments because such application would have been futile. allegation is grounded in two arguments: that Defendants "barred" them from by provide them failing to (1) Plaintiffs This claim seeking relocation benefits with an independent appraisal adequately describing the property appraised, as provided for in the regulations corresponding to 39 the URA's land acquisition policies; them and (2) Plaintiffs also claim that Defendants "barred" from Plaintiffs seeking to such cease relocation benefits communicating with by directing City's Defendant employees once Defendant City and Plaintiffs had each obtained counsel. Before the pursuant to the APA, final agency Court may exercise action 4633 jurisdiction the party seeking such review must obtain a by exhausting all mandated by statute or agency rule. Section review and its intra-agency See Darby, corresponding appeals 509 U.S. at 147. regulations provide administrative procedures by which Plaintiffs could have sought monetary relocation adverse agency assistance. assistance decision and could regarding Plaintiffs' have their argument appealed right that to any such "resort[] to administrative procedures would be futile" addresses not whether there is any agency action before the instead whether Plaintiffs may excuse the administrative remedies corresponding regulations, of an otherwise unripe set United States I.N.S., 50 F.3d 6, table decision) party may (listing be excused administrative remedies) ; (noting actions that forth see an also brought See, one § 4633 e.g., basis obligation Volvo pursuant 40 in *3 (4th Cir. 1995) as review, but and its and thereby seek review action. futility from for their failure to exhaust as required, agency Court GM, to 118 the Fares v. (unpublished upon which a to exhaust F.3d at APA require 209 exhaustion of all agency rule). intra-agency appeals Because the Court mandated by statute finds no agency action or in connection with the relocation assistance policies of Subchapter II, Plaintiffs' failure to exhaust remedies is largely irrelevant, as there is nothing for the Court to review, even if it excuses exhaustion as futile in this case. completeness, however, the Court will For purposes of briefly address the exhaustion doctrine as it relates to § 4622. The plain language of persons and payments businesses under the the will Act. regulations "supported by documentation [the] Furthermore, expenses the URA apply 42 corresponding support URA contemplates for as relocation U.S.C. require § that may be such 49 the assistance 4633(b)(2). The applications reasonably incurred." prescribes that displaced required C.F.R. process be § by to 24.207. which an aggrieved applicant should seek review of their application that is, from the head of the federal or authority over the displacing project. In light finds Court's that administrative Subchapter II guidance Plaintiffs remedies could in Darby, were constitute purposes of judicial review. any a Thus, 41 § 4633(b)(3). 509 U.S. to agency final having forth in § 4633 required before agency 42 U.S.C. of the administrative scheme set the Supreme Court state at 147, and this exhaust their action under agency action for Plaintiffs were required to exhaust the application Volvo GM, App'x URA's of some administrative exception 118 F.3d at 209; 652, 656 remedies, excusing such absent the exhaustion. See Dalton v. City of Las Vegas, (10th Cir. 2008) ("Provided it is 282 Fed. unrelated to land-acquisition policy ... a plaintiff can bring an action under Title II of the URA ... but only through a proceeding under the [APA].... before The APA requires exhaustion of administrative remedies federal omitted)); Am. exhaustion is jurisdiction will lie." (internal Dry Cleaners, 722 F.2d at required for determinations 71 n.l citations (noting that regarding a person's eligibility for and the amount of relocation assistance payments under the URA, but not for advisory relocation assistance under § 4625). Exhaustion of "(1) the dispute administrative resorting to administrative administrative concerns procedures remedies statutory would administrative remedies injury; (3) futile; (4) would Inc., be inadequate; at *3 (citing Darby v. Kemp, 957 F.2d 145, 147 Centra, if: irreparable administrative decision would go unreviewed." McDonald v. required (2) cause be not construction; procedures would is 946 F.2d 1059, 1063 or Fares, using (5) the 50 F.3d 6, (4th Cir. 1992); (4th Cir. 1991)). The only excuse Plaintiffs proffer for their failure to exhaust the administrative remedies II of the URA is futility. available However, 42 to them under Subchapter before a party is entitled to rely on the least one procedures, futility exception, good faith administrative Kinzli at decisions relief (9th Cir. 1987) that required to make under at administrative unless a final agency decision establishes that even (discussing review); is application one application would be futile. 188-89 it least administrative v. can See Hamilton Bank, holding render City of Santa that claims Cruz, failure unripe 818 4 73 U.S. to at seek for 1449, F.2d judicial 1454-55 (noting that " [T]he Supreme Court has indicated one application procedures] must before be the submitted futility [under exception applies"). Plaintiffs application Rather, seek for have failed to relocation allege assistance that they made payments even one under § 4622. Plaintiffs concede that no such application was made and instead However, to excuse their failure by reason of futility. the Court finds that none of the facts alleged state a final agency action demonstrating that even one application for relocation payments would have been futile. Defendants' alleged failure to provide an adequate appraisal under Subchapter III, which gives determine" Plaintiffs whether no rights, Defendants would relocation assistance payments. 194. On the contrary, the "does have not denied See Hamilton Bank, Complaint conclusively itself Plaintiffs 473 U.S. alleges at that Defendant City invited Plaintiffs to apply for calculation and 43 payment of such relocation benefits. Defendant with City's Defendant Defendant request City's Greenhorne, that Plaintiffs' attorney does (Compl. U 128). not counsel instead suggest have been denied relocation payments. of that Likewise, communicate their employee, Plaintiffs would Because the facts alleged are not dispositive on the question of whether Plaintiffs would have been denied all benefits under "a final, make reviewable decision" at least one § 4 622, they do not create and Plaintiffs application for such could rely on the futility exception. were required to benefits Id. before they Their failure to do so forecloses their reliance on such exception. Further, although Plaintiffs are not excused by reason of futility from failing to apply for relocation payments at all, even if they could invoke the futility Court has just explained cannot be done), to plead facts plausibly showing such exception Fourth Circuit requires a "clear exception and would Health Care 83 (4th Cir. Corp. 1989) of Mid-Atlantic (reviewing positive showing (CareFirst) , 872 futility in the excuse Specifically, futility ... before suspending the exhaustion requirement." v. the Plaintiffs have failed their failure to exhaust administrative remedies. the (which of Makar F.2d 80, ERISA context). The Court finds that Plaintiffs bare allegations that Defendants barred them from pursuing administrative exhausted Plaintiffs' administrative 44 remedies remedies by or otherwise failing to provide an appraisal to which Plaintiffs had no federal right, and by City's seeking to direct attorney do not positive showing Plaintiffs excuse the were their URA, of future rise to the futility." allowed to failure communications to Id. invoke exhaust which they are not, level the to of a Defendant "clear Therefore, doctrine of administrative they have even and if futility to remedies failed to under plead facts plausibly showing that they are entitled to such excuse. To summarize the Court's the URA does not create a findings as to Count I, because federal right of action under either the relocation assistance policies of Subchapter II or the land acquisition policies of Subchapter III, this Court lacks original subject matter jurisdiction over Count I pursuant to 28 U.S.C. § 1331. Although the Court may exercise review jurisdiction over relocation assistance determinations under the APA generally, action Plaintiffs have failed to allege a final agency sufficient Plaintiffs were under the URA, failure by to trigger required reason of under the finds even if pursuant to the APA, upon which relief the administrative the Court Additionally, Court Plaintiffs can be Because remedies and cannot be excused from such futility, APA. jurisdiction. exhaust failed to do so, jurisdiction that, to such could have 45 exercise failed granted because the to lacks review Court further jurisdiction state Plaintiffs a claim allege no facts concerning advisory relocation assistance under § 4625 and Plaintiffs under failed § 4622, as regulations. dismiss to apply I monetary by required Therefore, Count for § 4633 relocation assistance and its corresponding the Court grants Defendants' motions to pursuant to Federal Rules of Civil Procedure 12(b) (1) and 12(b) (6) . To the extent that the remaining counts rely on the existence of a federal right to pre-deprivation benefits under the URA, over no such right exists and the Court such counts pursuant acquisition policies liabilities" and of therefore remaining claims. to 28 the URA cannot Similarly, U.S.C. lacks jurisdiction § 1331. "create serve as the no The land rights basis or for the although the relocation assistance policies of the URA do create certain pre-deprivation benefits, the APA is the exclusive remedy for alleged violations of such rights. See, e.g. , Ackerley, jurisdiction under the allege agency a final Additionally, the few 881 F.2d at 993. APA because action facts Plaintiffs concerning alleged in The Court lacks have such connection failed to benefits. to such benefits are not enough to state a claim under Subchapter II of the URA. to the Because the Court lacks jurisdiction over Count I and, extent failed to it state a could exercise jurisdiction, claim upon which relief Plaintiffs can be granted, have any benefits available under Subchapter II cannot serve as the basis 46 for the remaining claims because the Court lacks jurisdiction to review such benefits and because Plaintiffs have failed to plead sufficient See id. 42 facts showing that they were denied such benefits. (holding that a district court lacks jurisdiction under U.S.C. § 1983 to consider claims for which the APA is the exclusive remedy). To the extent the remaining counts rely on rights alleged to arise under the URA, the Court dismisses such counts for lack of jurisdiction under 12(b)(1). However, while the remaining counts incorporate by reference the alleged URA violations, such counts are not allegations. limited by the extent To their language they independent of the URA's provisions, seek to to only assert the Court will those claims consider each count in turn. C. Counts II, As a threshold matter, III, this and IV Court finds that it has original subject matter jurisdiction over Counts II, III, and IV pursuant to 28 U.S.C. § 1331, which gives district courts original jurisdiction "of all civil actions arising under the Constitution, U.S.C. § 1331. laws, or treaties of the United States." 28 Such federal question jurisdiction exists "when a federal right or immunity forms an essential element of the plaintiffs' claim ... [and] when the federal law creates the cause of action." Verizon, 377 F.3d 47 at 362 (internal citations omitted) . Process Counts Clause II of and the III Fifth allege and violations Fourteenth of the Due to the Amendments United States Constitution and of the Equal Protection Clause of the Fourteenth Amendment, which give rise to federal constitutional rights. Count IV is pled under federal statutes that action, create 1985.18 relief the causes of that is 42 U.S.C. §§ 1983 and Provided each count properly states a claim upon which can be URA, granted this independent Court may of exercise any alleged rights original subject under matter jurisdiction over such claims pursuant to 28 U.S.C. § 1331. i. Count II Plaintiffs' Count II alleges that - Due Process Defendants knowingly violated substantive and procedural due process rights under the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution. The Due Process Clauses of both Amendments respectively provide that neither the federal nor state governments shall deprive any person "of life, liberty, or property without due process of law." U.S. Const, amend. V; see 18 Count IV also alleges a right to recover attorneys' fees under 42 U.S.C. § 1988(b). The Court has discretion to award such attorneys' fees "in any action or proceeding to enforce" certain federal statutes. 42 U.S.C. § 1988(b). civil rights under Section 1988 does not provide a standalone cause of action for recovery of attorneys' fees. The only civil rights statutes authorized by § 1988(b) and alleged in the Complaint are 42 U.S.C. §§ 1983 and 1985. Id. Therefore, unless a cause of action is stated pursuant to these statutes, be dismissed because "§ 1988 does not authorize a Count IV must court to award attorney's fees except in an action to enforce the listed civil rights laws." U.S. N.C. 6, 12 Dep't of Transp. v. Crest (1986) . 48 St. Cmty. Council, Inc., 479 also U.S. Const, amend. constitutional scheme, 14, § 1. Due process of is divided into two prongs: due process and procedural due process. F.3d 120, To 122 state demonstrate: of which law." (4th (4th Cir. a Cir. Plaintiffs 1995) . must due process deprived them Pepersack, claim, Plaintiffs To (2) 47 must (3) state a substantive "(1) that (2) without due process of Corp. v. Calvert Cnty. , Md. , 48 F.3d 810, demonstrate: property interest; substantive they had property or a property interest [Defendants] Sylvia Dev. Love v. in our 1995). procedural "(1) law, due process 826 claim, they had property or a that [Defendants'] deprived them of this property or property interest; and (3) that [Defendants'] action falls so far beyond the outer limits of legitimate governmental action that no process could cure the deficiency." F.3d at 827 process is (citing Love, 47 F.3d at 122)). on certain governmental 48 Substantive due "a far narrower concept than procedural; absolute check Sylvia, it is an actions notwithstanding 'the fairness of the procedures used to implement them.'" Love, 47 F.3d at 122 (quoting Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) ).19 19 Additionally, the Fourth Circuit has held that "[t]he protection of substantive due process is indeed narrow and covers only state action which is 'so arbitrary and irrational, so unjustified by any circumstance or governmental interest, as to be literally incapable of avoidance by any pre-deprivation procedural protections or of adequate rectification by any post-deprivation state remedies." Sylvia, 48 49 Thus, to state either a procedural due process claim or a substantive due process claim, Plaintiffs must allege a property or liberty interest of which Defendants have deprived them. only such liberty interests and alleged property Plaintiffs allege (Compl. H 195). in the interests include in Complaint Clear Sky are Car The Plaintiffs' Wash, "interests arising under the which [URA]." Plaintiffs plead no facts suggesting that they have been deprived of their property or liberty interests in the Land and business contrary, as to dismiss the Land of comprising Sky Car Wash. On the the time that briefing for all pending motions had concluded, and Clear continued Plaintiffs to operate remained in possession of the business despite instant litigation and the remanded Certificate of Take. the Thus, although Plaintiffs have constitutionally protected interests in Clear Sky Car Wash, Plaintiffs fail to allege that Defendants have deprived them of those interests.20 F.3d at 827 (4th Cir. (quoting Rucker v. Harford Cnty., 946 F. Supp. 278, 281 1991)). 20 The Court notes that Defendant City, through counsel, filed a status letter in this action on November 5, 2012. (Docket No. 44). Attached thereto was a copy of a letter, dated October 31, 2012, from Defendant City to Plaintiffs' counsel providing Plaintiffs with thirty (30) days (Docket No. 44-1). Plaintiffs' notice to vacate Clear Sky Car Wash. counsel filed a response letter on November 8, 2012, reiterating Plaintiffs' position as stated in their response briefs to the pending motions to dismiss. (Docket No. 45). And Defendant City filed a brief reply letter on November 14, 2012 clarifying its prior filing. (Docket No. 46) . Nothing more has been filed indicating that Plaintiffs have, in fact, been compelled to vacate Clear Sky Car Wash. Therefore, despite the parties' recent filings, the Court still has nothing before it suggesting that Plaintiffs have been deprived of 50 Instead, Plaintiffs allege that they are entitled to certain pre-deprivation rights of which Defendants have deprived them by failing to comply with the URA's policies. However, Plaintiffs do not have a constitutionally protected right to any pre-deprivation benefits under the Fifth and Fourteenth Amendments. in a benefit, Due Process Clause of the "To have a property interest a person clearly must have more than an abstract need or desire and more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to [such a benefit]." Town of Castle Rock, Colo, v. Gonzales, 545 U.S. 748, 756 (2005) (quoting Bd. of Regents of State Colls, v. Roth, 408 U.S. 564, 577 (1972)) (internal quotation marks omitted). An entitlement is not created by the United States Constitution. their constitutionally protected interest in Clear Sky Car Wash as of the date of this Opinion and Order. Furthermore, even if Defendants have deprived Plaintiffs of their property interest in Clear Sky Car Wash, such deprivation would not run afoul of procedural due process because, when the only alleged deprivation "is effectively a physical taking, an inverse condemnation action for just compensation (which is clearly available ... under state law) provides all the process to which [Plaintiffs are] due." Presley v. City of Charlottesville, 480, 489 (4th Cir. 2006) . Additionally, because such 464 F.3d a post- deprivation procedure is constitutionally sufficient to protect Plaintiffs property and liberty interests in Clear Sky Car Wash, a deprivation of those interests under federal or state eminent domain power would not violate Plaintiffs' substantive due process rights, as a violation of those rights requires an action "so arbitrary and circumstance or governmental irrational, so unjustified by any interest, as to be literally incapable of avoidance by any [procedural remedy]...." Sylvia, 48 3d. at 827 (quoting Rucker, 946 F. Supp at 281)). Thus, even if Defendants have taken Clear Sky Car Wash, thereby depriving Plaintiffs of their property and liberty interests in Clear Sky Car Wash under the power of eminent domain, such deprivation does not violate substantive due process so long as adequate post-deprivation procedures are available. 51 Id. "Rather, [entitlements] are created and their dimensions are defined by existing rules or understandings that stem from an independent source...." 693, 709 (1976)). Id. The (quoting Paul v. only source Davis, 424 U.S. identified in Plaintiffs' Complaint defining pre-deprivation benefits is the URA. Court has found independently not URA have the enforceable an entitlement giving interest. that rise At to most, URA does federal to a not right. give Thus, pre-deprivation constitutionally rise to an Plaintiffs do benefits protected Plaintiffs had a unilateral And the under the property expectation of receiving certain benefits under the URA and such an expectation is not the Due enough to create a property interest Process Clause of the Fifth and enforceable under Fourteenth Amendments. Because Plaintiffs have not been deprived of their property and liberty interests in Clear Sky Car Wash and because Plaintiffs had no constitutionally protected property interest in benefits described in the URA, Count II fails to state a claim upon which relief can be granted and such count is dismissed pursuant to Rule 12(b)(6). ii. Count Plaintiffs' Amendment III alleges right to Count III - Equal Protection the to that equal United Defendants protection States knowingly under Constitution the by violated Fourteenth "treating Plaintiffs differently than similarly situated persons based on 52 animus." (Compl. H 200-01). The Equal Protection Clause of the Fourteenth Amendment provides that "No state shall ... deny to any person within laws." U.S. dismiss on Const, an sufficient to from treatment Equity (4th Cir. § 1. demonstrate In Athletics, 2011) XIV, the was who the Inc. equal a plaintiff plausibly were protection that similarly he must was situated result of Dep't of Educ. , treated that animus." F.3d 91, 108 239 F.3d 648, 654 2001)). Plaintiffs allegations (citing Morrison v. Garraghy, 639 plead and discriminatory v. of "[T]o survive a motion to protection claim, others unequal (4th Cir. jurisdiction amend. equal facts differently its have failed with respect to to either plead sufficient element. only the barest facts regarding Defendants' others "similarly situated" to factual Plaintiffs plead alleged treatment of Plaintiffs. Specifically, Plaintiffs allege that Defendant City began acquiring parcels of land for the Project " [n] o later than June 2010" (Compl. f 41) and that Defendants failed to comply with the URA's provisions "for some or all of Project." that, (Compl. contrary to Defendants treated similarly situated, the commercial property in the path of H 105). the legal the These factual allegations suggest conclusions Plaintiffs the same alleged as in others Count who III, were that is, other owners of commercial property 53 in the path of the Project.21 Plaintiffs' Complaint The only factual allegation in suggesting otherwise is contained in Paragraph 142, which states that "Defendants confirmed that they had previously used unit footage for appraisals Even if the ever been taken Plaintiffs such considers by must of be have Where identifying a any in Athletics, to be rather dismissed to whose equal square H 142). property has situated" to protection claim, pursuant plead than (Compl. "similarly Plaintiffs' to any Rule facts 12(b)(6) suggesting treatment was based on discriminatory plaintiff fails discriminatory decision makers," values landowners failed that any alleged unequal animus. all Defendants still Plaintiffs site related to takings." for purposes claim because Court pad to intent plead on facts the part "plausibly of his equal protection claim must fail. 63 9 F.3d at 108. Here, the the ... Equity factual allegations pled detail only the financial circumstances of the Project and Defendants' alleged motive of (Compl. 55-79). H1I establish 21 that Plaintiffs any suggest to reduce There are no defendant in their acted the cost facts offered with responsive the Project. to plausibly discriminatory briefs that intent Defendants complied with the provisions of the URA as to some properties in the path of the Project but not others. The Court does not consider this allegation because Plaintiffs failed to make it in the Complaint. The Court may not consider factual allegations outside of the pleadings when ruling on a motion to dismiss. Fed. R. Civ. P. 12(d). Furthermore, the Court declines to convert such motion to a motion for summary judgment on such a bare allegation. 54 toward Plaintiffs.22 To survive a motion to dismiss under Rule 12(b)(6), Plaintiffs were required state claim relief that a Twombly, 550 to U.S. at 570. to allege is "enough facts plausible on its to face." "The plausibility standard is not akin to a 'probability requirement, ' but it asks for more than a sheer possibility Iqbal, 556 U.S. at that a 678. defendant In failing suggesting discriminatory animus, met this standard. As such, has to acted set Plaintiffs' Count III unlawfully." forth any facts Complaint has not fails to state a claim upon which relief can be granted and must be dismissed pursuant to Rule 12(b)(6). Plaintiffs valid equal support of argue that protection this animus claim. argument, is not (Docket Plaintiffs 22 In one of their responsive briefs, required No. 19 rely to state at 9 n.l). on the a In Fourth Plaintiffs allege that one of Defendant City's officials stated that Plaintiff Jacknin "want[ed] everything 'gold-plated'" and further alleges that this remark constituted "an apparent derogatory reference to [Plaintiff Jacknin's] heritage." (Docket No. 19 at 9 n.l). The Court declines to consider this reference, as it was not pleaded in the Complaint and, pursuant to Rule 12(d), the Court may not consider matters beyond the pleadings without converting the motions to dismiss to ones for summary judgment. Fed. R. Civ. P. 12(d). The Court again declines to convert the motions before it under Rule 12(d) on such a bare factual allegation (one that does not even disclose Plaintiff Jacknin's context of the allegedly derogatory remark). heritage nor the Likewise, although Plaintiffs proffer that they are willing to amend the Complaint to include this factual allegation, the Court finds that such a bare allegation would be insufficient to plausibily establish the requisite discriminatory animus. See Equity in Athletics, 639 F.3d at 108. amendment to Therefore, the the Court further declines to await any such Complaint before before it. 55 considering the motions currently Circuit's County, 2002 281 decision F.3d 439 in Tri-County (4th Cir. 2002). Paving, The Inc. v. Ashe Court observes that more recent, published Fourth Circuit precedent expressly states that Plaintiffs discriminatory must animus plead for sufficient their equal asserting motion that, to related Court finds noted, of of alleged whether to a to Equity in Athletics, even if the Plaintiffs are correct in absence is claim animus, the legitimate the government test on a was interest, government action the factual allegations contained in the Complaint the such a rational relation. As the Fourth Circuit has the rational basis test is "the most deferential standard review Paving, actual in dismiss rationally establish However, showing protection survive a Rule 12(b)(6) motion to dismiss. 639 F.3d at 108. facts ... under the Equal 281 F.3d at 439. motives are Protection Clause." Under such an inquiry, "irrelevant." Id. at 439. Tri-County the Defendants "[T]he relevant question under rational-basis review is whether local officials 'reasonably could have believed that [their] action was rationally related to a legitimate governmental interest.'" Id. (quoting Front Royal & Warren Cnty. Indus. Front Royal, government 135 resources interest. See, (W.D. 1998) N.C. F.3d e.g., 275, is 290 (4th certainly Park Corp. v. Town of Cir. 1998)). a legitimate Mitchell v. Apfel, 19 F. Supp. (collecting cases) . 56 Thus, Conserving government 2d 523, 529 even if Plaintiffs were not required to plead specific facts showing discriminatory animus, they have failed to state an equal protection claim upon which relief contained in Defendants' (quoting can be the Complaint actions. Vill. (2000)). granted because the of supply Tri-County Willowbrook Therefore, Count a factual rational Paving, 281 v. Olech, is dismissed III allegations basis at 439 U.S. 562, 564 pursuant to Rule 528 F.3d for 12(b)(6). iii. Count IV - Civil Rights Actions Count IV alleges rights of action under 42 U.S.C. and 1985, § 1988. as well as a right to attorneys' As noted above, jurisdiction pursuant to 28 the Court U.S.C. fees under 42 U.S.C. may § 1331 exercise original over such because "federal law creates the cause of action." F.3d at 362. §§ 1983 claims Verizon, 377 The Court also notes that Congress has expressly provided for jurisdiction over such claims in 28 U.S.C. § 1343 and the Court may exercise jurisdiction on this basis to the extent the allegations in Count entitling plaintiffs to relief. see also Twombly, 550 U.S. at 570. IV state See Fed. R. plausible Civ. P. claims 8(a)(2); Although it has jurisdiction over Count IV, this Court finds for the reasons set forth below, that Count IV fails to state a claim upon which relief can be granted and thus should be dismissed pursuant to Rule 12(b)(6). 57 Section 1983 provides a federal statutory remedy for deprivations of rights secured by the United States Constitution and federal statutes. Philips F.3d 176, 180 (4th Cir. 2009). v. Pitt Cnty. Mem'1 Hosp., 572 It provides that: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... 42 U.S.C. § 1983. To allege an action under § 1983, a party must prove that the charged state actor "(1) deprived plaintiff of a right States, of secured by the and the (2) that referenced Constitution and 572 F.3d at 398 U.S. 144, 150 of the United the deprivation was performed under color sources Philips, laws 180 of state law found (citing Adickes v. in S.H. the statute." Kress & Co., (1970)). Section 1983 "is not itself a source of substantive rights, but [rather] a method for vindicating federal conferred by those parts of federal U.S. statutes 137, 144 n.3 that it elsewhere the United States Constitution and describes." (1979) . rights Baker v. The only sources of McCollan, 443 alleged federal rights identified in Plaintiffs' Complaint are the URA, the Due Process Fourteenth Amendments, and Amendment. Because Equal Clause of Protection the Fifth Clause of and the 58 Fourteenth the the Court has found that no federal rights exist under the land acquisition policies of sufficiently any plead the URA, and Plaintiffs federal rights have arising failed to under the relocation assistance policies of the URA, no federal rights are alleged under the URA that support a because Plaintiffs Process Clause of have the failed Fifth to and § 1983 state claim. claims Fourteenth Similarly, under Amendments the and the Equal Protection Clause of the Fourteenth Amendment, constitutional § 1983. which supports a claim for under neither relief under Because Plaintiffs allege no other federal rights, because law, provision Due §1983 does not provide redress for violations of and state Plaintiffs have failed to state a claim under § 1983 upon relief can be granted and Count IV s § 1983 claim is therefore dismissed pursuant to Rule 12(b)(6). Count IV § 1985(3), also which alleges provides conspiracies to deprive equal protection of immunities under the a cause a of action federal under statutory 42 U.S.C. remedy for "any person or class of persons of the the laws." laws, or 42 U.S.C. of § equal privileges 1985(3). and To survive a motion to dismiss when a conspiracy is alleged, a plaintiff must plead facts assertion of showing "more conspiracy.... not suggest conspiracy, at some unidentified than 'parallel Without more, conduct parallel and a bare conduct does and a conclusory allegation of agreement point does 59 not supply facts adequate to show illegality.'" A Soc'y Without a Name v. Virginia, 342, 2011) 346 Such (4th Cir. "factual (quoting Twombly, allegations must plausibly 550 U.S. Additionally, at 556-57). suggest rather than being merely consistent with agreement." to state a claim under 42 U.S.C. 655 F.3d agreement, Id. § 1985(3), a plaintiff must prove: (1) a conspiracy of two or more persons, (2) who are motivated by a specific class-based, invidiously discriminatory animus to (3) deprive the plaintiff of the equal enjoyment of rights secured by the law to all, (4) and which results in injury to the plaintiff as (5) a consequence of an overt act committed by the defendants in connection with the conspiracy. A Soc'y Without a Name, 47 F.3d 1370, 1376 655 F.3d at 346 (4th Cir. (quoting Simmons v. Poe, 1995)). The Fourth Circuit has expressly held that a plaintiff alleging a § 1985 conspiracy is required [the] to "show defendants rights." Id. an to agreement violate (alterations or the in a meeting of [plaintiff's] original). the minds by constitutional When no concrete factual allegations are offered to support such a meeting of the minds among defendants, 346-47. Although participated in the the § 1985(3) Plaintiffs Project, claim must fail. allege either provision of financial assistance, that Id. Defendants directly or through at each the Plaintiffs fail to plead any concrete facts showing an agreement among Defendants to violate Plaintiffs' constitutional allegations amount to rights. "At most, [Plaintiffs'] 'parallel conduct and a bare assertion of 60 a conspiracy.' dismiss." This Id. is at not 347 enough (quoting (internal citation omitted). Court's Count that discussion III, of Defendants invidiously have were at 1376) . claim under 42 For by U.S.C. § a Id. in at reasons, 1985(3) at 346 of to 556) observed in any any is U.S. the claim facts specific Count and motion Protection allege animus" these as to "motivated interactions with Plaintiffs. F.3d Equal a 550 Additionally, failed discriminatory survive Twombly, Plaintiffs' Plaintiffs to in showing class-based, their alleged (quoting Simmons, IV fails dismissed to 47 state pursuant a to Rule 12(b)(6). Section fees under does not 1988(b) limited provide provides courts context of a cause Council, 479 U.S. discretion to state have award noted of a claim under to plead §§ any 1983 of action at 12. such attorneys' above, for § fees 1988(b) attorneys' Rather, properly pled civil rights actions, failed § 1988(b) recovery As standalone alleged under §§ 1983 and 1985. to the circumstances. fees. Crest St. Cmty. district for it gives only in the including those Because Plaintiffs have failed and other 1985 civil and because rights authorizes the recovery of attorneys' cannot award Plaintiffs attorneys' action fees, fees under § 1988(b) aspect of Count IV must be dismissed. 61 Plaintiffs for which the Court and this Fed. R. Civ. P. 12(b)(6). In light of the above findings, Count IV is dismissed in its entirety for failure to state a claim upon which relief can be granted. D. Counts V and VI - Breach of Contract and Equitable Estoppel Counts common V law estoppel. and VI allege principles Plaintiffs for causes breach acknowledge of under Virginia contract of action and equitable "that jurisdiction for two causes of action is purely supplemental." 13 n.2) . Title supplemental district claims original U.S.C. jurisdiction courts that 28 are have so in related under Constitution." to gives action ... claims in the III of § 1367(a). If the jurisdiction should be promote are over of because state justice as the 383 U.S. between ... the United States at 726. It "need is found to exist." trial, "the state Id. a parties, Such avoid matter of by claims is "[n]eedless comity procuring Id. original dismissal should surer-footed reading of applicable law." 62 such same case or has courts as the other within court before both all district well." district law a which over the courts Supplemental jurisdiction Gibbs, which dismissed dismissed appropriate decisions claims of action of not be exercised in every case in which it Id. district civil they form part is a discretionary doctrine. (Docket No. 19 at jurisdiction Article 28 U.S.C. 1367(a) "any original jurisdiction that controversy § these for and to them a Because the Court has dismissed Counts I through IV, the only counts alleging this Court's original jurisdiction, Counts V and VI the Court finds that dismissal of is appropriate pursuant to the Supreme Court's guidance in Gibbs, 383 U.S. 715.23 V. For all of the CONCLUSION foregoing reasons, Defendants' Motions to Dismiss are GRANTED. The Clerk is REQUESTED to send a copy of this Opinion and Order to counsel of record for the parties. IT IS SO ORDERED. /sM& Mark S. Davis United States District Judge Norfolk, Virginia December 18, 2012 23 Although the Court dismisses Count V on jurisdictional grounds, it doubt as to whether such count states facts showing that expresses Plaintiffs are entitled to relief. See Fed. R. Civ. P. 8(a)(2). In order to create a legally binding contract under Virginia law, "the parties must have a distinct intention common to both and without doubt or difference" to be bound and any agreement entered into with such intention requirements; "must it must be definite and certain as to its terms identify the subject matter and spell and out the essential commitments and agreements with respect thereto." Dodge v. Trs. of Randolph-Macon Women's Coll., 276 Va. 1, 5 (2008) (quoting Progressive Constr. v. Thumm, 209 Va. 24, 30-31 (1968)). Here, Plaintiffs fail to allege any facts showing a common intention among Plaintiffs and Defendants to be bound. The Court agrees with Defendant City that the facts alleged, at best, describe negotiations between the parties that did not result in a final meeting of the minds sufficient to create a legally enforceable agreement. 63

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