Professional Documents
Culture Documents
R. Seth Williams
Philadelphia District Attorney
Michael Scalera
Assistant District Attorney
Attorney ID 312281
Philadelphia District Attorneys
Office
Civil Litigation, 13th Floor
Three South Penn Square
Philadelphia, PA 19107
Phone: (215) 686-5688
Fax: (215) 686-5725
michael.scalera@phila.gov
Bryan C. Hughes
Attorney ID 318042
Table of Contents
I.
Background ................................................................................................ 2
II.
III.
IV.
Argument ................................................................................................... 5
Conclusion .................................................................................................12
ii
Department of Social Services, 436 U.S. 658 (1978), it fails to state a claim for
relief.
I.
Background
On October 21, 2014, Pennsylvania Governor Tom Corbett signed into law
never threatened to bring suit under the statute, and has in fact agreed not to bring
suit under the statute pending the outcome of this litigation?
2.
Standard of Review
Under Rule 12(b)(6), the Court must dismiss an action on motion made
before a responsive pleading is filed when the complaint fail[s] to state a claim
upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
To plead a viable cause of action, the allegations must transcend the
speculative and conceivable and include enough facts to state a claim to relief
that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56
(2007). The Court must disregard both legal conclusions and conclusory
statements and must scrutinize the well-pleaded factual allegations to ensure that
they are more than merely consistent with a defendants liability. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal marks omitted); see also Morse v. Lower
Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997) (disregarding bald
assertions and legal conclusions in evaluating a motion to dismiss).
A complaint must do more than allege a plaintiffs entitlement to relief;
rather, it must show such entitlement through well-pleaded factual allegations.
See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008)). A plaintiffs
obligation to provide the grounds of [its] entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do. Factual allegations must be enough to raise a right to relief
above the speculative level. Twombly, 550 U.S. at 555.
IV.
Argument
Plaintiffs claims against the District Attorney should be dismissed, for two
reasons. First, there is no case or controversy between Plaintiffs and the District
Attorney sufficient to invoke this Courts subject-matter jurisdiction. But even if
there were, Plaintiffs failure to allege that the District Attorney has a policy or
custom of using the RRA in violation of Plaintiffs constitutional rights dooms
their 1983 count. Either way, the complaint should be dismissed as to the
District Attorney.
A.
The related doctrines of ripeness and standing often overlap, and have even been
called indistinguishable. Joint Stock Socy v. UDV N. Am., Inc., 266 F.3d 164,
174 (3d Cir. 2001) (Alito, J.) (citation omitted); see also id. ([T]he Article III
issues in this case could be addressed under either doctrine.). The Third Circuit
has noted that [w]hereas ripeness is concerned with when an action may be
brought, standing focuses on who may bring a ripe action. Id. Whether the
Court concludes that this action was brought too early, or was brought against the
wrong party, the conclusion that this is not a justiciable case or controversy
remains the same.
repeated allegation that Plaintiffs reasonably fear[] that the Silencing Act will be
usedby whom, we are not toldin an effort to enjoin [them] from, or penalize
him for, speaking in public. (Compl. 121, 130, 138.) Notably absent are any
facts to show a threat to utilize the RRA, or a chilling effect on Plaintiffs speech.
This cannot be squared with the Supreme Courts repeated admonitions that
threatened injury must be certainly impending to constitute injury in fact, and that
allegations of possible future injury are not sufficient. Clapper v. Amnesty Intl
USA, __ U.S. __, 133 S. Ct. 1138, 1147 (2013) (internal quotation marks and
alteration omitted).
Nor is there a causal nexus between that injury and the conduct complained
of. In addition to there being no injury to Plaintiffs, the complaint alleges no
conduct on the part of the District Attorney that could fairly be considered the
cause of any hypothetical injury.
Finally, any injury would not be redressed by a favorable judicial decision
against the District Attorney. An injunction against the District Attorney would do
nothing to change the parties actions, because he does not intend to take action
under the RRA until this litigation concludesregardless of whether or not he is a
party. Thus, to the extent that the District Attorney remains in this litigation, an
order enjoining him from filing suit under the RRA would be precisely the sort of
advisory opinion that the Supreme Court has expressly forbidden. See Chafin v.
8
Chafin, __ U.S. __, 133 S. Ct. 1017, 1023 (2013) (Federal courts may not decide
questions that cannot affect the rights of litigants in the case before them or give
opinions advising what the law would be upon a hypothetical state of facts.
(internal quotation marks and alteration omitted)).
Accordingly, Plaintiffs lack standing to bring suit against the District
Attorney.
B.
Plaintiffs 1983 action fails to state a claim for relief against the
District Attorney because it does not allege a policy or custom of
infringing on First Amendment rights by the District Attorney.
The complaint brings suit against the District Attorney in his official
capacity. (Am. Compl. 15.) Official-capacity suits generally represent only
another way of pleading an action against an entity of which an officer is an
agent. Kentucky v. Graham, 473 U.S. 159, 165 (1985) (citations and internal
quotation marks omitted); see also id. at 166 ([A]n official-capacity suit is, in all
respects other than name, to be treated as a suit against the entity.).
Under the Pennsylvania Constitution, the District Attorney is an officer of
Philadelphia County. Pa. Const. art. IX, 4. As the Pennsylvania Supreme Court
has observed:
The . . . language of the Constitution of Pennsylvania is, we repeat,
crystal clear. It states in the clearest imaginable language that District
Attorneys are Countynot Stateofficers, and in Philadelphia, by
virtue of the above-quoted Constitutional provisions and the Home
Rule Charter, are Citynot Stateofficers, and no Procrustean
stretch can alter or change or nullify this clear language.
9
possess[ing] final authority to establish municipal policy with respect to the action
10
Conclusion
There is no reason to include the District Attorney in this litigation. An
injunction against him would have no additional effect beyond that which a finding
that the RRA is unconstitutional would have generally. But even if there were
standing to justify including the District Attorney in this action, he must still be
dismissed for failure to state a claim for relief, because the complaint fails to allege
a policy or custom of using the RRA to deprive Plaintiffs of their constitutional
rights.
12
For all of these reasons, the complaint should be dismissed as to the District
Attorney, and leave to amend should be denied as futile.
Respectfully submitted,
R. SETH WILLIAMS
Philadelphia District Attorney
By:
Philadelphia District Attorneys
Office
Civil Litigation, 13th Floor
Three South Penn Square
Philadelphia, PA 19107
Phone: (215) 686-5688
Fax: (215) 686-5725
michael.scalera@phila.gov
s/ Michael Scalera
Michael Scalera
Assistant District Attorney
Attorney ID 312281
13
CERTIFICATE OF SERVICE
I, Michael Scalera, Assistant District Attorney, hereby certify that on this 6th day of
February, 2015, I caused to be served a true and correct copy of the foregoing document on all
counsel via filing on the Courts ECF system and/or via electronic mail.
s/ Michael Scalera
Michael Scalera
Assistant District Attorney
CERTIFICATE OF CONCURRENCE/NON-CONCURRENCE
I, Michael Scalera, Assistant District Attorney, hereby certify that hereby certify that I
have sought concurrence in the inclusion of the District Attorneys 12(b)(1) argument from all
parties to the case. Plaintiffs concur in the request to include an argument under Fed. R. Civ. P.
12(b)(1) in the same brief as Defendant Williamss motion to dismiss under 12(b)(6), but
plaintiffs do not concur in the granting of any dismissal motion and do not waive any arguments
as to timeliness of the 12(b)(1) argument
s/ Michael Scalera
Michael Scalera
Assistant District Attorney