MTD for Failure to State a Claim Stein v. PDQ

In the United States District CourtFor the Eastern District of Pennsylvania

Marc Stein, Plainti,

Jury Trial Demanded

v. 2:13-cv-04644-PBT

City of Philadelphia, et. al, Defendants.

Order Granting Defendants Motion to Dismiss

Order

Today, this day of 2 0 1 3 , u p o n consideration of Defendants Motion to Dismiss, and Plaintis re-sponse, it is ordered that the motion is GRANTED. Plaintis Complaint is dismissed with prejudice as to defendants Northern Liberties Neighbors Association, Matt Ruben, Larry Freedman, David Witz, Judy Donovan, Richard Donovan, James Brossy, Deb-bie Rudman, and Christopher Sawyer d/b/a Philadelinquency.

:

The Honorable Petrese B. Tucker

Case 2:13-cv-04644-WD Document 4 Filed 09/09/13 Page 1 of 48



Jury Trial Demanded

v. 2:13-cv-04644-PBT


Defendants Motion to Dismiss the Complaint

Defendants Motion to Dismiss Plaintis Complaint

Defendants, Northern Liberties Neighbors Association, Matt Ru-ben, Larry Freedman, David Witz, Judy Donovan, Richard Dono-van, James Brossy, Debbie Rudman, and Christopher Sawyer, sub-mit this Motion to Dismiss for Failure to State a Claim under Fed. R. Civ. Pro. 12(b)(6) seeking dismissal of the plaintis Complaint with prejudice for the reasons set forth it their Memorandum of Law.

,

A. Jordan [email protected]. Id. 209066Mulvihill & Rushie LLC2424 East York Street Suite 316Philadelphia, PA 19125215.385.5291




Jury Trial Demanded

v. 2:13-cv-04644-PBT


Defendants Motion to Dismiss Plaintis Complaint

Memorandum of Law in Support of Defendants Motion to Dis-miss Plaintis Complaint

I. Facts.

Club Aura is a nightclub in the Northern Liberties neighborhood, which has, to say the least, been a hotbed of nuisances, noise com-plaints, and trouble for its neighbors. Although the club provides entertainment for patrons, the club also brings rich fodder for the citys crime beat journalists. In addition to its patrons boisterous goings on, the club has provided its neighbors with the opportunity to witness a real live stabbing, a shooting, and someone being le for dead on the sidewalk. (See, e.g., Ex. A and B). The neighbors have had enough.

Club Auras owner Marc Stein is upset. He is upset that Club Aura's neighbors do not appreciate the excitement that he has brought to the neighborhood. He complains that neighbors photographed the behavior of Club Auras patrons and then discussed it online. Com-plaint, 40. Stein does not deny that these events took place, he just does not appreciate his neighbors discussing them.

But then there came a time when Club Aura wanted something om its neighbors: support for a Special Assembly and Occupancy Li-cense, which would allow the nightclub to have DJs, live music, and


dancing. See Philadelphia Code 9-703(1)(2); see also Complaint Ex. E. Nightclubs are not entitled to a Special Assembly Occupancy License for a good reason namely, nuisance establishments like Club Aura.

The Philadelphia Code 9-703 specifically requires that the City take into consideration community concerns before issuing special assembly licenses, although the communitys input is strictly advi-sory. Philadelphia Code 9-701(2)(b)(4)(c).

Steins neighbors, doing their civic duty under Philadelphia Code 9-701(2)(b)(4)(c), expressed that were less than excited about the prospect of Club Aura having DJs and dancing. It comes as no sur-prise that the police department refused to approve a Special As-sembly Occupancy License for Club Aura.

But Marc Stein would not be deterred. Rather than become a better neighbor, Stein disregarded the law and operated Club Aura ille-gally. This is not in dispute, either Stein acknowledges in the Complaint that [o]n January 28, 2012, Plainti opened its doors as a Restaurant & bar with a disc jockey and dancing with expected hours of operation were Monday thru Sunday 10:00 AM to 2:00 AM. Complaint, 28. Plainti further admits that [w]ithout the Special Assembly and Amusement License permit Plainti cannot have a disc jockey, and attending patrons are not even allowed to dance. Complaint, 45. Since Stein did not have a Special Assem-bly Occupancy License, having a disc jockey and dancing is a viola-

Marc Stein v. City of Philadelphia, et. al.Defendants Memorandum of Law in Support of Their Motion to Dismiss

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tion of the Philadelphia Code. Compl. 32; Philadelphia Code 9-703.1

Club Aura was shut down on August 9, 2012 by Licenses & Inspec-tions because it did not have a Special Assembly Occupancy License. (Ex. C). On August 26, 2012, the Philadelphia Court of Common Pleas ordered Club Aura to either comply with the law or remain closed. (Ex. D).

Being shut down by Licenses & Inspections should have prompted Stein into cleaning the cesspool he created and becoming a better neighbor. It did just the opposite. Stein lashed out against his neighbors, community volunteers, bloggers, a neighborhood mes-sage board, the City of Philadelphia, the police department, a police captain, and a non-profit volunteer civic association by filing this lawsuit. Stein is now blaming the neighborhood, and not himself, for Club Auras failure to obtain a Special Assembly Occupancy Li-cense, and the reputation the club has earned in the community.

The legal basis of Steins claims are completely ivolous. In essence, Stein is suing members of the community for engaging in public participation mandated under the Philadelphia Code and speaking the ugly truth about Club Aura. Not only are the statements at issue


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1Stein then contradicts himself in the Complaint. He alleges that Plainti discovered that the Philadelphia Police Department, 6th District opposed the Special Assembly and Amusement License application because the NLNA informed the 6th District that Plainti was operating illegally. The fact that Plainti was, at all times material hereto, operating in a legal manner. Complaint, 37.

However, Stein admits to having disc jockey and dancing without having the required Special Assembly Occupancy License. Complaint, 28; 45. Steins failure to have these permit eventually led to Club Aura be-ing closed by Licenses and Inspection. (Ex. C and D). Essentially, Stein admits he was not operating the club lawfully, then inexplica-bly contends that he was.


in the Complaint completely true, but just about all of them were made outside the statute of limitations.

Stein is also alleging violations of his civil rights, even though this exact same approach failed in Vamsidhar Reddy Vurimindi v. City of Philadel-phia, 2013 U.S. App. LEXIS 7054 (3d Cir. 2013). At least in Vurimindi the litigant was pro se, and probably did not know any bet-ter2.

This haphazard and slapdash approach can only be described as a strategic lawsuit against public participation (SLAPP). A SLAPP is a lawsuit intended to censor, intimidate, and silence critics by bur-dening them with the cost of a legal defense until they abandoned their criticism or opposition. The plainti's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others om participating in the debate. Penn-sylvania's lack of an anti-SLAPP statute all but ensures that this liti-gation will serve Plainti's abhorrent goal. As a result of ivolous lawsuits like this one, the Old City Civic Association was recently forced to disband. (Ex. E). If censorious litigants like Marc Stein are permitted to file SLAPP suits without ramification, the trend of civic association disbanding will continue.


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2As yet another example of just how careless this lawsuit is, Stein even sued a neighborhood message board, which is indisputably immune om li-ability under 47 U.S.C. 230. Congress enacted 47 U.S.C. 230 to immunize online service providers such as NorthernLiberties.org in cases precisely like this one. In operating and displaying a message board, NorthernLiberties.org is an online service provider within the scope of 47 U.S.C. 230, and thus immune om liability arising om the actions of its users. Shiamili v. Real Estate Group of N.Y., Inc., 952 N.E.2d 1011 (N.Y. 2011). Steins claims against the website, based on statements made by other service users, are barred as a matter of law by operation of 47 U.S.C. 230. The existence and operation of 230 is no mystery, as it was enacted in 1996 as part of the Communications Decency Act.


The very temperature of the First Amendment hangs in the balance here. Public participation is not only a fundamental right guaran-teed under the First Amendment, but a duty written into the Phila-delphia Code under 9-701(2)(b)(4)(c). Any pain or damage that Stein has suered is either imaginary, not properly the subject of a valid claim, or self-inflicted. If this Honorable Court allows Steins ivolous lawsuit to move forward, he wins; his critics and civic asso-ciation exercising their First Amendment right to public participa-tion will be forced to incur significant legal fees in order to defend a lawsuit meant to chill their right and duty of public participation.

For the reasons set forth below, the Complaint must be dismissed.

II. Legal Argument.

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the dismissal of a complaint for failure to state a claim upon which re-lief can be granted. Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, the complaint must be dismissed with prejudice.

None of the defendants are state actors with respect to the civil rights claims, and there is recent case law arming this. Further, any statements made at a civic association meeting are judicially privileged, since community input is required under Philadelphia Code 9-701(2)(b)(4)(c). Just about all the statements at issue in the defamation claims fall outside the statute of limitations, and the statements within the statute of limitations of are not defamatory in any case.

For the reasons below, the defendants move this Honorable Court to dismiss the Complaint.


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(a) Counts Five, Six, Seven, Nine, Thirteen, and Fourteen: NLNA, Matt Ruben, Larry Freedman, David Witz, Judy Donovan, Richard Donovan, James Brossy, and Debbie Rudman are not state actors and cannot be held liable un-der 1981 and 1983

Plainti alleges that the Northern Liberties Neighbors Association (NLNA) is a civic association conducting business at 700 North 2nd Street, City and County of Philadelphia. Complaint, 11, e. Plain-ti alleges that Matt Ruben is president of NLNA, and Larry Freedman is the Vice President of NLNA. (Complaint, 11 g-h). Plainti further alleges that David Witz, Judy Donovan, Richard Donovan, James Brossy, and Debbie Rudman are members of the Northern Liberties Neighbors Association. (Complaint 11, f, i, j, k, and l).

It is well settled that Sections 1981 and 1983 provide private citi-zens with a means to redress violations of federal law committed by state ocials. See 42 U.S.C. 1983. To establish a claim under 1983, a plainti "must establish that they were deprived of a fed-eral constitutional or statutory right by a state actor." Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). Monroe v. Phelps, 2013 U.S. App. LEXIS 7053 (3d Cir. 2013). A private entity does not become a state actor for the purpose of 1983 simply because it is subject to state regulations or receives funding om the state. Gross v. R.T. Rey-nolds, Inc., 487 Fed. Appx. 711, 719 (3d Cir. 2012).

The Philadelphia Code 9-703 specifically requires that the City take into consideration community concerns before issuing special assembly licenses. Philadelphia Code 9-701(2)(b)(4)(c). As a civic association and Philadelphia Registered Community Organization (RCO), it is the duty of NLNA and its ocers to respond to resi-dents' complaints and concerns, facilitate the community input process, and to support neighbors in the democratic process includ-ing the permit application process. (Ex. F).


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Plainti has either disregarded or is unaware of recent case law ad-dressing these issues. See Vurimindi v. City of Philadelphia, 2010 U.S. Dist. LEXIS 82762 (D. Pa. 2010), In Vurimindi, the trial court held that a civic association is not a state actor, which the Third Circuit armed in Vamsidhar Reddy Vurimindi v. City of Philadelphia, 2013 U.S. App. LEXIS 7054 (3d Cir. 2013). The trial court held that:

Defendants New Kensington Community Development Corporation, its Board President Richard Levins, and Fish-town Neighbors Association Zoning Committee are not al-leged to be government entities or acting under color of state law. The "under-color-of-state-law element of 1983 excludes om its reach merely private conduct, no matter how discriminatory or wrongful." American Ms. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S. Ct. 977, 143 L. Ed. 2d 130 (1999). "Although it is possible for a private party to violate an individual's 1983 rights, the individual alleging such a violation is not relieved of the obligation to establish that the private party acted under color of state law." Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993). Claims against these defendants must also be dismissed.

Further, the Third Circuit held in Vurimindi that allegations of in-consistent application of zoning requirements, unnecessary inspec-tions, delaying permits and approvals, improperly increasing tax assessments, and "malign[ing] and muzzl[ing]" a property owner were not enough to shock the conscience, particularly where "[t]the local ocials are not accused of seeking to hamper development in order to interfere with otherwise constitutionally protected activity at the project site, or because of some bias against an ethnic group." Id.

A plainti alleging a conspiracy to violate civil rights must present material facts showing that the purported conspirators reached some understanding or agreement or plotted, planned and conspired to-gether to deprive plainti of a protected federal right." Walker v. Hensley, 2009 U.S. Dist. LEXIS 120897, 2009 WL 5064357, at *8,


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citing D.R. by L.R. v. Middle Bucks Area Voc. Tech. Sch., 972 F.2d 1364, 1377 (3d Cir. 1992). "The mere incantation of the words 'conspir-acy' or 'acted in concert' does not satisfy the pleading requirement of a conspiracy claim." Walker, 2009 U.S. Dist. LEXIS 120897, [WL] at *9.

The Complaint contains no facts supporting a reasonable inference that NLNA, Matt Ruben, Larry Freedman, David Witz, Judy Dono-van, Richard Donovan, James Brossy, and Debbie Rudman are state actors or acting under color of state law. NLNA, and its Board President Matt Ruben, and Northern Liberties Neighbors Associa-tion Zoning Committee chair Larry Freedman are not alleged to be government entities or acting under color of state law. The same holds true for the neighbors. In addition, the Complaint lacks the requisite factual allegations necessary to support claims of a conspir-acy to deprive him of a federal right.

Stein has also not alleged that he received dierent treatment than other similarly situated persons and that the disparate treatment was based on his protected class status. Although Stein alleges that he was treated dierently om other business owners, he did not ade-quately identify any such person in his Complaint. Absent specific allegations as to the allegedly similarly situated parties, he has not made plausible the conclusion that those parties exist and that they are like him in all relevant aspects. Stein therefore fails to state an equal protection claim. See Vurimindi 2013 U.S. App. LEXIS at 7054.

Finally, the Complaint alleges that Stein was denied a Special As-sembly Occupancy License, but does not plead any facts that are conscious shocking. The plainti ran a nuisance nightclub, and at times illegally. The neighbors opposed granting a Special Assembly Occupancy License, which is their right and duty under the First Amendment and the Philadelphia Code. Accordingly, Counts Five, Six, Seven, Nine, Thirteen, and Fourteen must be dismissed.


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(b) Statements made at civic association meetings are judi-cially privileged

The Philadelphia Code 9-703 specifically requires that the City take into consideration community concerns before issuing special assembly licenses. Philadelphia Code 9-701(2)(b)(4)(c).

Pennsylvania courts have long upheld the principle of judicial privi-lege. The reasons for the absolute privilege are well recognized: a judge must be ee to administer the law without fear of conse-quences. This independence would be impaired were he to be in daily apprehension of defamation suits. The privilege is also ex-tended to parties to aord eedom of access to the courts, to wit-nesses to encourage their complete and unintimidated testimony in court, and to counsel to enable him to best represent his client's interests. Likewise, the privilege exists because the courts have other internal sanctions against defamatory statements, such as perjury or contempt proceedings. See Binder v. Triangle Publications, Inc., 442 Pa. 319, 323 (Pa. 1971); Greenberg v. Aetna Ins. Co., 235 A.2d 576, 577 (Pa. 1967).

Allegations pertaining to statements made at NLNA meetings are covered by a judicial privilege, since community input is required under the Philadelphia Code. Any claims plainti made for state-ments made at NLNA meetings must be dismissed.

(c) Count Four: the alleged defamatory statements made by David Witz fall outside the applicable statute of limita-tions

It is well settled law that the statute of limitations for defamation claims is one year om the date of publication. 42 Pa. C. S. 5523(1); Cole v. Ferranti, 2013 U.S. App. LEXIS 17794 (3d Cir. 2013). The statute begins to run om the time of publication. See Dominiak v. Nat'l Enquirer, 439 Pa. 222, 266 A.2d 626, 629-30 (Pa. 1970). The discovery rule does not apply to defamation claims. Wolk v. Olson, 730 F. Supp. 2d 376, 377 (D. Pa. 2010).


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Stein filed this lawsuit on August 12, 2013, rendering any state-ments published before August 12, 2012 time-barred under Penn-sylvania's statute of limitations for defamation.

In its Complaint, the plainti acknowledges that majority of state-ments alleged to be made by Witz were published outside the appli-cable statute of limitations. Paragraph 87 of the Complaint alleges that Witz published the following statements:

April 6, 2012 - Ill be on Fox 29 at 10pm...bitching about our blocks nuisance dance club.

June 27, 2012 - David Witz, Twitter - Nuisance bar Club Aura appealed their case-operations notice. The hearing was yesterday. They lost. The neighbors rejoice. Exhibit M.

David Witz move out of Northern Liberties next door to Plainti o May 15,2012. Yet he continued to harass Plainti through social media. Exhibit I.

June 27, 2012 - Email om David- Speaks about how Plainti lost the appeal for the case-operations order. He then urges neighbors to keep eyes and ears on the club and report any legit violation--noise or music escaping the club, raucous cus-tomers disrupting the street at let-out, public urination, fist-fights, any of those things that made Club Aura such an un-welcome and illegal invasion of a peaceful Northern Liberties community. Exhibit N.

June 29, 2012 - Email om David mentioning the outcome of the Hearing that previous Tuesday. Also mentioned that they asked neighbors on Fairmount to keep a close eye and ear on the club, and the 6th District Police was asked to put the club on their roll call notice. Exhibit O. August 9, 2012 - David Witz, Twitter - Farewell, Club Aura. For good this time. Exhibit P.


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Paragraph 87, allegations C, D, and E complain that Witz Tweeted hyperlinks om Philebrity and Philadeliquency on May 23, 2012 and June 21, 20123.

All of these statements fall well outside the applicable one year stat-ute of limitations and are accordingly barred as a matter of law.

Further, not only is Exhibit I nonsensical, but it complains about statements made in April of 2012, all of which are also outside of the applicable one year statute of limitations. Count 4 must be dis-missed with prejudice.

(d) The statements made by David Witz within the applicable statue of limitations are not defamatory

In Pennsylvania, the Uniform Single Publication Act, 42 [Pa. Cons. Stat.] 8341-8345, sets forth the elements of a prima facie case in a defamation action." Weaver v. Lancaster Newspapers, Inc., 592 Pa. 458, 926 A.2d 899, 903 (Pa. 2007). Whether a publication is "capable of defamatory meaning" is a legal question to be resolved by the court. n2 See Rockwell, 442 A.2d at 215; see also Church of Scientology Int'l v. Behar, 238 F.3d 168, 173 (2d Cir. 2001) (observing that de-famatory character "should ordinarily be resolved at the pleading stage"). If the answer is "no," the case should be dismissed. Tucker, 237 F.3d at 282; MacElree, 674 A.2d at 1053.

Statements of opinion, without more, do not have defamatory meaning. Mathias v. Carpenter, 402 Pa. Super. 358, 587 A.2d 1, 2-3 (1991). A simple expression of opinion based on disclosed or as-


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3 Several courts, including the Third Circuit, specifically have considered whether linking to previously published material is republication. To date, they all hold that it is not based on a determination that a link is akin to the release of an additional copy of the same edition of a publication be-cause it does not alter the substance of the original publication. See In re Phila. Newspapers, LLC, 690 F.3d 161, 174 (3d Cir. Pa. 2012). Again, it is unclear whether the plainti is ignorant of the law or simply disregarding it like he has in the past.


sumed non-defamatory facts is not itself sucient for an action of defamation, no matter how unjustified and unreasonable the opin-ion may be or how derogatory it is. Green v. Mizner, 692 A.2d 169, 174 (Pa. Super. Ct. 1997).

Just because a statement hurts someones feelings does not mean it is defamatory. According to the Pennsylvania Superior Court:

However uncomfortable the publication of a story might prove to such an individual, we cannot abridge a publisher's First Amendment rights to placate the peculiar sensitivities of a party. Thus, courts of this Commonwealth do not grant relief to a plainti in a defamation action simply because he found the publication personally objectionable. Bobb v. Kray-bill, 354 Pa. Super. 361, 365-366 (Pa. Super. Ct. 1986).

Finally, Marc Stein is also a public figure and therefore must plead facts establishing actual malice in order to state a claim. Whereas a private individual need only prove negligence on the part of the de-fendant to prevail, a limited purpose public figure must establish actual malice by the defendant. See Joseph v. Scranton Times L.P., 2008 PA Super 217, 959 A.2d 322, 339, 342 (Pa. Super. Ct. 2008). A person may become a limited purpose public figure if he "thrust[s] himself into the vortex of the discussion of pressing public con-cerns. Such a person uses "purposeful activity" to thrust "his per-sonality" into a "public controversy." He becomes a limited purpose public figure because he invites and merits "attention and com-ment." A person may become a limited purpose public figure if he attempts to have, or realistically can be expected to have, a major impact on the resolution of a specific public dispute that has fore-seeable and substantial ramifications for persons beyond its imme-diate participants. Scott v. Lackey, 2012 U.S. Dist. LEXIS 73739 (D. Pa. 2012).

The only comment alleged in the Complaint that falls within the applicable statute of limitations is in Paragraph 87, j. The Plainti alleges that Witz stated on October 4, 2012:


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Club Auras sister nightmare in Old City, Dreemz aka Rain, has finally been shut down by the city. Reason: no special assembly license (and a LOT of neighbor complaints). The special assembly license is needed for live music, DJs dance floors and such. The owners of Dreemz aka Rain is Marc Stein, who owns Club Aura, and he never bothered for get a special assembly license for that club, either. Thats why Aura is partially shut down right now. I can only hope his getting caught and shut down in Old City means the North-ern Liberties neighbors of Aura may finally get some relief om this toxic, unlicensed dance club. Exhibit Q.

Plainti alleges that these statements either directly or by implica-tion, that Plainti operates unlawfully and that its patrons are un-desirable. (Complaint, 88). First o, the nightclub was operating unlawfully and plainti admitted as much. Second, whether patrons are undesirable is an opinion and protected by the First Amend-ment.

Since the statement at issue is one of opinion, it is not actionable under applicable law. Witz expressed his opinion about Club Aura, which is his right under the First Amendment.

Further, the Complaint does not allege that anything in the state-ment is untrue, or made with actual malice. (Complaint, 13-28, 32-34).

There is no dispute that the police refused to issue Club Aura a Spe-cial Assembly Occupancy License, and then it operated illegally without one. Accordingly, any claim for defamation is barred.

(e) Count Eight: Matt Rubens alleged defamatory statements fall outside the applicable statute of limitations

It is well settled law that the statute of limitations for defamation claims is one year om the date of publication. 42 Pa. C. S. 5523(1); Cole v. Ferranti, 2013 U.S. App. LEXIS 17794 (3d Cir. 2013). This lawsuit was commenced on August 12, 2013. Any state-


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ments published before August 12, 2012 are accordingly barred by 42 Pa. C. S. 5523(1).

In Paragraph 130, plainti alleges that Matt Ruben addressed the Northern Liberties community on July 3, 2012. (Complaint, 130 a). Plainti then alleges that Matt Ruben sent an email it contends is defamatory on July 30, 2012.

Assuming for arguments sake only that the statements were defama-tory, which they were not, the statements were made outside the ap-plicable statute of limitations and accordingly time barred.

(f) Count Ten: Larry Freedmans alleged defamatory state-ments fall outside the applicable statute of limitations

In Paragraph 148, plainti alleges that Larry Freedman made a de-famatory statement to Philebrity.com, which was published on June 21, 2012.

Assuming for arguments sake that the statements were defamatory, which they were not, the statements were made outside the applica-ble statute of limitations and accordingly time barred.

(g) Count Eleven: Judy Donovans statements fall outside the applicable statute of limitations

In Paragraph 159, plainti alleges that Judy Donovan made a de-famatory comments in an email sent to Yishai Kedar on April 2, 2012. The plainti further alleges that Donovan made defamatory comments on Philebrity.com published on August 10, 2012.

Assuming for arguments sake that the statements were defamatory, which they are not, the comments were made outside the applicable statute of limitations and accordingly time barred.

(h) Count Twelve: Richard Donovans statements fall outside the applicable statute of limitations

In Paragraph 170, plainti alleges that Richard Donovan made a defamatory comments in an email sent to Yishai Kedar on April 2,


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2012. The plainti further alleges that Richard Donovan made de-famatory comments on Philebrity.com published on August 10, 2012.

Assuming for arguments sake that the statements were defamatory, which they are not, the comments were made outside the applicable statute of limitations and accordingly time barred.

(i) Count Eighteen: Plainti has not pled a proper claim for tortious interference with contractual relations

A plainti alleging interference with existing contractual relations should identify which existing relationships were hindered. All State Transp. Co., 1997 U.S. Dist. Lexis at 10-11. Dismissal is proper where the plainti fails to articulate a claim for tortious interference.

A plainti must not, however, "rest a claim for tortious interference with prospective contractual relations on a mere hope that addi-tional contracts or customers would have been forthcoming but for defendant's interference." Advanced Power Sys, 1992 U.S. Dist. LEXIS 6479, 1992 WL 97826 at *11. The complaint "must allege facts that, if true, would give rise to a reasonable probability that particular anticipated contracts would have been entered into." Id. Such a probability "may arise om an unenforceable express agreement or an oer", or where "there is a reasonable probability that a contract will arise om the parties' current dealings." Allstate Transp., 1997 U.S. Dist. LEXIS 16638, 1997 WL 666178 at *11. However, "merely pointing to an existing business relationship or past dealings does not reach this level of probability." Id. Although the federal rules require only a short and plain statementof the claim, that statement "must be sucient to give the defendant[s] notice of the claim and the grounds upon which it is based." Id. See, e.g., Centennial Sch. Dist. v. Independence Blue Cross, 885 F. Supp. 683, 688 (E.D. Pa. 1994) (claim dismissed where complaint "failed to identify what contrac-tual relationships were threatened").


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Here, Plaintis allegations are merely a recitation of the prima facie case or tortious interference. The allegations against the de-fendants, and absence of facts in support, do not suciently plead a claim for tortious interference with prospective or existing business relations.

(j) Count Seventeen: Plainti has not alleged what state-ments made by Chris Sawyer or Philadelinquency were false or defamatory.

The United States Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and the Court's recent decision in Ashcro v. Iqbal, 129 S. Ct. 1937 (2009) altered the manner in which courts are to analyze a Rule 12(b)(6) motion to dismiss. The Third Circuit recently observed that "pleading standards have seemingly shied om simple notice pleading to a more heightened form of pleading, requiring a plainti to plead more than the possibility of relief to survive a motion to dismiss." Fowler v. UPMC, 578 F.3d 203, 210 (3d Cir. 2009).

Accordingly, if a plainti shows only that his or her claim is merely conceivable, dismissal of the complaint is warranted. Twombly, 550 U.S. at 570; Iqbal, 129 S. Ct. at 1949 (stating that all civil complaints must "contain more than an unadorned, the defendant-unlawfully-harmed-me accusation"). "Where a complaint pleads facts that are 'merely consistent' with a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 129 S. Ct. at 1949.

Under 42 Pa.C.S.A. 8343, Plainti has the burden of showing:

(1) The defamatory character of the communication.(2) Its publication by the defendant.(3) Its application to the plainti.(4) The understanding by the recipient of its defamatory meaning.


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(5) The understanding by the recipient of it as intended to be applied to the plainti.(6) Special harm resulting to the plainti om its publica-tion.(7) Abuse of a conditionally privileged occasion.

Statements of opinion, without more, do not have defamatory meaning. Mathias v. Carpenter, 402 Pa. Super. 358, 587 A.2d 1, 2-3 (1991). A simple expression of opinion based on disclosed or as-sumed non-defamatory facts is not itself sucient for an action of defamation, no matter how unjustified and unreasonable the opin-ion may be or how derogatory it is. Green v. Mizner, 692 A.2d 169, 174 (Pa. Super. Ct. 1997). Under 42 Pa.C.S.A. 8343(b)(1), truth is an absolute defense to a defamation claim. Corabi v. Curtis Publ'g Co., 441 Pa. 432, 273 A.2d 899, 908 (1971); Merkam v. Wachovia Corp., 2008 Phila. Ct. Com. Pl. LEXIS 85 (Phila. Com. P. LEXIS 2008).

In Paragraph 198, a - h, Stein essentially alleges that Sawyer wrote articles on his blog about Club Aura that he did not like.

However, Stein does not allege the defamatory character of the communications, the understanding by the recipient of its defama-tory meaning, the understanding by the recipient of its as intended to be applied to the plainti, special harm, or abuse of a condition-ally privileged occasion.

Tellingly, plainti does not even allege that any of the articles pub-lished by Sawyer contain statements that are untrue. Stein alleges that Sawyer wrote articles about Club Aura that he did not like. However, Marc Steins hurt feelings are not actionable under Penn-sylvania law.

Amazingly, Stein admits that [o]n January 28, 2012, Plainti opened its doors as a Restaurant & bar with a disc jockey and danc-ing with expected hours of operation were Monday thru Sunday 10:00 AM to 2:00 AM in violation of the law, since it does not


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have a Special Assembly Occupancy License. (Complaint, 28). Stein then acknowledges that his actions were illegal because [w]ithout the Special Assembly and Amusement License permit Plainti cannot have a disc jockey, and attending patrons are not even allowed to dance. Complaint, 45.

Stein alleges that Sawyers statements are defamatory because either directly or by implication, that Plainti operates unlawfully and that its patrons are undesirable. (Complaint, 199).

First, Club Aura was admittedly operating illegally. The issue is not whether Club Aura was operating illegally, it was, but simply that Marc Stein does not like people discussing that fact. Perhaps if Marc Stein does not want people criticizing his nightclub for operating illegally, he should not operating it illegally.

Regarding the remainder, Sawyers' alleged statements about the pa-trons being undesirable are matters of opinion, and the desirabil-ity or undesirability of something is a subjective assessment beyond the realm of defamation. A non-falsifibale as subjective opinion is not defamatory, as there is no such thing as a "false idea" that gives rise to a statement of fact. Gertz v. Robert Welch Inc. 418 U.S. 323, 339 (1974); Joseph v. Scranton Times L.P., 2008 PA Super 217, 959 A.2d 322, 339, 342 (Pa. Super. Ct. 2008).

Further, the Complaint also fails to allege specific statements made by Sawyer where he suggested patrons are undesirable.

The claims against Sawyer are ivolous and only meant to stop him om blogging about Club Aura for fear of incurring legal fees. They must be dismissed as a matter of law.

III. Conclusion.

The defendants have done their civic duty under the Philadelphia Code by shining the suns cleansing light upon Club Aura. Their stewardship of the community compelled them to speak ankly


18


about the damage Club Aura has inflicted on Northern Liberties. Rather than clean up the mess he created, Marc Steins response was to file a ivolous lawsuit against his neighbors to silence them. He must be stopped.

Nothing less than the right and responsibility of citizens under the First Amendment and the Philadelphia Code to shine a light on public nuisances like Club Aura hangs in the balance. For these rea-sons, this Honorable Court is not merely justified in dismissing all of Steins claims against the Defendants it must do so. Stein has failed to articulate even one cause of action in his Complaint for which the Court can aord him relief.

,

A. Jordan [email protected]. Id. 209066Mulvihill & Rushie LLC2424 East York Street Suite 316Philadelphia, PA 19125215.385.5291

Marc J. Randazza (pro hac vice pending)[email protected] Legal Group3625 S. Town Center DriveLas Vegas, NV 89135888.667.1113


19


Certificate of Service.

I, A. Jordan Rushie, certify that I sent a copy of Defendants Motion to Dismiss Plaintis Complaint to the following parties via CM/ECF:

Marirose Roach, EsquireRoach, Leite & Manyin, LLC

2938 Levick StreetGround Floor

Philadelphia, PA 19149

A. Jordan Rushie

Dated: Monday, September 9, 2013


Exhibit A


Exhibit B


9/8/13 7:00 PM13-year-old among victims wounded in overnight shooting incidents | #GunCrisis: Philadelphia

Page 1 of 5http://guncrisis.org/2013/03/16/13-year-old-among-victims-wounded-in-overnight-shooting-incidents/

13-year-old among victims wounded in overnightshooting incidentsPosted on March 16, 2013 by Jim MacMillan

#GunCrisis: PhiladelphiaSeeking solutions to the epidemic of homicide by gunfire in the City of Brotherly Love

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Philadelphia Police officers search for ballistic evidence after gunfire was reported near in the area of Front Streetand Fairmount Avenue, near a nightclub in in Northern Liberties early Saturday morning. Photographs for the GunCrisis Reporting Project by Joseph Kaczmarek.

According to police on scene, no shooting victims were located but theyfound six 9mm shell casings and a vehicle with several bullet holes in theparking lot. Police stopped a vehicle that matched witness descriptions onColumbus Boulevard and detained two men.

A neighbor tweeted an update this morning.

Officers were also checking reports of a stabbing victim at the samelocation. The 31-year-old man was reported in critical condition at Hahnemann University Hospital, according tophilly.com.




At least six people were wounded by gunfire in five other incident reported across Philadelphia beginning Fridayevening and leading into the overnight hours. Just before 9 p.m., a 13-year-old was shot in the leg in the area of6200 Musgrave Street in East Germantown.

Officials said that an argument broke out among a group of people and one man fired a gun, according CBS3.Police told NBC10 the teen was an innocent bystander who was walking nearby. The child was transported in apolice cruiser to Einstein Medical Center, according to philly.com.

Joe Kaczmarek of the Gun Crisis Reporting project reported updates from a community member using Twitter atthe scene.

Earlier Friday evening, a 32-year-old man was dropped off at Temple University Hospital with gunshot wounds ineach leg. According to 6ABC, the incident happened around 6:30 Friday night on the 4900 block of CatherineStreet in West Philadelphia.

A 38-year-old man was in stable condition at the Hospital of the University of Pennsylvania after the report of ashooting on the 5200 block of Vine Street in West Philadelphia at about 10 p.m.




A short time later, a 27-year old man was shot on the 200 block of North Robinson Street and rushed to theHospital of the University of Pennsylvania, where he was reported stable. According to NBC10, a mother anddaughter were also injured by shattered glass during this incident.

Shortly before 5 a.m. Saturday, a man and a woman were shot on the 5800 block of Pentridge Street in theKingsessing section of the city, and rushed to the Hospital of the University of Pennsylvania, where they were alsoreported in stable condition. According to 6ABC, police say the 31-year-old woman was shot in the back and 43-year-old man was shot in the arm.

NBC10 also reported an incident where a stray bullet shattered the window of a SEPTA bus carrying a dozenpassengers at 63rd and Walnut Streets Friday night in Southwest Philadelphia, but no injuries were reported.

2013 Google -

Map data 2013 Google -

View Weekend shooting reports, beginning March 15th, 2013 in a larger map

Share you ideas to stop the shooting with our community by using the #phillypeaceplan hash tag whencommunicating on social media: http://guncrisis.org/phillypeaceplan/

If you want to get involved in gun violence reduction in Philadelphia, please consider volunteering with or donating toone of the organizations under our Network tab. If you would like us to add your group to our list, please email usat [email protected].

This entry was posted in Crime Scenes, Incidents, Maps, News, Photos and tagged guncrisis, gunfire,




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9/8/13 7:03 PMMan stabbed in back three times - Philly.com

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A man remained Saturday in critical condition after being literallystabbed in the back - three times.

The 31-year-old man was stabbed just before 2:45 a.m. by theintersection of North Front Street and Fairmount Avenue by theNorthern Liberties/Old City neighborhood border. He was taken byprivate car to Hahnemann University Hospital, where he was listed incritical condition Saturday morning.

No arrests have been made.

Jonathan Lai

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9/8/13 7:03 PMMan stabbed in back three times - Philly.com

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On Saturday, 03/16/13, 1:30 AM, a fight inside Aura, 626 N. Front St. resulted in a male being stabbed in the neck with a bottle. The victim was taken to the hospital by private auto and listed in serious condition. Outside the bar, a person connected to the fight went to a Jeep parked in the parking lot directly across the street, retrieved a handgun from the vehicle, stood by the passenger door and fired multiple shots towards the crowd, no persons were injured, 2 shots struck an unattended GMC.

The Jeep fled the scene, but was stopped by 6th District Officers Thornton and Hudson in the 200 block S. Columbus Blvd. The driver and passenger were identified by witnesses. The offenders, ages 26 and 27, one with a South Phila. address the other with a Secane, Pa. address were charged with Aggravated Assault and related offenses


Exhibit C


Exhibit D


COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) G. BAXTER 08/16/2012


Exhibit E


9/8/13 1:05 AMWhacked By Lawsuit Costs, Old City Civic Association Disbands CBS Philly

Page 1 of 3http://philadelphia.cbslocal.com/2013/05/16/whacked-by-lawsuit-costs-old-city-civic-association-disbands/

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(The Old City Civic Association web site.)

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Filed UnderBusiness & Economy,Community, Government,Heard On, Local, News,Philadelphia, Politics,Syndicated Local, Tourism,Watch + Listen

Related TagsJohn McDevitt, KYWNewsradio 1060, MarkSquilla, Old City CivicAssociation, Old CityDistrict, Old CityPhiladelphia

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By John McDevitt

PHILADELPHIA (CBS) A civic groupchampioning the concerns of residents andbusinesses in the Old City section ofPhiladelphia is no more, the victim of lawsuitsand high liability insurance premiums.

But a city councilman is trying to help.

The Old City Civic Association a couple of weeksago did away with its lawsuit-luring liquor anddevelopment committees.

Since then, the association has voted to disband altogether, citing theongoing cost of lawsuits and the high premiums for its D&O (directorsand officers) insurance.

The Old City District, primarily representing businesses in thecommercial section of Old City, remains in place.

But the business interest and the community sometimes are a littledifferent, notes Councilman Mark Squilla, whose district includes OldCity.

We dont want to lose the voice of the community, he tells KYWNewsradio, and to lose that I think would be detrimental to the City ofPhiladelphia because the city is a city of neighborhoods.

Squilla says the Old City Civic Association was hobbled by the cost ofgetting sued. Even though the cases didnt go to court, the OCCAfaced thousands of dollars in legal bills after being sued twice in 13

Whacked By Lawsuit Costs, Old City CivicAssociation DisbandsMay 16, 2013 12:04 PM

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months for objecting toliquor license transfers.

Now, Squilla is assistingmembers of the formerOCCA as they try tocreate a strongercommunity voice forzoning and developmentissues. He is floatingproposals for riskmanagement, includinglegislation that wouldshield civic groups fromlawsuits, establishing anumbrella insurance groupfor all registeredcommunity organizations(RCOs) so it is not asexpensive, and exploring the possibility of allowing RCOs to utilize thecitys law department.

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Exhibit F


1

THE PHILADELPHIA CODE > TITLE 14. ZONING AND PLANNING

CHAPTER 14-300. Administration and Procedures

14-303. Common Procedures and Requirements.

(12) Neighborhood Notice and Meetings.

(a) Registered Community Organizations.

(.1) Organizations that desire to be recognized as a Registered Community Organization by the Commission shall register annually with the Commission by providing (1) the name of a contact person, (2) the name of a person designated to participate in the Civic Design Review process, if applicable, (3) the boundaries of its geographic area of concern, (4) whether the organization wishes to be notified of applications in its geographic area of concern electronically or by mail, and (5) such other information as may be required by the regulations of the Commission.

(.2) Organizations shall register as one of the following:

(.a) A Local Registered Community Organization whose geographic area of concern is a neighborhood. Its registered geographic boundaries shall meet the geographic area set forth in the groups articles of incorporation, bylaws, or other governing documents; or

(.b) An Issue-based Registered Community Organization whose geographic area of concern is greater than the maximum allowable size of a Local Registered Community Organization, as established by the regulations of the Commission.

(.3) The Commission shall establish, by regulation, the requirements for qualifying as a Registered Community Organization.


2

(b) Applicability.

The procedures of this 14-303(12) (Neighborhood Notice and Meetings) shall apply to applications that pertain to a property within the boundaries of the Registered Community Organization and that:

(.1) Require Zoning Board approval of a special exception under 14-303(7) (Special Exception Approval);

(.2) Require Zoning Board approval of a zoning variance under 14-303(8), (Zoning Variances); or

(.3) Meet the requirements for Civic Design Review in 14-304(5) (Civic Design Review).

(c) Notice to Registered Community Organizations.

(.1) Within seven days of (a) filing an appeal to the Zoning Board for approval of a special exception or variance or (b) being notified by L&I that an application will require review under the Civic Design Review Process, the applicant must provide notice to each Registered Community Organization whose registered boundaries include the applicants property and provide a copy of such notice to the Commission, L&I, and, for a special exception or variance, to the Zoning Board. Where there is no Local Registered Community Organization whose boundaries include the applicants property, the applicant shall provide notice to the district council member whose district includes the applicants property, and such district council member shall serve as the local Registered Community Organization for all purposes with respect to the application or appeal.

(.2) L&I shall provide the applicant with names and contact information for the Registered Community Organization(s) to be contacted and shall require that the applicant provide notice in the preferred form stated in the organizations filing documents (i.e. electronically or by mail).

(.3) The notice shall contain the following content:


3

(.a) The name and address of the applicant;

(.b) The name and contact information of any other Registered Community Organizations whose registered geographical boundaries include the applicants property;

(.c) The location where copies of the application and any related information submitted by the applicant can be obtained;

(.d) A description of the property involved by general vicinity, street address, size, and nearest cross street, and the zoning district in which the property is located;

(.e) A description of the nature, scope, and purpose of the application and the type of permit, approval, or variance being sought;

(.f) The time and place of any required public meeting or hearing regarding the application or a statement that such required public meeting or hearing has not yet been scheduled; and

(.g) Any additional information required by L&I, the Zoning Board, or the Commission for the proposed application.

(d) Neighborhood Meeting and Documentation Requirements.

The procedures of this 14-303(12)(d) (Neighborhood Meeting and Documentation Requirements) shall only apply to Local Registered Community Organizations.

(.1) Within 45 days after the applicant has filed an appeal to the Zoning Board for approval of a special exception or variance or within 45 days after the applicant has been notified by L&I that an application will require review under the Civic Design Review Process, the noticed Local Registered Community Organization(s) and the applicant shall complete the actions required by this 14-303(12)(d) (Neighborhood Meeting and Documentation Requirements). The Zoning Board or Civic Design Review Committee shall not conduct any public meetings on the application until the applicant and the Local Registered


4

Community Organization(s) have completed the actions required by this 14-303(12)(d) (Neighborhood Meeting and Documentation Requirements) or 45 days, whichever is less.

(.a) The noticed Local Registered Community Organization(s) shall:

(.i) Convene, organize, and conduct a meeting with the applicant to discuss the proposal. If there is more than one Local Registered Community Organization whose geographic area of concern includes the project site, those organizations shall coordinate to convene a single meeting with the applicant during such 45-day period; and

(.ii) Provide to the Zoning Board or Civic Design Review Committee, as applicable, written documentation of the meeting; or, if no meeting was held within the required 45-day timeframe, written documentation demonstrating that the Local Registered Community Organization has made a good faith effort, as set forth in 14-303(12)(d)(.1)(.c), to meet with the applicant.

(.b) The applicant shall provide to the Zoning Board or Civic Design Review Committee, as applicable, written documentation of the meeting; or, if no meeting was held within the required 45-day timeframe, written documentation demonstrating that the applicant has made a good faith effort, as set forth in 14-303(12)(d)(.1)(.c), to meet with the Local Registered Community Organization(s).

(.c) An applicant or a Registered Community Organization shall establish a good faith effort to comply with this 14-303(12)(d) (Neighborhood Meeting and Documentation Requirements) by documenting an effort to: (1) review the application at the next regularly-scheduled meeting of the Local Registered Community Organization, or (2) establish an alternative meeting date that is within 30 days of the zoning permit or appeal filing date, as applicable.


5

(.2) If an application requires both Civic Design Review and Zoning Board approval, the applicant is required to comply with the requirements of this 14-303(12)(d) (Neighborhood Meeting and Documentation Requirements) only once. A second meeting with the Local Registered Community Organization(s) is not required following Civic Design Review and before action by the Zoning Board.


Documents

MTD for Failure to State a Claim Stein v. PDQ