SHIPP et al v. DONAHER et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE LOUIS H. POLLAK ON 3/25/10. 3/25/10 ENTERED AND COPIES E-MAILED: COPIES MAILED TO PRO SE DEFTS AND UNREPRESENTED PARTY.(kw ).
U N IT E D STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA WILLIAM and STACY SHIPP, P l a i n t if f s , v. D O N N A DONAHER, et al., D e f e n d a n ts . C IV IL ACTION N o . 09-2475
P o lla k , J. O P IN IO N
M a rc h 25, 2010
P la in tif f s William and Stacy Shipp have sued (1) PNC Bank, N.A. ("PNC"), (2) T u c k e r Arensberg, PC ("Tucker"), (3) PNC's Chief Executive Officer, James Rohr,1 (4) D o n n a Donaher, an attorney at Tucker, (5) Jason Fyk, (6) For Your Kids, Inc.,2 a c o m p a n y owned by Fyk, (7) an association identified in the complaint as "the P N C /[ T u c k e r] Clan," and (8) Doe defendants, alleging that defendants' actions in c o n n e ctio n with two confessed judgments in the Pennsylvania state courts violated v a rio u s laws and constitutional provisions. Plaintiffs' complaint includes seventy-six
Rohr is identified in the complaint as "John Roach," but both parties refer to him as James Rohr in their memoranda of law. T h e parties divergently spell the name of this corporate entity as "For Your K id s , Inc." and "Four Your Kids, Inc." I adhere to the former, which is the spelling in the o f f ic ia l caption of this case and in the answer filed by Fyk. 1
c o u n ts in all,3 including (1) violations of the federal constitution and 42 U.S.C. § 1983, (2 ) violations of various federal statutes, including (a) the Sherman Antitrust Act (" S h e rm a n Act"), 15 U.S.C. § 1 et seq., (b) the Bank Holding Company Act ("BHCA"), 1 2 U.S.C. § 1841 et seq., (c) the Fair Debt Collection Practices Act ("FDCPA"), 15 U .S .C . § 1692 et seq., (d) the Racketeer Influenced and Corrupt Organizations Act (" R IC O " ), 18 U.S.C. § 1961 et seq., and (e) numerous criminal provisions of Title 18 of th e U.S. Code, (3) state constitutional violations, and (4) state tort claims. Defendants P N C and Rohr and, in a separate motion, Donaher and Tucker, now move to dismiss the c o m p lain t for failure to state a claim upon which relief may be granted pursuant to Rule 1 2 (b )(6 ) of the Federal Rules of Civil Procedure.4 I.
The complaint, which runs to 143 pages, is of a kind that should be firmly d is c o u ra g e d . Among other things, the complaint (1) is filled with needless repetition and irre le v a n cie s, (2) alleges violations of multiple nonexistent statutes, (3) pleads the e x is te n c e of diversity jurisdiction even though it lists both plaintiffs and numerous d e f en d a n ts as Pennsylvania residents, and (4) is larded with footnotes to legal authorities b e tte r found in a memorandum of law. While none of these infirmities bears on the m e rits of the arguments made in defendants' motions to dismiss, both this court and all p a rtie s to this litigation would have been better served by a shorter, plainer statement of p la in tif f s ' claims. See Fed. R. Civ. P. 8(a). F yk has filed a pro se answer, which he seeks to submit on behalf of both h im s e lf and For Your Kids. See Docket No. 11. Normally, this court would strike the a n sw e r insofar as it purports to be submitted by a pro se litigant on behalf of a c o rp o ra tio n . See, e.g., Penn Graphics Equip. Co. v. Globaltec Innovations, Corp., No. 0 6 -c v -3 2 4 7 , 2006 WL 3144398, at *1 (E.D. Pa. Oct. 30, 2006) (striking all filings made o n behalf of a corporation by a non-lawyer). Because of the view I take of this case, h o w e v e r, the propriety of Fyk's answer is moot. 2
A lth o u g h the complaint in this case is lengthy and convoluted, the history of p la in tif f s' dispute with the moving defendants5 may be concisely stated. Plaintiff William S h ip p and defendant Jason Fyk purchased a property on Coates Street in Coatesville, P e n n s ylv a n ia in December 2003. Compl. ¶ 72. They took out a mortgage on that p ro p e rty from the National Bank of Malvern, at which Shipp is an employee. See id. ¶ 7 5 . The title to the property and the mortgage were both listed "in Shipp's and Fyk's in d iv id u a l names." Id. ¶ 76. Fyk subsequently purchased another property in Coatesville, th is one on Jane Street. Id. ¶ 84. In April 2005, Fyk incorporated defendant For Your Kids, id. ¶ 88, and later that m o n th , For Your Kids received Small Business Administration ("SBA") loans from d e f e n d a n t PNC, id. ¶ 89. Fyk "executed [a] personal surety agreement in favor of PNC o n " those loans. Id. ¶ 90. The relationship between Fyk and Shipp subsequently soured, s e e id. ¶¶ 117-33, and, at some point, Fyk "defaulted against another creditor," id. ¶ 105, le a d in g PNC to seek confessed judgments, apparently against the Coates Street and Jane S tre e t properties, see id. ¶¶ 26, 213, 217. Donaher, on behalf of Tucker, represented PNC in those proceedings. See id. ¶ 26. S h ip p , who also brought a state-court contract action against Fyk, see id. ¶ 19, s o u g h t to intervene in the confessed judgment proceedings, see id. ¶ 20. PNC "moved to d is m is s Shipp's intervention petition," and that motion was granted. Id. ¶ 21. Shipp
For convenience, I will use "defendants" to refer to the moving defendants. 3
a p p e ale d , but "the Superior Court quashed [the] appeal," id. ¶ 22, and the Pennsylvania S u p r e m e Court "denied Shipp's allocatur petition as moot," id. ¶ 23, after PNC issued w h a t plaintiffs call "partial and conditional release documents" on both properties, id. ¶¶ 2 1 3 , 217. The Shipps then filed the complaint in this action on June 1, 2009. The c o m p la in t alleges that defendants' actions in seeking the confessed judgment, as well as th e ir actions more generally with regard to Pennsylvania's confessed judgment p ro c e d u re s and SBA loans, deprived William Shipp of numerous constitutional and s ta tu t o ry rights.6 II. In order to survive a motion to dismiss for failure to state a claim, a complaint n e e d only include "`a short and plain statement of the claim showing that the pleader is e n title d to relief,' in order to `give the defendant fair notice of what the . . . claim is and th e grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (q u o tin g Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint "requires more th a n labels and conclusions" or "a formulaic recitation of the elements of a cause of a c tio n ," "detailed factual allegations" are unnecessary. Twombly, 540 U.S. at 555. Rather, plaintiffs must simply include enough facts to "state a claim to relief that is p la u sib le on its face." Id. at 570.
Plaintiff Stacy Shipp is mentioned primarily with reference to both of the lo s s of consortium claims in the complaint. See Compl. ¶¶ 695, 697. 4
In reviewing a 12(b)(6) motion, "the facts alleged [in the complaint] must be taken a s true and a complaint may not be dismissed merely because it appears unlikely that the p la in tif f can prove those facts or will ultimately prevail on the merits." Phillips v. County o f Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). "[R]easonable inferences" are also d ra w n in favor of the plaintiff, id., but this court need not "`accept as true a legal c o n c lu s io n couched as a factual allegation,'" Twombly, 550 U.S. at 555. III. A s a threshold matter, Tucker and Donaher argue that the Rooker-Feldman d o c trin e deprives this court of jurisdiction to hear plaintiffs' claims. See Tucker Mem. at 3 7 -3 8 . The Rooker-Feldman doctrine, under which federal district courts and courts of ap p ea ls "lack subject matter jurisdiction to review, directly or indirectly, state court a d ju d ic a tio n s ," In re Diet Drugs, 282 F.3d 220, 240 (3d Cir. 2002), "`precludes a federal a c tio n if the relief requested in the federal action would effectively reverse the state d e c is io n or void its ruling,'" Whiteford v. Reed, 155 F.3d 671, 674 (3d Cir. 1998) (q u o tin g FOCUS v. Allegheny Court of Common Pleas, 75 F.3d 834, 840 (3d Cir. 1996)). It thus "applies to cases `brought by state court losers complaining of injuries caused by s ta te -c o u rt judgments rendered before the district court proceedings commenced and in v itin g district court review and rejection of those judgments.'" Stoss v. Singer Fin. C o r p ., No. 08-cv-5968, 2010 WL 678115, at *3 (E.D. Pa. Feb. 24, 2010) (quoting Exxon M o b il Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)).
In particular, the Rooker-Feldman doctrine bars review by this court of "`claims th a t have been previously adjudicated in state court or that are inextricably intertwined w ith a state adjudication.'" Whiteford, 155 F.3d at 674 (quoting Gulla v. N. Strabane T w p ., 146 F.3d 168, 170 (3d Cir. 1998)). "The actually litigated prong is principally u s e f u l where the claims before the state and federal courts are in all respects identical." ITT Corp. v. Intelnet. Int'l, 366 F.3d 205, 211 (3d Cir. 2004). "State and federal claims a re inextricably intertwined," meanwhile, "`(1) when in order to grant the federal plaintiff th e relief sought, the federal court must determine that the state court judgment was e rro n e o u sly entered [or] (2) when the federal court must . . . take action that would render [ th e state court's] judgment ineffectual.'" ITT Corp., 366 F.3d at 211 (quoting Desi's P iz z a , Inc. v. City of Wilkes-Barre, 321 F.3d 411, 421 (3d Cir. 2003)) (internal quotation m a rk s omitted). The doctrine is thus "narrow [in] scope," Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542, 547 (3d Cir. 2006): "[W]here a state action does not reach the m e rits of a plaintiff's claims, . . . Rooker-Feldman does not deprive the federal court of ju ris d ic tio n ." Whiteford, 155 F.3d at 674; accord, e.g., ITT Corp., 366 F.3d at 211. More s p e c if ic a lly, when a denial of intervention is not effectively a decision on the merits, the d e n ia l of intervention does not trigger the application of Rooker-Feldman. See FOCUS, 7 5 F.3d at 841. T u c k e r and Donaher contend that plaintiffs' claims reduce to the proposition that
" th e trial court, the Superior Court and the Pennsylvania Supreme Court improperly d e n ie d [plaintiffs'] right to intervene in the" confessed judgment proceedings "based u p o n the alleged acts of the defendants." Tucker Mem. at 38. This argument, however, s lig h tly misunderstands what I take to be the nub of plaintiffs' grievances. Although p la in tif f s clearly disagree with the state courts' ruling, the complaint's primary focus is on th e alleged actions of the various defendants in instantiating and carrying out the c o n f e ss e d judgment action which is to say that the complaint attempts to put before this c o u r t the merits of issues that the state courts declined to consider. This fact alone is a s u f f i c ie n t basis to conclude that the state courts did not "previously adjudicate" plaintiffs' c la im s . T h e question of whether plaintiffs' claims are inextricably intertwined with the s ta te courts' ruling is slightly more complex. The state courts' opinions denying in te rv e n tio n which have been provided by plaintiffs as exhibits to the complaint7 go b e yo n d merely "asserting that [the state courts] lacked jurisdiction" to entertain the in te rv e n tio n . FOCUS, 75 F.3d at 841. Rather, the Court of Common Pleas' October 1, 2 0 0 7 order addresses two additional issues (1) whether or not a partnership of Shipp a n d Fyk owned the properties at issue, and (2) whether "PNC . . . made false averments to
Plaintiffs failed to attach the exhibits to the originally-filed version of the c o m p l a in t . Plaintiffs did, however, petition to supplement the complaint with exhibits a w ee k thereafter, and no defendant has objected to that request. The petition will therefore b e granted as uncontested pursuant to Local Rule 7.1(c). 7
th e Court and otherwise committed `obstructionist malfeasance.'" Compl. Ex. 4, at 2-3. The Superior Court memorandum affirming the denial of intervention, while focused on ju ris d ic tio n a l issues, expresses the view that PNC did not have actual notice that the p ro p e rtie s were owned by a partnership at the time it instituted the confessed judgment a c tio n s . See id. Ex. 8, at 9. This aspect of the Superior Court's decision was based on the c o n c lu s io n s that (1) "[t]he deed to the property does not indicate the property is owned by a partnership," id. at 8, and (2) "[u]nder the circumstances of the present case . . . the c o u rt would be limited to the four corners of the deed in determining whether the property w a s really partnership property," to the exclusion of parol evidence, id. at 9 (internal q u o ta tio n marks omitted). The claims in the complaint are, however, largely independent of the Pennsylvania c o u rts' decisions that (1) a partnership did not own the properties, titled as they were in th e individual names of Shipp and Fyk, (2) PNC's conduct in the Court of Common Pleas w a s unimpeachable, and (3) Shipp was not entitled to intervene. Count 1 of the c o m p la in t provides a convenient illustration. That count, pled as a violation of the P r iv ile g e s and Immunities Clause of the Fourteenth Amendment, alleges variously that ( 1 ) "[d]efendants seized [one of the properties] . . . without bringing charges against S h ip p or the [alleged] Partnership," (2) "[d]efendants . . . forc[ed plaintiffs] to continue in a hostile and dangerous business relationship with Fyk", in part by "fr[eezing Shipp] out o f the courts," (3) "[d]efendants knowingly took and retained Shipp's property by ex
p a r te action," and (4) "[t]here can be no greater abridgement of rights and immunities th a n being told that your legal interests were subordinated to the one who illegally s u b o rd in a te d your interest in ex parte proceedings." Compl. ¶¶ 339-41, 344. Whatever th e merits of this claim, it is not one that was ever decided by the state courts, and ruling o n its merits would not entail a decision that the state courts were incorrect to deny interve n tio n or that the expressed grounds for the denial were incorrect.8 Moreover, in s o f a r as plaintiffs' allegations do "den[y] a legal conclusion that a state court has re a ch e d ," the result is simply that "there is jurisdiction and state law determines whether th e defendant prevails under principles of preclusion." Exxon Mobil, 544 U.S. at 293. A c c o rd in g ly, I conclude that the Rooker-Feldman doctrine does not deprive this c o u rt of jurisdiction over plaintiffs' claims, and I turn to the question of whether the c o m p la in t states one or more claims on which relief may be granted. IV . C o u n ts 1-12 of the complaint allege federal constitutional violations, and Count 22 a lle g e s an additional claim pursuant to 42 U.S.C. § 1983. All of plaintiffs' federal c o n s titu tio n a l claims must, of course, be brought under § 1983, e.g., Arpin v. Santa Clara V a lle y Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001), which "provides redress for c e rta in violations of rights arising under the federal constitution or laws of the United
Given that the complaint alleges that PNC subsequently released the p r o p e r tie s , there is no way that this court could, at present, render the state courts' ju d g m e n t on intervention "ineffectual." 9
S ta te s which are caused by persons acting under color of state law," Mosley v. Yaletsko, 2 7 5 F. Supp. 2d 608, 612 (E.D. Pa. 2003). Thus, "[t]o establish a valid claim under § 1983, a claimant must show: (1) that the conduct complained of was committed by a p e rs o n acting under color of state law; and (2) that the conduct deprived a person of rig h ts , privileges, or immunities secured by the Constitution or laws of the United States." Robb v. City of Phila., 733 F.2d 286, 290-91 (3d Cir. 1984). H ere , the defendants are private parties. Thus, plaintiffs must satisfy "a two-part in q u iry" in order to maintain claims against the defendants under § 1983. Jordan v. Fox, R o th s c h ild , O'Brien & Frankel, 20 F.3d 1250, 1265 (3d Cir. 1994). "`First, the d e p riv a tio n must be caused by the exercise of some right or privilege created by the State o r by a rule of conduct imposed by the State or by a person for whom the State is re sp o n s ib le .'" Id. (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). "`Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor.'" Id. (quoting Lugar, 457 U.S. at 937). A state actor is one who is "`a sta te official,'" or who "`has acted together with or has obtained significant aid from state o f f ic ia ls ,'" or whose "`conduct is otherwise chargeable to the State.'" Id. (quoting Lugar, 4 5 7 U.S. at 937). D e f e n d a n ts do not argue that the first prong of this test is not met, and it is. Plaintiffs' claims are largely based upon a confessed judgment action in the state courts, a n d "[t]he power to confess judgment depends on a state statute and the procedure for
d o in g so depends on state procedural rules of general application." Jordan, 20 F.3d at 1 2 6 5 . A "right or privilege created by the State" is thus at issue. T h e pertinent question is therefore whether or not defendants may fairly be said to b e state actors. They are not state officials, so defendants are state actors only if the " sta te [has] significantly contribute[d] to the [alleged] constitutional deprivation," by, for in sta n c e , "authorizing its own officers to invoke the force of law in aid of the private p e rs o n s ' request." Id. at 1266. Both plaintiff and defendants rely on the Third Circuit's d e c is io n in Jordan for support on this score. In Jordan, the Court of Appeals held that "a s ta te procedure permitting private parties to file a complaint and confess judgment e ss e n tia lly involves acquiescence by the state, not compulsion," and that "[i]n such c irc u m s ta n c es , private conduct is not attributable to the state." Id. (internal quotation m a rk s omitted). Nor does a "confession of judgment itself . . . so intimately involve [ la n d lo rd s ] and their Attorneys in state action that they could be treated as acting under c o lo r of law." Id. The Third Circuit's holding was grounded in the fact that while "entry o f the [confessed] judgment" has "consequences," "[i]t involves no immediate seizure or d e p riv a tio n of property under force of law." Id. at 1266 n.17. By contrast, the Court of Appeals held that "a judgment creditor who uses P e n n s ylv a n ia 's procedure for executing on a confessed judgment acts under color of law a n d becomes a state actor." Id. The relevant distinction between the institution of a c o n f e ss e d judgment action and the issuance of writs of execution is, the Third Circuit
h e ld , that "writs of execution and attachment involve actions by state officials that plainly in v o lv e or threaten the use of legal force." Id. at 1267. Thus, under Jordan, otherwisep r iv a t e parties who merely seek and receive confessed judgments are not state actors, w h i le those who execute on confessed judgments are state actors. U n d er the facts alleged in plaintiffs' complaint, PNC, via its attorneys at Tucker, f ile d a confessed judgment action against two properties presumably the Coates and J a n e Street properties, at least one of which was titled in the names of Shipp and Fyk. Compl. ¶¶ 18, 76. An "execution notice" was then sent to Fyk as to each property. Id. ¶ 3 1 ; see also id. ¶ 28. The complaint does not, however, allege that PNC ever sought to e x e cu te on the confessed judgment; rather, it reveals that PNC "issued . . . purported re le a s e s of [the properties]" in 2008. Id. ¶ 58. U n d er Jordan, defendants' action of filing for confessed judgments is an in su f f icie n t basis for the conclusion that defendants acted as state actors. 9 The complaint, m e a n w h ile , fails to allege that defendants took the step execution of a confessed
Jordan differs factually from this case in certain ways it (1) concerned p e rs o n a l and not real property, see 20 F.3d at 1258, (2) occurred before certain changes w e re made to Pennsylvania's confessed judgment procedures, see Compl. ¶¶ 274-96, and (3 ) did not concern a third party to the confessed judgment action. But the rules for c o n f es s e d judgments of real property concern the same two steps described in Jordan, the ru le s changes described in the complaint are not relevant to the core procedures held by J o rd a n to be pertinent to defendants' status as private or state actors, and while plaintiffs' in te re st in the proceedings may differ from the interests of a judgment debtor, that d is tin c tio n is irrelevant to the degree of state involvement in the alleged constitutional d e p r iv a t io n s . 12
ju d g m e n t that Jordan held was sufficient to transform judgment creditors into state ac tors. Thus, if defendants were state actors, it was because "execution notices" were s e n t to Fyk. T h e sending of such notices was not considered in Jordan, and this issue is left s o m e w h a t murky by the complaint, which despite purporting to include the relevant n o tic e s as attachments, see Compl. ¶ 31 neither attaches nor describes the notices. Plaintiffs do, however, include numerous allegations concerning Pennsylvania's c o n f e s s e d judgment procedure, see, e.g., id. ¶¶ 274-96. This court will therefore take ju d ic ia l notice of the relevant state Rules of Civil Procedure. See, e.g., Pennsylvania v. L o c k h e ed Martin Corp., No. 09-cv-0821, __ F. Supp. 2d __, 2010 WL 456810, at *1 n.2 (M.D. Pa. Feb. 1, 2010) (noting that "the court may take judicial notice of public re c o rd s " ).1 0 Pursuant to those rules, notice of the confessed judgment action may be s e rv e d either prior to or contemporaneously with a writ of possession which writ is the in s tru m e n t by which a confessed judgment is executed. See Pa. R. Civ. P. 2973.1-.3. Because the complaint alleges that notice was served but not that a writ of possession was s e rv e d , plaintiffs' allegations only support the inference that PNC served Fyk with a prew rit notice pursuant to Pennsylvania Rule of Civil Procedure 2973.2 or some other kind
This court may take judicial notice of appropriate items without converting d e f e n d a n ts ' motions into motions for summary judgment. See, e.g., Lord v. Erie County, N o . 08-cv-213, 2010 WL 56095, at *6 n.10 (W.D. Pa. Jan. 5, 2010) (quoting Pryor v. N C A A , 288 F.3d 548, 560 (3d Cir. 2002)). 13
o f notice unaccompanied by an actual execution. Like the entry of a confessed judgment itself, the sending of pre-execution notice d o e s not "involve [the] immediate seizure or deprivation of property under force of la w ." Jordan, 20 F.3d at 1266 n.17. Such notice essentially gives the confessed ju d g m e n t defendant time in which to "petition for relief from a confessed judgment," N o te to Pa. R. Civ. P. 2973.2(a), and therefore is not a means of state compulsion; it m ere ly is notice that such compulsion may follow. Accordingly, under Jordan, the m a ilin g of notice does not so entangle the state in the enforcement of private claims to p ro p e rty as to transform the otherwise private actions of the confessed judgment plaintiff o r its attorneys into state action. Nor can I conclude that the fact that Shipp, not Fyk, b rin g s this suit makes any difference as to the existence vel non of state action: Although S h ip p was denied leave to intervene in the confessed judgment action, any injuries in f lic te d on Shipp as co-owner of Coates Street by the confessed judgment actions were, a t worst, identical to Fyk's as co-owner of the properties in question. Nothing in the c o n f es s e d judgment procedure invoked by defendants, in other words, supports a finding o f state action in this case. N o r does anything else in the prodigiously prolix complaint form a sufficient basis f o r determining that the moving defendants were state actors. The only actions allegedly tak e n by the state courts, for instance, involve the denial of Shipp's motion to intervene in the confessed judgment action itself. The complaint further alleges that there were
" ra d ic a l changes to [Pennsylvania's] confessed judgment lien law" "[i]n 1996 and 2003," C o m p l. ¶ 279, but there is no indication of how these changes render defendants state a c to rs with regard to their actions concerning the properties at issue especially given th a t plaintiffs believe that the moving defendants were not aided by state officials but ra th e r "collaborated and conspired to defraud the Civil Procedures Rules Committee," id. ¶ 295. (The Court of Common Pleas is also referred to as "an unknowing target of d e c ep tio n ." Id. ¶ 321.) Nor do plaintiffs' repeated assertions that defendants were, in f a c t, "state actor[s]" or "[s]tate [p]rosecutor[s]" suffice to demonstrate that those labels a re correct. E.g., Compl. ¶¶ 162-68, 170, 175, 178, 180, 182-83, 225, 388-90. A c c o rd in g ly, defendants' motions will be granted as to Counts 1-12 and 22 of the c o m p lain t. V. T h e federal statutory causes of action in plaintiffs' complaint invoke (1) the S h e rm a n Act, (2) the BHCA, (3) the FDCPA, (4) RICO, and (5) various criminal p ro v is io n s in Title 18. I consider these claims in turn. A. C o u n t 13 of the complaint alleges a violation of the Sherman Act. It is unclear w h e t h e r plaintiffs intend to plead a violation of § 1 or § 2 of the Act; the complaint lists § 2 as the relevant statute but speaks in terms of restraint of trade, which is governed by § 1. Whether plaintiffs intend to proceed under § 1 or § 2, however, they must show that
th e y have standing to bring an antitrust claim. In the Third Circuit, five factors are used to determine whether or not a plaintiff has antitrust standing: " (1 ) the causal connection between the antitrust violation and the harm to th e plaintiff and the intent by the defendant to cause that harm, with neither f a c to r alone conferring standing; (2) whether the plaintiff's alleged injury is o f the type for which the antitrust laws were intended to provide redress; (3) th e directness of the injury, which addresses the concerns that liberal a p p lic a tio n of standing principles might produce speculative claims; (4) the e x is te n c e of more direct victims of the alleged antitrust violations; and (5) th e potential for duplicative recovery or complex apportionment of d a m a g e s ." B r o a d c o m Corp. v. Qualcomm, Inc., 501 F.3d 297, 320 (3d Cir. 2007) (applying these f a cto rs in the context of § 2) (quoting Barton & Pittinos, Inc. v. SmithKline Beecham C o r p ., 118 F.3d 178, 181 (3d Cir. 1997)); see also City of Pittsburgh v. W. Penn Power C o r p ., 147 F.3d 256, 264 (3d Cir. 1998) (applying the same factors in the context of a § 1 c la im ). Antitrust standing is thus "`essentially a balancing test comprised of many c o n sta n t and variable factors.'" W. Penn Power Corp., 147 F.3d at 265 (quoting Merican, In c . v. Caterpillar Tractor Co., 713 F.2d 958, 964-65 (3d Cir. 1983)). Nevertheless, the T h ird Circuit has instructed that a district court "should first address the issue of whether th e plaintiff suffered an antitrust injury," and if no such injury "is . . . found, further in q u iry is unnecessary." Id.; see also, e.g., id. ("[A] showing of antitrust injury is a n e c es s a ry but insufficient condition of antitrust standing.") (internal quotation marks o m itte d ). An antitrust injury is one "`of the type the antitrust laws were intended to
p re v e n t.'" Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 641 (3d Cir. 1996) (quoting A lb e rta Gas Chems. Ltd. v. E.I. du Pont de Nemours & Co., 826 F.2d 1235, 1240 (3d Cir. 1 9 8 7 )). Specifically, "`[a]n antitrust plaintiff must prove that challenged conduct affected th e prices, quantity or quality of goods or services,' not just his own welfare," id. (quoting T u n is Bros. Co. v. Ford Motor Co., 952 F.2d 715, 728 (3d Cir. 1991)), because "`antitrust la w aims to protect competition, not competitors,'" id. (quoting Alberta Gas Chems., 825 F .2 d at 1241). The injury must be the "direct effect of" "the antitrust violation," which re q u ire s more than "a mere causal link," and "whether the plaintiff has experienced an a n titru s t injury depends in part on its source did the injury flow from that which makes th e defined acts unlawful." W. Penn Power Corp., 147 F.3d at 265, 268. Thus, as a g e n e ra l matter though not, perhaps, as a hard and fast rule "only competitors and c o n su m e rs will suffer antitrust injury." Carpet Group Int'l v. Oriental Rug Importers A s s 'n , Inc., 227 F.3d 62, 77 (3d Cir. 2000). It is somewhat difficult to garner from the complaint what, precisely, plaintiffs c laim amounts to an antitrust violation. Whatever plaintiffs' intent, however, nothing in C o u n t 13 alleges an antitrust injury. The only claimed harms to plaintiffs are that d e f en d a n ts (1) "assert[ed] priority over superior prior contract rights," Compl. ¶ 431 p re su m a b ly rights allegedly held by plaintiffs and (2) "maligned [William] Shipp's title, re p u tatio n , and control of his property and finances," increasing the risk he faced "while c la im in g no effect," id. ¶ 432. These are injuries only to plaintiffs' "own welfare," not
" th e prices, quantity or quality of goods and services," Mathews, 87 F.3d at 641, and are th e re f o re not the type of injuries the antitrust laws are meant to prevent. Further, any injury suffered by plaintiffs is necessarily an indirect, not a direct, re su lt of defendants' actions. The allegations in the complaint most plausibly tied to an an titru st theory imply that defendants control the market for SBA loans. Plaintiffs are n eith er competitors of defendants nor, as far as the complaint discloses, consumer-debtors o f SBA loans. Indeed, William Shipp's only relationship to the defendants is as (1) the c o -o w n e r of a property subjected to a confessed judgment under the terms of the other coo w n e r's loan, and (2) a failed state-court intervenor. Plaintiffs therefore cannot have b e e n directly harmed by any actions defendants took in the SBA loan market. It is the d e b to r which is to say Fyk, not the Shipps who would feel the direct effects of those ac tio n s. Plaintiffs, in other words, have not alleged either an antitrust injury or a su ff icien t causal link. In light of these shortcomings, I need not consider the other factors in the antitrust standing analysis.1 1 See W. Penn Power Co., 147 F.3d at 269 (affirming th e dismissal of antitrust claims after determining that plaintiffs had not satisfied these tw o prongs of the analysis). B e c a u se plaintiffs lack standing to maintain Count 13, defendants' motions will
I also note that Fyk and other debtors, as the direct victims of any a n tic o m p e titiv e activity, would be better suited to challenge any antitrust violations by the d e f e n d a n ts. The fourth factor of the standing test thus also weighs against plaintiffs in th is case. 18
a c c o rd in g ly be granted as to that count. B. Count 14 seeks to allege a violation of the anti-tying provisions of the BHCA, 12 U .S .C . § 1972. Pursuant to 12 U.S.C. § 1975, "[a]ny person who is injured in his b u s in e ss or property by reason of anything forbidden in section 1972 . . . may sue therefor in [the] district court[s]." See also, e.g., Baggett v. First Nat'l Bank of Gainesville, 117 F .3 d 1342, 1345-46 (11th Cir. 1997) (noting that in 1970, "Congress enacted § 1975 of th e BHCA, creating a private right of action in favor of individuals harmed by virtue of v io latio n s of the anti-tying provisions of the BHCA"). T h u s, in order to have standing to s u e under the BHCA, a plaintiff must at least allege an injury that is caused by the a lle g e d ly unlawful tie. See, e.g., Baggett v. Fist Nat'l Bank of Gainesville, 117 F.3d 1 3 4 2 , 1346 (11th Cir. 1997); Sundance Land Corp. v. Cmty. First Fed. Sav. & Loan A ss'n , 840 F.2d 653, 660 (9th Cir. 1988); Sterling Coal Co. v. United Am. Bank of K n o x v ille , 470 F. Supp. 964, 965 (E.D. Tenn. 1979); see also Mid-State Fertilizer Co. v. E x c h a n g e Nat'l Bank of Chi., 693 F. Supp. 666, 669 (N.D. Ill. 1988) (limiting standing to th o s e who allege "direct" injuries). Further, pursuant to the language of the statute, the in ju ry must be one to "business or property." Defendants correctly argue that plaintiffs have not alleged an injury caused by the tie . See PNC Mem. at 25-26. Plaintiffs' BHCA allegations are limited to the allegations th a t (1) "[d]efendants illegally require that its SBA borrowers provide vigilante bailout
s e rv ic e s upon PNC's decision to confess judgment, whereby the debtor is made the c o lle c tio n s enforcer against third parties who are unprepared and unprotected from such a ttac k ," and (2) "PNC does not properly screen these debt collection recruits nor train th e m adequately, leaving defaulting debtors free to wreak havoc on the marketplace." Compl. ¶¶ 438-39. These allegations are bereft of any suggestion that the alleged tie b e tw e e n SBA loans and "vigilante bailout services" harmed plaintiffs. Moreover, even reading the phrase "injured in his business or property" broadly to in c lu d e any injury to business or property, none of the other allegations in the complaint a re sufficient to confer § 1975 standing on plaintiffs. Plaintiffs do allege that (1) Fyk th re a te n e d them, see id. ¶ 144, (2) he did so at the behest of the other defendants, see id . ¶¶ 392-93, 400, 649, (3) plaintiffs suffered "financial exposure" as a result, id. ¶ 399, (4 ) "[i]n response to Fyk's threats, [William] Shipp recused himself from [the] Board of D ire c to rs decisions" at the bank for which Shipp works, id. ¶ 230, and (5) Fyk was used b y the defendants "to extort funds from unsuspecting members of the general public," id. ¶ 495, see also id. ¶ 499. But the only harms to plaintiffs as opposed to the general p u b lic actually alleged in these portions of the complaint are (1) the presumably p e rs o n a l psychic harm from financial exposure and (2) the need to recuse. These are not h arm s to business or property. Any other harms alleged in the complaint, meanwhile, are n o t tied to anything that can be construed as "vigilante bailout services" provided by Fyk. Accordingly, nothing in the complaint establishes plaintiffs' standing to sue for a BHCA
v io la tio n , and defendants' motions will be granted as to Count 14. C. C o u n t 15 of the complaint alleges that the defendants violated the FDCPA, 15 U .S .C . § 1692 et seq. This count must be dismissed as to PNC and Rohr, because "the F D C P A 's provisions generally apply only to `debt collectors,'" not creditors. Pollice v. N a t'l Tax Funding, L.P., 225 F.3d 379, 403 (3d Cir. 2000). Thus, "[c]reditors who c o lle c t in their own name and whose principal business is not debt collection . . . are not s u b je c t to the Act." Id. (quoting Aubert v. Am. Gen. Fin., Inc., 137 F.3d 976, 978 (7th C ir. 1998)). The act also exempts "any officer or employee of a creditor while, in the n a m e of the creditor, collecting debts for such creditor." 15 U.S.C. § 1692a(6)(A). Here, th e complaint reveals that PNC originated the loan to For Your Kids on which it later trie d to collect. See Compl. ¶ 89 ("PNC granted two SBA guaranteed loans to For Your K in d s totaling $85,000"); ¶¶ 109-10 (speaking of "the time that PNC issued SBA loans to F yk " ), ¶ 162(b) (noting the "PNC-Fyk lien-generating contract") (emphasis supplied), ¶ 3 0 3 (alleging that PNC was aware of various pieces of information "prior to Fyk loan is s u a n c e" ), ¶ 304(f)(vi) (discussing "PNC's assessment of Fyk's character prior to loan o rig in a tio n " ), ¶ 372 (noting "PNC's private contract with Fyk"), ¶ 383 (alleging that "Fyk c o n v e ye d contingent property interests to PNC in December 2006"), ¶ 466 (alleging that " F yk was insolvent at loan origination, and PNC could have identified this risk at time of loan origination"). The FDCPA claim may therefore not be asserted against PNC. Rohr,
m e a n w h i le , is an officer of PNC, and there are no allegations in the complaint to suggest that he attempted to collect any debts for any other institution or for PNC under a d iffe ren t name. The claim is thus also precluded as to Rohr. T u c k e r and Donaher, meanwhile, argue that plaintiffs "do not allege that [Tucker o r Donaher] attempted to collect any debt from [them]." Tucker Mem. at 28. This a rg u m e n t is well-taken. Plaintiffs' FDCPA claims arise under 15 U.S.C. § 1692d, e, f, a n d g, see Compl. ¶¶ 444-47, 449, and each of these sections applies only if statements or c o m m u n ic a tio n s are made "in connection with the collection of any debt," 15 U.S.C. §§ 1692d, 1692e, 1692g(a), or "to collect or attempt to collect any debt," id. § 1692f. See a ls o Piper v. Portnoff Law Assocs., Ltd., 396 F.3d 227, 232 (3d Cir. 2005) (noting this f e atu re with regard to §§ 1692e and 1692g). Nothing in the complaint alleges that any c o m m u n ica tio n s between Donaher and Shipp were related to the collection of a debt. In fact, all of the facts and factual allegations currently before this court are to the c o n tra ry: According to the complaint, the attorney defendants (1) sent William Shipp a le tte r rejecting a check sent by Shipp to PNC, (2) conversed with Shipp before oral a rg u m e n t in the Superior Court, and (3) filed documents in opposition to Shipp's petition to intervene in the state court proceedings. See Compl. ¶¶ 189-90. But (1) the letter m e re ly returns the check and refuses to disclose information in discovery, see Compl. Ex. 5 A , (2) the conversation consisted only of "Donaher's rejection of Shipp's offer to d is c u ss lien resolution," id. ¶ 190, and (3) Tucker's judicially-noticed filings in the
S u p e rio r Court do not attempt to collect a debt from plaintiffs.1 2 Thus, as the plaintiffs h a v e "allege[d] no facts to support the contention that" communications they received f ro m Donaher and Shipp "constituted a collection or attempt to collect" the debt, the a lle g a tio n s that the attorney defendants violated the FDCPA will be dismissed. D. C o u n t 23 of the complaint alleges that the defendants violated 18 U.S.C. § 1962(c), the portion of RICO that makes it "unlawful for any person employed by or a ss o c ia te d with any enterprise engaged in, or the activities of which affect, interstate or f o re ig n commerce, to conduct or participate, directly or indirectly, in the conduct of such e n te rp ris e 's affairs through a pattern of racketeering activity or collection of unlawful d e b t." The same count alleges that defendants violated 18 U.S.C. § 1962(d), which o u tla w s conspiracies to violate the other provisions of § 1962. R IC O provides a private right of action to "[a]ny person injured in his business or p rop erty by reason of a violation of section 1962." 18 U.S.C. § 1964(c). The Third C irc u it has interpreted this language "as requiring a RICO plaintiff to make two related b u t analytically distinct threshold showings relevant in this appeal: (1) that the plaintiff s u f f ere d an injury to business or property; and (2) that the plaintiff's injury was p ro x im a te ly caused by the defendant's violation of 18 U.S.C. § 1962." Maio v. Aetna,
Further, the Court of Common Pleas, in an opinion attached to the c o m p la in t, held that Tucker's filings in that court contained no "false averments." Compl. Ex. 4, at 2. 23
In c ., 221 F.3d 472, 483 (3d Cir. 2000). Moreover, "`a showing of injury requires proof of a concrete financial loss and not mere injury to a valuable intangible property interest.'" Id . (quoting Steele v. Hosp. Corp. of Am., 36 F.3d 69, 70 (9th Cir. 1994)). This re q u ire m e n t "can be satisfied by allegations and proof of actual monetary loss," id., or by a "fail[ure] to perform under the parties' contractual arrangement," id. at 490. N o w h e re in the extraordinarily lengthy complaint do plaintiffs allege that they s u f f ere d any such concrete harms. The RICO count, in fact, does not allege any harm to th e plaintiffs. See Compl. ¶¶ 492-96. Elsewhere, plaintiffs claim that they suffered in ju rie s such as (1) "a cloud over every personal decision that [they] have to make in e v e ry facet of their lives," id. ¶ 140-41; see also id. ¶¶ 145-46, (2) "threats against S h ip p 's person, employment, [b]usiness relationships, reputation, and health," id. ¶ 144, (3 ) recusals from decisions made by the bank of which William Shipp is a director and the need to "subordinate [Shipp's] own . . . claims" against Fyk to those held by Shipp's b a n k , id. ¶¶ 230-31, see also id. ¶ 673, (4) "premature" concerns about the plaintiffs' " a b ility to endure market pressures" and ability to "care for their children," id. ¶¶ 543-44, (5 ) "the indignity of being toyed with before the courts," id. ¶ 546, and (6) being "frozen o u t of the legal process," ¶ 176. None of these injuries is concrete and financial.13
Plaintiffs do not allege that they suffered financial harm because William S h ip p subordinated his claims against Fyk to those against NBM. Even if the complaint in c lu d e d such allegations, however, it would be unclear how that particular harm was p r o x i m a te ly caused by defendants' alleged RICO activities. 24
P la in tif f s also allege that defendants' "activities unreasonably caused injury, harm, d a m a g e , inconvenience, annoyance, and discomfort to [William] Shipp's reasonable e n jo ym e n t and use of his reasonable rights in" the property at issue. Id. ¶ 628. This s ta te m e n t never specifies what damage plaintiffs suffered, and therefore does not allege a c o n c re te financial injury. Paragraph 628 is also nothing more than a legal conclusion, w h ic h is insufficient to overcome defendants' motions to dismiss. See Weiss v. First U n u m Life Ins., No. 02-cv-4249, 2003 WL 25713970, at *5 (D.N.J. Aug. 27, 2003) (" P la in tif f 's vague and conclusory assertion that he was damaged because he deferred p u rc h a se s and lost medical benefits are wholly insufficient to establish a compensable in ju ry to business or property."); Heimbecker v. 555 Assocs., No. 01-cv-6140, 2003 WL 2 1 6 5 2 1 8 2 , at *14 (E.D. Pa. Mar. 26, 2003) (dismissing a RICO count where the a lle g a tio n s of injury amounted to "bald assertions, subjective characterizations, and legal c o n c lu sio n s" ). Finally, the allegations that "Fyk breached contractual obligations to S h ip p ," id. ¶ 643, and that "[d]efendants and[/]or their agents irreparably harmed the P la in tif f s in their businesses," id. ¶ 647, are equally conclusory and therefore insufficient to state an injury that is cognizable under RICO.1 4
The complaint veers toward attempting to state claims on behalf of Shipp's b a n k in several places. The bank, however, is not a plaintiff in this action, and "[t]hat an in d iv id u a l shareholder or employee may sustain harm incidental to the injury to [a] c o rp o ra tio n does not confer [RICO] standing upon him." Jordan v. Berman, 792 F. Supp. 3 8 0 , 386 n.11 (E.D. Pa. 1992), vac'd in part on other grounds sub nom. Jordan v. Fox, R o th s c h ild , O'Brien & Frankel, 20 F.3d 1250 (3d Cir. 1994). 25
A c c o rd in g ly, I find that plaintiffs have not established standing to sue under RICO, a n d defendants' motions will be granted as to Count 23. E. C o u n ts 16-21 and 24-29 of the complaint allege that the defendants violated v a r io u s federal criminal statutes contained in Title 18 of the United States Code. As a g e n e ra l matter, "Title 18 is a federal criminal statute which does not create civil liability o r a private right of action." U.S. ex rel. Stafford v. Luongo, No. 85-cv-1642, 1989 WL 4 5 9 1 0 , at *2 (E.D. Pa. Apr. 19, 1989). Thus, private parties may not maintain suit under m o s t provisions of Title 18. T h is general rule applies to almost all of the remaining statutes invoked in the c o m p la in t. Count 17, for instance, alleges that the defendants acted as accessories after th e fact in violation of 18 U.S.C. § 3. That statute, however, "do[es] not provide a private rig h t of action." Keyter v. Bush, No. 08-cv-97, 2008 WL 613129, at *2 (D. Del. Mar. 5, 2 0 0 8 ); accord, e.g., Thomas v. Bryant, No. 09-cv-5189, 2009 WL 2473662, at *2 (W.D. W a s h . Aug. 7, 2009). Neither does (1) the bankruptcy fraud statute, 18 U.S.C. § 157, see C a r p e n te r v. Young, No. 04-cv-927, 2005 WL 1364787, at *4 (E.D. Pa. June 1, 2005); (2) 1 8 U.S.C. §§ 286 and 371, which criminalize conspiracies against the United States, see, e .g ., Jones v. Lockett, No. 08-cv-16, 2009 WL 2232812, at *8 (W.D. Pa. July 23, 2009) (§ 371); Dugar v. Coughlin, 613 F. Supp. 849, 852 n.1 (S.D.N.Y. 1985) (§ 286); (3) the
m a il, wire, and bank fraud statutes, 18 U.S.C. §§ 1341, 1343, & 1344,1 5 see, e.g., Jones, 2 0 0 9 WL 2232812, at *8 (§ 1341); Beale v. Rubin & Rothman, LLC, No. 08-cv-4279, 2 0 0 9 WL 1916322, at *5 (D.N.J. June 29, 2009) (§§ 1341 and 1344); Kovalev v. City of P h ila ., No. 07-cv-4875, 2008 WL 5377625, at *7 (E.D. Pa. Dec. 23, 2008) (§§ 1341 and 1 3 4 3 ); Fleishman v. Scilley, No. 03-cv-4639, 2004 WL 2203746, at *1 (E.D. Pa. Sept. 30, 2 0 0 4 ) (same); (4) 18 U.S.C. § 876, which concerns mailing threatening c o m m u n ic a tio n s ,1 6 see, e.g., Weiss v. Sawyer, 28 F. Supp. 2d 1221, 1227 (W.D. Okla. 1 9 9 7 ); Bryant v. Yellow Freight Sys., 989 F. Supp. 966, 968 (N.D. Ill. 1997); (5) 18 U .S .C . § 880, which concerns the proceeds of extortion, see Giron v. Abascal, No. 07-cv1 1 0 , 2007 WL 1722404, at *1, *4 (D.N.M. May 3, 2007), or (6) the attempt and c o n s p ira c y statute, 18 U.S.C. § 1349, see Rogerson v. United States, No. 08-cv-5060, 2 0 0 9 WL 1361875, at *1, *5 (D.S.D. May 13, 2009). Defendants' motions will therefore b e granted as to counts 17-20 and 24-29. Further, although it appears that no federal court has yet addressed the question of w h e th e r or not 18 U.S.C. § 893, which criminalizes the willful lending of "money or Count 25 of the complaint, which alleges a wire fraud violation, is pled as a v io la tio n of 18 U.S.C. § 1342, not 18 U.S.C. § 1343. Because § 1342 concerns sending a n d receiving mail under fictitious names, I assume that plaintiffs intended to list § 1343 a s the relevant statute. In any case, § 1342 also lacks a private right of action. See, e.g., W e is s v. Sawyer, 28 F. Supp. 2d 1221, 1227 (W.D. Okla. 1997); Drance v. Simpson T h a c h e r & Bartlett, No. 96-cv-5729, 1997 WL 442071, at *5 (S.D.N.Y. Aug. 5, 1997). C o u n t 27 of the complaint actually refers to 18 U.S.C. § 1876, which does n o t exist. Because that count deals with the mailing of threatening communications, I a ss u m e that plaintiffs meant to plead a violation of § 876. 27
p r o p e r ty . . . for the purpose of making extortionate extensions of credit," contains a p riv a te right of action, this court concludes that it does not. There is no such right in the la n g u a g e of the statute, and § 893 is once again a "criminal statute [that] do[es] not s u p p o rt civil causes of action." Carpenter, 2005 WL 1364787, at *4. For this reason, the m o tio n s will also be granted as to Count 21. Finally, while 18 U.S.C. § 1031 1 7 "does permit a private cause of action, [that] p riv a te cause of action is limited to employee whistle blowers." Jones, 2009 WL 2 2 3 2 8 1 2 , at *9; see also 18 U.S.C. § 1031(h)(1) (providing a cause of action for in d iv id u a ls who are "discharged, demoted, suspended, threatened, harassed, or in any o th e r manner discriminated against in the terms and conditions of employment by an e m p lo ye r because of lawful acts done by the employee"). Plaintiffs do not allege that th e y are or ever were employees of the moving defendants, and defendants' motions will th e re f o re also be granted as to Count 16 of the complaint. V I. T h e preceding sections conclude that all of the federal claims against PNC, Rohr, T u c k e r, and Donaher must be dismissed.1 8 As noted above, Fyk and For Your Kids have
On its face, Count 16 attempts to plead a violation of 18 U.S.C. § 1931, w h ic h does not exist. Both that count and 18 U.S.C. § 1031 are, however, captioned " m a jo r fraud against the United States," so I construe that count as attempting to state a v io la tio n of § 1031. B e c au s e I reach this conclusion for the reasons given above, I will not a d d r e ss the numerous additional arguments presented in defendants' motions. 28
f ile d an answer to the complaint, and the alleged "PNC/[Tucker] Clan" and the as-yet u n id e n tif ie d defendants have filed no response to the complaint. Nevertheless, the federal c o u n ts will be dismissed as to all defendants. Plaintiffs' claims under the federal c o n stitu tio n , the Sherman Act, the BHCA, RICO, and Title 18 cannot proceed against the n o n -m o v in g defendants for precisely the reasons enunciated in Sections III, IV.A-B, and IV .D -E above. The FDCPA count, meanwhile, is subject to dismissal because the nonm o v in g defendants, like Tucker and Donaher, are not alleged to have attempted to collect a debt from the Shipps. 1 9 Because it therefore appears that all federal claims against all d e f en d a n ts are precluded for reasons substantially identical to reasons raised in the m o v in g defendants' memoranda of law, to which plaintiffs have had an opportunity to re sp o n d , this court will sua sponte dismiss the federal claims against the non-moving d e f e n d a n ts . See Grine v. Colburn's Air Conditioning & Refrigeration, No. 09-cv-11, 2 0 0 9 WL 2634179, at *1 (W.D. Pa. Aug. 25, 2009); Freedom Med. Inc. v. Gillespie, 634
Plaintiffs repeatedly assert that the other defendants used Fyk "to enforce c o llec tio n s." Compl. ¶ 304(e); see also, e.g., id. ¶ 313. The complaint does not allege, h o w e v e r, that Fyk ever attempted to collect a debt from Shipp, and the communications f ro m Fyk to Shipp attached as exhibits also give no hint that Fyk was attempting to do so. See id. Exs. 1, 2, 7. A letter from Fyk to Shipp's counsel that is attached to the complaint is a settlement offer that asks, inter alia, that Shipp pay him "$967 for materials and work to the property." Id. Ex. 11. The courts in this circuit that have considered this question h a v e determined that communications to a debtor's attorney do not fall within the ambit o f the FDCPA. See, e.g., Wright v. Phelan, Hallinan & Schmieg, LLP, No. 09-cv-3538, 2 0 1 0 WL 786536, at *4-*6 (E.D. Pa. Mar. 8, 2010) (citing further cases). Further, the le tte r to Shipp's counsel is manifestly not an attempt to collect any debt for the other d e f e n d a n ts , and it is PNC's alleged collection attempts directly and via Tucker and Fyk that underpin plaintiffs' FDCPA claim. 29
F . Supp. 2d 490, 507 n.6 (E.D. Pa. 2007); see also, e.g., Bryson v. Brand Insulations, Inc., 6 2 1 F.2d 556, 559 (3d Cir. 1980) (noting that this court "may on its own initiative enter a n order dismissing the action provided that the complaint affords a sufficient basis for the court's action"). W ith no federal claims remaining in this case, the pendent state claims will be d ism iss e d without prejudice pursuant to 28 U.S.C. § 1367(c)(3). In deciding whether to re ta in jurisdiction over state claims once all of the federal claims in a case have been d is m is s e d , this court considers "judicial economy, convenience, fairness, and comity." Annulli v. Panikkar, 200 F.3d 189, 202 (3d Cir. 1999), abrogated on other grounds by R o te lla v. Wood, 528 U.S. 549 (2000). Because this court is dismissing the complaint b e f o re discovery, judicial economy strongly weighs in favor of dismissal of the remaining c la im s . Comity, meanwhile, counsels allowing the Pennsylvania state courts to determine th e s e issues, and I can perceive no unfairness or inconvenience to plaintiff if these claims a re litigated in the appropriate state forum.20 V II. F in a lly, I consider whether dismissal of plaintiffs' federal claims should be with or w ith o u t prejudice to amendment of the complaint. Amendment of Counts 16-21 and 242 9 would be futile, because the statutes involved in those counts either contain no private
In this regard, I note that plaintiff has not alleged that defendants have c o m p le te control over the state courts only that Pennsylvania's confessed judgment p ro c e d u re is tainted. 30
r ig h t of action at all or no private right of action that encompasses plaintiffs. Those c o u n ts will accordingly be dismissed with prejudice. Similarly, because I can not imagine a n y set of facts broadly consistent with the current complaint that could sufficiently allege sta te action on the part of the defendants, Counts 1-12 and 22 will also be dismissed with p re ju d ic e . See, e.g., Thompson v. Eva's Village & Sheltering Program, No. 09-cv-1510, 2 0 0 9 WL 3486050, at *7 (D.N.J. Oct. 28, 2009). Count 13 will be dismissed with p re ju d ic e because plaintiffs would be unable to state an antitrust injury in an amended co m p lain t, and Count 15 must be dismissed with prejudice as pled against PNC and Rohr, g iv e n that those defendants may not be considered debt collectors with regard to the SBA lo a n . By contrast, Counts 14 and 23, and Count 15 insofar as it applies to Tucker and D o n a h e r, are being dismissed for pleading deficiencies that may potentially be remedied b y amendment of the complaint; those counts will accordingly be dismissed without p re ju d ic e . Plaintiffs will be afforded thirty (30) days in which to file an amended c o m p lain t, with the proviso that the complaint must, this time, strictly comply with Rule 8 (a )(2 )'s mandate that it include "a short and plain statement of the claim showing that th e pleader is entitled to relief." A n appropriate order accompanies this opinion.
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