FREIDMAN et al v. PHILADELPHIA PARKING AUTHORITY et al

Filing 22

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 5/14/15. 5/14/15 ENTERED AND COPIES EMAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

FREIDMAN, et al.
v.
PHILADELPHIA PARKING
AUTHORITY, et al.

: CIVIL ACTION
:
:
: NO. 14-6071
:
:
MEMORANDUM

KEARNEY, J.

MAY 14, 2015

The Fourteenth Amendment, as enforced by 42 U.S.C. §1983, guarantees citizens’ rights
to due process and equal protection of law. The First Amendment empowers citizens to freely
speak on matters of public importance without fear of retaliation by those acting under color of
state law. These protections, however, do not empower businesses to automatically transform
business priorities conflicting with regulatory oversight into property and liberty interests subject
to constitutional protection. Opening a taxi service with touted unique offerings to
Philadelphians four years ago, Plaintiffs allegedly faced regulatory scrutiny and delay in
expanding their business priorities orchestrated by the Philadelphia Parking Authority and two of
its senior officials. In the accompanying Order on Defendants’ motion, we dismiss Plaintiffs’
prolix recitation of alleged harms to their business priorities as depriving them of due process or
equal protection. At this preliminary stage, we find Plaintiffs’ specific litany of Defendants’
multiple actions allegedly retaliating against Plaintiffs’ public challenges and regulatory protests
of Defendants’ oversight of taxi service states a §1983 claim for First Amendment retaliation.
Plaintiffs do not state grounds for mandamus. Discovery into the First Amendment retaliation
claim, damages and possible Eleventh Amendment immunity will inform our further analysis.

I.

FACTS ALLEGED IN COMPLAINT
In 2011, Plaintiffs1 launched a taxi service to provide Philadelphians with unique

services, including wheelchair accessible vehicles (“WAV”) and “green” vehicles. (Complaint
at ¶50). Under its regulatory authority, Defendant Philadelphia Parking Authority (“PPA”)
issued numerous certificates of public convenience (“CPCs”) and accompanying medallions to
Plaintiffs. For reasons not pled, Defendant Milstein allegedly released Plaintiff Freidman’s
personal financial information to brokers who were unrelated to transfers of a CPC and
medallion, then accused Freidman of falsifying personal financial statements and other
documents. (Id.) Milstein made these statements in retaliation for the Plaintiffs’ decision to
contract with a broker not approved by Milstein. (Id. ¶57)

Plaintiffs then raised Milstein’s

allegedly retaliatory conduct to the Defendants PPA and Fenerty who may have hired a private
investigator to investigate Milstein’s comments.

Plaintiffs allege that PPA’s investigator

instead investigated Friedman’s qualifications to purchase medallions, and then withheld the
investigator’s report. (Id. ¶60) Plaintiffs claim PPA notified medallion buyers and sellers not to
do business with Plaintiffs because transfers with Plaintiffs took more time to complete.
Allegedly motivated by Plaintiffs’ decision to contract with an unfavored broker, Defendants

1

Plaintiffs Evgeny Freidman (“Freidman”) and Everett Abitbol (“Abitbol”) jointly own and
operate Plaintiff Philadelphia Taxi Management, LLC (“Philadelphia Taxi”) and Plaintiff
Freedom Taxi Association, LLC (“Freedom Taxi”). (Complaint at ¶7) Philadelphia Taxi is the
agent for numerous taxicab medallion owners in Philadelphia and represents owners in
proceedings before the PPA. (Id. ¶2) Freedom Taxi is authorized by the PPA to provide
dispatching services to taxicab medallion owners in Philadelphia. (Id. ¶4) Plaintiffs also sue
PPA’s Executive Director Vincent J. Fenerty, Jr. (“Fenerty”) and Charles Milstein (“Milstein”),
an assistant to James Ney, Director of PPA’s Taxicab and Limousine Division in both their
individual and official capacities. (Id. ¶¶14-16).

2

allegedly undertook a series of actions designed to hinder or impede Plaintiffs’ ability to operate
their taxi business in Philadelphia.
Application for dispatcher certificate [¶¶ 64-93]
Plaintiffs’ first claim, in chronological order, is Defendants delayed eight months in
approving their application for a dispatcher certificate. (Id. ¶¶ 64-93) In July 2011, Freedom
Taxi applied for a dispatcher certificate at the same time it filed a petition to convert medallion
cabs to WAVs or “green” vehicles. Freedom Taxi wanted to contract with a meter system
company known as Creative Mobile Technologies, LLC (“CMT”), and not PPA’s favorite
vendor. While their dispatcher application remained pending, Plaintiffs Friedman and Abitbol
made public statements about the lack of “green” and WAVs in Philadelphia and publicly
criticized PPA generally for their oversight. In less than four months, PPA “conditionally
approved” the dispatcher application and required Freedom Taxi to meet certain other
requirements within thirty (30) days. By December 2011, PPA approved Plaintiffs’ application
but only permitted Plaintiffs to provide dispatch services to “green” vehicles or WAVs.
Thereafter, Plaintiffs sought a waiver and by March 13, 2012, Freedom Taxi sought
reconsideration of the PPA’s Order denying in part and conditionally granting in part Freedom
Taxi’s waiver request. Thereafter, PPA advised Plaintiffs that its issues were moot. (Id. ¶85).
Plaintiffs allege that PPA’s delayed for eight (8) months in approving the application and
petition to retaliate against Freedom Taxi’s choice to use CMT rather than Verifone and for
Plaintiffs’ public statements critical of the PPA. (Id. ¶¶ 86-87).
Plaintiffs’ broker applications [¶¶ 94-108]
Approximately three (3) months after filing its reconsideration on the application for
dispatcher certificate, Plaintiffs Friedman and Abitbol filed broker applications with PPA to be

3

able to buy and sell taxi medallions. In September 2013, PPA conditionally approved Plaintiff
Abitbol’s broker application subject to him attending mandatory training. As learned at oral
argument, PPA then approved Friedman’s broker application during the pendency of this case.
Plaintiffs allegedly still need to satisfy additional PPA training requirements to obtain full
licensure, which they had not done as of oral argument.2 (Oral Arg. Tr., p. 29).
Plaintiffs purchase $30 million in taxi medallions [¶¶108-122]
Sometime in early 2013, Plaintiffs applied for the transfer of $30 million of medallions.
In May 2013, a third party, Germantown Cab Company (“Germantown Cab”) tried to file a
protest to the Plaintiffs’ transfer but did not pay the filing fee and PPA rejected its protest filing.
Germantown Cab filed an action in Commonwealth Court and during its pendency, PPA settled
with Germantown Cab allowing it to file a protest and waive its filing fee. Plaintiffs allege that
PPA’s settlement with Germantown Cab caused their $30 million transfer to be delayed.
Plaintiffs protest other medallion transfer applications and PPA allegedly retaliates
Plaintiffs then discovered PPA approved deficient transfer applications with incomplete
financial documentation, insufficient credit scores, unreleased liens, missing corporate
documents and insufficient business and financial plans. (Complaint at ¶125) Accordingly,
Plaintiffs believed they would be harmed if the PPA continued to approve these applications
without minimum requirements. As such, in October 2013, Freedom Taxi began protesting
medallion transfer applications that it believed to be deficient. (Id. at ¶129)
A large portion of Plaintiffs’ Complaint specifies a variety of PPA’s actions allegedly
taken solely against them to retaliate against their protesting alleged deficient transfer
Plaintiffs’ counsel represented these facts during oral argument. Plaintiffs also claims that PPA
unreasonably delayed a decision on Freedom Taxi’s request to provide advertising wrap on its
taxis, which was eventually approved seven (7) months after the application. It is unclear how
this delay ties into any particular claim.
2

4

applications. (Id. at ¶¶ 130–257).

These actions include a campaign to punish Plaintiffs by:

threatening Freedom Taxi vehicles with inspection delays and harder inspection processes;
issuing groundless citations for Freedom Taxi’s technology; harassing drivers regarding security
deposits; withholding key documents from Freedom Taxi in its inspection of the medallion
transfers; “embarrassing Friedman and Abitbol at hearings”; disparaging remarks about
Freedom Taxi at a board meeting; delaying ruling on a petition to amend the regulations;
threatening to sanction Freedom Taxi for protesting; blaming Plaintiffs for declining medallion
values in the industry; issuing a second round of citations for Freedom Taxi’s use of
technology; requesting protests of Plaintiffs’ medallions in the Pennsylvania Bulletin; actively
seeking to prevent Plaintiff Friedman from expanding his medallion ownership in Boston; and,
sending untruthful letters to hearing officers blaming Freedom Taxi after PPA’s denial of new
wheelchair accessible vehicle medallions.
II.

ANALYSIS
Plaintiffs seek damages, injunctive relief and mandamus claiming, under 42 U.S.C. §

1983, each Defendant: wrongly retaliated against Plaintiffs’ exercise of their First Amendment
rights of free speech and protest; violated each Plaintiff’s Fourteenth Amendment rights to
procedural and substantive due process and equal protection; and, failed to exercise statutory
duties warranting mandamus to compel compliance.

Defendants move to dismiss each of the

three claims.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim
satisfies the plausibility standard when the facts alleged “allow[] the court to draw the reasonable

5

inference that the defendant is liable for the misconduct alleged.” Burtch v. Millberg Factors,
Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) (citing Iqbal, 556 U.S. at 678). While the plausibility
standard is not “akin to a ‘probability requirement,’” there nevertheless must be more than a
“sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly,
550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant's
liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’”
Id. (quoting Twombly, 550 U.S. at 557).
We apply a three-step analysis when considering a 12(b)(6) motion: (1) identifying the
elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3)
looking at the well-pleaded components of the complaint and evaluating whether all of the
elements identified in part one of the inquiry are sufficiently alleged. Malleus v. George, 641
F.3d 560, 563 (3d Cir. 2011); Santiago v. Warminster Township, 629 F.3d 121, 130 (3d Cir.
2010) (quoting Iqbal, 556 U.S. at 675, 679) (footnote omitted).
A. Section 1983 Claims
Section 1983 does not create substantive rights, but provides “a remedy for the
deprivations of rights established elsewhere in the Constitution or federal laws.” Green v.
Chester Upland Sch. Dist., No. 14-3685, 2015 WL 409569, at *2 (E.D. Pa. 2015) (citing Kopec
v. Tate, 361 F.3d 772, 775-76 (3d Cir. 2004)). To survive a motion to dismiss a § 1983 claim,
plaintiffs must allege facts sufficient to show (1) violation of a right secured by the Constitution
or laws of the United States and (2) that the alleged deprivation was committed by a person

6

acting under color of state law. Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir.
2006).3
1. Plaintiffs state a §1983 claim for retaliatory response to their exercise of First
Amendment rights to speech and protest.
Plaintiffs first allege that the Defendants retaliated against them in a campaign of acts
designed to adversely affect their business in response to their exercise of First Amendment
rights to speech and for protesting the transfer of other medallions. We find Plaintiffs state a
claim at this preliminary stage, having alleged: (1) constitutionally protected speech, (2)
retaliatory action sufficient to deter a person of ordinary firmness from exercising his
constitutional rights, and (3) a causal link between the constitutionally protected conduct and the
retaliatory action. Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006).
Plaintiffs claim two activities give rise to a First Amendment retaliation claim. First, they
claim they made public statements critical of PPA for their oversight, and desiring to change the
taxicab industry in Philadelphia by introducing more “green” vehicles and WAVs. (Compl. ¶7475). Second, Plaintiffs claim they utilized available procedures to protest medallion transfer
applications between other taxi service providers. (Id. ¶129). Neither party contends that these
activities are not protected by the First Amendment.4

3

During oral argument, we questioned whether the PPA may avail itself of Eleventh
Amendment immunity in light of the Pennsylvania Supreme Court’s holding in Blount v.
Philadelphia Parking Auth., 965 A.2d 226 (Pa. 2009)(“We hold that the Philadelphia Parking
Authority is a Commonwealth agency for the purposes of regulating taxicabs.”) The parties did
not pursue this theory at this dismissal stage, and these arguments have not been briefed by the
parties. Defendants did not create a record at this preliminary stage and we reserve any ruling
until the parties address immunity.
4

Speech that is “constitutionally protected” under the First Amendment is that which takes place
when one speaks as a citizen about a matter of public concern, i.e., a matter of political, social or
other concern to the community at large, as opposed to a personal matter. See Garcetti v.
7

As for retaliation, Plaintiffs allege they were the subject of significant retaliatory acts by
PPA as a consequence of exercising their First Amendment rights, each of which is sufficient to
deter a person of ordinary firmness from exercising rights to free speech. Plaintiffs claim
Defendants: interfered with their medallion transfer applications (Compl. ¶¶52-63); delayed
approvals on their petition to convert vehicles to “green” vehicles or WAVs and their
dispatcher’s certificate application (Id. ¶64-87); created ‘hurdles’ for Plaintiff’s use of CMT
technology (Id. ¶¶88-91); changed requirements for assessing medallions and fee structure for
“green” vehicles and WAVs (Id. ¶¶92-93); delayed final decision on Abitbol’s and Freidman’s
broker applications (Id. ¶¶94-107); subjected Freedom Taxi vehicles to more arduous inspections
(Id. ¶¶132-133); issued citations to Freedom Taxi that Plaintiffs claim are groundless (Id. ¶¶140165); knowingly made publicly false statements about Freedom Taxi (Id. ¶¶193-206); and moved
to dismiss protests filed by Freedom Taxi but not against Freedom Taxi (Id. ¶¶232-234).
Plaintiffs allege that the retaliatory actions were intended to, and did affect their daily
operations and would be sufficient to deter a person of ordinary firmness from exercising
constitutional rights. Defendants contend that as a matter of law, their actions are “de
minimus,” would not deter a person of ordinary firmness from exercising his constitutional
rights, and further are not causally connected to any First Amendment speech by Plaintiffs.
These issues require analysis of the relevant facts not presently before the Court.

Ceballos, 547 U.S. 410 (2006). Based on our deference to the Complaint and as the parties do
not presently argue this point, we will reserve any ruling on constitutionally protected speech.

8

We do not opine whether PPA’s alleged conduct is appropriate.5 We only find the
Complaint sufficiently states a viable §1983 claim based on the abridgment of Plaintiffs’ First
Amendment rights so as to avoid dismissal now.
2. Plaintiff cannot state a claim for a violation of procedural or substantive due
process rights.
Procedural Due Process -Property interest
Plaintiffs’ claim that each Defendant violated their procedural due process rights under §
1983 must allege (1) deprivation of a protected property or liberty interest and (2) that the
procedures available did not provide due process of law. Hill v. Borough of Kutztown, 455 F.3d
at 233-34; Arneault v. O'Toole, 864 F. Supp. 2d 361, 395 (W.D. Pa. 2012) aff'd on other
grounds, 513 F. App'x 195 (3d Cir.2013). At oral argument, Plaintiffs clarified that their
property interest is the right to pursue their business free from government interference, and not
the application process itself.
Plaintiffs correctly state that ownership of taxi medallions is recognized as a property
right under state law. 53 Pa. C.S.A. §5713. Plaintiffs, however, do not allege any activity by
Defendants that interfered with ownership of these rights. At oral argument, Plaintiffs clarified
that their claimed protected property interest is the right to be free to pursue an occupation and
business without undue governmental interference, and their right to use their property for that
purpose. Plaintiffs allege Defendants’ actions affected business operations by, for example,
taking time to process applications, scrutinizing inspections and delaying approval of new
vehicles. These allegations, largely relating to a First Amendment retaliation claim, do not
5

“A defendant may defeat the claim of retaliation by showing that it would have taken the same
action even if the plaintiff had not engaged in the protected activity.” Lauren W. v. DeFlaminis,
480 F.3d 259, 267 (3d Cir.2007) (citing Ambrose, 303 F.3d at 493). These disputed facts will
likely be revisited at summary judgment.

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implicate Plaintiffs’ ownership rights in their medallions, or an ability to engage in their chosen
business.
“A property interest subject to protection by the due process clause results from a
‘legitimate claim of entitlement’ created by an independent source such as state law.” Midnight
Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667, 679 (3d Cir. 1991)(quoting Bd. of Regents v.
Roth, 408 U.S. 564, 577 (1972)). “To have a property interest in a benefit, a person clearly must
have more than an abstract need or desire for it. He must have more than a unilateral expectation
of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents v. Roth, 408
U.S. at 1972. Allegations that PPA delayed approval of certificates of public convenience or
scrutinized operations, while bothersome to Plaintiffs and possibly relevant for a First
Amendment retaliation claim, do not necessarily implicate their ownership of medallions.
Plaintiffs also do not direct us to any case holding there is a constitutional property right to
operate a taxi business entirely free from governmental regulation.
Procedural due process- Liberty interest
Plaintiffs further claim that their so-called liberty interest is the right to be free of
business disparagement allegedly engaged in by the Defendants. The United States Supreme
Court recognizes a constitutionally protected liberty interest in one's reputation only where the
injury to reputation is accompanied by alteration of one's legal status under state law. Paul v.
Davis, 424 U.S. 693, 708–09 (1976). Federal due process rights are implicated when stateoccasioned defamation is coupled with the deprivation of a “more tangible interest.” Hill v.
Borough of Kutztown, 455 F.3d 225, 236 (3d Cir.2006), citing Baraka v. McGreevey, 481 F.3d
187, 208 (3d Cir.2007). This is commonly referred to as the “stigma-plus” test. Hill, 455 F.3d at

10

236 (plaintiff asserting due process claim based on reputational harm “must show a stigma to his
reputation plus deprivation of some additional right or interest.)
To satisfy the first part of the “stigma-plus” test, Plaintiffs must allege that Defendants’
purportedly stigmatizing statements (1) were made publicly, and (2) were false. Hill, 455 F.3d at
236. Plaintiffs allege that PPA made false statements at board meetings, including statements
blaming Freedom Taxi for the lack of WAVs on the road (¶¶193-201); made false statements in
an email blaming Freedom Taxi for declining medallion values (¶240); questioned Abitbol’s and
Freidmans’s business practices and qualifications (¶¶54-56) and discouraged others from doing
business with Plaintiffs (¶¶53-63).
Even if the Complaint properly pleaded “stigma”, it fails to allege a sufficient “plus” to
state a constitutionally protected liberty interest under the stigma-plus test. See Arneault v.
O'Toole, 864 F. Supp. 2d 361, 396-97 (W.D. Pa. 2012) aff'd on other grounds, 513 F. App'x 195
(3d Cir.2013). Plaintiffs do not allege alteration of their legal status, in addition to alleged
stigmatizing statements. Plaintiffs have not been deprived of the right to engage in the taxicab
industry in Pennsylvania, nor do they so allege. Accordingly, there is no significant liberty
interest or “stigma-plus” deprivation at issue. See e.g. Burns v. Alexander, 776 F.Supp.2d 57
(W.D.Pa.2011).
Procedural due process - Available procedures
Even if Plaintiffs could identify a recognized property or liberty interest entitled to
protection, they must still must allege that the process afforded them was constitutionally
inadequate to avoid unlawful deprivation of those rights to state a procedural due process claim,
and they cannot. Hill, supra, 455 F.3d at 234; Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128,
138 (3d Cir.2010). A state affords requisite due process when it provides reasonable remedies to

11

rectify legal errors by an administrative body. MFS, Inc. v. DiLazaro, 771 F. Supp. 2d 382, 436
(E.D. Pa. 2011) aff'd, 476 F. App’x 282 (3d Cir. 2012), citing Cohen v. City of Philadelphia, 736
F.2d 81, 86 (3d Cir.1984), cert. denied, 469 U.S. 1019 (1984). Plaintiffs acknowledge that there
are statues and regulations establishing procedures to pursue grievances and protests, and they
even utilized these procedures to challenge PPA action. See e.g. 53 Pa.C.S. §5705(a), (d); 52
Pa.Code §1005.11. Procedural due process requires that parties be given a meaningful
opportunity to be heard; it does not provide unilateral entitlement to relief in the prompt time
frame desired by the petitioner. There is no plausible allegation that the taxicab regulations and
procedures are insufficient to provide meaningful opportunity to be heard.
Substantive Due Process
Plaintiffs also do not state a claim for violation of substantive due process. Government
action violates substantive due process when it deprives an individual of a property right through
conduct that “shocks the conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)
(“[T]he cognizable level of executive abuse of power is that which shocks the conscience.”);
United Artists Theatre Circuit v. Twp. of Warrington, 316 F.3d 392, 399-400 (3d Cir.2003);
Nicholas v. Pa. State Univ., 227 F.3d 133, 139-40 (3d Cir.2000). To prevail on a substantive due
process claim, Plaintiffs must first allege (1) a state actor engaged in conduct directed at
Plaintiffs, (2) the conduct deprived plaintiff of a protected property or liberty interest and (3) the
circumstances may be said to “shock the conscience.” Chainey v. Street, 523 F.3d 200, 219 (3d
Cir. 2008).
Substantive due process protects only those rights that are “‘fundamental’ under the
United States Constitution.” Nicholas, 227 F.3d at 140; see also Hill, 455 F.3d at 234 n.12. As a
threshold matter, Plaintiffs have not established interference with a fundamental interest to which

12

substantive due process protection applies. An injury to business reputation is not sufficient.
Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 399–404 (3d Cir.2000)
(“[D]efamatory statements that curtail a plaintiff's business opportunities do not suffice to
support a substantive due process claim.”) While the liberty to pursue a particular calling or
occupation is protected, Plaintiffs do not plausibly allege that Defendants’ conduct wholly
deprived them of the right to participate in their chosen profession -- taxi cab services. In fact,
Plaintiffs admittedly have continued in this business and occupation, further undermining any
claim of deprivation. See Arneault,864 F.Supp.2d at 402.
Plaintiffs also do not allege conduct or behavior by Defendants so egregious and
outrageous that it “may fairly be said to shock the contemporary conscience.” Burns, 776 F.
Supp. 2d at 92-93. Plaintiffs’ substantive due process claim, accordingly, fails.
3. Plaintiffs cannot state a claim for violation of its equal protection rights
under “class-of-one”.
The Equal Protection Clause states: “[n]o state shall ... deny to any person within its
jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. “[T]he purpose of
the equal protection clause of the Fourteenth Amendment is to secure every person within the
State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by
express terms of a statute or by its improper execution through duly constituted agents.” Village
of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (internal quotations and citations omitted).
The Supreme Court mandates the equal protection clause is “essentially a direction that all
persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr.
Inc., 473 U.S. 432, 439 (1985).
Plaintiffs do not claim they are within the protected classes recognized for purposes of
the equal protection clause, and instead to invoke the “class of one” theory announced in Village

13

of Willowbrook. To state a claim under this theory, a plaintiff must allege (1) the defendant
treated him differently from others similarly situated, (2) the defendant did so intentionally, and
(3) there was no rational basis for the difference in treatment. Village of Willowbrook, 528 U.S.
at 564; Hill, 455 F.3d at 239; Pressley v. Pa Dep’t of Corrs., 365 F.App’x 329, 331-32 (3d Cir.
2010).
To be “similarly situated,” parties must be “alike in all relevant aspects.” Startzell v. City
of Philadelphia, 533 F.3d 183, 203 (3d Cir.2008) (internal quotation marks omitted). To defeat a
motion to dismiss, Plaintiffs must plausibly allege the existence of similarly situated individuals
whom Defendants treated differently, including specific factual allegations describing them.
Perano v. Twp of Tilden, 423 F.App’x 234, 238 (3d Cir. 2011). Where a complaint fails to
identify similarly situated parties with the requisite specificity, the class of one claim will fail.
Id.; see also Levenstein v. Salafsky, 414 F.3d 767, 776 (7th Cir. 2005).
Plaintiffs do not plead specific facts regarding existence of similarly situated parties.
Accordingly, they have not “made plausible the conclusions that those parties exist and that they
are like him in all relevant respects.” Perano, 423 F. App’x at 238-39. To the contrary, the
theme of Plaintiffs’ claims is they are treated differently because they are different than the taxi
status quo in Philadelphia and challenge the Defendants’ present decision matrix and authority.
Plaintiffs allege they were decidedly unlike other applicants, maintaining throughout the
Complaint they are unique and distinguishable from other taxi operators in many respects.6 As
Plaintiffs have not plausibly established they were intentionally treated differently from other
similarly situated parties, their equal protection claim is dismissed.
6

For example, Plaintiffs claim they are the only ones to seek WAVs and “green” vehicles, and
the only ones to contract with another meter entity. Plaintiffs admittedly are not ‘similarly
situated in all relevant respects’ to other taxi cab operators such that could give rise to an equal
protection claim.
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B. Personal involvement by Defendants Millstein and Fenerty
For their § 1983 claim to survive a motion to dismiss, Plaintiffs must allege “each and
every defendant was personally involved in depriving him of his rights.” Kirk v. Roan, No. 041990, 2006 WL 2645154, at *3 (M.D.Pa. Sept.14, 2006); see also Evancho v. Fisher, 423 F.3d
347, 353 (3d Cir.2005)(“A defendant in a civil rights action must have personal involvement in
the alleged wrongdoing.”). A defendant's personal involvement in a constitutional violation may
be established by alleging “personal direction or of actual knowledge and acquiescence.”
Evancho, 423 F.3d at 353; see also Andrews v. City of Phila., 895 F.2d 1469, 1478 (3d
Cir.1990).
Plaintiffs adequately allege personal involvement by Defendants Milstein and Fenerty,
sufficient to hold PPA liable under §1983. Plaintiffs allege Defendants Milstein and Fenerty
represent the actions and policy of PPA, and Milstein is directing several of the retaliatory acts.
(Compl., ¶¶ 15-16, 53-58, 62-63, 103-105). Defendants dispute these allegations, but must
develop a factual record.

Based on the sufficiency of Plaintiffs’ allegations, the Court denies

Defendants’ motion to dismiss any Defendant on the First Amendment retaliation claim at this
stage.
C. Plaintiffs do not state facts warranting Mandamus.
Our jurisdiction to entertain Plaintiffs’ petition for a writ of mandamus derives from 28
U.S.C. §1651, which grants us the power to “issue all writs necessary or appropriate in aid of
(our) ... jurisdiction and agreeable to the usages and principles of law.” This is an extreme
remedy that is granted only in extraordinary situations. Kerr v. U. S. Dist. Court for N. Dist. of
California, 426 U.S. 394, 402 (1976). To justify this extraordinary remedy, a petitioner must
show both a clear and indisputable right to the writ and that he has no other adequate means to
obtain the relief desired. In re Cook, 589 F. App'x 44, 45 (3d Cir. 2014); see also Haines v.
15

Liggett Group Inc., 975 F.2d 81, 89 (3d Cir.1992); Larsen v. State Employees Retirement System,
553 F.Supp.2d 403, 426 (M.D. Pa. 2008). “If any one of the foregoing elements is absent,
mandamus does not lie.” Larsen, 553 F. Supp. 2d at 426. Neither is present in this case.7
Plaintiffs have no “clear legal right” to either a broker application or to amend PPA
regulations. The PPA also has no “mandatory duty” to award Plaintiffs their requested relief, nor
do Plaintiffs allege so.

Relevant governing regulations state that the requested acts are

discretionary, and the Court declines to interfere with Defendants’ discretion to process
applications in accordance with their own sound judgment. Finally, as Defendants correctly
point out, Plaintiffs are not without a remedy to seek relief from the PPA under governing
regulations. See e.g. 52 Pa. Code §1005.22. Plaintiffs’ request for Writ of Mandamus is denied.
III.

CONCLUSION
Notwithstanding the pleading of facts unrelated to a constitutional claim, the gravamen of

Plaintiffs’ claim is PPA and its decision makers retaliated against them for exercising their First
Amendment rights to publicly challenge the management of the taxicab business in Philadelphia,
including in matters of access for handicapped persons and environmentally friendly vehicles.
On this preliminary record, we find Plaintiffs sufficiently plead a §1983 claim against all
Defendants for retaliating against Plaintiffs’ exercise of their First Amendment rights. Plaintiffs
do not state §1983 claims for deprivation of their constitutional rights to procedural or
substantive due process or equal protection. Plaintiffs also do not allege sufficient facts to
warrant mandamus relief.

7

During oral argument, Plaintiffs informed the Court that PPA granted conditional approval to
Plaintiffs Abitbol and Freidman’s broker applications, subject their completion of training
sessions, and has already ruled on Plaintiffs’ petition seeking to amend regulations. This renders
Plaintiffs’ requests for mandamus moot.

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