BLESSING AUTO REPAIR, INC et al v. PENNSYLVANIA STATE POLICE et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. CURTIS JOYNER ON 7/14/2021. 7/14/2021 ENTERED AND COPIES E-MAILED.(sg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BLESSING AUTO REPAIR, INC. and
MARCDER M. GUERRIER,
PENNYSYLVANIA STATE POLICE,
ANDREW AVDULLA a/k/a ANDI I.
AVDULLA and THE PHILADELPHIA
July 14, 2021
Pennsylvania State Police and Trooper Andrew Avdulla,
collectively “Commonwealth Defendants”, move to dismiss
Plaintiffs’ Amended Complaint under Fed. R. Civ. P. 12(b)(6) for
failure to state a claim and Fed. R. Civ. P. 12(b)(1) for lack
of subject matter jurisdiction. We grant in part and deny in
part Commonwealth Defendants’ Motion to Dismiss.
According to the allegations set forth in the complaint, on
May 3, 2019, Pennsylvania State Trooper Avdulla entered the
property of Blessing Auto Repair, Inc. and informed Mr. Marcder
Guerrier, president of Blessing Auto Repair, that his vehicle
was being confiscated as part of an investigation. Pls.’ Am.
Compl., Doc. No. 10, at 1-2. The Pennsylvania State Police towed
Mr. Guerrier’s vehicle from Blessing Auto Repair’s property and
turned it over to the Philadelphia Parking Authority. Id. at 3.
That same day, Mr. Guerrier paid the $175.00 towing charge
but was advised that his vehicle could not be released. Id. Mr.
Guerrier alleges that he returned to the impoundment lot at
least two more times requesting that his vehicle be released to
him but was denied each time. Id. Mr. Guerrier then learned that
the Philadelphia Parking Authority sold his vehicle in an
auction. Id. He alleges that he received no notice of the
auction and that he did not receive proceeds from the sale. Id.
Plaintiffs Mr. Guerrier and Blessing Auto Repair brought
this civil action against Philadelphia Parking Authority,
Pennsylvania State Police, and Trooper Avdulla. Id. at 1-2. The
action was initially filed in state court, but Defendant
Philadelphia Parking Authority removed the action to federal
court on December 31, 2020 and filed a Notice of Removal on
January 4, 2021. Defs.’ Mot. to Dismiss, Doc. No. 13, at 3;
Pls.’ Resp. in Opp’n, Doc. No. 17, at 6. On January 7, 2021,
Commonwealth Defendants acknowledged the removal and requested
Waivers of Service from Plaintiffs. Pls.’ Am. Compl., Doc. No.
10, at 6.
Plaintiffs brought the following claims against all three
Defendants in an amended complaint: conversion under state law
(Count 1); violation of 42 U.S.C. § 1983 (Count 2); civil
conspiracy (Count 3); Fourth Amendment violation (Count 4);
Fifth Amendment violation (Count 5); Eighth Amendment violation
(Count 6); trespass under state law (count 7); and a claim for
punitive damages (Count 8). Defs.’ Mot. to Dismiss, Doc. No. 13,
at 3; Pls.’ Am. Compl., Doc. No. 10, at 10-12. Commonwealth
Defendants move to dismiss all claims under Fed. R. Civ. P.
12(b)(6) for failure to state a claim and move to dismiss Counts
2 through 6 under Fed. R. Civ. P. 12(b)(1) for lack of subject
matter jurisdiction. Defs.’ Mot. to Dismiss, Doc. No. 13, at 2.
Plaintiffs filed a Motion to Strike (Doc. No. 16) Commonwealth
Defendants’ Motion to Dismiss, and contemporaneously filed a
response in opposition. Pls.’ Resp. in Opp’n, Doc. No. 17.
Standard of Review
A Motion to Dismiss under Fed. R. Civ. P. 12(b)(6) requests
the Court dismiss claims that fail to assert a basis upon which
relief can be granted. Fed. R. Civ. P. 12(b)(6); Ashcroft v.
Iqbal, 556 U.S. 698, 678 (2009). To survive a Rule 12(b)(6)
Motion to Dismiss, a plaintiff’s complaint must contain
sufficient factual matter to “state a claim to relief that is
plausible on its face.” Id. (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). The Court accepts all well-pleaded
allegations as true, viewing them in the light most favorable to
the Plaintiff. See Id. at 679. However, legal conclusions must
be supported by sufficient factual allegations. Id. at 678-79.
A motion to dismiss under Fed. R. Civ. P. 12(b)(1) for lack
of subject matter jurisdiction filed prior to an answer is a
“facial challenge to jurisdiction.” Cardio-Med. Assocs. v.
Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983). A
court can dismiss a claim under a Rule 12(b)(1) motion if the
facts alleged are not sufficient to invoke jurisdiction on the
face of the complaint. Id.
Commonwealth Defendants Waived Their Eleventh Amendment
Commonwealth Defendants assert in their Motion to Dismiss
that this Court lacks subject matter jurisdiction over all
federal claims because the Pennsylvania State Police and Trooper
Avdulla in his official capacity benefit from Eleventh Amendment
sovereign immunity. Defs.’ Mot. to Dismiss, Doc. No. 13, at 7-9.
Plaintiffs assert that Commonwealth Defendants waived their
Eleventh Amendment sovereign immunity when Defendant
Philadelphia Parking Authority removed the case to federal court
and Commonwealth Defendants consented, therefore establishing
federal jurisdiction by consenting to litigate in a federal
forum. Pls.’ Resp. in Opp’n, Doc. No. 17, at 6.
The Eleventh Amendment grants states and state actors
sovereign immunity from private litigation in federal court.
Lapids v. Bd. of Regents, 535 U.S. 613, 616 (2002) (citing Hans
v. Louisiana, 134 U.S. 1 (1890)); Atkin v. Johnson, 432 F.
App’x. 47, 48 (3d Cir. 2011) (finding a Pennsylvania State
Trooper sued in his official capacity qualified for Eleventh
Amendment immunity). However, if a State removes an action from
state court to federal court, they voluntarily agree to litigate
in a federal forum and waive their immunity. Lapids, 535 U.S. at
623-25 (finding that a State who joins the removal of a case to
federal court voluntarily invokes federal jurisdiction
sufficient to waive their Eleventh Amendment sovereign immunity
to litigate state law claims). It would be inconsistent and
produce unfair results if a State could both invoke federal
jurisdiction by consenting to removal and claim Eleventh
Amendment immunity. Id. at 619. While the Supreme Court in
Lapids limited its holding to state law claims, the Third
Circuit decided to follow the Ninth and Tenth Circuits to find
that a State can waive Eleventh Amendment sovereign immunity for
both state and federal law claims when removing the case to
federal court. Lombardo v. Pennsylvania, 540 F.3d 190, 197 (3d
Here, Commonwealth Defendants waived their immunity under
the Eleventh Amendment when consenting to remove federal and
state law claims to federal court. Defendant Philadelphia
Parking Authority filed a Notice of Removal on January 4, 2021.
Pls.’ Resp. in Opp’n, Doc. No. 17, at 6. On January 7, 2021,
Commonwealth Defendants acknowledged this removal by requesting
Waivers of Service from Plaintiffs. Id. Commonwealth Defendants
assert in their Motion to Dismiss that they do not consent to
litigate in federal court. Defs.’ Mot. to Dismiss, Doc. No. 13,
at 8. However, there is no indication that they objected to the
removal. Therefore, because Commonwealth Defendants consented to
removing the case to federal court, they consented to federal
jurisdiction, waiving Eleventh Amendment immunity for federal
and state law claims. We deny Commonwealth Defendants’ motion to
dismiss for lack of subject matter jurisdiction due to Eleventh
Amendment immunity for all federal claims.
Federal Law Claims
Commonwealth Defendants also move to dismiss Plaintiffs’
federal claims under Counts 2 through 6 for failure to state
claims which relief can be granted. Defs.’ Mot. to Dismiss, Doc.
No. 13, at 9.
A. Count 2
Under Count 2, Plaintiffs claim Defendants violated 42
U.S.C. § 1983. Pls.’ Am. Comp., Doc. No. 10, at 3-5.
Commonwealth Defendants assert that a Section 1983 claim cannot
be brought independently from the other Constitutional
violations because Section 1983 is not an independent cause of
action. Defs.’ Mot. to Dismiss, Doc. No. 13, at 8-9. Plaintiffs
respond asserting that claiming a violation of Section 1983 in a
separate count is “more a matter of style than substance,” and
argue that dismissing Count 2 would be inappropriate without
granting leave to amend the Complaint because it would be
construed as Plaintiffs failing to raise Section 1983 claims at
all. Pls.’ Resp. in Opp’n, Doc. No. 17, at 9. Plaintiffs also
argue that the Section 1983 claim provides clear violations of
numerous provisions of the Constitution including Fourth,
Eighth, Fourteenth Amendment violations and violations of
Article 1 and 26 of the Pennsylvania Constitution. Id.
Plaintiffs concede that they did not specifically reference
violations of Article 1 and 26 of the Pennsylvania Constitution
and a Fourteenth Amendment violation claim in their amended
complaint, however, now seek leave to amend to specifically
raise these claims under new counts. Id. at 10.
Section 1983 “is not itself a source of substantive rights,
[but rather] a method for vindicating federal rights elsewhere
conferred.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). A
successful Section 1983 claim must identify “the precise
constitutional violation with which [the defendant] is charged.”
Id. at 140. Courts dismiss Section 1983 claims that fail to
allege that a specific federal right was violated. E.g., Id. at
146-47 (holding that a respondent was not deprived of any rights
secured under the Constitution and therefore has no cognizable
claim under Section 1983); Beauchamp v. Chichester Sch. Dist.,
No. 05-4141, 2005 U.S. Dist. LEXIS 28677, at *8-9 (E.D. Pa. Nov.
17, 2005)(granting a motion to dismiss by reasoning that
plaintiffs failed to state a claim under Section 1983 because
they did not allege a federal right of which they were
Here, Plaintiffs failed to bring a Section 1983 claim under
Count 2. Plaintiffs presented sufficient facts to establish a
Constitutional violation by asserting Defendants were performing
under the color of state and local law, and that Plaintiffs
suffered the loss of his vehicle and unlawful entry onto his
property. Pls.’ Am. Comp., Doc. No. 10, at 3-4. However,
Plaintiffs failed to assert a “precise constitutional violation”
under Count 2. Baker, 443 U.S. at 140; Beauchamp, No. 05-4141,
2005 U.S. Dist. LEXIS 28677, at *8-9. For that reason, we
dismiss Count 2 for failing sufficiently state a Section 1983
D. Count 3
Under Count 3, Plaintiffs bring a civil conspiracy claim
against all Defendants. Pls.’ Am. Comp., Doc. No. 10, at 5.
Commonwealth Defendants argue this claim should be dismissed for
failing to make allegations showing a conspiratorial agreement
between Defendants to deprive Plaintiffs of their civil rights.
Defs.’ Mot. to Dismiss, Doc. No. 13, at 13. Plaintiffs responded
by asserting the amended complaint provides sufficient facts and
allegations at this pre-discovery stage to “infer a conscious
intent to sell the vehicle without following appropriate
procedures” for the purpose of a conspiracy to sell the vehicle
without required notice. Pls.’ Resp. in Opp’n, Doc. No. 17, at
For a successful civil conspiracy claim, a plaintiff must
establish the existence of an agreement to deprive the plaintiff
of a constitutional right and assert that the conspirators acted
under the color of state law. LeBlanc v. Stedman, No. 10-5215,
2011 U.S. Dist. LEXIS 80093, at *10-11 (E.D. Pa. July 21, 2011)
(dismissing a civil conspiracy claim because the plaintiff
failed to present facts from which the court could infer the
defendants entered into an agreement and a “bare assertion that
defendants ‘acted in concert’” was not sufficient). A plaintiff
must present sufficient facts from which the court can infer a
conspiratorial agreement or “meeting of the minds” to violate
the plaintiff’s constitutional rights. Great W. Mining & Min.
Co. v. Fox Rothschild LLP, 615 F.3d 159, 179 (3d Cir. 2010)
(reasoning the plaintiff failed to allege, except in general
terms, the specifics of the alleged conspiracy to establish a
sufficient factual allegation to create plausible grounds to
infer an agreement under Twombly, 550 U.S. at 556).
Here, Plaintiffs failed to allege sufficient facts that
allow the Court to infer a conspiratorial agreement existed
between Defendants to violate Plaintiffs’ rights. Plaintiffs
claim that Defendants conspired to confiscate Mr. Guerrier’s
vehicle “without legal cause or justification...without notice,”
and “with malice and or reckless disregard” for their rights is
conclusory. Pls.’ Am. Comp., Doc. No. 10, at 5. Under Twombly,
legal conclusions are not accepted as true and must be supported
with factual allegations. 550 U.S. at 678-79. While Plaintiffs
incorporate various factual allegations by reference in their
amended complaint under Count 3, the facts plead are not
sufficient for the Court to infer a meeting of the minds between
Defendants to violate Plaintiffs’ constitutional rights. In
Plaintiffs’ Response, they assert there is a clear inference
that Trooper Avdulla confiscated the vehicle for an improper
purpose and that Philadelphia Parking Authority was aware or
consciously avoided inquiring about the legal cause for
retention, and thus the Court can infer Trooper Avdulla and
Philadelphia Parking Authority “effected the purpose of the
conspiracy through the sale of the vehicle without the benefit
to Plaintiffs of the required subsequent notice.” Pls.’ Resp. in
Opp’n, Doc. No. 17, at 13. While it is certainly possible that
Defendants may have conspired to confiscate and sell Mr.
Guerrier’s vehicle, the facts alleged on the face of Plaintiffs’
amended complaint do not meet the required plausibility standard
under Twombly for the Court to infer a conspiratorial agreement
to unlawfully deprive and sell Mr. Guerrier’s vehicle.
Therefore, we dismiss Count 3 for failure to state a claim.
B. Count 4
Under Count 4, Plaintiffs claim all Defendants violated
their Fourth Amendment protection against unreasonable searches
and seizures when seizing Mr. Guerrier’s vehicle without
justification. Pls.’ Am. Comp., Doc. No. 10, at 6. The
Philadelphia Parking Authority Moved to dismiss this claim in a
separate motion asserting the claim was inappropriately asserted
towards them because Commonwealth Defendants directed the
seizure of the vehicle. Defs.’ Mot. to Dismiss, Doc. No. 11, at
10-11. Commonwealth Defendants did not address this claim in
their Motion to Dismiss apart from claiming they are immune from
all federal claims under Eleventh Amendment sovereign immunity.
Defs.’ Mot. to Dismiss, Doc. No. 13, at 7-9. Plaintiffs also did
not address this claim in their Response (Doc. No. 17).
Therefore, we do not dismiss Count 4 because Commonwealth
Defendants do not move to dismiss this claim apart from claiming
C. Count 5
Plaintiffs concede in their response (Doc. No. 17) that
Count 5 for violation of the Fifth Amendment does not apply to
Commonwealth Defendants because they are state actors. Pls.’
Resp. in Opp’n, Doc. No. 17, at 10. Therefore, we do not need to
examine Count 5, and the Plaintiffs’ Fifth Amendment violation
claim should be dismissed.
Plaintiffs seek leave to amend to include a claim for
violation of Pa. Const. Art. 1 § 9 which provides that for
criminal proceedings no person can “be deprived of his life,
liberty, or property, unless by judgment of his peers or the law
of the land.” Id. We grant Plaintiffs’ request for leave to
amend the complaint to include a claim for violation of Pa.
Const. Art. 1 § 9.
E. Count 6
Under Count 6, Plaintiffs claim all Defendants violated the
Eighth Amendment when confiscating and selling Mr. Guerrier’s
vehicle without any judgment or fines levied against him. Pls.’
Am. Comp., Doc. No. 10, at 8. Commonwealth Defendants argue the
amended complaint failed to allege specific actions taken by
Commonwealth Defendants to sell the vehicle and the allegations
under Count 8 which relate to the sale and proceeds from the
sale instead relate to actions taken by Philadelphia Parking
Authority. Defs.’ Mot. to Dismiss, Doc. No. 13, at 12.
Plaintiffs respond by asserting the amended complaint provides
sufficient facts at the pre-discovery stage for this claim
against Commonwealth Defendants. Pls.’ Resp. in Opp’n, Doc. No.
17, at 12.
A Plaintiff must allege facts that indicate a specific
defendant and their personal involvement to be liable under a
Section 1983 claim for a civil rights violation. Iqbal, 556 U.S.
at 676; Pettus v. City of Phila., No. 11-1575, 2011 U.S. Dist.
LEXIS 87525, at *4 (E.D. Pa. Aug. 5, 2011) (reasoning that
alleging “‘all’ defendants acted together for a common purpose
is not sufficient” to put defendants on notice of the alleged
unlawful conduct). Also, Courts find that towing and impounding
a vehicle does not amount in an Eighth Amendment violation.
Barrett v. City of Allentown, 152 F.R.D. 50 (E.D. Pa. 1993)
(dismissing an Eighth Amendment violation claim for failing to
specify which Defendants were accused and reasoning that towing
a vehicle does not amount to cruel or unusual punishment);
Berger v. Phila. Parking Auth., 413 F. Supp. 3d. 412, 420-21
(E.D. Pa. 2019) (reasoning the impoundment and sale of the
plaintiff’s vehicle due to unpaid parking tickets was not
excessive and did not violate the Eighth Amendment).
Here, Plaintiffs do not specify which Defendants are
brought under Count 6 and therefore incorporates all Defendants.
Pls.’ Am. Comp., Doc. No. 10, at 8. However, Plaintiffs do claim
that both the confiscation and sale of the vehicle constitutes
excessive fines and cruel and unusual punishment under the
Eighth Amendment. Id. By incorporating previously alleged facts
by reference, Plaintiffs allege that Trooper Avdulla and the
Pennsylvania State Police confiscated Mr. Guerrier’s vehicle and
concede Trooper Avdulla informed him it was for an
investigation. Id. at 2. Nevertheless, the Plaintiffs do not
sufficiently explain how Trooper Avdulla seizing Mr. Guerrier’s
vehicle violates the Eighth Amendment. See Sun Jung Yun v. New
Jersey, No. 18-17283 2019 U.S. Dist. LEXIS 32084, at *10 (D.N.J.
Feb. 28, 2019) (dismissing a plaintiff’s Eighth Amendment claim
that a New Jersey police officer imposed excessive fines when
impounding her vehicle because she failed to allege that the
costs she incurred were imposed as punishment); Barrett, 152
F.R.D. at 55 (“the towing of an automobile hardly constitutes
cruel and unusual punishment”). Therefore, we dismiss Count 6
for failing to sufficiently state an Eighth Amendment claim
against Commonwealth Defendants.
Commonwealth Defendants Did Not Waive State Sovereign Immunity
for State Law Claims under 1 Pa. Cons. Stat. § 2310.
Plaintiffs bring a state law conversion claim under Count 1
against all Defendants and a state trespass claim under Count 7
against Trooper Avdulla and Philadelphia Parking Authority.
Pls.’ Am. Comp., Doc. No. 10, at 2, 9. Commonwealth Defendants
move to dismiss both state law claims due to their sovereign
immunity under 1 Pa. Cons. Stat. § 2310 and argue no exceptions
to immunity apply. Defs.’ Mot. to Dismiss, Doc. No. 13, at 14,
16. Plaintiffs assert in their response that Commonwealth
Defendants may be liable under exceptions to immunity found in
title 42 of the Sovereign Immunity Act, specifically the
negligence and personal property exceptions. 42 Pa. Cons. Stat.
§ 8522(b); Pls.’ Resp. in Opp’n, Doc. No. 17, at 14.
Sovereign Immunity is a “dual concept” that includes
Eleventh Amendment sovereign immunity and immunity from
liability created by State law. Lewis v. Mainer, No. 16-CV-1674,
2016 U.S. Dist. LEXIS 195625, at *9-10 (E.D. Pa. Aug. 23, 2016)
(citing Lombardo, 540 F.3d at 198-200). Under Lapids, when a
State waives Eleventh Amendment sovereign immunity through
removal to federal court, they retain their state sovereign
immunity. Id. The Commonwealth has state sovereign immunity
under 1 Pa. Cons. Stat. § 2310. Exceptions to this immunity can
include “damages arising out of a negligent act where the
damages would be recoverable. . .if the injury were caused by a
person not having available the defense of sovereign immunity,”
or the “care, custody, and control of personal property in the
possession or control of Commonwealth parties.” 42 Pa. Cons.
Stat. § 8522; Lewis, No. 16-CV-1674, 2016 U.S. Dist. LEXIS
195625, at *9-10. Pennsylvania courts hold that “the personal
property exception may only be applied to those cases where the
property itself is alleged to cause the injury” rather than the
Commonwealth’s conduct. E.g., Urella v. Pa. State Troopers
Ass’n, 628 F. Supp. 2d. 600, 606 (E.D. Pa. 2008) (citing
Sugalski v. Commonwealth, 131 Pa. Commw. 173 (Pa. Commw. 1990)).
Here, Plaintiffs argue in their response that Commonwealth
Defendants’ immunity may be waived through exceptions such as
committing a negligent act and the control and possession of
personal property. Pls.’ Resp. in Opp’n, Doc. No. 17, at 14-15.
Plaintiffs did not sufficiently allege in their amended
complaint that Commonwealth Defendants acted negligently when
committing trespass and conversion of Plaintiffs’ property.
While Plaintiffs argue in their response that they did not
intend to exclude the possibility that Defendants were
negligent, the complaint alleges Commonwealth Defendants acted
intentionally when trespassing by claiming Trooper Avdulla acted
“with malice and or reckless indifference” when entering
Plaintiffs’ property, confiscating the vehicle, and delivering
it to the Philadelphia Parking Authority. Pls.’ Am. Comp., Doc.
No. 10, at 9. Further, while Plaintiffs claim that Defendants
were “either willful or negligent” under Count 1 for conversion,
simply stating Defendants may have acted negligently is not
sufficient to plead a negligent act. Id. at 2-3. Additionally,
the personal property exception to immunity does not apply here
because Plaintiffs, rather than claiming Mr. Guerrier’s vehicle
is the cause of their injuries, are claiming Commonwealth
Defendants’ actions caused the alleged trespass and conversion.
Urella, 628 F. Supp. 2d. at 606. Therefore, the exceptions to
the Commonwealth’s Sovereign Immunity do not apply and we
dismiss Count 1 and Count 7.
Motion to Strike
Plaintiffs assert in their response and contemporaneously
file a Motion to Strike Commonwealth Defendants’ Motion to
Dismiss for containing a single unnumbered paragraph referencing
the attached Memorandum of Law containing Commonwealth
Defendants’ request for relief, citing Fed. R. Civ. P. 7(b)(2)
and 10(b). Pls.’ Resp. in Opp’n, Doc. No. 17, at 15-16; Pls.’
Mot. to Strike, Doc. No. 16. We deny Plaintiffs’ Motion to
Motions to strike under Fed. R. Civ. P. 12(f) “[strike]
pleadings not dispositive motions.” Bond v. ATSI/Jacksonville
Job Corps Ctr., 811 F. Supp 2d 417, 421 (D.D.C. 2011) (denying a
motion to strike because “federal rules only provide for
striking pleadings, not dispositive motions”). A motion to
dismiss is not a pleading, therefore a motion to strike a motion
to dismiss would be inappropriate. See Id.; Personacare of
Reading, Inc. v. Lengel, No. 16-1965, 2017 U.S. Dist. LEXIS
38519, at *6 (E.D. Pa. Mar. 17, 2017) (denying a plaintiff’s
motion to strike a defendant’s motion to compel because “a
motion is not a pleading”). Moreover, courts disfavor motions to
strike unless the allegations are unrelated to the claims,
confuse the issues in the case, or may prejudice the other
party. E.g., AJ v. Lancaster Cnty., No. 5:19-cv-01768, 2019 U.S.
Dist. LEXIS 177012, at *6 (E.D. Pa. Oct. 11, 2009) (citing River
Rd. Dev. Corp. v. Carlson Corp., No. 89-7037, 1990 U.S. Dist.
LEXIS 6201, at *3 (E.D. Pa. May 23, 1990)); Papacoda v. A.I.
Dupont Hosp. for Child. of the Nemours Found., No. 05-cv-3003,
2006 U.S. Dist. LEXIS 43425, at *19 (E.D. Pa. June 26, 2006)
(citing McInerney v. Moyer Lumber & Hardware, Inc., 244 F. Supp.
2d 393, 402 (E.D. Pa. 2002) to reason that motions to strike are
disfavored and the moving party must show how they will be
prejudiced if the allegations remain).
Here, Plaintiffs assert that Commonwealth Defendants’
Motion is inappropriately formatted by failing to state claims
in numbered paragraphs as required for pleadings under Fed. R.
Civ. P. 10(b). Pls.’ Resp. in Opp’n, Doc. No. 17, at 15-16. They
explain that under Fed. R. Civ. P. 7(b)(2), the rules governing
matters of forms in pleadings under Rule 10(b) also apply to
motions. Id. at 16. However, Plaintiffs’ Motion to Strike
Commonwealth Defendants’ Motion to Dismiss (Doc. No. 13) is not
appropriate because a motion to dismiss is not a pleading. See
Personacare of Reading, Inc., No. 16-1965, 2017 U.S. Dist. LEXIS
38519, at *6. Further, even if it were appropriate to strike the
Commonwealth Defendants’ Motion, the Motion did not prejudice
Plaintiffs considering that they successfully filed a Response
in Opposition (Doc. No. 17). Therefore, we deny Plaintiffs’
Motion to Strike.
We grant Commonwealth Defendants’ Motion to Dismiss in part
and dismiss Counts 1, 2, 3, 5, 6, and 7 of the Amended
Complaint. Plaintiffs failed to state claims under Section 1983,
Fifth Amendment, Eighth Amendment, and civil conspiracy claims,
and lack jurisdiction for their trespass and conversion claims.
Additionally, in the interest of justice we grant Plaintiffs’
request for leave to amend their complaint to include claims
under Pa. Const. Art. 1, Pa. Const. Art. 1 § 9, Pa. Const. Art.
26, and the Fourteenth Amendment.
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