Gross v. R.T. Reynolds, Inc. et al
MEMORANDUM AND ORDER, ORDER DISMISSING CASE, Motions terminated - IT IS HEREBY ORDERED that: 1) Defendants' motion to dismiss (Doc Nos. 36 & 48) are GRANTED, the Court having declined to exercise supplemental jurisdiction over plaintiff's b reach of contract claim asserted in Count Two of the Amended Complaint. 2) Defendants' motion to dismiss (Doc. 38) is DISMISSED as moot. 3) The Clerk of Court is directed to mark this case CLOSED. See Order for further details. Signed by Honorable Lawrence F. Stengel on 9/22/11. (Attachments: # 1 Order)(aaa)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
R.T. REYNOLDS, et al,
September 22, 2011
Martin Gross brings this action as an individual and doing business as “The Art I
Do” and alleges numerous civil rights violations in connection with his subcontractor
work on a construction project at the Harrisburg University of Science and Technology
(“Harrisburg University”). The remaining named defendants in this action are R.T.
Reynolds, Inc. (“Reynolds”), the general contractor on the project; its officers or
employees Ike Sholley, Wayne Spahr, Ron Whisker, Todd Buzard, and Dave Angle
(referred to collectively as “the individual Reynolds defendants”); Harrisburg University
and its President Eric Darr; Dellanor Young; and Graystone Bank. Mr. Gross alleges
civil rights violations against all the defendants and claims Reynolds is liable for breach
of subcontract. After all named defendants filed a motion to dismiss his original
complaint, Mr. Gross filed an amended complaint and all the defendants thereafter filed
motions to dismiss the amended complaint. For the following reasons, I will grant the
defendants‟ motions to dismiss Mr. Gross‟ § 1981 and § 1983 claims and I will decline to
exercise supplemental jurisdiction over Mr. Gross‟ state law breach of contract claim
Reynolds was the general contractor on a building construction project that took
place at Harrisburg University. Am. Compl. ¶ 12. Reynolds employs defendants Ike
Sholley, Wayne Spahr, Ron Whisker, Todd Buzard, and Dave Angle. Id. at & 7. Mr.
Gross, who is African American, and an African American colleague, James White,
submitted a bid to Reynolds for painting work on the project. Compl. & 18. Gross now
claims Reynolds solicited him for participation in the project, and accepted his bid with
no intention to hire him, only to “secure the full benefit of the participation requirements
of the bid specifications,” which included the use of disadvantaged businesses. Id. at ¶¶
19, 21. Reynolds hired Dellanor Young, a consultant, to monitor “the disadvantaged
business provisions of the bid documents and the contract.” Id. at ¶ 15. Reynolds had
apprehensions about working with Gross and White, but solicited them for the painting
work “because of the advantage Reynolds would gain from using a Harrisburg-based
painting contractor on the project.” Id. at ¶ 21. Work was to begin in November, 2007.
Id. at ¶ 23. Harrisburg University is “a private institution” that receives “extensive
federal, state, and/or local funding.” Id. at ¶¶ 12, 13. Eric Darr is the President of the
Harrisburg University. Id. at ¶ 9.
With respect to the individual defendants, Whisker and Spahr are alleged to have
been primarily involved in the solicitation of and negotiations with Mr. Gross on behalf
of Reynolds; Defendants Sholley, Buzard, and Angle were “involved in the contract
management matters throughout the performance of the contract.” Id. at ¶ 17. “Early in
the performance of the contract, it became apparent that work delays would not permit
[Mr. Gross] to be able to commence and end its work as contemplated by the contract.
Id. at ¶ 24. At some point, Mr. Gross “began to make written and oral complaints to the
defendants concerning these setbacks, and the strain they were putting on [him].” Id. at ¶
29. These communications “involved” Mr. Gross, Buzard, and Angle, and no other
specifically named defendants. Id. at ¶ 29. Mr. Gross also attempted to work through
Young to remedy the problems caused by the delays. Id. at ¶¶30. Once work finally
began on the project in 2008, defendants sabotaged plaintiff's work schedule by granting
preferences to non-minority contractors, id. at ¶ 33, and failed to meet contract
commitments with plaintiff and other minority subcontractors, id. at ¶ 31. Mr. Gross
alleges that it was only when he hired a non-minority foreman that Reynolds, through
Sholley, began to work with him to ensure that the contract work was completed. Id. at ¶
35. Mr. Gross also alleges that Reynolds forced him to enter into a financing agreement
with defendant Graystone Bank into which non-minority contractors were not made to
enter, id. at ¶¶ 36-37, removed a $30,000 veneer job from plaintiff's contract and gave it
to another contractor, id. at ¶ 39, and improperly refused to pay another subcontractor,
D.E. Gemmill, for line-painting work, instead referring Gemmill to Mr. Gross for
payment, id. at ¶¶ 43-35.
According to the complaint, “all painting work was finally completed . . . in or
around April 2009, and, although plaintiff received progress payments under the terms of
its subcontract in the approximate amount of the original total contract amount, [he] has
not been fully paid all amounts due, inclusive of all change orders[.]” Id. at ¶ 46. He
claims he is still owed between $88,000 and $120,000 for work on the project. Id. He
alleges the reason for the actions taken against him, including mistreatment in managing
his subcontract and holding him to higher-than-industry-standards, is his minority status.
Id. at ¶¶ 48, 49.
With respect to Graystone Bank, the amended complaint alleges that it was
“through the requirements of plaintiff‟s subcontract with Reynolds” that “The Art I Do
was required to enter into a separate financing agreement with defendant Graystone
Bank.” Am. Compl. ¶ 36. It further alleges that, unlike similarly-situated non-minority
contractors, Mr. Gross was “required to grant Graystone a mortgage on [his] personal
residence in order to secure the financing” with Graystone. Id. at ¶ 37. He claims this
personal mortgage requirement “reflected a discriminatory mindset in dealing with
minority subcontractors.” Id. Finally, it is alleged that Graystone “has refused to release
the lien on plaintiffs‟ property.” Id. at ¶ 38.
In Count One of his complaint, Mr. Gross asserts claims against all defendants
under 42 U.S.C. §§ 1981 and 1983 for failing to afford him equal protection of the laws
and for discriminating against him on the basis of his race. Count Two contains claims
against Reynolds alone for breach of contract and breach of the implied duty of good
faith and fair dealing.
The bulk of the allegations in the complaint are leveled against Reynolds and the
individual Reynolds defendants. In their motion to dismiss, these defendants, along with
Harrisburg University, Darr, and Young, assert that the allegations in Gross=s complaint
are vague, conclusory, and do not meet the pleading standards of Twombly and Iqbal.
More specifically, Reynolds claims that Gross=s contractual claims are barred because
Gross admits that he was paid the original contract amount and because other actions he
claims constituted breach of the contract – like Reynolds= removing some work from the
subcontract and refusing to pay for additional costs incurred by Gross due to work delays
– were actually permitted under the terms of the contract. All defendants argue that Mr.
Gross=s § 1981 claim is unsupported because he fails to adequately allege discriminatory
animus and breach of contract. They claim his § 1983 claims are barred because
Reynolds, its employees, Harrisburg University, and the rest of the defendants are all
private actors. In its motion to dismiss, Graystone Bank claims that Mr. Gross‟ claims
are time-barred and that he fails to state a claim upon which relief may be granted.
STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure
examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46
(1957). The factual allegations must be sufficient to make the claim for relief more than
just speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007). In determining whether to grant a motion to dismiss, a federal court
must construe the complaint liberally, accept all factual allegations in the complaint as
true, and draw all plausible inferences in favor of the plaintiff. Id.; see also D.P. Enters.
v. Bucks Cnty. Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).
It remains true that the Federal Rules of Civil Procedure do not require a plaintiff
to plead in detail all of the facts upon which he bases his claim. Rather, the Rules require
“a short and plain statement of the claim showing that the pleader is entitled to relief.”
FED. R. CIV. P. 8(a)(2). However, the Supreme Court has rejected language in Conley
stating that “a complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Twombly, 550 U.S. at 561. Rather, a “complaint
must allege facts suggestive of [the proscribed] conduct,” id. at 564, and it must contain
enough factual matters to suggest the required elements of the claim or to “raise a
reasonable expectation that discovery will reveal evidence of” those elements. Phillips v.
County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at
556). Neither “bald assertions” nor “vague and conclusory allegations” are accepted as
true. See Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997);
Sterling v. Southeastern Pennsylvania Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995).
Courts must first identify those allegations in a complaint that are mere conclusions and
are therefore not entitled to the assumption of truth, and next, consider whether the
complaint=s factual allegations, which are entitled to a presumption of truth, plausibly
suggest an entitlement to relief. Ashcroft v. Iqbal - - U.S. - -, 129 S.Ct. 1937, 1950
The Court of Appeals has recently made clear that after Iqbal, “conclusory or
„bare-bones‟ allegations will no longer survive a motion to dismiss: „threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.‟ To prevent dismissal, all civil complaints must now set out „sufficient factual
matter‟ to show that the claim is facially plausible.” Fowler v. UPMC Shadyside, 578
F.3d 203, 210 (3d Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1949).
Courts “may consider an undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the
document.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192,
1196 (3d Cir. 1993). Because Mr. Gross refers to the subcontract into which he and
Reynolds entered throughout his complaint, it is appropriate to consider both the copy of
the contract attached as an exhibit to Reynolds‟ motion to dismiss and the copy of the
financing agreement between Mr. Gross and Graystone Bank attached to the Bank‟s
motion to dismiss.
Motion to Dismiss § 1981 Claims Asserted in Count One of the
Amended Complaint Against R.T. Reynolds, Sholley, Spahr, Whisker,
Buzard, Angle, Harrisburg University, Darr, and Young
In Count 2 of his complaint, Mr. Gross alleges a 42 U.S.C. § 1981 claim. He
claims that Reynolds, through Sholley, Whisker, Spahr, Buzard, and Angle, purposefully
delayed the performance of its contract with Mr. Gross and failed to perform in
accordance with the contract‟s terms. Am. Compl. ¶ 55(a). He claims that Harrisburg
University, Darr, and Young failed “to act in accordance with their contracts and take
appropriate actions to force Reynolds to meets its contractual commitments[.]” Id. at ¶
Reynolds claims that Mr. Gross‟ § 1981 claim is not supported by sufficient
factual allegations.1 Section 1981 provides that:
All persons within the jurisdiction of the United States shall have
the same right in every State and Territory to make and enforce
contracts, to sue, be parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses and exactions of every
kind, and to no other.
42 U.S.C. § 1981(a). In order to state a claim under § 1981, a plaintiff “must allege facts
in support of the following elements: (1) [that plaintiff] is a member of a racial minority;
(2) intent to discriminate on the basis of race by the defendant; and (3) discrimination
concerning one or more of the activities enumerated in the statute[,] which includes the
right to make and enforce contracts[.]” Brown v. Philip Morris, Inc., 250 F.3d 789, 797
(3d Cir. 2001). “Any claim brought under § 1981, therefore, must initially identify an
impaired „contractual relationship‟ . . . under which the plaintiff has rights.” Domino‟s
Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006). Section 1981 “offers relief when
He also claims that because Mr. Gross has not stated a claim for breach of contract, his § 1981 claim for
interference with his contractual rights must also fail. I will not address this argument because I find that Mr. Gross‟
§ 1981 claim is not supported by sufficient factual allegations.
racial discrimination . . . impairs an existing contractual relationship, so long as the
plaintiff has . . . rights under the existing or proposed contractual relationship.” Id.
In order to state a violation of § 1981, “a specific factual basis must be pled to
create the inference of discrimination.” Frederick v. Se. Penn. Transp. Auth., 892 F.
Supp. 122, 125 (E.D. Pa. 1995). Therefore, to adequately allege the intent to discriminate
under the statute, “conclusory allegations of generalized racial bias” will not do. Flagg v.
Control Data, 806 F.Supp. 1218, 1223 (E.D. Pa. 1992); see also Deserne v. Madlyn
Leonard Abramson Center For Jewish Life, Inc., No. 10-3694, 2011 WL 605699 at *2
(E.D. Pa. Feb. 16, 2011) (dismissing plaintiff‟s § 1981 claim where she asserted that she
was denied similar benefits and terms of employment, “treated badly,” and ultimately
suspended based on her race and finding her allegations “wholly conclusory” because
they did not “include any facts to suggest that [her] supervisor‟s actions were motivated
by her race and/or national origin”).
R.T. Reynolds and the Individual R.T. Reynolds Defendants
Mr. Gross does not plead facts sufficient to make his § 1981 claims against
Reynolds and the individuals Reynolds defendants plausible. Mr. Gross asserts that
Reynolds “had apprehensions about dealing with both [Mr. Gross] and James White from
their past dealings” but solicited them for business nonetheless. Am. Compl. ¶ 21. He
initially alleges that Reynolds had animus against White not due to his race (also African
American), but because White had refused to assist Reynolds in concealing the true
nature of a mold problem at the Hershey Hotel in 2005. Id. at ¶ 22. When Reynolds,
through Ike Sholley, later demanded that White be removed from work on the project,
Mr. Gross claims this was because of the race of both men and because White had earlier
made inquiries about the treatment of minority contractors at Harrisburg University. Id.
at ¶ 28.
Mr. Gross claims, vaguely, “the Reynolds defendants, through defendants Sholley,
Whisker, Angle, Buzard, Spahr, and others, purposefully sabotaged plaintiff‟s work
schedule by showing favoritism and granting preferences to other non-minority
contractors.” Id. at 33. Mr. Gross also alleges that Reynolds, again through Sholley,
became more cooperative in completing the contract work once Mr. Gross hired a nonminority foreman. Id. at ¶ 35. Finally, he claims that he was made, by Reynolds, to enter
into a financing agreement with Graystone Bank into which non-minority contractors
were not made to enter. Id. at ¶ 37.
Mr. Gross‟ allegations are even sparser against individual defendants Ike Sholley,
Dave Angle, Ron Whisker, and Wayne Spahr. These individual defendants were all,
according to the amended complaint, officers, employees, or agents of R.T. Reynolds.
Sholley, Buzard, and Angle were allegedly “involved in the contract management matters
throughout the performance of the contract.” Am. Compl. ¶ 17. Whisker and Spahr, on
the other hand, were “primarily involved in the solicitation and negotiations with plaintiff
on behalf of Reynolds.” Id. Mr. Gross alleges that Sholley sent him a letter demanding
that Mr. White not be placed on the project. He then, in conclusory fashion, alleges that
that this was for discriminatory reasons. Id. He also alleges that Sholley specifically was
more cooperative in his dealings with Mr. Gross when Mr. Gross hired the non-minority
foreman. Id. at ¶ 35. Mr. Gross claims he communicated frequently with Buzard and
Angle about the project delays and that these two, in addition to Sholley, Whisker and
Spahr, “purposefully sabotaged plaintiff‟s work schedule by showing favoritism and
granting preference to other non-minority contractors.” Id. at ¶ 33. All are accused of
acting out of discriminatory bias.
There are no facts asserted to make Mr. Gross‟ claim against Reynolds and the
individual Reynolds defendants plausible; therefore, under the heightened pleading
standards of Twombly and Iqbal, I will dismiss Mr. Gross‟ § 1981 claims against them.
The allegation that discrimination was directed at Gross due to his association with White
creates an inference that it was due to White‟s past work, and not his race. There are no
factual allegations supporting an inference of bias by Reynolds, other than the vague
allegation that Gross was not treated as favorably as other non-minority contractors. Mr.
Gross does not identify the way the favoritism was manifested or the preferences which
non-minority contractors were granted. There are no facts alleged that are sufficient to
support an inference of racial bias by the individual Reynolds defendants. Mr. Gross
alleges that they communicated with him at various stages in the contract process, and in
conclusory fashion, that they showed favoritism and granted preferences to non-minority
subcontractors. Because Mr. Gross has failed to allege specific factual allegations
concerning their involvement I will also dismiss the claims against the individual
defendants. Accordingly, Gross‟ § 1981 claim against Reynolds and the individual
Reynolds defendants is dismissed.
Harrisburg University and Eric Darr
Mr. Gross‟s amended complaint contains threadbare allegations against Harrisburg
University and its President Eric Darr. While it is clear that the construction project for
which Reynolds was the general contractor and Mr. Gross was a subcontractor was a
building project at Harrisburg University, there is no allegation that Mr. Gross contracted
with it, or that the University had any part in the performance of the subcontract between
Reynolds and Mr. Gross. With respect to Mr. Darr, the amended complaint alleges
vaguely that he once “approached [Mr. Gross] and made inquiries into the nature of his
relationship with Reynolds and the minority commitments” of the contract, and that Mr.
Gross “had the impression” from this conversation that “Darr was trying to learn things
from him surreptitiously[.]” Am. Compl. ¶ 26. These defendants are not mentioned
again in connection with any specific factual allegations. Rather, at the conclusion of the
complaint, Mr. Gross asserts that Harrisburg University and Darr, along with Reynolds
and all other named defendants, “knowingly subjected [Mr. Gross] to disparate treatment
in the management of his subcontract because he is a minority.” Id. at ¶ 48.
The complaint does not plausibly state a cause of action against these two
defendants. They were not party to the contract with Mr. Gross, and the factual
allegations in the complaint do not support an inference that they interfered in the
contractual relationship between Reynolds and Mr. Gross, or did so for discriminatory
reasons. Therefore, I will also dismiss this claim.
Dellanor Young is identified in the amended complaint as the owner and operator
of a minority business consulting firm “charged with the responsibility of monitoring the
disadvantaged business provisions of the bid documents and the contract.” Am Compl. ¶
15. Mr. Gross does not allege that Reynolds solicited him for the subcontract by acting
through Young; however, he does state that he tried (unsuccessfully) to remedy the
problems caused by the delays in performing work under the contract by communicating
with Young. Id. at ¶ 30. He further asserts that, “upon information and belief, [Young]
knew that Reynolds was failing to meet its commitments to Plaintiff and perhaps other
minority contractors, and knowingly worked with Reynolds to conceal the nature of the
problems and to fail to work toward contractual or extra-contractual remedies for these
failures.” Id. at ¶ 31. Again, there is no information in the complaint about how Young
concealed any problems or how Young was monitoring the project. Accordingly, under
the heightened pleading standards of Twombly and Iqbal, I will dismiss Mr. Gross‟ §
1981 claim against Mr. Young.
Motion to Dismiss § 1981 Claim Asserted in Count One of the
Complaint Against Graystone Bank
Graystone Bank asserts that Mr. Gross‟ § 1981 claim against it is barred by the
applicable two year statute of limitations on such claims, and that it does not contain
enough factual material, taken as true, to support a discrimination in lending claim under
§ 1981. I will address the latter argument first.
The Third Circuit has recently held that:
In order to make out a prima facie case of lending discrimination in
a § 1981 case, a plaintiff must show (1) that he belongs to a
protected class, (2) that he applied and was qualified for credit that
was available from the defendant, (3) that his application was
denied or that its approval was made subject to unreasonable or
overly burdensome conditions, and (4) that some additional
evidence exists that establishes a causal nexus between the harm
suffered and the plaintiff's membership in a protected class, from
which a reasonable juror could infer, in light of common
experience, that the defendant acted with discriminatory intent.
Anderson v. Wachovia Mortgage Corp., 621 F.3d 261, 275 (3d Cir. 2010).
Mr. Gross‟ allegations against Graystone lack specific facts. He claims that he
was made to take out a personal mortgage on his property in order to secure a line of
credit with Graystone, and that other, non-minority subcontractors were not made to do
so. There are absolutely no other factual allegations concerning Graystone. Noticeably
absent are allegations that Mr. Gross was qualified for an unsecured line of credit or that
the requirement of a mortgage on his personal property was unreasonable or overly
burdensome. Mr. Gross‟ naked assertion that he was treated differently from nonminority subcontractors because he was made to take out a mortgage on his home,
without more, is insufficient to meet the heightened pleading standards under Twombly
and Iqbal. Accordingly, Mr. Gross‟ § 1981 claims against Graystone Bank are dismissed.
Motion to Dismiss § 1983 Claims Asserted in Count One of the
Amended Complaint Against R.T. Reynolds, Sholley, Spahr, Whisker,
Buzard, Angle, Harrisburg University, Darr, and Young
Count One of Mr. Gross‟ complaint alleges that all named defendants “have
intentionally failed and/or refused to afford plaintiffs the equal protection of the laws
based solely upon their status as minority owned business, all in violation of 42 U.S.C. §
1983.” Am. Compl. ¶ 56. “Section 1983 . . . does not create substantive rights, but
provides a remedy for the violation of rights created by federal law.” Groman v. Twp. of
Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). Two elements are necessary for recovery
under § 1983: first, the plaintiff must prove that the defendant has deprived him of a right
secured by the “Constitution and laws” of the United States; second, he must show that
the defendant deprived him of this constitutional right “under color of any statute,
ordinance, regulation, custom, or usage of any State or Territory.” Adickes v. S.H. Kress
& Co., 398 U.S. 144, 150 (1970). Simply stated, the defendant must show that the
defendant acted under color of law. Id. Mr. Gross does not allege in his complaint that
Reynolds, the individual Reynolds defendants Sholley, Spahr, Whisker, Buzard, and
Angle, Harrisburg University President Eric Darr, or Delanor Young, were acting under
color of state law. He appears to concede as much in his response to the motion to
dismiss. Therefore, I will dismiss the § 1983 claims against Reynolds, Sholley, Spahr,
Whisker, Buzard, Angle, Darr, and Young.
However, with respect to Harrisburg University, he states in his complaint that it is
“a private institution” but that its construction project “received extensive federal, state,
and/or local funding, was subject to public procurement requirements and standards, and
reporting requirements, including inter alia, prevailing wage laws and the City of
Harrisburg‟s disadvantaged business program for minority and women owned
businesses.” Am. Compl. ¶ 13.
He admits obliquely in his response to the defendants‟
motion that “as alleged, it has become more clear that the Harrisburg University is a
private educational institution.” Pl.‟s Resp. to Def.‟s Motion to Dismiss, 11. However,
he adds that the general nature of information he possesses at this point should allow him
to proceed against it since there “appear[s] to have been certain reporting and contract
compliance requirements that have been imposed as a matter of state law.” Id. at 11. Mr.
Gross presumably is referring to the allegations, contained both in the preamble and
throughout his complaint, that Reynolds received “minority participation points for its
subcontract with plaintiff in accordance with [Harrisburg‟s] disadvantaged business
program[.]” Am. Compl., 2.
This allegation is insufficient to establish that Harrisburg University is a state
actor. Even where a private institution receives state funding or is subject to extensive
state or federal government regulation, it is not a state actor. See Rendell-Baker v. Kohn,
457 U.S. 830, 840-842 (1982) (finding that a private school‟s receipt of public funds
“does not make [its] discharge decisions acts of the State”); Blum v. Yaretsky, 457 U.S.
991, 1010, 1011 (1982) (finding that nursing homes subject to state and federal
regulations are not state actors). Therefore, it is appropriate to dismiss Mr. Gross‟ § 1983
claims against Harrisburg University. It is a private institution, and the vague allegations
contained in Mr. Gross‟ complaint do not create a plausible inference that there is any
“extensive and significant” connection between it and the state such that it should be
considered a state actor. See Sherry v. Associates Commercial Corp., 60 F. Supp. 2d
470, 474-75 (W.D.Pa. 1998) (discussing the instances in which a private entity‟s conduct
constitutes state action for purposes of § 1983).
Motion to Dismiss § 1983 Claims Asserted in Count One of the
Amended Complaint Against Graystone Bank
Mr. Gross‟ complaint contains no allegation that Graystone Bank is a state actor.
As stated above with respect to the claims against Harrisburg University, vague
allegations of some connection to the state are insufficient as a matter of law to support a
claim against a private actor under § 1983. Thus, the § 1983 claim against Graystone
Bank is dismissed.
Motion to Dismiss Eloise Gross as a Plaintiff
All remaining defendants seek to remove Eloise Gross as a plaintiff in this case.
Reynolds claims that because she is not listed in the caption of the complaint, she should
be dismissed. Mrs. Gross was not listed in the caption of the original complaint, although
she was listed as a plaintiff. Complaint, ¶ 6. She is listed in the caption of the amended
complaint. Defendants seek to dismiss her as a plaintiff because Mr. Gross did not seek
leave to add her to the caption in the amended complaint, and because “she is mentioned
only once in the body of the Amended Complaint.” Defendants are correct - there are no
allegations in the complaint concerning Mrs. Gross specifically. She is simply described
as Mr. Gross‟ wife, and it is not asserted that she is a member of a racial minority, which
is necessary to support any § 1981 claim asserted on her behalf. Neither is it alleged that
she was party to contract entered into between Mr. Gross and Reynolds. Thus, she is
dismissed as a plaintiff to this suit.
Breach of Contract Claim Asserted in Count Two of the Amended
Count Two of Mr. Gross‟ amended complaint asserts a cause of action for breach
of contract and breach of the implied duty of good faith and fair dealing against
Reynolds. Mr. Gross claims that this Court has supplemental jurisdiction over this state
law claim pursuant to 28 U.S.C. § 1367, which provides:
[I]n any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the action
within such original jurisdiction that they form part of the same
case or controversy under Article III of the United States
Constitution. Such supplemental jurisdiction shall include claims
that involve the joinder or intervention of additional parties.
Federal courts may decline to exercise supplemental jurisdiction over a state law
claim if the district court has dismissed all claims over which it has original jurisdiction.
See 28 U.S.C. § 1367. “Where the claim over which the district court has original
jurisdiction is dismissed before trial, the district court must decline to decide the pendent
state claims unless considerations of judicial economy, convenience, and fairness to the
parties provide an affirmative justification for doing so.” Borough of W. Mifflin v.
Lancaster, 45 F.3d 780, 788 (3d. Cir. 1995). I have dismissed Mr. Gross‟ § 1981 and §
1983 claims, leaving only Mr. Gross‟ state law breach of contract claim. I find there are
no compelling considerations for this Court to exercise supplemental jurisdiction over
Mr. Gross‟ state law breach of contract claim. Accordingly, I decline to exercise
supplemental jurisdiction over Mr. Gross‟ state law claim under § 1367(c)(3) and dismiss
Accordingly, I will grant defendants‟ motions to dismiss Mr. Gross‟ § 1981 and §
1983 claims and I will decline to exercise supplemental jurisdiction and dismiss Mr.
Gross‟ remaining breach of contract claim.
An appropriate Order follows.
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