Shrey et al v. Foresman
Filing
9
MEMORANDUM AND ORDER - upon consideration of defendants motion to dismiss (Doc. 5) and plaintiffs response, and pursuant to the accompanying Memorandum, it is ORDERED that defendants motion to dismiss plaintiffs complaint is GRANTED. The Clerk of Court shall close this file. Signed by Honorable William W. Caldwell on 11/15/11. (pw, )
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
RANDY SHREY and JANETE
SHREY,
Plaintiffs
v.
GREGORY FORESMAN,
Defendant
:
:
:
: CIVIL NO. 4:11-CV-1671
:
:
:
:
MEMORANDUM
I.
Introduction
We are considering a motion to dismiss filed by defendant, Gregory
Foresman, Chief of the Williamsport Police Department. This matter relates to the 2008
investigation and confiscation of certain pins owned by the plaintiffs that contained logos
resembling those of the Williamsport Bureau of Police and the Little League World
Series. Defendant has moved to dismiss plaintiffs’ complaint, asserting plaintiffs filed the
instant suit after the expiration of the statute of limitations.
II.
Background
The following facts are set forth in plaintiffs’ complaint and taken as true, as
they must be when considering a motion to dismiss. Fowler v. UPMC Shadyside, 578
F.3d 203, 210 (3d Cir. 2009). This case relates to the illegal confiscation of plaintiffs’
pins by the Williamsport Police. Plaintiffs designed a pin resembling the Williamsport
Police Badge and the Little League logo and listed them for sale. On July 14, 2008,
Captain Raymond Kontz, III of the Williamsport Police Department went to plaintiffs’
home and falsely told them that selling the pins was illegal, and confiscated 655 pins.
Plaintiffs allege that defendant falsely indicated that Little League made a complaint
about the use of their logo without permission.
Defendant filed a motion to dismiss raising the defense of the statute of
limitations. Plaintiffs argue that the statute was tolled by fraudulent concealment until
May 9, 2011, when plaintiffs discovered defendant’s involvement.
III.
Discussion
A. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a
complaint for “failure to state a claim upon which relief can be granted.” Under Rule
12(b)(6), we must “accept all factual allegations as true, construe the complaint in the
light most favorable to the plaintiff, and determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to relief.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny,
515 F.3d 224, 231 (3d Cir. 2008)). While a complaint need only contain “a short and
plain statement of the claim,” Fed. R. Civ. P. 8(a)(2), and detailed factual allegations are
not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964,
167 L.Ed.2d. 929 (2007), a complaint must plead “enough facts to state a claim to relief
that is plausible on its face.” Id. at 570, 127 S.Ct. 1955 at 1974. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, - - - U.S. - - -, 129
2
S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965.)
“[L]abels and conclusions” are not enough, Twombly, 550 U.S. at 555, 127 S.Ct. at 196465, and a court “‘is not bound to accept as true a legal conclusion couched as a factual
allegation.’” Id., 127 S.Ct. at 1965 (quoted case omitted).
In resolving the motion to dismiss, we thus “conduct a two-part analysis.”
Fowler, supra, 578 F.3d at 210. First, we separate the factual elements from the legal
elements and disregard the legal conclusions. Id. at 210-11. Second, we “determine
whether the facts alleged in the complaint are sufficient to show that the plaintiff has a
‘plausible claim for relief.’” Id. at 211 (quoted case omitted).
B. Estoppel by Fraudulent Concealment
In § 1983 claims, the state statute of limitations applies. Wilson v. Garcia,
471 U.S. 261, 265 (1985). Plaintiffs and defendant agree that the applicable statute of
limitations is two years. Pa.C.S. § 5524(7). The alleged illegal action occurred on July
14, 2008 and plaintiffs filed their untimely complaint on September 2, 2011. In response,
plaintiffs assert that the doctrine of estoppel by fraudulent concealment tolled the statute
of limitations until May 9, 2011.
A defendant may be estopped from asserting a statute of limitations
defense “if, through fraud, deception or concealment of facts, a [defendant] lulls an
injured person or his representatives into a sense of security so that such person's
vigilance is relaxed.” Vojtasek v. Allentown, 2006 Pa. Super. 372, 916 A.2d 637, 640
(Pa. Super. 2006) (citation omitted). In determining whether the statute of limitations is
3
tolled, the court should consider that “it is the duty of a party asserting a cause of action
to use all reasonable diligence to be informed of the facts and circumstances upon which
a potential right of recovery is based to institute suit within the prescribed statutory
period.” Id. at 641. “There are very few facts which diligence cannot discover, but there
must be some reason to awaken inquiry and direct diligence in the channel in which it
would be successful.” Vernau v. Vic’s Mkt., Inc., 896 F.2d 43, 46 (3d Cir. 1990). The
statute of limitations will be tolled only “in clear cases of fraud, deception or
concealment.” Vojtasek, at 640. If fraudulent concealment occurred, the statute of
limitations does not commence “until the time of discovery or the date when with
reasonable diligence one would have been led to discovery.” Urland v. Merrell-Dow
Pharmaceuticals, Inc., 822 F.2d 1268, 1274 (3d Cir. 1987) (emphasis in original).
Plaintiffs included a conspiracy claim against the defendant. Plaintiffs
assert that defendant and Kontz did not create an incident report for the events leading
up to the seizure of the pins as required by police department policy. Plaintiffs also
argue that they did not receive information regarding defendant’s role in the alleged
conspiracy during discovery.
Plaintiff has not presented evidence that would warrant estoppel by
fraudulent concealment. Failure to create an incident report and providing incomplete
discovery answers is insufficient. Additionally, plaintiffs did not exercise reasonable
diligence to be informed of the facts and circumstances upon which a potential right of
recovery could be based. Plaintiffs’ injury occurred in July 2008 and they did not file this
4
suit until three years later. They did not make an effort prior to the expiration of the
statute of limitations to determine who was liable for their injury. Plaintiffs could have
inquired about the role of other police officers in the confiscation of the pins. They
should have known that other officers might be involved in a police investigation. No
steps were taken during the statutory period to determine who those officers were.
Without a clear case of fraud and a failure to exercise reasonable diligence, the statute
of limitations was not tolled. Thus, plaintiffs filed their complaint after the expiration of
the statute of limitations and their case must be dismissed.
IV.
Conclusion
Based on the preceding, we will grant defendant’s motion to dismiss. We
will issue an appropriate order.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
5
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
RANDY SHREY and JANETE
SHREY.
Plaintiffs
v.
GREGORY FORESMAN,
Defendant
:
:
:
: CIVIL NO. 4:11-CV-1671
:
:
:
:
ORDER
AND NOW, this 15th day of November, 2011, upon consideration of
defendant’s motion to dismiss (Doc. 5) and plaintiff’s response, and pursuant to the
accompanying Memorandum, it is ORDERED that defendant’s motion to dismiss
plaintiff’s complaint is GRANTED.
The Clerk of Court shall close this file.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?