1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:
ORI FEIBUSH, :
Plaintiff, :
: Civil Action
v. : No. 14-3947
:
COUNCILMAN KENYATTA JOHNSON, :
Defendant. :



ORDER

AND NOW, this _________ day of __________________, 2014, upon consideration of
the Motion to Dismiss of Defendant Kenyatta Johnson, it is HEREBY ORDERED that the
Motion is GRANTED. It is FURTHER ORDERED that Counts 2, 3, and 5 are DISMISSED
WITH PREJUDICE and that Counts 1, 4, 6, and 7 are DISMISSED.

BY THE COURT:

____________________________
ONeill, J.

2
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:
ORI FEIBUSH, :
Plaintiff, : Civil Action
: No. 14-3947
v. :
: Oral Argument Requested
COUNCILMAN KENYATTA JOHNSON, :
Defendant. :


DEFENDANTS MOTION TO DISMISS

Councilman Kenyatta Johnson, by and through the undersigned counsel, hereby files this
Motion to Dismiss for Lack of Standing and Failure to State a Claim pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). In support of this Motion, Councilman Johnson
incorporates the attached Memorandum of Law. The Councilman respectfully requests that this
Court dismiss the claims asserted against him.
Date: September 8, 2014 Respectfully submitted,

/s/ Michael R. Miller
Michael R. Miller
Assistant City Solicitor
Pa. Attorney ID No. 315759
City of Philadelphia Law Department
1515 Arch Street, 14
th
Floor
Philadelphia, PA 19102
215-683-5433 (phone)
215-683-5397 (fax)
[email protected]

/s/ John J. Coyle
John J. Coyle
Assistant City Solicitor
Pa. Attorney ID No. 312084
City of Philadelphia Law Department
215-683-5447 (phone)
215-683-5397 (fax)
[email protected]
3
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:
ORI FEIBUSH, :
Plaintiff, : Civil Action
: No. 14-3947
v. :
: Oral Argument Requested
COUNCILMAN KENYATTA JOHNSON, :
Defendant. :



MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO DISMISS


4
TABLE OF CONTENTS
I. BACKGROUND ...................................................................................................................... 5

II. ARGUMENT ....................................................................................................................... 6

A. The Court Should Dismiss Count 2 with Prejudice Because Councilman Johnson
Did Not Use Legal Process Against Plaintiff. ............................................................................. 6

B. The Court Should Dismiss Count 3 with Prejudice Because Councilman Johnson
Never Deprived Plaintiff of a Property Interest. .......................................................................... 6

C. The Court Should Dismiss Count 5 with Prejudice Because Plaintiff Lacks Standing
and Cannot State a Claim for Unlawful Seizure. ......................................................................... 8

D. The Court Should Dismiss Counts 1 and 4 Because Plaintiff Fails to Allege that
He Is Similarly Situated to Other Developers in All Relevant Respects. .................................... 8

E. The Court Should Dismiss Count 6 Because Plaintiff Does Not Adequately Plead a
Causal Connection Between His Decision to Run for Office and Subsequent Events. ............. 10

F. The Court Should Dismiss Count 7 Because Plaintiff Fails to Adequately Allege a
Monell Claim. ............................................................................................................................ 11

III. CONCLUSION .................................................................................................................. 13

5
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:
ORI FEIBUSH, :
Plaintiff, : Civil Action
: No. 14-3947
v. :
: Oral Argument Requested
:
COUNCILMAN KENYATTA JOHNSON, :
Defendant. :



MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO DISMISS


Plaintiff Ori Feibush seeks to circumvent established case law by suing Councilman
Kenyatta Johnson for abuse of process, unlawful seizure, and due process violations. Moreover,
Plaintiff fails to plead sufficient facts to support his remaining claims. Therefore, the Court
should dismiss Plaintiffs complaint.
I. BACKGROUND

In his Complaint, Plaintiff indicates that he is a real estate investor who seeks to
develop City-owned land in Councilman Johnsons district. See Complaint at page 2 (Docket
No. 1). Plaintiff allegedly declared his intent to run against Councilman Johnson on November
15, 2013. See id. at 15. Plaintiff avers that the Councilman subsequently set aside City-owned
properties on Cleveland Street for affordable housing rather than selling those properties to
Plaintiff. See id. at 19. Additionally, the Complaint states that Plaintiff lost a bid for City-
owned properties on Bouvier Street. See id. at 23. However, the complaint fails to plead facts
which plausibly suggest that these two incidents are somehow connected to Plaintiffs decision
to run for office.
6
II. ARGUMENT

Counts 2, 3, and 5 of the Complaint fail as a matter of law because Plaintiff cannot
possibly prevail on his state-law abuse of process claim or his 1983 due process and unlawful
seizure claims. Moreover, Plaintiff does not allege facts that adequately support his remaining
claims. Therefore, the Court should grant the instant motion.
1

A. The Court Should Dismiss Count 2 with Prejudice Because Councilman
Johnson Did Not Use Legal Process Against Plaintiff.

The Court should dismiss Count 2 because Plaintiff fails to state a claim for abuse of
process. In Pennsylvania, the tort of abuse of process requires the use of legal process against
another. Bobrick Corp. v. Santana Prods., Inc., 698 F. Supp. 2d 479, 498 (M.D. Pa. 2010)
(citing Rosen v. Am. Bank of Rolla, 627 A.2d 190, 192 (Pa. Super. Ct. 1993)). Here, the
complaint fails to allege that Councilman Johnson ever instituted legal proceedings or otherwise
used legal process against Plaintiff. Plaintiffs abuse of process claim thus fails as a matter of
law, and the Court should dismiss it with prejudice.
B. The Court Should Dismiss Count 3 with Prejudice Because Councilman
Johnson Never Deprived Plaintiff of a Property Interest.

Plaintiff fails to adequately allege a procedural or substantive due process claim in Count
3 of his complaint. In order to state a procedural due process claim, Plaintiff must allege that he
was deprived of an individual interest that is encompassed within the Fourteenth Amendment's

1
Councilman Johnson moves to dismiss Count 5 of Plaintiffs complaint under Rule
12(b)(1) for lack of standing, and also moves to dismiss the entire complaint under Rule 12(b)(6)
for failure to state a claim. A plaintiff cannot survive a motion to dismiss under Rule 12(b)(6)
without pleading factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Under this standard, [t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice. Id. In deciding a motion to dismiss under Rule
12(b)(1), courts should treat the allegations of the complaint as true and afford the plaintiff the
favorable inferences to be drawn from the complaint. NE Hub Partners, L.P. v. CNG
Transmission Corp., 239 F.3d 333, 341 (3d Cir. 2001).
7
protection of life, liberty, or property. Dennis v. Dejong, 557 F. Appx 112, 116 (3d Cir.
2014). Similarly, Plaintiff cannot advance a substantive due process claim unless he pleads as a
threshold matter that he has a protected property interest to which the Fourteenth Amendments
due process protection applies. Nicholas v. Pa. State Univ., 227 F.3d 133, 139-40 (3d Cir.
2000) (citations and quotations omitted); see also id. at 140 (noting that substantive due process
protects a narrower range of property interests than procedural due process).
Litigants do not have a protectable property interest merely because of a unilateral
expectation that they will receive a property or a benefit. Bd. of Regents of State Colls. v. Roth,
408 U.S. 564, 577 (1972). Instead, plaintiffs can only bring a due process claim when they have
a legitimate claim of entitlement to a property. Id. For instance, in Independent Enterprises
Inc. v. Pittsburgh Water & Sewer Authority, 103 F.3d 1165 (3d Cir. 1997), the Third Circuit
Court of Appeals upheld dismissal of a procedural due process claim brought after a
governmental entity rejected the plaintiffs bids for various contracts. Id. at 1177-78. The court
held that the plaintiff never acquired a property interest because one who bids on a public
contract has no legitimate expectation of receiving it until the contract is actually awarded. Id.
at 1178; see also Mun. Revenue Servs., Inc. v. McBlain, 347 F. Appx 817, 826 (3d Cir. 2009)
([T]he possibility of a future contract with a municipality is not a property interest that warrants
procedural due process protection.).
Here, as in Independent Enterprises, Plaintiff attempts to bring a due process claim based
on a property interest that he wanted to receive, not one that he actually did receive. In other
words, Plaintiff lacks the legitimate claim of entitlement that is required to bring a due process
claim, see Roth, 408 U.S. at 577, because the City never awarded him the properties which are at
issue in this case. See Complaint at 19 (alleging that the sale of the Cleveland Street properties
8
never went through); see also id. at 23 (averring that Plaintiff lost his bid for the Bouvier Street
properties). Therefore, the Court should dismiss Count 3 with prejudice.
2

C. The Court Should Dismiss Count 5 with Prejudice Because Plaintiff Lacks
Standing and Cannot State a Claim for Unlawful Seizure.

Plaintiffs unlawful seizure claim fails as a matter of law because Plaintiff lacks standing
to bring such a claim. The Third Circuit Court of Appeals has held that an individual only has
standing to bring a 1983 suit for an unlawful seizure if she has a possessory interest in the
property that was seized. Eiland v. Jackson, 34 F. Appx 40, 42-43 (3d Cir. 2002). As discussed
above, the complaints allegations demonstrate that Plaintiff was never awarded any of the City-
owned properties at issue in this case. Therefore, Plaintiff had no possessory interest in the
properties, and the Court should dismiss his unlawful seizure claim for lack of standing.
Additionally, the fact that Plaintiff lacked a possessory interest in the properties renders
him unable to state an unlawful seizure claim under Federal Rule of Civil Procedure 12(b)(6).
A valid property interest is necessary for a seizure to have occurred in violation of the Fourth
Amendment. Golden Eagle Tavern, Inc. v. City of Lancaster, No. 13-1426, 2014 WL 881139,
at *2 (E.D. Pa. Mar. 6, 2014). Since Plaintiff never enjoyed such a property interest, he cannot
state a claim for unlawful seizure, and the Court also should dismiss Count 5 with prejudice for
this reason. Id. (granting motion to dismiss a 1983 unlawful seizure claim because the
plaintiffs never had a protected property interest in the [property] in question).
D. The Court Should Dismiss Counts 1 and 4 Because Plaintiff Fails to Allege
that He Is Similarly Situated to Other Developers in All Relevant Respects.

Plaintiffs complaint fails to state an equal protection claim because it lacks allegations

2
Since Plaintiff never had a property interest for purposes of his procedural due process
claim, he ipso facto cannot bring a substantive due process claim. See Nicholas, 227 F.3d at 140
(noting that procedural due process protects a broader range of property interests than
substantive due process).
9
which plausibly suggest that Plaintiff is similarly situated to other developers. Plaintiff attempts
to bring a selective enforcement equal protection claim in Count 1 of his complaint, as well as
a class of one equal protection claim in Count 4 of his complaint. See Complaint at 30-32,
42-43; see also PG Publg Co. v. Aichele, 705 F.3d 91, 115 (3d Cir. 2013) (noting that selective
enforcement claims arise under the Equal Protection Clause). The Third Circuit Court of
Appeals has held that plaintiffs cannot state either type of equal protection claim unless they
adequately plead that they were intentionally treated differently from others similarly situated.
See Perano v. Twp. of Tilden, 423 F. Appx 234, 238 (3d Cir. 2011) (discussing pleading
standard for a class of one claim) (citation and quotations omitted); see also Aichele, 705 F.3d
at 115 (setting forth same standard for a selective enforcement claim). This rule requires a
complainant to allege facts which make plausible the existence of such similarly situated
parties, and which show that those parties are like [the complainant] in all relevant aspects.
Perano, 423 F. Appx at 238-39 (emphasis added).
In this case, Plaintiffs sole allegation regarding a similarly situated person states that
another developer also bid for the Bouvier Street properties and was awarded the lots. See
Complaint at 23-25. However, in adjudicating whether a litigant has adequately pled the
existence of similarly situated parties, the Third Circuit consistently requires some additional
showing beyond a plaintiffs assertion that other entities are of the same general category as
plaintiff . . . and engaged in the one similar incidence of conduct giving rise to plaintiffs cause
of action. Buck Fostons New Brunswick LLC v. Cahill, No. 11-3731, 2013 WL 5435289, at
*26 (D.N.J. Sept. 27, 2013). For instance, in Perano a developer brought an equal protection
claim against a municipality that allegedly stymied his efforts to build a mobile home park.
Perano, 423 F. Appx at 235-36. The Third Circuit upheld dismissal of the claim because the
10
plaintiffs vague allegations about other developers failed to make plausible the conclusion that
those parties exist and that they are like [plaintiff] in all relevant aspects. See id. at 238-39
(emphasis added).
Here, as in Perano, Plaintiff fails to plead facts which demonstrate that the unnamed
developer who bid on the Bouvier Street properties is similar to him in all relevant aspects.
See id. In fact, Plaintiff does not allege any facts about this purported developer or his business,
apart from averring that the developer also placed a bid on the properties at issue. Therefore,
Plaintiff has not adequately pled that another developer was similarly situated to him, and the
Court should dismiss Counts 1 and 4. See Warren v. Fisher, No. 10-5343, 2013 WL 1164492, at
*7-9 (D.N.J. Mar. 19, 2013) (dismissing equal protection claim due to complaints failure to
allege sufficient facts regarding supposedly similarly situated parties).
E. The Court Should Dismiss Count 6 Because Plaintiff Does Not Adequately
Plead a Causal Connection Between His Decision to Run for Office and
Subsequent Events.

Plaintiffs First Amendment retaliation claim fails because his complaint does not suggest
that his decision to run for office somehow cost him the opportunity to develop City-owned
properties. In order to state a retaliation claim under the First Amendment, a complaint must
plead facts which plausibly suggest a causal connection between [a] protected activity and [an
allegedly] retaliatory action. Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d
Cir. 2007). A plaintiff must plead this causal connection by alleging: (i) an unusually
suggestive temporal proximity between the protected activity and the allegedly retaliatory
action; or (ii) a pattern of antagonism. Gawlas v. King, 511 F. Appx 160, 163 (3d Cir. 2013)
(citations and quotations omitted).
Here, Plaintiff cannot argue that an unusually suggestive temporal proximity, see id.,
connects his decision to seek office to the denial of his property bids, because he launched his
11
political campaign in November 2013 and did not suffer an adverse decision until April 2014.
See Complaint at 15, 19. This Court recently held that such a six-month period is a far cry
from the time frames the Third Circuit has considered to be particularly suggestive of a causal
connection. Mercer v. SEPTA, -- F. Supp. 2d --, 2014 WL 2767340, at *11 (E.D. Pa. June 18,
2014) (Robreno, J.); see also McCann v. Astrue, 293 F. Appx 848, 852 (3d Cir. 2008) (holding
that a plaintiff could not establish a retaliation claim when five months separated a protected
activity from an allegedly retaliatory act); Washco v. Fed. Express Corp., 402 F. Supp. 2d 547,
560 (E.D. Pa. 2005) (holding same).
Since a lengthy time separates Plaintiffs decision to run for office from the adverse
decision he received, Plaintiff can only state a claim for retaliation by pleading that he faced a
pattern of antagonism. Gawlas, 511 F. Appx at 163. However, Plaintiff fails to allege such a
pattern because he only suffered two unfavorable decisions after he launched his political
campaign, and these decisions occurred either on an unspecified date or six months after
Plaintiffs political announcement. As this Court recently held, [t]wo incidents, neither of
which has been alleged to have occurred with any temporal proximity to [Plaintiffs protected
activity], do not add up to a pattern of antagonism. See Blocker v. Cmty. Educ. Ctrs., Inc., No.
13-5127, 2014 WL 1348959, at *6 (E.D. Pa. Apr. 7, 2014) (Pratter, J.) (granting motion to
dismiss retaliation claim). Therefore, Plaintiff fails to adequately plead a causal connection
between his political campaign and any unfavorable decisions he received, and the Court should
dismiss Count 6.
F. The Court Should Dismiss Count 7 Because Plaintiff Fails to Adequately
Allege a Monell Claim.

Finally, the Court should dismiss Count 7 because Plaintiffs complaint simply parrots
12
the legal standard for municipal
3
liability under 1983 without alleging any supporting facts.
Plaintiff states that Count 7 of his complaint arises under Monell v. Department of Social
Services, 436 U.S. 658 (1978). See Complaint at 54-58. A Monell claim permits litigants to
bring a 1983 suit against a municipality rather than individual public servants. See Kauffman v.
Barbagello, No. 13-659, 2013 WL 6388487, at *11 n.3 (M.D. Pa. Dec. 5, 2013) ([A] claim
based on Monell asserts municipal, rather than individual[,] liability.); Richardson v. Crawford
County Corr. Facility, No. 10-275, 2012 WL 2872451, at *4 (W.D. Pa. June 20, 2012) (noting
same).
In adjudicating Monell claims, courts have recognized a two-path track to municipal
liability under 1983, depending on whether the allegation is based on municipal policy or
custom. Mulholland v. County of Berks, 706 F.3d 227, 237 (3d Cir. 2013) (citations and
quotations omitted). A policy occurs when a decisionmaker with final authority issues an
official proclamation, policy, or edict, while a custom occurs when practices are so permanent
and well-settled as to virtually constitute law. Id. (citations and quotations omitted).
Here, the Court should dismiss Count 7 because Plaintiff simply parrots the legal
standard for Monell liability without pleading any actual facts regarding a municipal policy or
custom. As the Court has held, a complaint that amount[s] to a mere recitation of the . . .
elements required to bring forth a Monell claim [is] insufficient to survive a motion to dismiss.
Butler v. City of Phila., No. 11-7891, 2013 WL 5842709, at *2 (E.D. Pa. Oct. 31, 2013) (ONeill,
J.). Instead, a complaint must include specific factual allegations referencing the conduct, time,
place, and persons responsible for any official municipal policy or custom. Torres v. City of

3
Plaintiff brings a claim against the City of Philadelphia in Count 7 because he sues
Councilman Johnson in his official capacity. See A.M. ex rel. J.M.K. v. Luzerne County Juvenile
Detention Ctr., 372 F.3d 572, 580 (3d Cir. 2004) (A suit against a government official in his or
her official capacity is treated as a suit against the governmental entity itself.).
13
Allentown, No. 07-1934, 2008 WL 2600314, at *5 (E.D. Pa. June 30, 3008) (emphasis added)
(citing Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005)). Plaintiffs Monell averments
include no such factual allegations and instead merely contain a series of boilerplate, conclusory
allegations. See Complaint at 54-58. Therefore, the Court should dismiss Count 7 of
Plaintiffs complaint. See Pittman v. Martin, -- F. Appx --, 2014 WL 2727005, at *2 (3d Cir.
June 17, 2014) (holding that a complaints occasional and bare recitation of the words custom
and/or policy failed to state a Monell claim); Butler, 2013 WL 5842709, at *2 (granting motion
to dismiss complaint that merely parroted the legal standard for Monell); Saleem v. Sch. Dist. of
Phila., No. 12-3193, 2013 WL 5763206, at *3 (E.D. Pa. Oct. 24, 2013) (dismissing Monell claim
under Rule 12(b)(6) because plaintiff pled the phraseology of an alleged policy, practice,
procedure, custom and endorsement . . . but [failed to plead] supporting facts) (ONeill, J.);
Niblack v. Murray, No. 12-6910, 2013 WL 4432081, at *8-9 (D.N.J. Aug. 14, 2013) (dismissing
Monell claim because [p]laintiff fails to allege any facts to support his naked assertion of an
unlawful municipal policy or custom); Torres, 2008 WL 2600314, at *5 (dismissing Monell
claim for failure to plead specific facts).

III. CONCLUSION

For the foregoing reasons, the Court should dismiss Plaintiffs complaint.


Date: September 8, 2014 Respectfully submitted,

/s/ Michael R. Miller
Michael R. Miller
Assistant City Solicitor
Pa. Attorney ID No. 315759
City of Philadelphia Law Department
1515 Arch Street, 14
th
Floor
Philadelphia, PA 19102
14
215-683-5433 (phone)
215-683-5397 (fax)
[email protected]

/s/ John Coyle
John Coyle
Assistant City Solicitor
Pa. Attorney ID No. 312084
City of Philadelphia Law Department
1515 Arch Street, 14
th
Floor
Philadelphia, PA 19102
215-683-5447 (phone)
215-683-5397 (fax)
[email protected]

15
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:
ORI FEIBUSH, :
Plaintiff, :
: Civil Action
v. : No. 14-3947
:
COUNCILMAN KENYATTA JOHNSON, :
Defendant. :


CERTIFICATE OF SERVICE
I hereby certify that on the date below, the Defendants Motion to Dismiss was
filed via the Courts electronic filing system and is available for downloading.


Date: September 8, 2014 Respectfully submitted,

/s/ John J. Coyle
John J. Coyle
Assistant City Solicitor
Pa. Attorney ID No. 312084
City of Philadelphia Law
Department
1515 Arch Street, 14
th
Floor
Philadelphia, PA 19102
215-683-5447 (phone)
215-683-5397 (fax)
[email protected]