MTD For Failure To State A Claim Stein v. PDQ

Case 2:13-cv-04644-WD Document 4 Filed 09/09/13 Page 1 of 48
In the United States District Court

For the Eastern District of Pennsylvania
Marc Stein,
Plainti,
v.
Jury Trial Demanded

2:13-cv-04644-PBT
City of Philadelphia, et. al,

Defendants.
Order Granting Defendants

Motion to Dismiss
Order
Today, this
day of
2013, upon
consideration of Defendants Motion to Dismiss, and Plaintis response, it is ordered that the motion is GRANTED. Plaintis
Complaint is dismissed with prejudice as to defendants Northern
Liberties Neighbors Association, Matt Ruben, Larry Freedman,
David Witz, Judy Donovan, Richard Donovan, James Brossy, Debbie Rudman, and Christopher Sawyer d/b/a Philadelinquency.
:
The Honorable Petrese B. Tucker

Marc Stein,
Plainti,
v.
Jury Trial Demanded

2:13-cv-04644-PBT

Defendants.
Defendants Motion to Dismiss

the Complaint
Defendants Motion to Dismiss Plaintis Complaint

Defendants, Northern Liberties Neighbors Association, Matt Ruben, Larry Freedman, David Witz, Judy Donovan, Richard Donovan, James Brossy, Debbie Rudman, and Christopher Sawyer, submit this Motion to Dismiss for Failure to State a Claim under Fed.
R. Civ. Pro. 12(b)(6) seeking dismissal of the plaintis Complaint
with prejudice for the reasons set forth it their Memorandum of
Law.
,
A. Jordan Rushie
Jordan@FishtownLaw.com
Pa. Id. 209066
Mulvihill & Rushie LLC
2424 East York Street Suite 316
Philadelphia, PA 19125
215.385.5291

Marc Stein,
Plainti,
v.
Jury Trial Demanded

2:13-cv-04644-PBT

Defendants.
Defendants Motion to Dismiss

Plaintis Complaint
Memorandum of Law in Support of Defendants Motion to Dismiss Plaintis Complaint

I. Facts.
Club Aura is a nightclub in the Northern Liberties neighborhood,
which has, to say the least, been a hotbed of nuisances, noise complaints, and trouble for its neighbors. Although the club provides
entertainment for patrons, the club also brings rich fodder for the
citys crime beat journalists. In addition to its patrons boisterous
goings on, the club has provided its neighbors with the opportunity
to witness a real live stabbing, a shooting, and someone being le
for dead on the sidewalk. (See, e.g., Ex. A and B). The neighbors
have had enough.
Club Auras owner Marc Stein is upset. He is upset that Club Aura's
neighbors do not appreciate the excitement that he has brought to
the neighborhood. He complains that neighbors photographed the
behavior of Club Auras patrons and then discussed it online. Complaint, 40. Stein does not deny that these events took place, he just
does not appreciate his neighbors discussing them.
But then there came a time when Club Aura wanted something om
its neighbors: support for a Special Assembly and Occupancy License, which would allow the nightclub to have DJs, live music, and
Marc Stein v. City of Philadelphia, et. al.

Defendants Memorandum of Law in Support of Their Motion to Dismiss
dancing. See Philadelphia Code 9-703(1)(2); see also Complaint

Ex. E. Nightclubs are not entitled to a Special Assembly Occupancy
License for a good reason namely, nuisance establishments like
Club Aura.
The Philadelphia Code 9-703 specifically requires that the City
take into consideration community concerns before issuing special
assembly licenses, although the communitys input is strictly advisory. Philadelphia Code 9-701(2)(b)(4)(c).
Steins neighbors, doing their civic duty under Philadelphia Code
9-701(2)(b)(4)(c), expressed that were less than excited about the
prospect of Club Aura having DJs and dancing. It comes as no surprise that the police department refused to approve a Special Assembly Occupancy License for Club Aura.
But Marc Stein would not be deterred. Rather than become a better
neighbor, Stein disregarded the law and operated Club Aura illegally. This is not in dispute, either Stein acknowledges in the
Complaint that [o]n January 28, 2012, Plainti opened its doors
as a Restaurant & bar with a disc jockey and dancing with expected
hours of operation were Monday thru Sunday 10:00 AM to 2:00
AM. Complaint, 28. Plainti further admits that [w]ithout the
Special Assembly and Amusement License permit Plainti cannot
have a disc jockey, and attending patrons are not even allowed to
dance. Complaint, 45. Since Stein did not have a Special Assembly Occupancy License, having a disc jockey and dancing is a viola-

tion of the Philadelphia Code. Compl. 32; Philadelphia Code

9-703.1
Club Aura was shut down on August 9, 2012 by Licenses & Inspections because it did not have a Special Assembly Occupancy License.
(Ex. C). On August 26, 2012, the Philadelphia Court of Common
Pleas ordered Club Aura to either comply with the law or remain
closed. (Ex. D).
Being shut down by Licenses & Inspections should have prompted
Stein into cleaning the cesspool he created and becoming a better
neighbor. It did just the opposite. Stein lashed out against his
neighbors, community volunteers, bloggers, a neighborhood message board, the City of Philadelphia, the police department, a police
captain, and a non-profit volunteer civic association by filing this
lawsuit. Stein is now blaming the neighborhood, and not himself,
for Club Auras failure to obtain a Special Assembly Occupancy License, and the reputation the club has earned in the community.
The legal basis of Steins claims are completely ivolous. In essence,
Stein is suing members of the community for engaging in public
participation mandated under the Philadelphia Code and speaking
the ugly truth about Club Aura. Not only are the statements at issue
1Stein
then contradicts himself in the Complaint. He alleges that Plainti

discovered that the Philadelphia Police Department, 6th District opposed
the Special Assembly and Amusement License application because the
NLNA informed the 6th District that Plainti was operating illegally. The
fact that Plainti was, at all times material hereto, operating in a legal
manner. Complaint, 37.
However, Stein admits to having disc jockey and dancing without having
the required Special Assembly Occupancy License. Complaint, 28; 45.
Steins failure to have these permit eventually led to Club Aura being closed by Licenses and Inspection. (Ex. C and D). Essentially,
Stein admits he was not operating the club lawfully, then inexplicably contends that he was.

in the Complaint completely true, but just about all of them were
made outside the statute of limitations.
Stein is also alleging violations of his civil rights, even though this
exact same approach failed in Vamsidhar Reddy Vurimindi v. City of Philadelphia, 2013 U.S. App. LEXIS 7054 (3d Cir. 2013). At least in
Vurimindi the litigant was pro se, and probably did not know any better2.
This haphazard and slapdash approach can only be described as a
strategic lawsuit against public participation (SLAPP). A SLAPP is a
lawsuit intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandoned
their criticism or opposition. The plainti's goals are accomplished
if the defendant succumbs to fear, intimidation, mounting legal
costs or simple exhaustion and abandons the criticism. A SLAPP
may also intimidate others om participating in the debate. Pennsylvania's lack of an anti-SLAPP statute all but ensures that this litigation will serve Plainti's abhorrent goal. As a result of ivolous
lawsuits like this one, the Old City Civic Association was recently
forced to disband. (Ex. E). If censorious litigants like Marc Stein
are permitted to file SLAPP suits without ramification, the trend of
civic association disbanding will continue.
2As
yet another example of just how careless this lawsuit is, Stein even sued
a neighborhood message board, which is indisputably immune om liability under 47 U.S.C. 230. Congress enacted 47 U.S.C. 230 to
immunize online service providers such as NorthernLiberties.org in cases
precisely like this one. In operating and displaying a message board,
NorthernLiberties.org is an online service provider within the scope of
47 U.S.C. 230, and thus immune om liability arising om the actions
of its users. Shiamili v. Real Estate Group of N.Y., Inc., 952 N.E.2d 1011 (N.Y.
2011). Steins claims against the website, based on statements made by
other service users, are barred as a matter of law by operation of 47
U.S.C. 230. The existence and operation of 230 is no mystery, as it
was enacted in 1996 as part of the Communications Decency Act.

The very temperature of the First Amendment hangs in the balance

here. Public participation is not only a fundamental right guaranteed under the First Amendment, but a duty written into the Philadelphia Code under 9-701(2)(b)(4)(c). Any pain or damage that
Stein has suered is either imaginary, not properly the subject of a
valid claim, or self-inflicted. If this Honorable Court allows Steins
ivolous lawsuit to move forward, he wins; his critics and civic association exercising their First Amendment right to public participation will be forced to incur significant legal fees in order to defend a
lawsuit meant to chill their right and duty of public participation.
For the reasons set forth below, the Complaint must be dismissed.
II. Legal Argument.
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the
dismissal of a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). For the reasons set
forth below, the complaint must be dismissed with prejudice.
None of the defendants are state actors with respect to the civil
rights claims, and there is recent case law arming this. Further,
any statements made at a civic association meeting are judicially
privileged, since community input is required under Philadelphia
Code 9-701(2)(b)(4)(c). Just about all the statements at issue in
the defamation claims fall outside the statute of limitations, and the
statements within the statute of limitations of are not defamatory in
any case.
For the reasons below, the defendants move this Honorable Court
to dismiss the Complaint.

(a) Counts Five, Six, Seven, Nine, Thirteen, and Fourteen:

NLNA, Matt Ruben, Larry Freedman, David Witz, Judy
Donovan, Richard Donovan, James Brossy, and Debbie
Rudman are not state actors and cannot be held liable under 1981 and 1983
Plainti alleges that the Northern Liberties Neighbors Association
(NLNA) is a civic association conducting business at 700 North 2nd
Street, City and County of Philadelphia. Complaint, 11, e. Plainti alleges that Matt Ruben is president of NLNA, and Larry
Freedman is the Vice President of NLNA. (Complaint, 11 g-h).
Plainti further alleges that David Witz, Judy Donovan, Richard
Donovan, James Brossy, and Debbie Rudman are members of the
Northern Liberties Neighbors Association. (Complaint 11, f, i, j,
k, and l).
It is well settled that Sections 1981 and 1983 provide private citizens with a means to redress violations of federal law committed by
state ocials. See 42 U.S.C. 1983. To establish a claim under
1983, a plainti "must establish that they were deprived of a federal constitutional or statutory right by a state actor." Kach v. Hose,
589 F.3d 626, 646 (3d Cir. 2009). Monroe v. Phelps, 2013 U.S. App.
LEXIS 7053 (3d Cir. 2013). A private entity does not become a
state actor for the purpose of 1983 simply because it is subject to
state regulations or receives funding om the state. Gross v. R.T. Reynolds, Inc., 487 Fed. Appx. 711, 719 (3d Cir. 2012).
assembly licenses. Philadelphia Code 9-701(2)(b)(4)(c). As a civic
association and Philadelphia Registered Community Organization
(RCO), it is the duty of NLNA and its ocers to respond to residents' complaints and concerns, facilitate the community input
process, and to support neighbors in the democratic process including the permit application process. (Ex. F).

Plainti has either disregarded or is unaware of recent case law addressing these issues. See Vurimindi v. City of Philadelphia, 2010 U.S.
Dist. LEXIS 82762 (D. Pa. 2010), In Vurimindi, the trial court held
that a civic association is not a state actor, which the Third Circuit
armed in Vamsidhar Reddy Vurimindi v. City of Philadelphia, 2013 U.S.
App. LEXIS 7054 (3d Cir. 2013). The trial court held that:
Defendants New Kensington Community Development
Corporation, its Board President Richard Levins, and Fishtown Neighbors Association Zoning Committee are not alleged to be government entities or acting under color of
state law. The "under-color-of-state-law element of 1983
excludes om its reach merely private conduct, no matter
how discriminatory or wrongful." American Ms. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 49-50, 119 S. Ct. 977, 143 L. Ed. 2d
130 (1999). "Although it is possible for a private party to
violate an individual's 1983 rights, the individual alleging
such a violation is not relieved of the obligation to establish
that the private party acted under color of state law." Kost v.
Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993). Claims against
these defendants must also be dismissed.
Further, the Third Circuit held in Vurimindi that allegations of inconsistent application of zoning requirements, unnecessary inspections, delaying permits and approvals, improperly increasing tax
assessments, and "malign[ing] and muzzl[ing]" a property owner
were not enough to shock the conscience, particularly where "[t]the
local ocials are not accused of seeking to hamper development in
order to interfere with otherwise constitutionally protected activity
at the project site, or because of some bias against an ethnic group."
Id.
A plainti alleging a conspiracy to violate civil rights must present
material facts showing that the purported conspirators reached some
understanding or agreement or plotted, planned and conspired together to deprive plainti of a protected federal right." Walker v.
Hensley, 2009 U.S. Dist. LEXIS 120897, 2009 WL 5064357, at *8,

citing D.R. by L.R. v. Middle Bucks Area Voc. Tech. Sch., 972 F.2d 1364,
1377 (3d Cir. 1992). "The mere incantation of the words 'conspiracy' or 'acted in concert' does not satisfy the pleading requirement
of a conspiracy claim." Walker, 2009 U.S. Dist. LEXIS 120897,
[WL] at *9.
The Complaint contains no facts supporting a reasonable inference
that NLNA, Matt Ruben, Larry Freedman, David Witz, Judy Donovan, Richard Donovan, James Brossy, and Debbie Rudman are state
actors or acting under color of state law. NLNA, and its Board
President Matt Ruben, and Northern Liberties Neighbors Association Zoning Committee chair Larry Freedman are not alleged to be
government entities or acting under color of state law. The same
holds true for the neighbors. In addition, the Complaint lacks the
requisite factual allegations necessary to support claims of a conspiracy to deprive him of a federal right.
Stein has also not alleged that he received dierent treatment than
other similarly situated persons and that the disparate treatment was
based on his protected class status. Although Stein alleges that he
was treated dierently om other business owners, he did not adequately identify any such person in his Complaint. Absent specific
allegations as to the allegedly similarly situated parties, he has not
made plausible the conclusion that those parties exist and that they
are like him in all relevant aspects. Stein therefore fails to state an
equal protection claim. See Vurimindi 2013 U.S. App. LEXIS at
7054.
Finally, the Complaint alleges that Stein was denied a Special Assembly Occupancy License, but does not plead any facts that are
conscious shocking. The plainti ran a nuisance nightclub, and at
times illegally. The neighbors opposed granting a Special Assembly
Occupancy License, which is their right and duty under the First
Amendment and the Philadelphia Code. Accordingly, Counts Five,
Six, Seven, Nine, Thirteen, and Fourteen must be dismissed.

(b) Statements made at civic association meetings are judicially privileged

assembly licenses. Philadelphia Code 9-701(2)(b)(4)(c).
Pennsylvania courts have long upheld the principle of judicial privilege. The reasons for the absolute privilege are well recognized: a
judge must be ee to administer the law without fear of consequences. This independence would be impaired were he to be in
daily apprehension of defamation suits. The privilege is also extended to parties to aord eedom of access to the courts, to witnesses to encourage their complete and unintimidated testimony in
court, and to counsel to enable him to best represent his client's
interests. Likewise, the privilege exists because the courts have other
internal sanctions against defamatory statements, such as perjury or
contempt proceedings. See Binder v. Triangle Publications, Inc., 442 Pa.
319, 323 (Pa. 1971); Greenberg v. Aetna Ins. Co., 235 A.2d 576, 577 (Pa.
1967).
Allegations pertaining to statements made at NLNA meetings are
covered by a judicial privilege, since community input is required
under the Philadelphia Code. Any claims plainti made for statements made at NLNA meetings must be dismissed.
(c) Count Four: the alleged defamatory statements made by
David Witz fall outside the applicable statute of limitations
It is well settled law that the statute of limitations for defamation
claims is one year om the date of publication. 42 Pa. C. S.
5523(1); Cole v. Ferranti, 2013 U.S. App. LEXIS 17794 (3d Cir.
2013). The statute begins to run om the time of publication. See
Dominiak v. Nat'l Enquirer, 439 Pa. 222, 266 A.2d 626, 629-30 (Pa.
1970). The discovery rule does not apply to defamation claims. Wolk
v. Olson, 730 F. Supp. 2d 376, 377 (D. Pa. 2010).

Stein filed this lawsuit on August 12, 2013, rendering any statements published before August 12, 2012 time-barred under Pennsylvania's statute of limitations for defamation.
In its Complaint, the plainti acknowledges that majority of statements alleged to be made by Witz were published outside the applicable statute of limitations. Paragraph 87 of the Complaint alleges
that Witz published the following statements:
April 6, 2012 - Ill be on Fox 29 at 10pm...bitching about
our blocks nuisance dance club.
June 27, 2012 - David Witz, Twitter - Nuisance bar Club
Aura appealed their case-operations notice. The hearing was
yesterday. They lost. The neighbors rejoice. Exhibit M.
David Witz move out of Northern Liberties next door to
Plainti o May 15,2012. Yet he continued to harass Plainti
through social media. Exhibit I.
June 27, 2012 - Email om David- Speaks about how Plainti
lost the appeal for the case-operations order. He then urges
neighbors to keep eyes and ears on the club and report any
legit violation--noise or music escaping the club, raucous customers disrupting the street at let-out, public urination, fistfights, any of those things that made Club Aura such an unwelcome and illegal invasion of a peaceful Northern Liberties
community. Exhibit N.
June 29, 2012 - Email om David mentioning the outcome of
the Hearing that previous Tuesday. Also mentioned that they
asked neighbors on Fairmount to keep a close eye and ear on
the club, and the 6th District Police was asked to put the club
on their roll call notice. Exhibit O. August 9, 2012 - David
Witz, Twitter - Farewell, Club Aura. For good this time.
Exhibit P.
10

Paragraph 87, allegations C, D, and E complain that Witz

Tweeted hyperlinks om Philebrity and Philadeliquency on
May 23, 2012 and June 21, 20123 .
All of these statements fall well outside the applicable one year statute of limitations and are accordingly barred as a matter of law.
Further, not only is Exhibit I nonsensical, but it complains about
statements made in April of 2012, all of which are also outside of
the applicable one year statute of limitations. Count 4 must be dismissed with prejudice.
(d) The statements made by David Witz within the applicable
statue of limitations are not defamatory
In Pennsylvania, the Uniform Single Publication Act, 42 [Pa. Cons.
Stat.] 8341-8345, sets forth the elements of a prima facie case in
a defamation action." Weaver v. Lancaster Newspapers, Inc., 592 Pa. 458,
926 A.2d 899, 903 (Pa. 2007). Whether a publication is "capable
of defamatory meaning" is a legal question to be resolved by the
court. n2 See Rockwell, 442 A.2d at 215; see also Church of Scientology
Int'l v. Behar, 238 F.3d 168, 173 (2d Cir. 2001) (observing that defamatory character "should ordinarily be resolved at the pleading
stage"). If the answer is "no," the case should be dismissed. Tucker,
237 F.3d at 282; MacElree, 674 A.2d at 1053.
Statements of opinion, without more, do not have defamatory
meaning. Mathias v. Carpenter, 402 Pa. Super. 358, 587 A.2d 1, 2-3
(1991). A simple expression of opinion based on disclosed or asSeveral courts, including the Third Circuit, specifically have considered
whether linking to previously published material is republication. To date,
they all hold that it is not based on a determination that a link is akin to
the release of an additional copy of the same edition of a publication because it does not alter the substance of the original publication. See In re
Phila. Newspapers, LLC, 690 F.3d 161, 174 (3d Cir. Pa. 2012). Again, it is
unclear whether the plainti is ignorant of the law or simply disregarding
it like he has in the past.
3
11

sumed non-defamatory facts is notitself sucient for an action of

defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is. Green v. Mizner, 692 A.2d 169, 174
(Pa. Super. Ct. 1997).
Just because a statement hurts someones feelings does not mean it
is defamatory. According to the Pennsylvania Superior Court:
However uncomfortable the publication of a story might
prove to such an individual, we cannot abridge a publisher's
First Amendment rights to placate the peculiar sensitivities
of a party. Thus, courts of this Commonwealth do not grant
relief to a plainti in a defamation action simply because he
found the publication personally objectionable. Bobb v. Kraybill, 354 Pa. Super. 361, 365-366 (Pa. Super. Ct. 1986).
Finally, Marc Stein is also a public figure and therefore must plead
facts establishing actual malice in order to state a claim. Whereas a
private individual need only prove negligence on the part of the defendant to prevail, a limited purpose public figure must establish
actual malice by the defendant. See Joseph v. Scranton Times L.P., 2008
PA Super 217, 959 A.2d 322, 339, 342 (Pa. Super. Ct. 2008). A
person may become a limited purpose public figure if he "thrust[s]
himself into the vortex of the discussion of pressing public concerns. Such a person uses "purposeful activity" to thrust "his personality" into a "public controversy." He becomes a limited purpose
public figure because he invites and merits "attention and comment." A person may become a limited purpose public figure if he
attempts to have, or realistically can be expected to have, a major
impact on the resolution of a specific public dispute that has foreseeable and substantial ramifications for persons beyond its immediate participants. Scott v. Lackey, 2012 U.S. Dist. LEXIS 73739 (D.
Pa. 2012).
The only comment alleged in the Complaint that falls within the
applicable statute of limitations is in Paragraph 87, j. The Plainti
alleges that Witz stated on October 4, 2012:
12

Club Auras sister nightmare in Old City, Dreemz aka Rain,

has finally been shut down by the city. Reason: no special
assembly license (and a LOT of neighbor complaints). The
special assembly license is needed for live music, DJs dance
floors and such. The owners of Dreemz aka Rain is Marc
Stein, who owns Club Aura, and he never bothered for get a
special assembly license for that club, either. Thats why
Aura is partially shut down right now. I can only hope his
getting caught and shut down in Old City means the Northern Liberties neighbors of Aura may finally get some relief
om this toxic, unlicensed dance club. Exhibit Q.
Plainti alleges that these statements either directly or by implication, that Plainti operates unlawfully and that its patrons are undesirable. (Complaint, 88). First o, the nightclub was operating
unlawfully and plainti admitted as much. Second, whether patrons
are undesirable is an opinion and protected by the First Amendment.
Since the statement at issue is one of opinion, it is not actionable
under applicable law. Witz expressed his opinion about Club Aura,
which is his right under the First Amendment.
Further, the Complaint does not allege that anything in the statement is untrue, or made with actual malice. (Complaint, 13-28,
32-34).
There is no dispute that the police refused to issue Club Aura a Special Assembly Occupancy License, and then it operated illegally
without one. Accordingly, any claim for defamation is barred.
(e) Count Eight: Matt Rubens alleged defamatory statements
fall outside the applicable statute of limitations
It is well settled law that the statute of limitations for defamation
claims is one year om the date of publication. 42 Pa. C. S.
5523(1); Cole v. Ferranti, 2013 U.S. App. LEXIS 17794 (3d Cir.
2013). This lawsuit was commenced on August 12, 2013. Any state-
13

ments published before August 12, 2012 are accordingly barred by

42 Pa. C. S. 5523(1).
In Paragraph 130, plainti alleges that Matt Ruben addressed the
Northern Liberties community on July 3, 2012. (Complaint, 130
a). Plainti then alleges that Matt Ruben sent an email it contends is
defamatory on July 30, 2012.
Assuming for arguments sake only that the statements were defamatory, which they were not, the statements were made outside the applicable statute of limitations and accordingly time barred.
(f) Count Ten: Larry Freedmans alleged defamatory statements fall outside the applicable statute of limitations
In Paragraph 148, plainti alleges that Larry Freedman made a defamatory statement to Philebrity.com, which was published on June
21, 2012.
Assuming for arguments sake that the statements were defamatory,
which they were not, the statements were made outside the applicable statute of limitations and accordingly time barred.
(g) Count Eleven: Judy Donovans statements fall outside the
applicable statute of limitations
In Paragraph 159, plainti alleges that Judy Donovan made a defamatory comments in an email sent to Yishai Kedar on April 2,
2012. The plainti further alleges that Donovan made defamatory
comments on Philebrity.com published on August 10, 2012.
which they are not, the comments were made outside the applicable
statute of limitations and accordingly time barred.
(h) Count Twelve: Richard Donovans statements fall outside
the applicable statute of limitations
In Paragraph 170, plainti alleges that Richard Donovan made a
defamatory comments in an email sent to Yishai Kedar on April 2,
14

2012. The plainti further alleges that Richard Donovan made defamatory comments on Philebrity.com published on August 10,
2012.
which they are not, the comments were made outside the applicable
statute of limitations and accordingly time barred.
(i) Count Eighteen: Plainti has not pled a proper claim for
tortious interference with contractual relations
A plainti alleging interference with existing contractual relations
should identify which existing relationships were hindered. All State
Transp. Co., 1997 U.S. Dist. Lexis at 10-11. Dismissal is proper where
the plainti fails to articulate a claim for tortious interference.
A plainti must not, however, "rest a claim for tortious interference
with prospective contractual relations on a mere hope that additional contracts or customers would have been forthcoming but for
defendant's interference." Advanced Power Sys, 1992 U.S. Dist. LEXIS
6479, 1992 WL 97826 at *11. The complaint "must allege facts that,
if true, would give rise to a reasonable probability that particular
anticipated contracts would have been entered into." Id. Such a
probability "may arise om an unenforceable express agreement or
an oer", or where "there is a reasonable probability that a contract
will arise om the parties' current dealings." Allstate Transp., 1997
U.S. Dist. LEXIS 16638, 1997 WL 666178 at *11. However, "merely
pointing to an existing business relationship or past dealings does
not reach this level of probability." Id. Although the federal rules
require only a short and plain statementof the claim, that statement
"must be sucient to give the defendant[s] notice of the claim and
the grounds upon which it is based." Id. See, e.g., Centennial Sch. Dist.
v. Independence Blue Cross, 885 F. Supp. 683, 688 (E.D. Pa. 1994)
(claim dismissed where complaint "failed to identify what contractual relationships were threatened").
15

Here, Plaintis allegations are merely a recitation of the prima

facie case or tortious interference. The allegations against the defendants, and absence of facts in support, do not suciently plead a
claim for tortious interference with prospective or existing business
relations.
(j) Count Seventeen: Plainti has not alleged what statements made by Chris Sawyer or Philadelinquency were
false or defamatory.
The United States Supreme Court's decision in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) and the Court's recent decision in
Ashcro v. Iqbal, 129 S. Ct. 1937 (2009) altered the manner in which
courts are to analyze a Rule 12(b)(6) motion to dismiss. The Third
Circuit recently observed that "pleading standards have seemingly
shied om simple notice pleading to a more heightened form of
pleading, requiring a plainti to plead more than the possibility of
relief to survive a motion to dismiss." Fowler v. UPMC, 578 F.3d 203,
210 (3d Cir. 2009).
Accordingly, if a plainti shows only that his or her claim is merely
conceivable, dismissal of the complaint is warranted. Twombly, 550
U.S. at 570; Iqbal, 129 S. Ct. at 1949 (stating that all civil complaints
must "contain more than an unadorned, the defendant-unlawfullyharmed-me accusation"). "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."
Iqbal, 129 S. Ct. at 1949.
Under 42 Pa.C.S.A. 8343, Plainti has the burden of showing:
(1) The defamatory character of the communication.
(2) Its publication by the defendant.
(3) Its application to the plainti.
(4) The understanding by the recipient of its defamatory
meaning.
16

(5) The understanding by the recipient of it as intended to

be applied to the plainti.
(6) Special harm resulting to the plainti om its publication.
(7) Abuse of a conditionally privileged occasion.
Statements of opinion, without more, do not have defamatory
meaning. Mathias v. Carpenter, 402 Pa. Super. 358, 587 A.2d 1, 2-3
(1991). A simple expression of opinion based on disclosed or assumed non-defamatory facts is notitself sucient for an action of
defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is. Green v. Mizner, 692 A.2d 169, 174
(Pa. Super. Ct. 1997). Under 42 Pa.C.S.A. 8343(b)(1), truth is an
absolute defense to a defamation claim. Corabi v. Curtis Publ'g Co., 441
Pa. 432, 273 A.2d 899, 908 (1971); Merkam v. Wachovia Corp., 2008
Phila. Ct. Com. Pl. LEXIS 85 (Phila. Com. P. LEXIS 2008).
In Paragraph 198, a - h, Stein essentially alleges that Sawyer wrote
articles on his blog about Club Aura that he did not like.
However, Stein does not allege the defamatory character of the
communications, the understanding by the recipient of its defamatory meaning, the understanding by the recipient of its as intended
to be applied to the plainti, special harm, or abuse of a conditionally privileged occasion.
Tellingly, plainti does not even allege that any of the articles published by Sawyer contain statements that are untrue. Stein alleges
that Sawyer wrote articles about Club Aura that he did not like.
However, Marc Steins hurt feelings are not actionable under Pennsylvania law.
Amazingly, Stein admits that [o]n January 28, 2012, Plainti
opened its doors as a Restaurant & bar with a disc jockey and dancing with expected hours of operation were Monday thru Sunday
10:00 AM to 2:00 AM in violation of the law, since it does not
17

have a Special Assembly Occupancy License. (Complaint, 28).

Stein then acknowledges that his actions were illegal because
[w]ithout the Special Assembly and Amusement License permit
Plainti cannot have a disc jockey, and attending patrons are not
even allowed to dance. Complaint, 45.
Stein alleges that Sawyers statements are defamatory because either
directly or by implication, that Plainti operates unlawfully and that
its patrons are undesirable. (Complaint, 199).
First, Club Aura was admittedly operating illegally. The issue is not
whether Club Aura was operating illegally, it was, but simply that
Marc Stein does not like people discussing that fact. Perhaps if Marc
Stein does not want people criticizing his nightclub for operating
illegally, he should not operating it illegally.
Regarding the remainder, Sawyers' alleged statements about the patrons being undesirable are matters of opinion, and the desirability or undesirability of something is a subjective assessment beyond
the realm of defamation. A non-falsifibale as subjective opinion is
not defamatory, as there is no such thing as a "false idea" that gives
rise to a statement of fact. Gertz v. Robert Welch Inc. 418 U.S. 323, 339
(1974); Joseph v. Scranton Times L.P., 2008 PA Super 217, 959 A.2d
322, 339, 342 (Pa. Super. Ct. 2008).
Further, the Complaint also fails to allege specific statements made
by Sawyer where he suggested patrons are undesirable.
The claims against Sawyer are ivolous and only meant to stop him
om blogging about Club Aura for fear of incurring legal fees.
They must be dismissed as a matter of law.
III. Conclusion.
The defendants have done their civic duty under the Philadelphia
Code by shining the suns cleansing light upon Club Aura. Their
stewardship of the community compelled them to speak ankly
18

about the damage Club Aura has inflicted on Northern Liberties.

Rather than clean up the mess he created, Marc Steins response was
to file a ivolous lawsuit against his neighbors to silence them. He
must be stopped.
Nothing less than the right and responsibility of citizens under the
First Amendment and the Philadelphia Code to shine a light on
public nuisances like Club Aura hangs in the balance. For these reasons, this Honorable Court is not merely justified in dismissing all
of Steins claims against the Defendants it must do so. Stein has
failed to articulate even one cause of action in his Complaint for
which the Court can aord him relief.
,
A. Jordan Rushie
Jordan@FishtownLaw.com
Pa. Id. 209066
Mulvihill & Rushie LLC
2424 East York Street Suite 316
215.385.5291
Marc J. Randazza (pro hac vice pending)
mjr@randazza.com
Randazza Legal Group
3625 S. Town Center Drive
Las Vegas, NV 89135
888.667.1113
19
Certificate of Service.
I, A. Jordan Rushie, certify that I sent a copy of Defendants Motion
to Dismiss Plaintis Complaint to the following parties via CM/
ECF:
Marirose Roach, Esquire
Roach, Leite & Manyin, LLC
2938 Levick Street
Ground Floor
A. Jordan Rushie
Dated: Monday, September 9, 2013
Exhibit A
Exhibit B
13-year-old among victims wounded in overnight shooting incidents | #GunCrisis: Philadelphia
Please consider making a tax-deductible contribution to:
9/8/13 7:00 PM
Support the Gun Crisis Reporting Project
#GunCrisis: Philadelphia
Seeking solutions to the epidemic of homicide by gunfire in the City of Brotherly Love
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13-year-old among victims wounded in overnight

shooting incidents
Posted on March 16, 2013 by Jim MacMillan
http://guncrisis.org/2013/03/16/13-year-old-among-victims-wounded-in-overnight-shooting-incidents/
Page 1 of 5
9/8/13 7:00 PM
Philadelphia Police officers search for ballistic evidence after gunfire was reported near in the area of Front Street
and Fairmount Avenue, near a nightclub in in Northern Liberties early Saturday morning. Photographs for the Gun
Crisis Reporting Project by Joseph Kaczmarek.
According to police on scene, no shooting victims were located but they
found six 9mm shell casings and a vehicle with several bullet holes in the
parking lot. Police stopped a vehicle that matched witness descriptions on
Columbus Boulevard and detained two men.
A neighbor tweeted an update this morning.
Officers were also checking reports of a stabbing victim at the same
location. The 31-year-old man was reported in critical condition at Hahnemann University Hospital, according to
philly.com.
Page 2 of 5
9/8/13 7:00 PM
At least six people were wounded by gunfire in five other incident reported across Philadelphia beginning Friday
evening and leading into the overnight hours. Just before 9 p.m., a 13-year-old was shot in the leg in the area of
6200 Musgrave Street in East Germantown.
Officials said that an argument broke out among a group of people and one man fired a gun, according CBS3.
Police told NBC10 the teen was an innocent bystander who was walking nearby. The child was transported in a
police cruiser to Einstein Medical Center, according to philly.com.
Joe Kaczmarek of the Gun Crisis Reporting project reported updates from a community member using Twitter at
the scene.
Earlier Friday evening, a 32-year-old man was dropped off at Temple University Hospital with gunshot wounds in
each leg. According to 6ABC, the incident happened around 6:30 Friday night on the 4900 block of Catherine
Street in West Philadelphia.
A 38-year-old man was in stable condition at the Hospital of the University of Pennsylvania after the report of a
shooting on the 5200 block of Vine Street in West Philadelphia at about 10 p.m.
Page 3 of 5
9/8/13 7:00 PM
A short time later, a 27-year old man was shot on the 200 block of North Robinson Street and rushed to the
Hospital of the University of Pennsylvania, where he was reported stable. According to NBC10, a mother and
daughter were also injured by shattered glass during this incident.
Shortly before 5 a.m. Saturday, a man and a woman were shot on the 5800 block of Pentridge Street in the
Kingsessing section of the city, and rushed to the Hospital of the University of Pennsylvania, where they were also
reported in stable condition. According to 6ABC, police say the 31-year-old woman was shot in the back and 43year-old man was shot in the arm.
NBC10 also reported an incident where a stray bullet shattered the window of a SEPTA bus carrying a dozen
passengers at 63rd and Walnut Streets Friday night in Southwest Philadelphia, but no injuries were reported.
2013 Google Map data 2013 Google -
View Weekend shooting reports, beginning March 15th, 2013 in a larger map
Share you ideas to stop the shooting with our community by using the #phillypeaceplan hash tag when
communicating on social media: http://guncrisis.org/phillypeaceplan/
If you want to get involved in gun violence reduction in Philadelphia, please consider volunteering with or donating to
one of the organizations under our Network tab. If you would like us to add your group to our list, please email us
at info@guncrisis.org.
This entry was posted in Crime Scenes, Incidents, Maps, News, Photos and tagged guncrisis, gunfire,
Page 4 of 5
9/8/13 7:00 PM
philadelphia, phillypeaceplan, shooting victims by Jim MacMillan. Bookmark the permalink

[http://guncrisis.org/2013/03/16/13-year-old-among-victims-wounded-in-overnight-shooting-incidents/]
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Page 5 of 5
Man stabbed in back three times - Philly.com
9/8/13 7:03 PM
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Man stabbed in back three times

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POSTED: March 17, 2013
A man remained Saturday in critical condition after being literally

stabbed in the back - three times.
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The 31-year-old man was stabbed just before 2:45 a.m. by the
intersection of North Front Street and Fairmount Avenue by the
Northern Liberties/Old City neighborhood border. He was taken by
private car to Hahnemann University Hospital, where he was listed in
critical condition Saturday morning.
No arrests have been made.
Jonathan Lai
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Man in critical condition after stabbing
in city
March 18, 2013
Man, 29, shot in Northern Liberties

November 15, 2011
Stabbing attack leaves man, 23,

critically hurt
February 4, 2013
Man struck by car in Camden

March 3, 2013
Find More Stories About

Northern Liberties
http://articles.philly.com/2013-03-17/news/37769805_1_critical-condition-jonathan-lai-northern-liberties
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Man stabbed in back three times - Philly.com
9/8/13 7:03 PM
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On Saturday, 03/16/13, 1:30 AM, a fight inside Aura, 626 N.

Front St. resulted in a male being stabbed in the neck with
a bottle. The victim was taken to the hospital by private auto
and listed in serious condition. Outside the bar, a person
connected to the fight went to a Jeep parked in the parking lot
directly across the street, retrieved a handgun from the
vehicle, stood by the passenger door and fired multiple
shots towards the crowd, no persons were injured, 2
shots struck an unattended GMC.
The Jeep fled the scene, but was stopped by 6th District Officers
Thornton and Hudson in the 200 block S. Columbus Blvd. The
driver and passenger were identified by witnesses.
The offenders, ages 26 and 27, one with a South Phila. address
the other with a Secane, Pa. address were charged with
Aggravated Assault and related offenses
Exhibit C
Exhibit D
COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) G. BAXTER 08/16/2012
Exhibit E
Whacked By Lawsuit Costs, Old City Civic Association Disbands CBS Philly
9/8/13 1:05 AM
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Whacked By Lawsuit Costs, Old City Civic
Association Disbands
May 16, 2013 12:04 PM
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By John McDevitt
PHILADELPHIA (CBS) A civic group
championing the concerns of residents and
businesses in the Old City section of
Philadelphia is no more, the victim of lawsuits
and high liability insurance premiums.
But a city councilman is trying to help.
The Old City Civic Association a couple of weeks
(The Old City Civic Association web site.)
ago did away with its lawsuit-luring liquor and

development committees.
Since then, the association has voted to disband altogether, citing the
ongoing cost of lawsuits and the high premiums for its D&O (directors
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and officers) insurance.

The Old City District, primarily representing businesses in the
Reporting John McDevitt
commercial section of Old City, remains in place.
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different, notes Councilman Mark Squilla, whose district includes Old

City.
We dont want to lose the voice of the community, he tells KYW
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Newsradio, and to lose that I think would be detrimental to the City of
John McDevitt, KYW

Newsradio 1060, Mark
Squilla, Old City Civic
Association, Old City
District, Old City
Philadelphia
Philadelphia because the city is a city of neighborhoods.
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Squilla says the Old City Civic Association was hobbled by the cost of
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getting sued. Even though the cases didnt go to court, the OCCA
faced thousands of dollars in legal bills after being sued twice in 13
http://philadelphia.cbslocal.com/2013/05/16/whacked-by-lawsuit-costs-old-city-civic-association-disbands/
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community organizations
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expensive, and exploring the possibility of allowing RCOs to utilize the
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Page 3 of 3
Exhibit F
THE PHILADELPHIA CODE > TITLE 14. ZONING AND PLANNING

CHAPTER 14-300. Administration and Procedures
14-303. Common Procedures and Requirements.
(12) Neighborhood Notice and Meetings.
(a) Registered Community Organizations.
(.1) Organizations that desire to be recognized as a Registered
Community Organization by the Commission shall register annually
with the Commission by providing (1) the name of a contact person,
(2) the name of a person designated to participate in the Civic Design
Review process, if applicable, (3) the boundaries of its geographic
area of concern, (4) whether the organization wishes to be notified of
applications in its geographic area of concern electronically or by mail,
and (5) such other information as may be required by the regulations
of the Commission.
(.2) Organizations shall register as one of the following:
(.a) A Local Registered Community Organization whose geographic
area of concern is a neighborhood. Its registered geographic
boundaries shall meet the geographic area set forth in the
groups articles of incorporation, bylaws, or other governing
documents; or
(.b) An Issue-based Registered Community Organization whose
geographic area of concern is greater than the maximum
allowable size of a Local Registered Community Organization,
as established by the regulations of the Commission.
(.3) The Commission shall establish, by regulation, the requirements for
qualifying as a Registered Community Organization.
(b) Applicability.
The procedures of this 14-303(12) (Neighborhood Notice and Meetings) shall
apply to applications that pertain to a property within the boundaries of the
Registered Community Organization and that:
(.1) Require Zoning Board approval of a special exception under 14303(7) (Special Exception Approval);
(.2) Require Zoning Board approval of a zoning variance under 14303(8), (Zoning Variances); or
(.3) Meet the requirements for Civic Design Review in 14-304(5) (Civic
Design Review).
(c) Notice to Registered Community Organizations.
(.1) Within seven days of (a) filing an appeal to the Zoning Board for
approval of a special exception or variance or (b) being notified by L&I
that an application will require review under the Civic Design Review
Process, the applicant must provide notice to each Registered
Community Organization whose registered boundaries include the
applicants property and provide a copy of such notice to the
Commission, L&I, and, for a special exception or variance, to the
Zoning Board. Where there is no Local Registered Community
Organization whose boundaries include the applicants property, the
applicant shall provide notice to the district council member whose
district includes the applicants property, and such district council
member shall serve as the local Registered Community Organization
for all purposes with respect to the application or appeal.
(.2) L&I shall provide the applicant with names and contact information for
the Registered Community Organization(s) to be contacted and shall
require that the applicant provide notice in the preferred form stated in
the organizations filing documents (i.e. electronically or by mail).
(.3) The notice shall contain the following content:
2
(.a) The name and address of the applicant;

(.b) The name and contact information of any other Registered
Community Organizations whose registered geographical
boundaries include the applicants property;
(.c) The location where copies of the application and any related
information submitted by the applicant can be obtained;
(.d) A description of the property involved by general vicinity, street
address, size, and nearest cross street, and the zoning district
in which the property is located;
(.e) A description of the nature, scope, and purpose of the
application and the type of permit, approval, or variance being
sought;
(.f) The time and place of any required public meeting or hearing
regarding the application or a statement that such required
public meeting or hearing has not yet been scheduled; and
(.g) Any additional information required by L&I, the Zoning Board,
or the Commission for the proposed application.
(d) Neighborhood Meeting and Documentation Requirements.
The procedures of this 14-303(12)(d) (Neighborhood Meeting and
Documentation Requirements) shall only apply to Local Registered Community
Organizations.
(.1) Within 45 days after the applicant has filed an appeal to the Zoning
Board for approval of a special exception or variance or within 45 days
after the applicant has been notified by L&I that an application will
require review under the Civic Design Review Process, the noticed
Local Registered Community Organization(s) and the applicant shall
complete the actions required by this 14-303(12)(d) (Neighborhood
Meeting and Documentation Requirements). The Zoning Board or
Civic Design Review Committee shall not conduct any public meetings
on the application until the applicant and the Local Registered
3
Community Organization(s) have completed the actions required by

this 14-303(12)(d) (Neighborhood Meeting and Documentation
Requirements) or 45 days, whichever is less.
(.a) The noticed Local Registered Community Organization(s) shall:
(.i) Convene, organize, and conduct a meeting with the
applicant to discuss the proposal. If there is more than one
Local Registered Community Organization whose
geographic area of concern includes the project site, those
organizations shall coordinate to convene a single meeting
with the applicant during such 45-day period; and
(.ii) Provide to the Zoning Board or Civic Design Review
Committee, as applicable, written documentation of the
meeting; or, if no meeting was held within the required 45day timeframe, written documentation demonstrating that
the Local Registered Community Organization has made a
good faith effort, as set forth in 14-303(12)(d)(.1)(.c), to
meet with the applicant.
(.b) The applicant shall provide to the Zoning Board or Civic Design
Review Committee, as applicable, written documentation of the
meeting; or, if no meeting was held within the required 45-day
timeframe, written documentation demonstrating that the
applicant has made a good faith effort, as set forth in 14303(12)(d)(.1)(.c), to meet with the Local Registered
Community Organization(s).
(.c) An applicant or a Registered Community Organization shall
establish a good faith effort to comply with this 14-303(12)(d)
(Neighborhood Meeting and Documentation Requirements) by
documenting an effort to: (1) review the application at the next
regularly-scheduled meeting of the Local Registered
Community Organization, or (2) establish an alternative
meeting date that is within 30 days of the zoning permit or
appeal filing date, as applicable.
(.2) If an application requires both Civic Design Review and Zoning Board
approval, the applicant is required to comply with the requirements of
this 14-303(12)(d) (Neighborhood Meeting and Documentation
Requirements) only once. A second meeting with the Local Registered
Community Organization(s) is not required following Civic Design
Review and before action by the Zoning Board.

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Case 2:13-cv-04644-WD Document 4 Filed 09/09/13 Page 1 of 48

In the United States District Court

Jury Trial Demanded

City of Philadelphia, et. al,

Order Granting Defendants

The Honorable Petrese B. Tucker

Case 2:13-cv-04644-WD Document 4 Filed 09/09/13 Page 2 of 48

In the United States District Court

Jury Trial Demanded

City of Philadelphia, et. al,

Defendants Motion to Dismiss

Defendants Motion to Dismiss Plaintis Complaint

Case 2:13-cv-04644-WD Document 4 Filed 09/09/13 Page 3 of 48

In the United States District Court

Jury Trial Demanded

City of Philadelphia, et. al,

Defendants Motion to Dismiss

Memorandum of Law in Support of Defendants Motion to Dismiss Plaintis Complaint

Case 2:13-cv-04644-WD Document 4 Filed 09/09/13 Page 4 of 48

Marc Stein v. City of Philadelphia, et. al.

dancing. See Philadelphia Code 9-703(1)(2); see also Complaint

Case 2:13-cv-04644-WD Document 4 Filed 09/09/13 Page 5 of 48

Marc Stein v. City of Philadelphia, et. al.

tion of the Philadelphia Code. Compl. 32; Philadelphia Code

then contradicts himself in the Complaint. He alleges that Plainti

Case 2:13-cv-04644-WD Document 4 Filed 09/09/13 Page 6 of 48

Marc Stein v. City of Philadelphia, et. al.

Case 2:13-cv-04644-WD Document 4 Filed 09/09/13 Page 7 of 48

Marc Stein v. City of Philadelphia, et. al.

The very temperature of the First Amendment hangs in the balance

Case 2:13-cv-04644-WD Document 4 Filed 09/09/13 Page 8 of 48

Marc Stein v. City of Philadelphia, et. al.

(a) Counts Five, Six, Seven, Nine, Thirteen, and Fourteen:

Case 2:13-cv-04644-WD Document 4 Filed 09/09/13 Page 9 of 48

Marc Stein v. City of Philadelphia, et. al.

Case 2:13-cv-04644-WD Document 4 Filed 09/09/13 Page 10 of 48

Marc Stein v. City of Philadelphia, et. al.

Case 2:13-cv-04644-WD Document 4 Filed 09/09/13 Page 11 of 48

Marc Stein v. City of Philadelphia, et. al.

(b) Statements made at civic association meetings are judicially privileged

Case 2:13-cv-04644-WD Document 4 Filed 09/09/13 Page 12 of 48

Marc Stein v. City of Philadelphia, et. al.

Case 2:13-cv-04644-WD Document 4 Filed 09/09/13 Page 13 of 48

Marc Stein v. City of Philadelphia, et. al.

Paragraph 87, allegations C, D, and E complain that Witz

Case 2:13-cv-04644-WD Document 4 Filed 09/09/13 Page 14 of 48

Marc Stein v. City of Philadelphia, et. al.

sumed non-defamatory facts is notitself sucient for an action of

Case 2:13-cv-04644-WD Document 4 Filed 09/09/13 Page 15 of 48

Marc Stein v. City of Philadelphia, et. al.

Club Auras sister nightmare in Old City, Dreemz aka Rain,

Case 2:13-cv-04644-WD Document 4 Filed 09/09/13 Page 16 of 48

Marc Stein v. City of Philadelphia, et. al.

ments published before August 12, 2012 are accordingly barred by

Case 2:13-cv-04644-WD Document 4 Filed 09/09/13 Page 17 of 48

Marc Stein v. City of Philadelphia, et. al.

Case 2:13-cv-04644-WD Document 4 Filed 09/09/13 Page 18 of 48

Marc Stein v. City of Philadelphia, et. al.

Here, Plaintis allegations are merely a recitation of the prima

Case 2:13-cv-04644-WD Document 4 Filed 09/09/13 Page 19 of 48

Marc Stein v. City of Philadelphia, et. al.

(5) The understanding by the recipient of it as intended to

Case 2:13-cv-04644-WD Document 4 Filed 09/09/13 Page 20 of 48