Thomas Greco v. Michael Senchak , 627 F. App'x 146 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 14-3212
__________
THOMAS J. GRECO,
Appellant
v.
MICHAEL SENCHAK, a/k/a John Senchak;
NORTHEAST REVENUE SERVICES, LLC;
JOHN RODGERS; SEAN SHEMANY;
LUZERNE COUNTY, d/b/a Luzerne County Tax Claim Office;
POINT AND PAY, LLC, a/k/a Vesta ISO LLC;
RBA PROFESSIONAL DATA SYSTEMS, INC.
__________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(District Court Civil No. 3-12-cv-02576)
District Judge: Honorable Malachy E. Mannion
Submitted Under Third Circuit LAR 34.1(a)
May 22, 2015
BEFORE: FUENTES, GREENAWAY, JR., and NYGAARD, Circuit Judges
(Filed: September 23, 2015)
__________
OPINION*
__________
NYGAARD, Circuit Judge.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Introduction
The District Court dismissed Appellant Thomas Greco’s Equal Protection claims,
declined to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3), and
dismissed Greco’s state law claims without prejudice to them being re-filed in state court.
Arguing he had satisfactorily set out an Equal Protection claim, and that the District
Court erred in various other aspects, Greco appealed. We will affirm.
Factual Background
Inasmuch as this opinion lacks any precedential value, we will briefly summarize
the factual background to this dispute. The August 12, 2010 edition of the Wilkes-Barre
Times Leader reported that six electronic payments Greco had made to cover delinquent
property taxes he owed to Luzerne County had bounced. This was news to Greco
because he never made these payments. Greco informed the credit agency handling the
delinquencies, Northeast Revenue Services (NRS), and its manager in charge of Luzerne
County collections, Sean Shamany, that he did not make or authorize the payments. He
also informed Shamany that the United States Secret Service was investigating the matter
at Greco’s behest. Shamany assured Greco that all payments were verified and that if
there was any error Point and Pay, LLC, the entity handling the online tax collection
system, would be responsible. Shamany further indicated that NRS would conduct an
investigation.
Shortly after his meeting with Shamany, Greco received a letter from John
Rodgers, president of NRS. Rodgers notified Greco of the defaulted payments and
2
threatened criminal charges if Greco did not satisfy the property tax debt. Greco then met
with agents of the Secret Service. An investigation by the Secret Service uncovered that
Michael Senchak, Appellee, had submitted payments without Greco’s knowledge or
authorization. The Secret Service froze the county tax records as well as those of the
collection agency. The United States Attorney’s office additionally confirmed that Greco
was not responsible for the bounced checks and Greco advised the Times Leader of these
developments in April of 2011. Even though they had been made aware of the results of
the investigation, NRS continued to post incorrect delinquent property tax notices for
Greco’s properties.
Procedural Background
Greco originally filed suit in state court against Senchak,1 NRS, its agents,
Shamany and Rodgers, Point and Pay and Luzerne County. He charged NRS and its
agents with violating his rights under the Equal Protection Clause of the Fourteenth
Amendment. Greco also alleged various state law claims including tortious misfeasance
and malfeasance. Greco’s lawsuit was removed to federal district court and the Appellees
filed motions to dismiss. The District Court granted the motions to dismiss Greco’s
Equal Protection claims, but allowed him an opportunity to amend. It also dismissed the
municipal liability claim against Luzerne County, with prejudice. The state law claims of
tortious malfeasance and misfeasance were not dismissed, although the District Court
indicated it would construe them as negligence claims. Finally, negligence claims against
1 Michael Senchek never answered Greco’s complaint nor participated in any way
with the lawsuit.
3
NRS were dismissed as time-barred, with the exception of claims which arose from the
publication of Greco’s personal financial status and the publication of incorrect tax
delinquency notices.
Greco filed an amended complaint, raising five counts. Count I charged fraud
against Michael Senchak. Count II brought negligence claims against NRS, Point and
Pay, and RBA Professional Data Systems, Inc., an independent contractor for NRS and/or
Luzerne County and/or Point and Pay. Tortious malfeasance and misfeasance claims
were charged against NRS, Shamany and Rodgers in Count III. Count IV raised an
Equal Protection claim based on a “class of one” theory against Luzerne County, NRS,
Rodgers, and Shamany which the District Court again dismissed. Lastly, Count V raised
an Equal Protection claim based on selective enforcement.
The District Court began its analysis with the Equal Protection counts and again
dismissed those claims. Having dismissed the federal claims, the District Court declined
to exercise supplemental jurisdiction over Greco’s state law claims. It dismissed those
claims without prejudice to them being re-filed in state court. Greco now appeals the
dismissal of his Equal Protection claims as well as the District Court’s decision not to
exercise its supplemental jurisdiction over his state law claims. He also appeals the
dismissal of the municipal liability claim against Luzerne County as well as the District
Court’s decision that the negligence claims violated the statute of limitations. Finding no
error in the District Court’s handling of this case, we will affirm.
Jurisdiction and Standards of Review
4
We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise a plenary standard
of review. See Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013). To
survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain
sufficient factual matter, accepted as true, to state a facially plausible claim. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
A claim is plausible “when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
The Equal Protection Claims
We begin with the constitutional claims and quickly conclude that the District
Court properly dismissed Greco’s Equal Protection claims. Greco has not claimed to be a
member of a protected class. Therefore, his claim must be premised on a “class-of-one”
theory. See Engquist v. Or. Dep't of Agric., 553 U.S. 591, 601 (2008). To make out such
a claim, Greco needs to allege that: (1) the defendant treated him differently from others
similarly situated, (2) the defendant did so intentionally, and (3) there was no rational
basis for the difference in treatment. Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d
Cir. 2006). Pleading a plausible allegation of intentional discrimination is vital because
such action is required for any violation of the Equal Protection Clause. See, e.g.,
Washington v. Davis, 426 U.S. 229, 239-40 (1976); Wayte v. United States, 470 U.S. 598,
610 (1985) (“[D]iscriminatory purpose” can be shown by demonstrating that “the
decisionmaker . . . selected or reaffirmed a particular course of action at least in part
5
‘because of,’ not merely ‘in spite of,’ its adverse effects . . . .”) (quoting Pers. Adm’r of
Mass. v. Feeney, 442 U.S. 256, 279 (1979)).
The District Court previously ruled that while Greco had sufficiently alleged that
he was treated differently and that there was no rational basis for this difference in
treatment, he had not set out sufficient allegations of intentional treatment. The District
Court gave Greco another opportunity to re-plead intentional discrimination, but
determined that Greco had failed to do so and again dismissed Greco’s claims. We agree
with that dismissal. Greco has not alleged that he was intentionally discriminated against
by the Appellees. Intentional discrimination requires more than allegations of “unequal
treatment or adverse effect.” Jewish Home of E. Pa. v. Ctrs. for Medicare & Medicaid
Servs., 693 F.3d 359, 363 (3d Cir. 2012). The amended complaint alleges the Appellees
1) failed to make a “proper inquiry” into the unauthorized electronic payments, and 2)
informed the local newspaper that the payments had bounced. Crucially, these averments
are insufficient to raise a claim of intentional discrimination. See e.g., PG Publ’g. Co. v.
Aichele, 705 F.3d 91, 115 (3d Cir. 2013).
Apparently unable to plead any specific instances of intentional discrimination
(given that he was afforded opportunities to do so by the District Court), Greco tries to
save his claims by pleading that the Appellees’ communication with the newspaper was
premised on the financial interest the Appellees have in collecting taxes and the
adversarial nature of the relationship between himself and Luzerne County and its tax
claim bureau. Even were we to stretch these claims to the breaking point, they raise only
an inference of discrimination or unjust treatment, not actual instances of intentional
6
discrimination. Simply put, Greco has failed to allege a specific intent to discriminate by
the parties he seeks to hold liable. The District Court, therefore, correctly dismissed this
claim.
Selective Enforcement
Greco also claimed an Equal Protection violation via selective enforcement. Such
a claim must plausibly allege that a facially valid law was discriminatorily enforced. Hill
v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005). Greco’s amended complaint
alleges only that “[Appellees] selectively and discriminatorily enforced the facially valid
law(s) for the collection of Luzerne County’s property real estate taxes.” This allegation,
however, is far too vague in that it fails to identify the specific law or laws Greco believes
were selectively enforced against him. See Yick Wo v. Hopkins, 118 U.S. 356, 373
(1886); Holder v. City of Allentown, 987 F.2d 188, 197 (3d Cir. 1993). The District
Court, therefore, did not err by dismissing the selective enforcement claim. 2
Remaining State Law Claims
Having dismissed the federal Equal Protection claims, the District Court declined
to exercise supplemental jurisdiction over Greco's remaining state law claims. See 28
U.S.C. § 1367(c)(3). The supplemental-jurisdiction statute provides that the district court
“may decline to exercise supplemental jurisdiction” over state law claims if the court
2
Municipal liability under § 1983 must be based on the “execution of a government’s
policy or custom” that actually results in a constitutional violation. Monell v. Dep’t of
Soc. Servs. of City of N.Y., 436 U.S. 658, 694–95 (1978). Because we conclude that
Greco has not alleged facts showing a constitutional “violation in the first place, there can
be no derivative municipal claim.” Mulholland v. Gov’t Cty. of Berks, Pa., 706 F.3d 227,
238 n.15 (3d Cir. 2013). Therefore, Greco’s Monell claim cannot survive dismissal.
7
“has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. §
1367(c)(3). Because that choice is committed to the District Court’s judgment, we
review only for an abuse of discretion. Trinity Indus., Inc. v. Chi. Bridge & Iron Co., 735
F.3d 131, 135 (3d Cir. 2013). Here, once the District Court dismissed Greco’s federal
Equal Protection claims, the prerequisites for § 1367(c)(3) were met. Put another way,
because the District Court dismissed all claims over which it had original jurisdiction, it
had the authority to decline to exercise supplemental jurisdiction. We have held that,
“absent extraordinary circumstances,” “jurisdiction [over claims based on state law]
should be declined where the federal claims are no longer viable.” Shaffer v. Bd. of Sch.
Dirs. of Albert Gallatin Area Sch. Dist., 730 F.2d 910, 912 (3d Cir. 1984). Here, neither
Appellant nor any of the Appellees have pointed to any exceptional circumstances
favoring the exercise of supplemental jurisdiction. We find, therefore, that the District
Court did not abuse its discretion in dismissing the remainder of Greco’s state law claims
and we, therefore, will not review them on appeal.
Conclusion
The District Court did not err in dismissing Greco’s amended complaint and we
will affirm its decision.
8