Stein v. City of Philadelphia, PICS Case No. 14-0098 (E.D. Pa. Jan. 15, 2014) Ditter, J. (6 pages).

U.S. DISTRICT COURT-EASTERN

The Legal Intelligencer

CIVIL PRACTICE

Government • Failure to State a Claim • Substantive Due Process

Stein v. City of Philadelphia, PICS Case No. 14-0098 (E.D. Pa. Jan. 15, 2014) Ditter, J. (6 pages).

Where the plaintiff did not make allegations of government action that "shock the conscience" to support his substantive due process claim, the complaint failed to state a claim upon which relief could be had. Motion to dismiss granted.

Plaintiff Mark Stein filed an application on behalf of his restaurant/bar/nightclub for a "special assembly license" required by city code for establishments seating more than 50 patrons and providing entertainment at one or more times during the year, which was denied by the city of Philadelphia. Stein filed suit against the city alleging that the city's denial was violation of his substantive due process rights, as well as alleging tortious interferences with his business.

The city filed a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Under the standard of review, the court accepts as true all the facts and allegations and inferences drawn therefrom in the complaint, viewed in the light most favorable to the non-moving party. The court noted that mere recitation of the elements of a cause of action supported by mere conclusory statements was insufficient to establish a plausible claim.

The city argued that it was immune from a claim of tortious interference with a business relationship under the Tort Claims Act; Stein did not respond to or refute the city's contention, leading the court to waive the tort claim.

The city argued that Stein failed to allege that the city's actions violated his substantive due process rights in any way. The court explained that a substantive due process claim must show under a heightened standard that the government deprived the plaintiff of a fundamental interest under the 14th Amendment and that the government's action "shocks the conscience" and constitutes "the most egregious official conduct."

The court found that Stein failed to state any action by the city that "shocks the conscience"; merely asserting an improper motive was insufficient. While the complaint did cite purportedly discriminatory acts and statements made by various individual defendants, none were attributed to the city. Stein claimed the city violated his rights by following the complaints of neighbors and local civic associations in the denial of his license application, but made no allegation that the city based its decision on the club's clientele's race or any improper factor. Accordingly, the court concluded that Stein did not assert any facts that could shock the conscience to support his substantive due process claim.