Brandywine Vill. Assocs. v. Carlino E. Brandywine, L.P.

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BRANDYWINE VILLAGE ASSOCIATES, Plaintiff, v. CARLINO EAST BRANDYWINE, L.P., et al., Defendants.

Civil Action No. 16-5209

United States District Court, E.D. Pennsylvania

August 1, 2023

MEMORANDUM

SCHMEHL, J. JLS.

Defendants Carlino East Brandywine, L.P., Christina B. Watters Katherine M. Kettlety, Frank E. Watters, Jr., and Thomas R Watters (“Carlino”) have filed a second motion to dismiss Brandywine Village Associates' (“BVA”) First Amended Complaint (“FAC”). Defendant, The Giant Company (“Giant”) joined in Carlino's motion to the extent it warrants dismissal of the counts contained in the FAC as to Giant. Carlino claims that this second motion to dismiss is appropriate and should be granted because of numerous state court rulings that “gut the core allegations in the FAC and preclude BVA's claims under the doctrines of collateral estoppel, res judicata and Noerr Pennington immunity.” (ECF No. 271 p. 1.) For the reasons that follow, Carlino's motion to dismiss will be granted and BVA's First Amended Complaint will be dismissed with prejudice.

I. FACTS

In 1995, BVA built a shopping center on an eleven-acre parcel fronting Horseshoe Pike in East Brandywine Township called Brandywine Village Shopping Center. (ECF No. 104, ¶18.) Carlino owns the adjoining ten-acre property fronting Horseshoe Pike that it intends to develop with a shopping center, anchored by a Giant supermarket, and the Connector Road. (ECF No. 104, ¶5.) BVA summarized its allegations against Carlino as follows:

Carlino's anticompetitive and conspiratorial acts have included, at a minimum:

a. knowingly seeking and obtaining hasty municipal approval of multiple defective land use plans that violate applicable land use laws and regulations and improperly interfere with Brandywine Village's property rights and the property rights of other neighboring landowners;

b. commencing an objectively baseless sham lawsuit against Brandywine Village and related parties - including Brandywine Village's individual partners and outside counsel - for anticompetitive purposes;

c. conducting secret property development negotiations with [the Township] to violate the Sunshine Act and the Municipalities Planning Code repeatedly, to Brandywine Village's detriment;

d. inducing the Township, through threats of sham litigation, to improperly exercise its eminent domain power in violation of Pennsylvania law primarily for Carlino's private benefit and to Brandywine Village's detriment, and as a means of circumventing valid, enforceable, and valuable easements that benefit Brandywine Village;

e. actively and baselessly opposing Brandywine Village's efforts to enlarge its existing retail space to improve its ability to attract a new anchor supermarket tenant to the Brandywine Village Shopping Center;

f. causing the predatory publication of literally false and misleading advertisements representing and/or implying that Carlino owns and has the right to dispose of Brandywine Village's property and the property of another neighboring landowner.

(ECF No. 104, ¶6.) BVA's allegations against Giant were as follows:

Giant's anticompetitive, conspiratorial, predatory, and exclusionary acts have included, at a minimum:

a. Making, or inducing Carlino to make, illegal offers to enter into anticompetitive agreements with Brandywine Village to eliminate supermarket competition in the relevant market;

b. actively insisting upon and financially subsidizing the construction of a through-road that will inflict competitive harm on Brandywine Village and stifle supermarket competition in the relevant market - even when Carlino and East Brandywine Township were prepared to proceed without such a road;

c. scheming so that one of Giant's major wholesale suppliers, which also held the lease to the supermarket space at Brandywine Village Shopping Center, would act against its own economic interest by declining to renew that lease, causing Brandywine Village's competitive supermarket space to become vacant;

d. expressly encouraging and agreeing with its business partner, Carlino, to engage in the specific anticompetitive and predatory conduct outlined above in paragraph 6, including Carlino's conduct relating to the land development plans, the sham tort action, and the objectively baseless condemnation proceeding; and e. in conjunction with Carlino, actively investigating Brandywine Village's financial health to assess the impact of Giant's anticompetitive scheme, with a view toward Carlino's ultimate acquisition of Brandywine Village Shopping Center after its economic value has been undermined, thereby eliminating any possibility of supermarket competition from the neighboring parcel.

(ECF No. 104, ¶8.) BVA's FAC contains claims against Defendants for violation of the Sherman Act (Count I), unfair competition (Count II), abuse of legal process (Count III), specific performance of the Cross Easement Agreement (Count IV) and breach of the Cross Easement Agreement (Count V).

This action was stayed from August 8, 2018, until March 21, 2022, to allow the state court proceedings to be resolved. Since the denial of Carlino's first Motion to Dismiss, the State Courts have issued final and unappealable decisions that are binding on BVA and material to BVA's claims in this federal action. First, after holding a hearing, the Chester County Court of Common Pleas dismissed BVA's challenge to the condemnation and upheld the public purpose of the condemnation to construct the Connector Road, in a decision that the Commonwealth Court affirmed, and the Supreme Court declined to review. Condemnation of Fee Simple Title to 0.069 Acres, 2018 WL 3213113, *9-10 (Pa. Commw. Ct. July 2, 2018), app. den., 202 A.3d 684 (Pa. 2018). Second, the Pennsylvania Superior Court affirmed the Court of Common Pleas' decision granting summary judgment to Carlino and against BVA, holding that the easements set forth in the 1994 Cross Easement Agreement were terminated by the condemnation. Carlino East Brandywine, L.P. v. Brandywine Village Association, 197 A.3d 1189 (Pa. Super. Ct. 2018). Third, the Commonwealth Court affirmed the Township's June 2019 approval of Carlino's land development plan and rejected all BVA's objections to that development plan in a decision that the Pennsylvania Supreme Court declined to review. Brandywine Village Assocs. v. East Brandywine Twp. Bd. of Sup'rs, 2021 WL 3046662 (Pa. Commw. Ct. July 20, 2021), rearg. den., (Pa. Commw. Ct. Sept. 9, 2021), app. den., 275 A.3d 957 (Pa. 2022). Carlino therefore has final approval to construct its shopping center, anchored with the Giant food store, and the Connector Road. Lastly, the Court of Common Pleas upheld Carlino's damages action against BVA and its counsel (the “Carlino Tort Action”), having denied BVA's four different sets of objections to the Carlino Tort Action.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) governs the Court's motion to dismiss analysis. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim of relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies the plausibility standard when the facts alleged “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Burtch v. Millberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) (citing Iqbal, 556 U.S. at 678). While the plausibility standard is not “akin to a ‘probability requirement,'” there nevertheless must be more than a “sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “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.'” Id. (quoting Twombly, 550 U.S. at 557).

The Court of Appeals requires us to apply a three-step analysis to a 12(b)(6) motion: (1) “[i]t must ‘tak[e] note of the elements [the] plaintiff must plead to state a claim;'” (2) “it should identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of truth;'” and, (3) “[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 675, 679). See Burtch, 662 F.3d at 221; Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011); Santiago v. Warminster Township, 629 F.3d 121, 130 (3d Cir. 2010).

In our analysis of a motion to dismiss, the Court of Appeals allows us to also consider documents “attached to or submitted with the complaint, and any ‘matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case.'” Buck v. Hampton Tp. School Dist., 452 F.3d 256, 260 (3d Cir. 2006) (quoting 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d ed. 2004)).

III. DISCUSSION

BVA focuses much of its opposition to Carlino's second motion to dismiss on whether it is procedurally proper to file such a motion in light of Carlino's previous unsuccessful motion to dismiss. After the denial of the first motion to dismiss, this action was stayed “in favor of the state court actions” so that it could later be litigated “in a more streamlined and simplified discovery process.” (ECF No. 201.) After the conclusion of the state court matters, Carlino filed a second motion to dismiss. While Rule 12(g) states that “a pa...