The opinion of the court was delivered by: Irenas, District Judge
This matter appears before the Court on Defendants' motions to dismiss Plaintiffs' complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). We will grant Defendants' motions to dismiss.
Plaintiffs in this matter are various cab companies operating in Camden, including Fortuna's Cab Service. Defendants include the City of Camden and New Jersey Transit Corporation. Plaintiffs allege that various actions of the Defendants have deprived Plaintiffs of their civil rights in the conduct of their business and constitute a taking of their property rights without due process under Article VII, the Fifth Amendment, and 42 U.S.C. § 1983. Plaintiffs have voluntarily retracted claims involving violation of the RICO statutes, N.J.S.A. 2C:41-1 and 18 U.S.C. § 1961.
In 2001, the Camden Parking Authority moved taxi stands established by Camden City ordinance at the Tweeter Center ("Tweeter") and the Walter J. Rand Transportation Center ("Rand"), requiring patrons to walk four blocks at Tweeter and across a heavily trafficked intersection at Rand in order to obtain taxicabs. Taxicab drivers who attempt to pick up and drop off customers at the Tweeter Center and the Rand Transportation Center have been issued parking and other types of citations by the Camden Police.
Plaintiffs claim that these actions are violations of the Camden Municipal Code, which permits licensed taxicab owners to conduct their business within the City of Camden. (Compl., First Count, ¶ 5.) Plaintiffs also claim that removal of the taxi stands from their original location without notice to taxicab drivers constitutes a violation of their property rights under the Fourteenth Amendment's due process clause.
On November 22, 2002, Plaintiffs submitted a Notice of Application for Emergent Relief and Verified Complaint. On December 4, 2002, the Court conducted a conference and hearing concerning the Plaintiffs' application. The Court then issued an Order denying Plaintiffs' order to show cause, permitting taxicab pick up and drop off at the original Rand Transportation Center location, ordering negotiations over taxi stand locations, and dismissing the Camden Parking Authority as a party. On December 20, 2002, Defendant City of Camden filed an Answer to Verified Complaint, and on January 16, 2003, Defendant New Jersey Transit filed an Answer to Verified Complaint.
Unlike a motion to dismiss for a failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), in a motion to dismiss for lack of subject matter jurisdiction, the factual allegations of the complaint are not accepted as true. Mortensen v. First Federal Savings & Loan Association, 549 F.2d 884, 891 (3d Cir. 1977). Additionally, the court may consider evidence beyond the pleadings, including affidavits, motions, depositions and other proof in making its determination. See id. The plaintiff has the burden of proving that jurisdiction does in fact exist. Id. at 891. A court may dismiss an action when "the claim appears to be immaterial and made solely for the purpose of obtaining jurisdiction or is wholly insubstantial or frivolous." Johnson v. United States, 147 F.R.D. 91, 93-94 (E.D.Pa. 1993).
The Court will examine each of the Plaintiffs' arguments to determine if federal subject matter jurisdiction is established under Fed. R. Civ. P. 12(b)(1).
Procedural due process is only implicated where there has been a taking or deprivation of a legally protected liberty or property interest. Board of Regents v. Roth, 408 U.S. 564, 569 (1972); Abott v. Latshaw, 164 F.3rd 141, 146 (3d Cir. 1998). The only argument offered by Plaintiffs supporting the existence of their property rights in the taxi stands is their creation through Camden City ordinance.
The existence of a property right in the taxi stands is an issue of state law and the court must examine the Camden ordinance to determine if a property right protected by due process exists. Piecknick v. Commonwealth Of Pa., 36 F.3d 1250, 1256 (3d Cir. 1994) (tow truck operator did not have property interest protectible by due process in towing business on state highways near his place of business); see also Acierno v. Cloutier, 40 F.3d 597 (3d Cir. 1994). Plaintiffs must show more than a "unilateral expectation" of the property interest; they must prove a "legitimate entitlement" to that interest. Mustov v. Rice, 663 F. Supp. 1255, ...