United States District Court, D. New Jersey
J. TORCICOLLO JENNIFER A. HRADIL KEVIN W. WEBER KAITLYN E.
STONE GIBBONS, PC, On behalf of Plaintiff
STEWART JOHN GREENLEAF, THOMAS J. ELLIOTT, ELLIOTT GREENLEAF
PC, UNION MEETING CORPORATE CENTER V, On behalf of Defendant.
L. HILLMAN, U.S.D.J.
before the Court is the motion of Defendant, Delaware River
Port Authority (“DRPA”), to dismiss the amended
complaint of Plaintiff, Alpha Painting & Construction
Company, Inc. (“Alpha”). For the reasons
expressed below, Defendant's motion will be granted in
part and denied in part.
background facts and procedural history are well-known to the
parties. Briefly recapped, after a four-day bench trial, on
September 23, 2016, this Court found that officials of the
DRPA acted in a manner that was arbitrary, capricious, and
unreasonable when it awarded Corcon Inc.
(“Corcon”), and not Alpha, Contract CB-31-2016, a
$17 million contract to continue a restoration and painting
project on the Commodore Barry Bridge (the
Court held that DRPA's determination to award Corcon the
Contract was irrational because it arbitrarily deemed Alpha
to be a non-responsible bidder after DRPA violated its own
procurement rules to recraft Corcon's bid into the lowest
responsive and responsible bid. On the day the bids were
received and opened on June 16, 2016, Alpha was the lowest
responsive, responsible bidder for the Contract and Corcon
Court found that DRPA's arbitrary and capricious actions
over the next two months flipped that result without any
meaningful justification or rational process. (Docket No. 37
at 40.) As a result, the Court enjoined DRPA from proceeding
on the Contract with Corcon, and directed DRPA to award the
contract to Alpha, which the Court found to be the lowest
responsive and responsible bidder in accordance with
DRPA's procurement rules. (Id. at 42-43.)
appealed the Court's decision to the United States Court
of Appeals for the Third Circuit. On April 6, 2017, the Third
Circuit issued its judgment affirming this Court's
finding that DRPA acted arbitrarily and capriciously in the
contract award process. Alpha Painting & Construction
Co. Inc. v. Delaware River Port Authority of Pennsylvania and
New Jersey, 853 F.3d 671, 674 (3d Cir. 2017). The Third
Circuit reversed, however, this Court's order directing
that DRPA award the Contract to Alpha. Id. The Third
Circuit vacated that part of the decision and remanded the
case “for the entry of a more limited injunction”
to enable Alpha to be “restored to competition.”
remand, the Court Ordered a rebid on a new contract for the
Commodore Barry Bridge painting project, finding that a rebid
was consistent with the Third Circuit's mandate, and was
the only fair and equitable result, for the parties and the
public. (Docket No. 68 at 15.) The Court also permitted Alpha
to file an amended complaint if it wished to proceed with any
viable claims it might have against DRPA, rejecting
DRPA's argument that Alpha was barred from renewing the
claims the Court previously dismissed as moot. (Id.
the time afforded by the Court, Alpha filed an amended
complaint, asserting claims for violation of: state common
law for DRPA's arbitrary and capricious actions (Count
Alpha's due process rights (Count II), New Jersey's
Open Public Meetings Act (NJOPMA), N.J.S.A. 10:4-6 to -21
(Count III), Pennsylvania's Sunshine Act (PASA), 65 Pa.
C.S.A. § 701 et seq. (Count IV), and Alpha's right
to equal protection (Count V). (Docket No. 70.)
has moved to dismiss Alpha's amended complaint. DRPA
first reargues that this Court lacks jurisdiction over the
amended complaint because Alpha abandoned those claims and
did not appeal them. DRPA further argues that Alpha's
claims lack merit and fail as a matter of law. DRPA also
points out that during the pendency of its motion, DRPA
conducted a rebid in compliance with this Court's
directive, but Alpha did not submit a bid. DRPA contends that
because Alpha did not participate in the process it sought,
Alpha should not be permitted to pursue its claims as a
matter of public policy.
counters DRPA's position that it cannot pursue its claims
and argues that DRPA's motion ignores the procedural
posture of this case and pretends the trial and injunction
never happened. Alpha argues that it has sufficiently pleaded
its claims, including its property interest for its due
process claim, and that its claims are entitled to
substantive consideration in light of the record. Alpha
states that the resolution of its claims does not require any
discovery or additional trial days, and it is prepared to
promptly bring the appropriate motion for judgment in its
Subject Matter Jurisdiction
Alpha has brought claims pursuant to 42 U.S.C. § 1983
for alleged violations of its constitutional rights, this
Court has jurisdiction of this matter pursuant to 28 U.S.C.
§§ 1331 and 1343, and supplemental jurisdiction
over Alpha's state law claims pursuant to 28 U.S.C.
Standard for Motion to Dismiss
considering a motion to dismiss a complaint for failure to
state a claim upon which relief can be granted pursuant to
Federal Rule of Civil Procedure 12(b)(6), a court must accept
all well-pleaded allegations in the complaint as true and
view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
It is well settled that a pleading is sufficient if it
contains “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Under the liberal federal pleading
rules, it is not necessary to plead evidence, and it is not
necessary to plead all the facts that serve as a basis for
the claim. Bogosian v. Gulf Oil Corp., 562 F.2d 434,
446 (3d Cir. 1977). However, “[a]lthough the Federal
Rules of Civil Procedure do not require a claimant to set
forth an intricately detailed description of the asserted
basis for relief, they do require that the pleadings give
defendant fair notice of what the plaintiff's claim is
and the grounds upon which it rests.” Baldwin Cnty.
Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3 (1984)
(quotation and citation omitted).
district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail
but whether the claimant is entitled to offer evidence to
support the claim.'” Bell Atlantic v.
Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting
Scheuer v. Rhoades, 416 U.S. 232, 236 (1974));
see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009)
(“Our decision in Twombly expounded the
pleading standard for ‘all civil actions' . . .
.”); Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009) (“Iqbal ...