                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 13-4049
                                      ____________

                                PARKER AVENUE, L.P.,
                                               Appellant

                                             v.

       THE CITY OF PHILADELPHIA; THE PHILADELPHIA CITY COUNCIL
                             ____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (E.D. Pa. No. 2-13-cv-00121)
                      District Judge: Honorable Harvey Bartle, III
                                     ____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 September 23, 2016

      Before: McKEE, Chief Judge, HARDIMAN, and RENDELL, Circuit Judges.

                               (Filed: September 23, 2016)
                                      ____________

                                        OPINION*
                                      ____________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge.

       Parker Avenue, L.P., appeals the District Court’s orders dismissing its amended

complaint for failure to state a claim and denying its motion for reconsideration and leave

to file a second amended complaint. We will affirm, essentially for the reasons stated by

the District Court in its excellent opinion.

                                               I

       Parker owns land in the 21st Ward of the City of Philadelphia upon which it has

sought to build 48 semi-detached residential units for some 10 years. The proposed

development complies with the applicable zoning ordinance and Parker has obtained the

necessary approvals and clearances from the City and the Commonwealth. The

development has been thwarted, however, by the City Council’s failure to pass an

ordinance to pave Cinnaminson Street, which would provide the necessary ingress to and

egress from the property.

       Two bills to pave Cinnaminson Street were introduced in 2007 and referred to the

City Council’s Committee on Streets and Services, but they were later removed from the

agenda. A neighborhood group—the Ridge Park Civic Association—opposed Parker’s

development plan and persuaded the district’s councilwoman and her successor not to

support the bills. Although Parker met with the Civic Association and tried to address its

concerns, the bills to pave the street were never reintroduced, which has precluded

development of the property.

                                               2
       In its amended complaint, Parker lists 39 paving ordinances that were introduced

in the last 10 years, 8 of which related to residential development. All of these paving

ordinances were passed by the City Council, except for the one to pave Cinnaminson

Street. Parker alleges that the City has intentionally treated it differently from other

similarly situated landowners without any rational basis. As a result of the City’s conduct,

Parker asserts that it has been prevented from reasonably using, developing, and enjoying

its property.

       The District Court dismissed the amended complaint. Parker then moved for

reconsideration and for leave to file a second amended complaint, but its motion was

denied. Parker filed a timely notice of appeal.1




       1
         After its original complaint was dismissed by the District Court, Parker filed a
state court action alleging that the City Council’s failure to pave Cinnaminson Street was
a de facto taking. The state trial court agreed, but its decision was reversed and vacated by
the en banc Commonwealth Court. Parker Ave. v. City of Philadelphia, 122 A.3d 483,
485 (Pa. Commw. Ct. 2015). The Commonwealth Court found that “Parker Avenue is not
entitled to the ordinances it proposed” and that “the City acted within its discretion by not
addressing the ordinances.” Id. at 488–89. Parker’s petition for allowance of appeal was
denied by the Supreme Court of Pennsylvania in March 2016. Parker Ave. L.P. v. City of
Philadelphia, 132 A.3d 460 (Pa. 2016). Contrary to the City’s argument, the
Commonwealth Court’s order did not have preclusive effect as to Parker’s constitutional
claims because the state court decided the case under Pennsylvania eminent domain law
and did not address whether the City violated Parker’s federal constitutional rights. See R
& J Holding Co. v. Redevelopment Auth. of Cty. of Montgomery, 670 F.3d 420, 430 (3d
Cir. 2011) (finding no issue preclusion where parties never actually litigated federal
constitutional claims).


                                               3
                                              II

       The District Court had jurisdiction under 28 U.S.C. § 1331, and we have appellate

jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the dismissal of a

complaint for failure to state a claim. Maiden Creek Assocs., L.P. v. U.S. Dep’t of

Transp., 823 F.3d 184, 189 (3d Cir. 2016). We will affirm an order dismissing claims for

failure to state a claim if the complaint lacks sufficient factual allegations, accepted as

true, to state a plausible claim for relief. See Fed. R. Civ. P. 12(b)(6); Warren Gen. Hosp.

v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011).

                                              III

       Parker raises four arguments on appeal. First, it argues that the District Court

applied an impermissibly high plausibility standard. We disagree. The District Court

properly applied the pleading standards set forth in Ashcroft v. Iqbal, 556 U.S. 662

(2009), and Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and found that the amended

complaint failed to state plausible claims for relief. And as we explain below, the District

Court’s analysis was not erroneous.

       Second, Parker argues that the District Court erred in dismissing its equal

protection claim because the Court evaluated its allegations under an improper standard.

In order to maintain a “class of one” equal protection claim, a plaintiff must allege that it

“has been intentionally treated differently from others similarly situated and that there is

no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S.

                                               4
562, 564 (2000). The District Court applied this standard, but instead of stating “others

similarly situated,” it stated “all others similarly situated.” App. 5 (emphasis added).

Parker claims the word “all” suggested the imposition of an “impossible burden” of

identifying every other similarly situated party and then demonstrating differential

treatment, all without the benefit of discovery. Parker Br. 20–21.

       The District Court did not dismiss the equal protection claim, however, for failure

to identify all other similarly situated landowners. Rather, the District Court dismissed the

claim for failure to allege that Parker was treated differently from landowners who were

“alike in all relevant aspects.” App. 4 (quoting Startzell v. City of Philadelphia, 533 F.3d

183, 203 (3d Cir. 2008)). Although the amended complaint identified a number of

approved paving ordinances, including some for residential developments, it failed to

allege whether any of them were opposed by neighbors or local civic groups, as was the

paving ordinance for Cinnaminson Street. Nor did the amended complaint allege whether

the approved ordinances were similar regarding their locations or surroundings, including

with respect to issues such as traffic, noise, density, or size of the residential

development. Without more specific facts, Parker has not alleged that these landowners

are similarly situated, and has therefore failed to state an equal protection claim.

       Third, Parker claims the District Court erred in dismissing its substantive due

process claim because the City’s failure to authorize the paving of Cinnaminson Street

was arbitrary and irrational conduct that “shocks the conscience.” This is a difficult

                                               5
standard to meet, and the amended complaint falls short.2 Parker concedes, as it must, that

the City has the authority to enact ordinances based on competing interests. Nevertheless,

it argues that the City acted arbitrarily by acquiescing to a community group opposed to

development and failing to enact the requested paving ordinance. As explained by the

District Court, however, Parker did not allege irrational and arbitrary governmental

conduct. It merely alleged a difference of opinion between a landowner and a civic

association over the propriety of paving of a city street. These competing interests of the

two sides are for the City to resolve. See CMR D.N. Corp. v. City of Philadelphia, 703

F.3d 612, 633 (3d Cir. 2013). Far from shocking the conscience, the amended complaint

alleges local legislative judgment that appears to be rationally related to the concerns of

some constituents. Accordingly, the District Court did not err in dismissing the

substantive due process claim.

       Finally, we turn to Parker’s argument that the District Court erred when it denied

its motion for leave to amend. “[A]lthough we review a denial of leave to amend for

abuse of discretion, we review the District Court’s determination that the amendment

would be futile de novo.” Maiden Creek Assocs. v. U.S. Dep’t of Transp., 823 F.3d 184,


       2
         The City argues that, because this case involves legislative action rather than
executive action, the “no rational basis” standard should apply instead of the “shocks the
conscience” standard. See Nicholas v. Pa. State Univ., 227 F.3d 133, 139 (3d Cir. 2000).
The District Court recognized the distinction and found the alleged conduct neither
irrational nor conscience-shocking. Since we agree, we need not explore the difference
between the standards.

                                              6
189 (3d Cir. 2016). The proposed second amended complaint sought to add details about

some of the residential developments for which paving bills had been passed, yet did not

cure the deficiencies identified by the District Court. The proposed amendments did not,

for example, include factual allegations of irrational or arbitrary conduct by the City

Council in weighing the competing interests of the civic association and developer. Nor

did the amendments allege that any of the other paving bills were either supported or

opposed by a local neighborhood association. Because Parker did not cure these

deficiencies, the District Court reasonably found that a second opportunity to amend

would prove futile. We perceive no error in this determination.

                                                  IV

       For the foregoing reasons, we will affirm the District Court’s orders.




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