TENTH AND STATE, LLC. v. CITY OF ERIE, 1:24-cv-00176

Background

Plaintiffs Tenth and State, LLC and Swing Project Erie, LLC own a commercial building at 5 W. Tenth Street in Erie that underwent renovations in 2023 and planned to open in April 2024.
The City of Erie performed a State Street streetscape project engineered by City employee Jason Sayers; Plaintiffs allege the project misidentified their building as having no basement and installed soil cells that allowed stormwater infiltration.
After flooding beginning October 2023 and worsening in February 2024, Plaintiffs petitioned the City Solicitor on February 29, 2024 about stormwater damage; they later received independent testing implicating City stormwater systems.
On March 5, 2024, City inspector Scott Heitzenrater told Plaintiffs’ contractor the occupancy permit would be denied unless the adjacent sidewalk slope (installed months earlier) was corrected; Plaintiffs claim this was retaliatory selective enforcement following their petition.
Plaintiffs sued: Count I — § 1983 First Amendment retaliation against Heitzenrater and Andrew Zimmerman (City Manager of Code Enforcement); Count II — negligence against City of Erie and Erie Water Works; Count III — negligent design against City and Sayers.
Court disposition on motion to dismiss: Denied as to § 1983 retaliation claim against Heitzenrater (claim survives and qualified immunity denied at pleading stage); granted as to retaliation claim against Zimmerman (dismissed); negligence claims deferred for fuller briefing by City and Sayers.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Plaintiffs plausibly pleaded First Amendment retaliation by a city official for petitioning the government	Plaintiffs petitioned the City; days later Heitzenrater threatened to withhold occupancy permit—this adverse action was retaliatory and would deter an ordinary person	Defendants say the slope violation was legitimate, caused by Plaintiffs moving doors and changing egress, not retaliatory	Court: Plausible against Heitzenrater — claim survives 12(b)(6) and qualified immunity denied at pleading stage
Whether Zimmerman committed actionable retaliation	Zimmerman sent a rebuking email calling Plaintiffs’ response "threatening," supporting Heitzenrater’s enforcement	Zimmerman says he was defending an inspector and enforcing code	Court: Zimmerman’s email was non-actionable reprimand; retaliation claim dismissed against him
Whether temporal proximity and causation are adequately pleaded	Five-day gap between petition and enforcement is unusually suggestive; establishes causal inference	Defendants dispute sufficiency and suggest public-concern pleading issues	Court: Five-day interval is sufficiently suggestive to plead causation at this stage
Whether Plaintiffs’ state-law negligence and negligent-design claims are barred by the Tort Claims Act or inadequately pleaded	Plaintiffs allege negligent construction, inspection, and design caused stormwater flooding and damages	City and Sayers briefly assert Tort Claims Act immunity in cursory two-paragraph argument	Court: Declines to resolve on incomplete briefing; allows City and Sayers to file an amended motion to dismiss

Key Cases Cited

Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: factual allegations must state a plausible claim)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard articulated)
Gomez v. Toledo, 446 U.S. 635 (1980) (§ 1983 requires action under color of state law)
West v. Atkins, 487 U.S. 42 (1988) (state action/color-of-law principles for § 1983)
Mirabella v. Villard, 853 F.3d 641 (3d Cir. 2017) (elements of First Amendment retaliation claim)
O'Connor v. City of Newark, 440 F.3d 125 (3d Cir. 2006) (retaliation deterrence threshold and de minimis standard)
LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217 (3d Cir. 2007) (unusually suggestive temporal proximity supports causation)
Allah v. Seiverling, 229 F.3d 220 (3d Cir. 2000) (retaliatory motive can turn otherwise lawful action into a constitutional tort)
Anderson v. Creighton, 483 U.S. 635 (1987) (qualified immunity requires clearly established law)
Smith v. Arkansas State Highway Emp., 441 U.S. 463 (1979) (petitioning the government is protected; retaliation for petitioning implicates First Amendment)