WARTLUFT et al v. THE MILTON HERSHEY SCHOOL AND SCHOOL TRUST et alREPLY BRIEF re MOTION to Strike THIRD-PARTY COMPLAINT AGAINST THOMAS AND KAREN FITZPATRICK PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 14M.D. Pa.March 18, 2019IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JULIE ELLEN WARTLUFT F/K/A JULIE ELLEN BARTELS AND FREDERICK L. BARTELS, JR., Individually and as Administrators of the Estate of Abrielle Kira Bartels, Deceased, Plaintiffs, vs. THE MILTON HERSHEY SCHOOL, et al, Defendants. : : : : : : : : : : : : : Civil Action 1:16-cv-02145-JEJ-MCC PLAINTIFFS REPLY IN FURTHER SUPPORT OF THEIR MOTION TO STRIKE THIRD-PARTY COMPLAINT AGAINST THOMAS AND KAREN FITZPATRICK PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 14(A)(4) Gregory F. Cirillo, Esquire John J. Higson, Esquire John W. Schmehl, Esquire DILWORTH PAXSON LLP 1500 Market St., Suite3500E Philadelphia, PA 19102 215-575-7000 gcirillo@dilworthlaw.com jhigson@dilworthlaw.com jschmehl@dilworthlaw.com Attorneys for Plaintiffs Case 1:16-cv-02145-JEJ-MCC Document 239 Filed 03/18/19 Page 1 of 15 INTRODUCTION By Order dated February 28, 2019 (the “February 28 Order”), this Court rejected Defendants’ belated attempt to sever the individual Plaintiffs and convert them to third-party defendants. In doing so, the Court concluded that the procedural maneuver sought by Defendants could unnecessarily complicate the case and potentially prejudice Plaintiffs. The Court, on the other hand, determined that Defendants would not be prejudiced because they retained the ability to pursue claims for contribution in the event judgment was entered against them. The Court’s reasoning was and remains sound. In their opposition to the instant Motion to Strike (and backdoor motion for reconsideration), Defendants present no arguments that undercut the logic of this Court’s previous decision. If and when a judgment is entered against Defendants, Defendants retain the same ability to pursue claims for contribution against the Fitzpatricks as the Court already determined they could potentially pursue against the individual Plaintiffs. Moreover, adding third-party claims at this stage in the case would unduly prejudice Plaintiffs. The logic of the February 28 Order is especially applicable given that Defendants completely failed to timely add third-party claims. Defendants have provided no justification for their failure to even attempt to bring such claims until two and a half years after this case commenced. Case 1:16-cv-02145-JEJ-MCC Document 239 Filed 03/18/19 Page 2 of 15 120825998_1 2 Defendants’ argument that there were no viable tort claims in the case until certain tort claims were reinstated makes no sense. The third-party complaint filed (without leave) against the Fitzpatricks is nothing more than a wrongful death claim for the common injury of Abbie’s death. See Third-Party Complaint at paragraphs 79-80, 88-89, and 91. The wrongful death claim has been in this case from inception. This claim was never dismissed, was answered by Defendants in their August 24, 2017 original answer to the Amended Complaint and cannot serve as Defendants’ excuse for failure to seek leave to file such third-party complaint or as new grounds to justify allowing the complaint at this late juncture. Defendants’ need to distort the record is obvious. But, the Court need not look any further than Defendants’ own actions and pleadings to see that these tort claims were always in the case and that Defendants actually asserted claims for contribution against the Fitzpatricks in August 2017. Defendants’ “excuse” arguments are nothing more than revisionist history and should be rejected.1 Defendants can mount whatever defenses they want even without third-party defendants. The Logic of the Court’s February 28 Order Equally Applies to the Belated Third-Party Complaint. Defendants’ criticism of this Court’s February 1 Karen Fitzpatrick mailed a letter to this Court dated March 2, 2019, in effect joining in the Motion to Strike. [Attached hereto as Exhibit “1”.] This letter provides ample independent reasons for this Court to exercise its discretion to strike the third-party complaint. Case 1:16-cv-02145-JEJ-MCC Document 239 Filed 03/18/19 Page 3 of 15 120825998_1 3 28 Order is misplaced. Defendants – a $14 billion institution – are fully capable of continuing defending themselves as they have been for years. In its February 28 Order, this Court reasoned that Federal Rule of Civil Procedure 21 provides that “[o]n motion or on its own, the court may at any time, on just terms, add or drop a party.” Fed.R.Civ.P. 21. It then cited its authority to manage its caseload, control its docket, and “fashion tools that aid the court in getting on with the business of deciding cases.” Cash v. Riggins Trucking, Inc., 757 F.2d 557, 567 (3rd Cir. 1985). Defendants’ refuse to acknowledge the Court’s authority to so act. In denying Defendants’ motion to sever, this Court found that “Defendants have not demonstrated that refusing their motion would prejudice them in any way.” The Court also recognized that the case as presently postured would involve the same issues and be dealt with by the same witnesses and documentary proof, further highlighting the lack of prejudice. The Court recognized that allowing the Motion to Sever and then the filing of a third party complaint against two plaintiffs: . . . unnecessarily complicates the procedural posture of this already tangled case and would expend even greater judicial resources. Thus, for the sake of judicial economy, we shall exercise our discretion and deny Defendants’ Motion.” This rationale applies even more to the improperly filed third-party complaint against the Fitzpatricks. Again, Defendants flout the Federal and Local rules in their decision to pursue innocent third parties in a nonsensical theory of Case 1:16-cv-02145-JEJ-MCC Document 239 Filed 03/18/19 Page 4 of 15 120825998_1 4 joint tortfeasor liability against an elderly 21-year Navy veteran in poor health and his caretaker daughter. The Fitzpatricks contributed nothing towards the damages to Abbie caused by Defendants. Defendants should not be permitted to place their supposed expectation of any recovery against indigent third parties above the unsustainable hardship on the Fitzpatrick family, without any resources to defend themselves or any real ability to do so at this late stage in the proceedings. Defendants here seem intent on creating conflict between Abbie’s biological family and the Fitzpatricks, her volunteer caregivers who embraced Abbie just like a member of their own biological family. Further, Defendants have failed to demonstrate that striking their third-party complaint against the Fitzpatricks’ would prejudice them in any way. As this Court has already recognized, Defendants would not be precluded from later seeking contribution from the Fitzpatricks, in the event that judgment were rendered against Defendants in the instant case. Defendants simply do not care that the Court has concluded that adding a new complaint unnecessarily complicates the procedural posture of this case and would “expend even greater judicial resources.” Allowing Defendants’ disruptive tactic here would create completely unworkable dynamics for this Court on many levels. For instance, the Court and Case 1:16-cv-02145-JEJ-MCC Document 239 Filed 03/18/19 Page 5 of 15 120825998_1 5 the parties would have to arrange the near impossible task for the Fitzpatricks to (i) participate pro se in hearings, conferences and the trial in this case, which Mr. Fitzpatrick cannot physically or mentally accommodate and for which Ms. Fitzpatrick would suffer the hardship of missing work, and (ii) respond to Defendants’ constant motion practice. Striking the third-party complaint would remove “unnecessary clutter” from the case, thereby expediting resolution. See Crowder v Foster Wheeler, LLC, 265 F.R.D 368, 370 (S.D. Ind. 2009). Defendants Falsely Allege Inability to File Third Party Complaint for Lack of Tort Claims. There is no doubt that Defendants filed their original answer in August 2017 and that Defendants did not make any attempt to add third- party claims until February 2019. Defendants’ desperate plea for “due process” and untimely reconsideration of this Court’s February Order makes several assumptions fatal to their arguments seeking denial of Plaintiffs’ Motion to Strike the Third-Party Complaint filed against the Fitzpatricks (the “Motion”). Their principal error, permeating their arguments, is their repeated assertion that this “Court held that Plaintiffs’ ‘state law claims therefore sound only in contract,’ and the case proceeded as such – exclusively on a single federal law claim under the Fair Housing Act, and state law theories sounding ‘only in contract’ – for the next sixteen (16) months.” Opposition Memo, 2 et passim. Case 1:16-cv-02145-JEJ-MCC Document 239 Filed 03/18/19 Page 6 of 15 120825998_1 6 That claim is belied by the express limitations contained in this Court’s August 10, 2017 Memorandum (Doc. 62), issued by the Honorable Christopher C. Conner, dismissing only certain state law tort claims, but not all of them. Nonetheless, Defendants falsely assert that as of December 7, 2018, when certain dismissed claims were reinstated, Defendants “for the first time” had “to defend new theories of liability, i.e. state law tort theories . . . , which had never been subjected to Defendants’ answer, responsive pleading, or trial strategies.” These assertions are patently false and repeated in the Opposition Memo at p. 3 (referring to “had the state law tort claims never been dismissed”); p. 8 (“the subsequent answer is responding to new theories of liability”); p. 9 (Defendants “sought impleader based upon “new theories of liability” and fn. 7 (arguing the case was reduced to contract claims when the partial dismissal’s Memorandum was clear that it did not apply to the remaining tort claims); p. 11 (same); p. 12 (“parents’ state law claims therefore sound solely in contract,” and fn. 9 (“the Court held that Plaintiffs could not assert any state law tort claims”)); p. 13 (“there were no negligence or tort claims left in the case as of August 2017”); p. 14 (“the only viable averment of “wrongful conduct” existing in Plaintiffs’ Amended Complaint . . . was the alleged violation of the FHA or breach of contractual agreement,” and “the contribution claim only became cognizable when the Court vacated its prior order on December 7, 2018,” and fn. 11 (“Plaintiffs’ claims ‘sound solely in Case 1:16-cv-02145-JEJ-MCC Document 239 Filed 03/18/19 Page 7 of 15 120825998_1 7 contract’”)); p. 21 (“new theories of liability”); and p. 22 (defenses and trial tactics were precluded by dismissal of reinstituted claims). All of Defendants’ excuses collapse under the weight of their intentional and reprehensible failure to acknowledge the express limits that footnote 3 of Judge Conner’s August 10, 2017 Memorandum (Doc. 62) placed upon his own ruling. Defendants purposely ignore footnote 3 to mislead the Court. This footnote recognized that the Court’s holding had no application to the three remaining state law tort claims that have always been in this case, which were based on the same factual allegations and theories of liability as the tort claims that the court dismissed. The critical footnote 3 of the Memorandum explains exactly the parameters that applied to the holding. It stated as follows: 3. The School does not challenge the parents’ wrongful death claim (Count V), Survival Act claims . . .(Count VI), or negligence per se claim (Count XIII). (Doc. 32 at 1 n. 1). The court refers to plaintiffs’ state law claims collectively passim to the exclusion of Counts V, VI, and XIII. Thus, nothing found in the August 10, 2017 Memorandum should be cited to support the Opposition Memo, and yet, Defendants rely on it exclusively to make their argument. Defendants are just plain wrong in their critical central assertions that (i) Judge Conner’s decision had any force and effect on the three remaining state law tort claims, and (ii) his use of the phrase “state law tort claims” in the body of the Memorandum had any relevance to the three remaining state law tort Case 1:16-cv-02145-JEJ-MCC Document 239 Filed 03/18/19 Page 8 of 15 120825998_1 8 claims that were not governed by his ruling. Contrary to Defendants assertions, this case has moved forward at all times under tort theories related to Defendants’ tortious conduct for wrongful death and survival claims. Further, Defendants themselves made this crystal clear, in filing after filing with this Court, where they alleged with great conviction and emphasis that “wrongful death and survival claims require a viable underlying cause of action for negligence and/or tortious conduct.” (Doc. 120 (Motion for Judgment on the Pleadings), filed March 5, 2018 at 11). Defendants thus cite case after case to make this point well after the August 10, 2017 dismissal of certain state law tort claims, because they knew that three other state law tort claims remained in the action. See Defendants’ Doc. 120 cite at 9 to Valentino v. Phila. Triathlon, LLC, 150 A.3d 483, 493 (Pa. Super. Ct. 2016) (“both an estate in a survival action and a statutory claimant in a wrongful death action, shoulder the same burden of proving that tortious conduct on the part of the defendant caused the decedent’s death” (emphasis added by Defendants). Defendants made the same admission that these remaining claims were state law tort claims on April 12, 2018 in Doc. 130 (Defendants’ Reply Brief for Judgment on the Pleadings) at 6; on page 70 of their sealed June 22, 2018 Memorandum of Law in Support of their Motion for Summary Judgment, and page 35 of their September 4, 2018 Reply Brief (“if a Plaintiff’s underlying tort Case 1:16-cv-02145-JEJ-MCC Document 239 Filed 03/18/19 Page 9 of 15 120825998_1 9 theory [fails], then the wrongful death or survival claim will fail” (emphasis added by Defendants), citing Simmons v. Sampson House, Inc., 259 F.Supp.3d 200, 209 (E.D. Pa. 2017)). Moreover, as Plaintiffs noted in the Motion, Defendants raised as affirmative defenses in their original answer of August 14, 2018 (Doc. 74) claims against the Fitzpatricks for contribution as joint tortfeasors. In a word, Defendants’ arguments that all state law tort claims were removed from the case so they could not file for contribution is preposterous. Defendants responded to all the factual averments of the Amended Complaint alleging the negligent and wrongful conduct by the Defendants, denying every averment, including those regarding the claims that were dismissed. Id. Defendants also argued to this Court that the remaining tort claims should be dismissed through their Motions for Judgment on the Pleadings and for Summary Judgment. No theory of liability exists to suggest that the third-party complaint addresses new theories merely because certain state law tort claims were reinstated. In fact, it alleges nothing more than a wrongful death claim. Without new theories, no basis exists for treating Defendants’ Amended Answer as an “original answer” that would restart the 14-day time frame for bringing a third- party complaint against the Fitzpatricks, particularly considering that there have Case 1:16-cv-02145-JEJ-MCC Document 239 Filed 03/18/19 Page 10 of 15 120825998_1 10 been nearly forty (40) depositions taken and numerous motions argued in regard to the wrongful death and survival claims. The Court not only did not dismiss Counts I (Fair Housing Act), V (Wrongful Death), VI (Survival Act), XIII (Negligence per se), but it ordered Defendants to respond to such remaining counts of the Amended Complaint in its August 10, 2017 Order (Doc. 63). Neither the Court’s Memorandum of August 10, 2017, nor its Order of the same date dismissed all state law tort claims, despite Defendants’ protestations to the contrary. If there was any doubt about this, it was answered in footnote 3 of the Court’s Memorandum, as noted above (Doc. 62). Defendants are completely mistaken in their summary of the law regarding the original answer that starts the 14-day time frame for filing third-party complaints. For example, in Shamari v. CACI Premier Technology, Inc., No. 1:08- cv-0827 LMB-JFA (E.D. Va. 2018), the court framed the issue as “whether ‘original answer’ means the original answer to a particular complaint, or means the first answer to any complaint in an action.” Defendants’ Amended Answer was neither. In Shamari, the only answer filed to a third amended complaint was an “original answer.” Here, Defendants are relying on their second answer to a single Amended Complaint. See Nelson v. Quimby Island Reclamation Dist. Facilities Corp., 491 F. Supp. 1364, 1387 (N.D. Cal. 1980) (holding that the first answer to an amended complaint is an “original answer” under Rule 14). Thus, a second Case 1:16-cv-02145-JEJ-MCC Document 239 Filed 03/18/19 Page 11 of 15 120825998_1 11 (amended) answer to the same Amended Complaint cannot be an “original answer” to that Amended Complaint. The cases cited by Defendants say nothing more than that where an amended complaint is filed, the first answer to that amended complaint can qualify as an “original answer,” but only if it there is a new complaint with new theories. For example, the Hanover Ins. Co. v. Engineered Sys. All., LLC, 2019 U.S.Dist.LEXIS 32749, at *32-33 (D. Md. 2019), cited extensively by Defendants, rejected the third-party complaint because it was not responding to anything new. It further held that “third-party claims based on old theories already pleaded will not generally be considered timely under Rule 14,” even if separate theories of liability are added. Id. Another case relied upon by Defendants held that joinder is “seasonable” when the third-party defendants’ liability first becomes apparent. Reynolds v. Rick’s Mushroom Serv., 2006 U.S.Dist.LEXIS 34314 (E.D. Pa. 2006). Application of this rule would result in granting the Motion to Strike because the wrongful death claim has been in the case from inception, Defendants have recognized that to be so, and they have admitted in their August 24, 2017 “original answer” that the Fitzpatricks’ liability to them was apparent. Defendants urge this Court to excuse or overlook all these factors, merely so that they can maintain their out-of-time, out-of-focus, and tortured 92 paragraph third-party complaint, one that is intended to do nothing more than harass, scare, Case 1:16-cv-02145-JEJ-MCC Document 239 Filed 03/18/19 Page 12 of 15 120825998_1 12 and intimidate. Defendants only means of recovery would be to foreclose on the Fitzpatrick family home, which would itself be a shocking move for a children’s charity against caregivers of a student they decided would not be allowed back on campus because of depression, a grave decision made by administrators without consulting with the treatment team. CONCLUSION From the outset of this case – one concerning the tragic suicide of a child adored by everyone around her – Defendants have tried to distract from the core issues and from their own negligence by every means. This has included scorched earth tactics that drove up costs, bizarre “theories” seeking to blame third parties who were complete strangers to the case, and more. However, Defendants’ past antics all pale next to their latest stratagem. But just as this Court has already rejected their attempt to file a third-party complaint against Plaintiffs, so too should this Court similarly reject the attempt here to file a third-party complaint against the Fitzpatricks. Respectfully Submitted, Dated: March 18, 2019 /s/ Gregory F. Cirillo Gregory F. Cirillo, Esquire John J. Higson, Esquire John W. Schmehl, Esquire DILWORTH PAXSON LLP 1500 Market St., Suite3500E Philadelphia, PA 19102 215-575-7000 Case 1:16-cv-02145-JEJ-MCC Document 239 Filed 03/18/19 Page 13 of 15 120825998_1 13 gcirillo@dilworthlaw.com jhigson@dilworthlaw.com jschmehl@dilworthlaw.com Attorneys for Plaintiffs Case 1:16-cv-02145-JEJ-MCC Document 239 Filed 03/18/19 Page 14 of 15 CERTIFICATE OF SERVICE I, Gregory F. Cirillo, Esquire, do hereby certify that the foregoing Plaintiffs Reply in Further Support of Their Motion to Strike Third-Party Complaint Against Thomas and Karen Fitzpatrick Pursuant to Federal Rule of Civil Procedure 14(A)(4) was filed electronically via the ECF system, and served via electronic mail on the date set forth below and, therefore, made available to all counsel of record, as follows: Jarad W. Handelman, Esquire Market Square Plaza 17 North Second Street Suite 1420 Harrisburg, PA 17101 jwh@elliottgreenleaf.com Kyle M. Elliott, Esquire Elliott Greenleaf, P.C. 925 Harvest Drive, Suite 300 Blue Bell, PA 19422 kme@elliottgreenleaf.com Attorneys for Defendants Dated: March 18, 2019 /s/ Gregory F. Cirillo Gregory F. Cirillo, Esquire Case 1:16-cv-02145-JEJ-MCC Document 239 Filed 03/18/19 Page 15 of 15