Buchan v. The Milton Hershey School et alBRIEF IN SUPPORT of Defendants re First MOTION TO DISMISS FOR FAILURE TO STATE A CLAIMM.D. Pa.April 3, 2017IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JAIDEN BUCHAN, Plaintiff, vs. THE MILTON HERSHEY SCHOOL, and THE HERSHEY TRUST COMPANY, AS TRUSTEE OF THE MILTON HERSHEY SCHOOL TRUST, Defendants. : : : : : : : : : : : : : : C.A. NO.: 1:16-cv-02557 (CONNER, C.J.) BRIEF OF DEFENDANTS IN SUPPORT OF THEIR MOTION TO DISMISS PLAINTIFF JAIDEN BUCHAN’S COMPLAINT Jarad W. Handelman (PA 82629) Kyle M. Elliott (PA 306836) ELLIOTT GREENLEAF, P.C. One Market Square Plaza 17 N. Second Street, Suite 1420 Harrisburg, PA 17101 717.307.2600 (phone) 717.307.2060 (fax) jwh@elliottgreenleaf.com kme@elliottgreenleaf.com Counsel for Defendants April 3, 2017 Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 1 of 37 i TABLE OF CONTENTS I. BACKGROUND .................................................................................................................... 1 II. PROCEDURAL HISTORY .................................................................................................... 2 III. STATEMENT OF FACTS .................................................................................................. 3 IV. STATEMENT OF QUESTIONS INVOLVED ................................................................... 5 V. ARGUMENT .......................................................................................................................... 6 A. Count I Should Be Dismissed Because Plaintiff Lacks Standing to Bring an ADA Claim. .......................................................................................................................................... 6 B. Count II Should Be Dismissed Because Plaintiff’s Fair Housing Act Claim Fails as a Matter of Law. .......................................................................................................................... 12 1. Plaintiff’s FHA Claims Fail Because She Did Not Buy or Rent Any Dwelling from Defendants. ........................................................................................................................... 13 2. Plaintiff’s Claim Under Section 3604(f)(3) Fails Because Plaintiff Did Not Request Any Accommodation. ........................................................................................................... 16 C. The Court Should Decline to Exercise Supplemental Jurisdiction Over Plaintiff’s State Law Claims. .............................................................................................................................. 17 D. The Hershey Trust Company Should Be Dismissed As to Counts I and II Because It Is Not a Proper Defendant. ........................................................................................................... 18 1. The Trust Cannot Be Liable under the ADA. ............................................................. 18 2. The Trust Cannot Be Liable under the FHA. ............................................................. 21 E. Plaintiff’s State Law Claims Should Be Dismissed Because They Are Barred by the Gist of the Action Doctrine. ...................................................................................................... 22 F. Plaintiff’s Claims for Intentional and Negligent Infliction of Emotional Distress Fail Because Plaintiff Does Not Allege Any Resulting Physical Harm. ......................................... 25 G. Plaintiff’s Claim for Breach of Fiduciary Duty Fails Because No Fiduciary Duty Exists Between a Private School and Its Students. .............................................................................. 26 H. Plaintiff’s Negligence Per Se Claim is Not Cognizable. ............................................... 28 I. Plaintiff’s State Law Claims Against the Trust Must Be Dismissed. ................................ 29 VI. CONCLUSION .................................................................................................................. 30 Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 2 of 37 ii TABLE OF AUTHORITIES Cases Antonio v. Sec. Servs. of Am., L.L.C., 701 F. Supp. 2d 749 (D. Md. 2010) ........ 21 Aponik v. Verizon Pa., Inc., 106 F. Supp. 3d 619 (E.D. Pa. 2015) ....................... 29 Bardelli v. Allied Servs. Inst. of Rehab. Med., No. CIVIL ACTION NO. 3:14- 0691, 2016 U.S. Dist. LEXIS 135358 (M.D. Pa. Sept. 30, 2016) ........................... 9 Becker v. Bank of N.Y. Mellon Tr. Co., 172 F. Supp. 3d 777 (E.D. Pa. Mar. 23, 2016) ...................................................................................................................... 21 Brown v. Maria Assocs., No. 14-1712, 2015 U.S. Dist. LEXIS 136093 (W.D. Pa. Oct. 6, 2015) ........................................................................................................... 10 Dommel Props., L.L.C. v. Jonestown Bank & Tr. Co. , 162 F. Supp. 3d 438 (M.D. Pa. 2016) ................................................................................................................ 23 Emerson v. Thiel Coll., 296 F.3d 184 (3d Cir. 2002) ............................................ 20 Flores v. Vill. of Bensenville, No. 00 C 4905, 2003 U.S. Dist. LEXIS 4693 (N.D. Ill. Mar. 25, 2003) .................................................................................................. 21 Forziano v. Indep. Grp. Home Living Program, No. CV 13-0370, 2014 U.S. Dist. LEXIS 41358 (E.D.N.Y. Mar. 26, 2014) ............................................................... 15 Gati v. Univ. of Pitt., 91 A.3d 723 (Pa. Super. Ct. 2014) ...................................... 23 Gjeka v. Del. County Cmty. Coll., No. CIVIL ACTION NO. 12-4548, 2013 U.S. Dist. LEXIS 73054 (E.D. Pa. May 23, 2013) .................................................. 27, 28 Goldsmith v. CBS Tv Broad., Inc., No. 2:13-cv-00478, 2015 U.S. Dist. LEXIS 38506 (W.D. Pa. Mar. 26, 2015) ............................................................................ 17 Growth Horizons, Inc. v. Del. County, 983 F.2d 1277 (3d Cir. 1993) .................. 14 Hall v. Harleysville Ins. Co., 943 F. Supp. 536 (E.D. Pa. 1996) ........................... 10 Harris v. St. Joseph's Univ., No. CIVIL ACTION NO. 13-3937, 2014 U.S. Dist. LEXIS 65452 (E.D. Pa. May 12, 2014) ........................................................... 23, 24 Hollinger v. Reading Health Sys., No. CIVIL ACTION NO. 15-5249, 2016 U.S. Dist. LEXIS 91393 (E.D. Pa. July 14, 2016) ................................................... 10, 11 Hunter v. District of Columbia, 64 F. Supp. 3d 158 (D.D.C. 2014) ..................... 29 In re Kulzer Roofing, Inc., 139 B.R. 132 (Bankr. E.D. Pa. 1992) ......................... 28 In re McNeil Consumer Healthcare, No. MDL NO. 2190, 2011 U.S. Dist. LEXIS 76800 (E.D. Pa. July 14, 2011) ........................................................................ 29-30 Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 3 of 37 iii J.M. v. Nobel Learning Cmtys., Inc., No. CIVIL ACTION NO. 12-3882, 2013 U.S. Dist. LEXIS 129487 (E.D. Pa. Sept. 10, 2013) ....................................... 11, 12 Jaffee v. United States, 592 F.2d 712 (3d Cir. 1979) ............................................ 12 Jenkins v. N.Y. City Dep’t of Homeless Servs., 643 F. Supp. 2d 507 (S.D.N.Y. 2009) ...................................................................................................................... 15 Johnson v. Dixon, 786 F. Supp. 1 (D.D.C. 1991) .................................................. 15 Kane v. Chester Cty. Dep’t of Children, Youth & Families , 10 F. Supp. 3d 671 (E.D. Pa. 2014) ....................................................................................................... 26 Kromenhoek v. Cowpet Bay W. Condo. Ass’n, 77 F. Supp. 3d 462 (D.V.I. 2014) 17 Levin v. Dollar Tree Stores, Inc., No. CIVIL ACTION, NO. 06-00605, 2006 U.S. Dist. LEXIS 88595 (E.D. Pa. Dec. 6, 2006) .................................................... 28-29 Manning v. Temple Univ., No. CIVIL ACTION NO. 03-4012, 2004 U.S. Dist. LEXIS 26129 (E.D. Pa. Dec. 30, 2004) ................................................................. 27 McCree v. SEPTA, No. CIVIL ACTION NO. 07-4908, 2009 U.S. Dist. LEXIS 4803 (E.D. Pa. Jan. 22, 2009) ................................................................................ 28 McKivitz v. Twp. of Stowe, 769 F. Supp. 2d 803 (W.D. Pa. 2010) ..................... 17 Meyer v. Holley, 537 U.S. 280 (2003) ............................................................ 21, 22 Neff v. Am. Dairy Queen Corp., 58 F.3d 1063 (5th Cir. 1995) ............................ 20 Orion IP, L.L.C. v. Mercedes-Benz USA, L.L.C., 516 F. Supp. 2d 720 (W.D. Pa. 2007) ...................................................................................................................... 15 Pryor v. Ncaa, 288 F.3d 548 (3d Cir. 2002) ...................................................... 9, 10 Reardon v. Allegheny Coll., 926 A.2d 477 (Pa. Super. Ct. 2007) .................. 24, 25 Reedy v. Evanson, 615 F.3d 197 (3d Cir. 2010) ............................................. 25-26 Sheeran v. Blyth Shipholding S.A., No. 14-5482 (JBS/AMD), 2015 U.S. Dist. LEXIS 168019 (D.N.J. Dec. 16, 2015) .................................................................. 29 Shemtov Michtavi v. United States, No. 4:07-CV-0628, 2009 U.S. Dist. LEXIS 18926 (M.D. Pa. Mar. 4, 2009) .............................................................................. 26 Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119 (2005) ................................ 9 Swartley v. Hoffner, 734 A.2d 915 (Pa. Super. Ct. 1999) ..................................... 23 United Mine Workers v. Gibbs, 383 U.S. 715 (1966) ........................................... 18 Wen v. Willis, 117 F. Supp. 3d 673 (E.D. Pa. 2015) ....................................... 22-23 Wilson v. Parisi, No. 3:CV-04-1737, 2006 U.S. Dist. LEXIS 95952 (M.D. Pa. Feb. 7, 2006) .................................................................................................................. 30 Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 4 of 37 iv Statutes 28 U.S.C. § 1367(c)(3) (2012) ............................................................................... 18 42 U.S.C. § 3601 (2012) ........................................................................................ 13 42 U.S.C. § 3602(e) (2012) .................................................................................... 14 42 U.S.C. § 3604 .................................................................................................... 21 42 U.S.C. § 3604(f)(1) ........................................................................................... 14 42 U.S.C. § 3604(f)(1) (2012) ............................................................................... 14 42 U.S.C. § 3604(f)(1), (f)(2) ................................................................................ 13 42 U.S.C. § 3604(f)(2) (2012) ............................................................................... 14 42 U.S.C. § 3604(f)(3) ..................................................................................... 13, 16 42 U.S.C. § 12181(7) (2012) ................................................................................. 20 42 U.S.C. § 12181(7)(J) (2012) ............................................................................. 20 42 U.S.C. § 12182 (2012) ........................................................................................ 8 42 U.S.C. § 12182(a) ....................................................................................... 20, 21 42 U.S.C. § 12182(a) (2012) .................................................................................. 20 42 U.S.C. § 12182(b) ....................................................................................... 19, 20 42 U.S.C. § 12182(b)(1)(A)(ii) (2012) .................................................................. 13 42 U.S.C. § 12188(a)(2) (2012) ............................................................................... 9 Other 28 C.F.R. § 36.202(a) ............................................................................................. 19 28 C.F.R. § 36.202(b) ............................................................................................ 19 28 C.F.R. § 36.204 ................................................................................................. 19 Fed. R. Civ. P. 12(b)(6) ........................................................................................ 2, 4 Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 5 of 37 Defendants The Milton Hershey School (“MHS” or the “School”) and The Hershey Trust Company (the “Trust”) (collectively “Defendants”) hereby submit this Brief in Support of Their Motion to Dismiss the Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). I. BACKGROUND Milton and Catherine Hershey established MHS, with its first students enrolling in 1910, to provide a positive, structured home life year-round to help children gain the skills to be successful in all aspects of life. Today, the School is among the largest residential schools in the nation, offering individualized attention, small class sizes and top-notch academic programs to children in pre- kindergarten through 12th grade from low-income families. All programs, activities, supplies and medical care for enrolled students are provided at no charge. MHS students live on campus in a student home during the school year with MHS employees known as “houseparents” who supervise the children in the student home while they are on duty, along with anywhere between 8 to 12 students of the same age group and gender. During breaks and summer vacation, students return to their family homes for the summer, or have the option of remaining on campus to participate in MHS’s Year Round Experiences program if they so choose. Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 6 of 37 2 The Trust is a state-chartered trust company founded in 1905. It serves as the trustee for the Milton Hershey School Trust, the M.S. Hershey Foundation Trust and the Hershey Cemetery Trust. The Trust, nor any of its Board members, is specifically averred by Plaintiff to have perpetrated any specific act relevant to the Complaint, but is a customary target of those who have recruited Plaintiff to bring this action, and is otherwise believed to be a party to the suit merely because of its perceived “deep-pocket” and Plaintiff’s primary goal of extracting money from MHS. Plaintiff Jaiden Buchan (“Plaintiff”) is a former student of MHS, who was charged with attempting to burn down her student home Silverbrook while its occupants (School classmates and houseparents) were sleeping in the early hours of August 9, 2012. Now, before this Court, Plaintiff has brought factually and legally meritless claims against Defendants. II. PROCEDURAL HISTORY Plaintiff filed the Complaint against Defendants, and several “John Doe” Defendants on December 28, 2016. See Complaint (“Compl.”), ECF Doc. No. 1. The matter was initially assigned to The Honorable Judge Yvette Kane, but was reassigned to Chief Judge Christopher Conner on February 8, 2017. ECF Doc. No. 7. The Court thereafter issued a case management order setting scheduling deadlines for discovery and trial. ECF Doc. No. 8. On March 20, 2017, Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 7 of 37 3 Defendants timely filed a Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF Doc. No. 9. III. STATEMENT OF FACTS1 According to the Complaint, Plaintiff (now a twenty-year-old adult female) was admitted to MHS as a sixth grader. Compl. ¶¶ 16, 30. Plaintiff was diagnosed with a depressive disorder while attending MHS and experienced bouts of homesickness. Id. ¶¶ 50, 55. Plaintiff alleges that while she initially had good relationships with her houseparents, “things changed” when her housemother, Kathy Akins, visited Plaintiff’s mother’s “nice” home off campus. Id. ¶¶ 60-62. According to Plaintiff, Ms. Akins “wanted something to hold over [Plaintiff’s] head or discipline her for after seeing [her] warm home and meeting [her mother],” began “spying” on Plaintiff, and “became determined to find fault” with her. Id. ¶¶ 63-64. In the summer of 2012, Ms. Akins discovered that Plaintiff had gotten a tattoo and decided to “torture [Plaintiff] emotionally” about it. Id. ¶¶ 66, 70. Ms. Akins reported the tattoo as a violation of MHS’ Student Handbook and Plaintiff was given a Level III infraction for the tattoo. Id. ¶¶ 73-74. The punishment associated with this infraction caused Plaintiff to “implode” by having an 1 Defendants recite Plaintiff’s allegations only for the purposes of this Motion. See Fed. R. Civ. P. 12(b)(6). No admission of fact is intended and none should be inferred. Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 8 of 37 4 emotional meltdown which Plaintiff believes was intended by Ms. Akins. Id. ¶¶ 81, 84. On August 8, 2012, someone pulled a fire alarm in Plaintiff’s student home. Id. ¶ 95. Because the culprit could not be identified, MHS imposed punishment on the entire student home. Id. ¶ 101. Then, the following morning a grease-filled pot caught fire on the stove of the student home, and the students were evacuated. Id. ¶¶ 105-07. Plaintiff alleges that Ms. Akins and Kelley Rusenko, the MHS Home Life Administrator, told investigators that they believed Plaintiff started the fire. Id. ¶ 119. Plaintiff also alleges that Ms. Akins and Ms. Rusenko “lied” to the police about Plaintiff’s prior involvement in the fire alarm occurrence and other incidents. Id. ¶¶ 121, 123-26. Plaintiff believes that Ms. Akins and MHS made false statements to the police to “frame” Plaintiff, and in order to conceal that Ms. Akins’ son had been visiting at the time of the grease fire. Id. ¶¶ 128, 144, 149-50. Plaintiff was questioned by the police and ultimately prosecuted for five felonies related to the grease fire and the fire alarm incident. Id. ¶ 132, 148. The charges against Plaintiff were eventually dismissed at trial. Id. ¶¶ 150, 179. In the meantime, Plaintiff had been suspended from MHS while her criminal case was ongoing. Id. ¶ 152. She was then put on a leave of absence and finally terminated from MHS in November 2012. Id. ¶ 163-64. Plaintiff claims that she thereafter Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 9 of 37 5 enrolled at Hershey High School but was “forced to withdraw in shame” and completed her high school education at home. Id. ¶ 181. The Complaint sets forth the following causes of action against Defendants: Violation of the Americans with Disabilities Act (Count I); Violation of the Fair Housing Act (Count II); Negligence - Breach of the Duty of Care (Count III); Intentional Infliction of Emotional Distress (Count IV); Negligent Infliction of Emotional Distress (Count V); Breach of the Fiduciary Duties of Care and Good Faith (Count VI); Negligence Per Se (Count VII); and Malicious Prosecution (Count VIII). IV. STATEMENT OF QUESTIONS INVOLVED 1. Whether Count I should be dismissed because Plaintiff lacks standing under the Americans with Disabilities Act? Suggested Answer: Yes. 2. Whether Count II should be dismissed because Plaintiff cannot allege that she bought or rented housing from MHS under the Fair Housing Act and because Plaintiff fails to allege that she requested any reasonable accommodation from Defendants? Suggested Answer: Yes. 3. Whether the Court should decline jurisdiction over Plaintiff’s state law claims (Counts III-VIII)? Suggested Answer: Yes. 4. Whether the Trust should be dismissed as a Defendant to Plaintiff’s federal claims (Counts I-II)? Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 10 of 37 6 Suggested Answer: Yes. 5. Whether Plaintiff’s state law claims (Counts III-VIII) should be dismissed under the gist of the action doctrine? Suggested Answer: Yes. 6. Whether Plaintiff’s intentional and negligent infliction of emotional distress claims (Counts IV and V) should be dismissed because Plaintiff has failed to plead that she suffered physical harm as a result of Defendants’ alleged conduct? Suggested Answer: Yes. 7. Whether Plaintiff’s claim for breach of fiduciary duty (Count VI) should be dismissed because Defendants do not owe a fiduciary duty to Plaintiff as a matter of law? Suggested Answer: Yes. 8. Whether Plaintiff’s claim for negligence per se (Count VII) should be dismissed because the Americans with Disability Act and the Fair Housing Act do not constitute a basis for negligence per se? Suggested Answer: Yes. 9. Whether the Trust should be dismissed as a defendant to Plaintiff’s state law claims (Counts III-VIII) because Plaintiff fails to allege any purported actionable conduct on the part of the Trust? Suggested Answer: Yes. V. ARGUMENT A. Count I Should Be Dismissed Because Plaintiff Lacks Standing to Bring an ADA Claim. In Count I, Plaintiff asserts a claim under Title III of the Americans with Disabilities Act, 42 U.S.C. § 12182 et seq. (the “ADA”), alleging that Defendants Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 11 of 37 7 discriminated against her “by terminating her from MHS on the basis of a perceived mental disability that would cause her to set fire to her own student home.” Compl. ¶ 224. 2 In connection with her ADA claim, Plaintiff seeks injunctive relief in the form of: (a) immediate qualification for the MHS Scholarship program as if she had completed her sophomore, junior and senior year at MHS, and had met all criteria upon graduation, and access to whatever other assistance, rights and privileges the School provides to its graduates; (b) creation by MHS of a therapeutic student home for the seriously depressed children in its care, with 24 hour professional coverage; 2 A motion to dismiss pursuant to Federal Rule Civil Procedure 12(b)(6) tests the legal sufficiency of the pleading. To survive a motion to dismiss, a plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiff’s obligation to provide the grounds for entitlement to relief requires more than labels and conclusions, and a formulaic or “threadbare recitation of the elements of a cause of action supported by mere conclusory statements do not suffice.” Id. at 678 (2009); Twombly, 550 U.S. at 554. Accordingly, courts in the Third Circuit engage in a three-step analysis at the motion to dismiss stage. First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Iqbal, 556 U.S. at 675. Second, the court must identify allegations in the Complaint “that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. Third and finally, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. In deciding a 12(b)(6) motion, the court should consider the complaint, attached exhibits, matters of public record, and undisputedly authentic documents if the plaintiff’s claims are based upon those documents. Mayer v. Belichick, 605 F. 3d 223, 230 (3d Cir. 2010). Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 12 of 37 8 (c) appointment of an advocate for children to participate in all enrollment reviews; and (d) a commitment to continue care for children suffering from a mental health disability for a duration of at least twelve (12) months from diagnosis before any decisions on termination are made. Compl. ¶ 238. None of the requested relief is available to Plaintiff under Title III of the ADA. Plaintiff therefore lacks standing to assert her ADA claim against Defendants. Under Title III of the ADA, discrimination is prohibited “against the disabled in the full and equal enjoyment of public accommodations.” Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 128 (2005). “Under Title III of the ADA, private plaintiffs may not obtain monetary damages and therefore only prospective injunctive relief is available.” Bardelli v. Allied Servs. Inst. of Rehab. Med., Civ. A. No. 14-0691, 2016 U.S. Dist. LEXIS 135358, at *22 (M.D. Pa. Sept. 30, 2016) (quoting Anderson v. Macy’s, Inc., 943 F. Supp. 2d 531, 538 (W.D. Pa. 2013)); see also 42 U.S.C. § 12188(a)(2) (permitting private individuals to obtain only “injunctive relief”). “To establish standing in an action for injunctive relief, a plaintiff must show that he or she is likely to suffer future injury from the defendant’s illegal conduct.” Bardelli, 2016 U.S. Dist. LEXIS 135358, at *23 (quoting Doe v. Nat’l Bd. of Med. Examiners, 210 Fed. App’x 157, 159 (3d Cir. 2006)). “Indeed, in ‘ADA cases, Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 13 of 37 9 courts have held that a plaintiff lacks standing to seek injunctive relief unless he alleges facts giving rise to an inference that he will suffer future discrimination by the defendant.’” Pryor v. NCAA, 288 F.3d 548, 561 (3d Cir. 2002) (citing Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001)). In other words, a plaintiff “must demonstrate a ‘real and immediate threat’ of injury” because “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief…if unaccompanied by any continuing, present adverse effects.” Anderson, 943 F. Supp. at 538 (quoting O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974)) (other quotation omitted). “In the specific context of claims under Title III, the facts must indicate that the plaintiff ‘is likely to return to the place of the alleged ADA violation’ to sufficiently establish an injury in fact.” Brown v. Maria Assocs., Civ. A. No. 14-1712, 2015 U.S. Dist. LEXIS 136093, at *9 (W.D. Pa. Oct. 6, 2015) (citation omitted). The crux of Plaintiff’s 296-paragraph Complaint is that Defendants allegedly discriminated against Plaintiff when they terminated her enrollment at MHS several years ago. However, it is well settled that Title III of the ADA does not allow private individuals to seek relief for past discriminatory acts. See Pryor, 288 F.3d at 561. For instance, in Hollinger v. Reading Health Sys., Civ. A. No. 15- 5249, 2016 U.S. Dist. LEXIS 91393 (E.D. Pa. July 14, 2016), the plaintiff sued a hospital under Title III of the ADA after it discharged him into police custody, and Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 14 of 37 10 sought injunctive relief requiring the hospital to stabilize patients prior to discharge and to develop protocols governing review of cases involving allegations of violence by disabled patients. Id. at *30. The Court found that the plaintiff “does not allege that he may likely require future treatment at the Hospital or that the Hospital may likely discriminate against him in the future because of his disability,” and failed to “allege any facts which establish a reasonable likelihood that he would patronize the Hospital if not for the barriers preventing equal access.” Id. at *36. Rather, the plaintiff only alleged “a single, isolated incident of past discriminatory conduct which is not sufficient to meet requirements to establish standing” because he failed to show “that he is likely to suffer a future injury from the Hospital’s allegedly discriminatory conduct.” Id. at *36-37. Accordingly, the Court dismissed the plaintiff’s ADA claim. Here, as in Hollinger, Plaintiff alleges only incidents of past discriminatory conduct on the part of Defendants. And here, as in Hollinger, Plaintiff does not- and, in fact, cannot-allege that she is subject to any potential future discrimination by Defendants. Plaintiff concedes that MHS only serves children in grades K-12. Compl. ¶ 3. Plaintiff, although formerly enrolled in MHS, is now past the age in which she could be a student at MHS. See Compl. ¶ 1 (alleging that Plaintiff “is an adult female”); id. ¶ 16 (alleging that Plaintiff was born in 1997, which makes her twenty-years-old). In fact, Plaintiff admits that she has already Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 15 of 37 11 completed her high school education elsewhere. Id. ¶ 181. She is simply not eligible to be admitted or re-enrolled at MHS. By her own admission, Plaintiff could not be subject to any future discrimination by Defendants and, therefore, Plaintiff lacks standing to sue Defendants. See J.M. v. Nobel Learning Cmtys., Inc., Civ. A. No. 12-3882, 2013 U.S. Dist. LEXIS 129487, at *16-17 (E.D. Pa. Sept. 10, 2013) (dismissing an ADA claim as moot because the plaintiff was no longer eligible to re-enroll in the defendant school). The relief requested by Plaintiff only highlights this fundamental flaw in her ADA claim. Plaintiff requests an order requiring MHS to build a therapeutic student home, the appointment of a child advocate to participate in enrollment reviews, and an unspecified “commitment” by Defendants to care for disabled students for a period of time before terminating them. See Compl. ¶ 238. Plaintiff, as an adult who has already graduated from high school, cannot and could not take advantage of any of this requested relief. Further, Plaintiff requests “qualification for the MHS Scholarship program” as if she had completed her studies and graduated from MHS. Compl. ¶ 328. By requesting qualification into his program, Plaintiff is actually seeking the “$80,000 in higher education benefits” MHS provides “to each qualifying graduate.” Id. ¶ 189. Title III does not permit a private individual to recover monetary damages, and “[a] plaintiff cannot transform a claim for damages into an equitable action by Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 16 of 37 12 asking for an injunction that orders the payment of money.” Jaffee v. United States, 592 F.2d 712, 715 (3d Cir. 1979). Plaintiff is showing her true motivations by such an improper request. Plaintiff does not want injunctive relief - she wants money. Although those who have recruited Plaintiff to bring this action have long advocated for the policy changes so evidently driving the Complaint, Plaintiff is merely a pawn in such pursuits. Attempting to extract an $80,000 payment to Plaintiff as her compensation for agreeing to bring the suit is not a viable claim for injunctive relief under the ADA. Such disingenuous pleading must be rejected by this Court. For all of these reasons, Plaintiff lacks standing to sue Defendants based on their alleged violation of the ADA and, accordingly, the Court should dismiss Count I of the Complaint with prejudice. B. Count II Should Be Dismissed Because Plaintiff’s Fair Housing Act Claim Fails as a Matter of Law. In Count II, Plaintiff asserts a claim under The Fair Housing Act, 42 U.S.C. § 3601 et seq. (the “FHA”), alleging that Defendants discriminated against her by denying her housing, i.e. terminating her from school, based on her disability. See Compl. ¶ 242. Plaintiff asserts claims under Sections 3604(f)(1), (f)(2), and (f)(3) of the FHA. 3 Plaintiff’s FHA claim fails for two reasons. First, the FHA prohibits 3 In Count II, which is asserted under the FHA, Plaintiff also alleges that Defendants violated 42 U.S.C. § 12182(b)(1)(A)(ii), which is a provision of the Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 17 of 37 13 discrimination in connection with the “sale” or “rental” of a dwelling. Because Plaintiff does not, and cannot, allege that she either bought or rented her housing at MHS, her FHA claims must be dismissed. Second, Section 3604(f)(3) of the FHA creates liability for an entity that refuses to make reasonable accommodations to its policies, practices, or services. Plaintiff’s claim under Section 3604(f)(3) must be dismissed because Plaintiff does not allege that she requested any accommodation, much less that such an accommodation was “reasonable” or “necessary.” 1. Plaintiff’s FHA Claims Fail Because She Did Not Buy or Rent Any Dwelling from Defendants. The purpose of the FHA “is to protect the housing choices of handicapped individuals who seek to buy or lease housing and of those who seek to buy or lease housing on their behalf.” Growth Horizons, Inc. v. Delaware Cnty., 983 F.2d 1277, 1283 (3d Cir. 1993). Section 3604(f)(1) makes it unlawful to “discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap.” 42 U.S.C. § 3604(f)(1) (emphasis added). Similarly, Section 3604(f)(2) prohibits discrimination “against any person, in the terms, conditions, or privileges of sale or rental of a dwelling.” 42 U.S.C. § 3604(f)(2) (emphasis added). To state a claim under the FHA, therefore, Plaintiff must allege facts sufficient to support a finding that she bought or rented her ADA. Defendants address the viability of Plaintiff’s claim under the ADA in Section A supra. Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 18 of 37 14 housing at MHS. Plaintiff does not allege that she purchased any dwelling from Defendants. Accordingly, Plaintiff must allege facts showing that she was a “renter” of student housing at MHS. To “rent” is defined by the FHA as including “to lease, to sublease, to let and otherwise to grant for a consideration the right to occupy premises not owned by the occupant.” 42 U.S.C. § 3602(e). Plaintiff alleges that attending MHS, including living in student homes, is provided “cost-free.” Compl. ¶ 3. Because attendance at MHS is free, and because Plaintiff did not pay tuition or any other “rent” in exchange for living in student housing, Plaintiff cannot be a “renter” of MHS housing. See Johnson v. Dixon, 786 F. Supp. 1, 4 (D.D.C. 1991) (finding it doubtful that free shelter inhabitants are renters because “such accommodations. . . have been provided gratis”); Forziano v. Indep. Grp. Living Prog., Civ. A. No. 16- 0370, 2014 U.S. Dist. LEXIS 41358, at *25 n.5 (E.D.N.Y. Mar. 26, 2014) (finding that residents of a group home are not buyers or renters, “but rather receive supervised housing as part of their Medicaid services”); Jenkins v. N.Y. City Dep’t of Homeless Servs., 643 F. Supp. 2d 507, 519 (S.D.N.Y. 2009) (holding that “rent” means “consideration paid by the person who has the right to occupy the dwelling”). Perhaps realizing the infirmity of her claims, Plaintiff nonetheless alleges that her completion of “chores and tasks” for her houseparents “constitute[s] Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 19 of 37 15 consideration for [her] residence in the student home.” Compl. ¶ 252. “Consideration” is an “inducement to contract” including a right, interest, profit, or benefit accruing to one party, or some forbearance, detriment, or loss suffered by another. Great N. Ins. Co. v. ADT Sec. Servs., 516 F. Supp. 2d 723, 736 n.10 (W.D. Pa. 2007). As an initial matter, Plaintiff’s allegation regarding this “consideration” is a mere legal conclusion that cannot be credited at the Rule 12 stage. Further, Defendants are not aware of any authority which would support the theory that a student’s completion of chores is sufficient “consideration” for her enrollment at a cost-free residential school. And Plaintiff does not allege any facts to support the absurd proposition that her performance of chores around the house somehow “induced” MHS to offer her enrollment in the school. Nor does Plaintiff allege that her enrollment at MHS was at all dependent on her completion of chores around the student home, or that she could have lost her right to attend MHS if she stopped performing chores or if her chores were done inadequately. Plaintiff’s allegations are simply not plausible and unsupported by the averments of the Complaint. Plaintiff also alleges that the Trust contributed money to Plaintiff’s housing which, according to Plaintiff, constitutes “[a]dditional consideration.” Compl. ¶ 253. Again, Plaintiff fails to aver any facts establishing, even theoretically, how the allocation of funding from a totally separate entity equates to “consideration” Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 20 of 37 16 for Plaintiff’s continued enrollment and residence at MHS. Plaintiff further fails to allege any facts, beyond mere conclusions, that funding from the Trust “induces” MHS to offer housing to any particular student, particularly since MHS receives that funding automatically each year, without conditions. See Compl. ¶ 6. Consequently, Plaintiff has failed to allege facts sufficient to state a plausible claim under the FHA, and Count II must be dismissed on that basis. 2. Plaintiff’s Claim Under Section 3604(f)(3) Fails Because Plaintiff Did Not Request Any Accommodation. Plaintiff also alleges that Defendants refused to make reasonable accommodations to their rules, policies, practices, or services for Plaintiff under the FHA. See Compl. ¶ 254(c). “[A]n accommodation is statutorily required when it is both reasonable and necessary to provide handicapped individuals with an equal opportunity to use it and enjoy housing.” McKivitz v. Twp. of Stowe, 769 F. Supp. 2d 803, 823 (W.D. Pa. 2010) (citing Community Servs., Inc. v. Wind Gap Municipal Auth., 421 F.3d 170, 184 n.12 (3d Cir. 2005)). “In order to make a claim under the FHA, a plaintiff ‘must actually request an accommodation and be refused in order to bring a reasonable accommodation claim under the FHA.’” Kromenhoek v. Cowpet Bay W. Condo. Ass’n, 77 F. Supp. 3d 462, 469 (D.V.I. 2014) (quoting U.S. v. Hialeah Housing Auth., 418 Fed. App’x 872, 875 (11th Cir. 2011)); see Goldsmith v. CBS Tv Broad., Pittsburgh, Inc., Civ. A. No. 13-00478, 2015 U.S. Dist. LEXIS 38506, at *16 (W.D. Pa. Mar. 26, 2015) (same); see also Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 21 of 37 17 McKivitz, 769 F. Supp. 2d at 820 (noting that “a statutory violation occurs as soon as a request for a federally-mandated ‘reasonable accommodation’ is denied”). While Plaintiff alleges that Defendants discriminated against her by terminating her enrollment at MHS, Plaintiff does not allege that she requested Defendants to change any of their rules, policies, practices, or services to accommodate her disability. Plaintiff even fails to identify any accommodation that she believes was reasonable and necessary to permit her continued enrollment at MHS. Such averments are simply absent from the Complaint, and even the most favorable reading of Plaintiff’s Complaint can infer any such allegation. Plaintiff alleges a conspiracy to kick her out of MHS because she had a nice family home. The cause for her termination from MHS, according to Plaintiff’s own factual averments, was not a product of any refusal to provide a reasonable accommodation, no such accommodation ever having been requested by Plaintiff in the first instance. For these reasons, Count II must be dismissed. C. The Court Should Decline to Exercise Supplemental Jurisdiction Over Plaintiff’s State Law Claims. Because Counts I and II should be dismissed, the Court should also decline to exercise supplemental jurisdiction over Plaintiff’s remaining state law claims (Counts III-VIII). Plaintiff has alleged that this Court has subject-matter jurisdiction only based upon her federal causes of action, Counts I and II. See Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 22 of 37 18 Compl. ¶ 14. “The district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Further, “if the federal claims are dismissed before trial . . . the state claims should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). Accordingly, Plaintiff’s state law claims should be dismissed with prejudice. D. The Hershey Trust Company Should Be Dismissed As to Counts I and II Because It Is Not a Proper Defendant. Even if Plaintiff had pled cognizable claims under the ADA and FHA (which she did not), Plaintiff’s federal claims against the Trust must be dismissed. Plaintiff purports to bring her ADA and FHA claims against not only MHS, but also the Trust, which serves as the trustee of the School Trust. However, the Trust is clearly not a proper defendant to either Count I or Count II. The Trust does not own, lease, or operate any part of MHS such that it could be deemed liable under the ADA. In addition, the Trust cannot be held directly or vicariously liable under the FHA. Accordingly, to the extent that Plaintiff’s ADA and FHA claims are otherwise deemed viable at the Rule 12 stage, the Trust must be dismissed as a defendant to Counts I and II. 1. The Trust Cannot Be Liable under the ADA. Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 23 of 37 19 Plaintiff alleges that the Trust is liable under several provisions of Section 12182(b) of the ADA. See Compl. ¶ 236. Under Section 12182(b), a “public accommodation” is prohibited from discriminating against a disabled individual. 28 C.F.R. § 36.202(a) (implementing Section 12182(b)(1)(A)(i), and providing that “A public accommodation shall not . . .”); 28 C.F.R. § 36.204 (implementing Section 12182(b)(1)(D) and providing that “A public accommodation shall not . . .”); 28 C.F.R. § 36.202(b) (implementing Section 12182(b)(1)(A)(ii) and providing that “A public accommodation shall not . . .”). The ADA delineates twelve exhaustive categories of private entities that qualify as a “public accommodation.” 42 U.S.C. § 12181(7). One such category is “a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education.” 42 U.S.C. § 12181(7)(J). The Trust does not fall within this or any other category that would constitute a “public accommodation” under Section 12182(b) of the ADA. Therefore, the Trust cannot be liable under Section 12182(b) as a matter of law. Plaintiff also alleges that the Trust is liable under Section 12182(a) of the ADA. See Compl. ¶ 235. Section 12182(a) is directed to any private entity that “owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. §12182(a). While Plaintiff alleges that MHS is a place of public accommodation, see Compl. ¶ 234, Plaintiff does not allege that the Trust owns, Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 24 of 37 20 leases, or operates MHS. 4 Rather, Plaintiff alleges that the Trust was “organized for the purpose of serving as trustee of the School Trust and continues to serve in this role.” Compl. ¶ 9. Notably, Plaintiff refers to the alleged conduct of “Defendants” collectively in pleading her ADA claim, but fails to set forth any facts that would allow this Court to infer that the Trust could be independently liable for any alleged discrimination. See infra note 3. Plaintiff also cannot point to any common law duty of a trustee that would permit it to be liable under Section 12182(a). “The primary duty of a trustee is the preservation of the assets of the trust and the safety of the trust principal.” Becker v. Bank of N.Y. Mellon Trust Co., N.A., 172 F. Supp. 3d 777, 789 (E.D. Pa. Mar. 23, 2016) (quoting Estate of Warden, 2 A.3d 565, 573 (Pa. Super. Ct. 2010)). Common law thus does not impose any obligation or right on a trustee to own, lease, or operate a place of public accommodation like MHS. The Trust should therefore be dismissed as a defendant to Count I of the Complaint. 4 The term “operates” is given its ordinary meaning. Emerson v. Thiel Coll., 296 F.3d 184, 189 (3d Cir. 2002). As such, “operates” is construed to mean “to control or direct the functioning of” and “to conduct the affairs of.” Id. at 189. Importantly, in determining whether a private entity’s authority rises to the level of “operates,” the proper inquiry is to look to the private entity’s authority or control “over the allegedly discriminatory act”-not its authority or control over the facility in total. Neff v. Am. Dairy Queen Corp., 58 F.3d 1063, 1066 n.9 (5th Cir. 1995). Plaintiff does not, and cannot, allege that the Trust had control over the decision to terminate Plaintiff from MHS since, as Plaintiff acknowledges, the Trust is responsible solely for allocating funding from the School Trust to MHS. See Compl. ¶ 9. Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 25 of 37 21 2. The Trust Cannot Be Liable under the FHA. Plaintiff also alleges that the Trust is liable under Section 3604 of the FHA. See Compl. ¶ 254. Courts have found that a person can be liable under the FHA if he (1) directly violated the FHA, or (2) is found to be vicariously liable based on a principal-agent relationship. See Meyer v. Holley, 537 U.S. 280, 285 (2003) (recognizing vicarious liability under the FHA); Antonio v. Sec. Servs. of Am., LLC, 701 F. Supp. 2d 749, 772-73 (D. Md. 2010) (explaining that the FHA allows liability for a direct statutory violation or based on vicarious liability); Flores v. Vill. of Bensenville, Civ. A. No. 00-4905, 2003 U.S. Dist. LEXIS 4693, at *10-11 (N.D. Ill. Mar. 25, 2003) (noting that an FHA claim against individuals “requires proof that they were personally or vicariously involved in the acts of discrimination”). Neither basis for liability applies to the Trust. First, Plaintiff does not allege that the Trust was personally involved in or responsible for the decision to terminate Plaintiff from MHS. As Plaintiff recognizes, the Trust is responsible for overseeing the School Trust, not in day-to-day decisions involving enrollment of students. See Compl. ¶ 9. As a result, the Trust cannot be liable under the FHA under a theory of direct liability. Second, Plaintiff does not allege any facts that would support an inference that the Trust could be vicariously liable for the decision to terminate Plaintiff. The rules of vicarious liability “ordinarily make Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 26 of 37 22 principals or employers vicariously liable for the acts of their agents or employees in the scope of their authority or employment.” Meyer, 537 U.S. at 285 (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 756 (1998)). The Trust is not the employer or principal of MHS (and Plaintiff does not allege such facts), and thus cannot be held vicariously liable under the FHA. The Trust must therefore be dismissed as a defendant to Count II. E. Plaintiff’s State Law Claims Should Be Dismissed Because They Are Barred by the Gist of the Action Doctrine. Plaintiff’s state law claims, while pled as tort claims, actually arise from Plaintiff’s contractual relationship with MHS and therefore are barred by the gist of the action doctrine. “The gist of the action doctrine forecloses a party’s pursuit of a tort action for the mere breach of contractual duties without any separate or independent event giving rise to the tort.” Wen v. Willis, 117 F. Supp. 3d 673, 680 (E.D. Pa. 2015) (quotation omitted). Determining whether a claim sounds in contract or tort “is dependent upon ‘the nature of the duty alleged to have been breached.’” Dommel Props., LLC v. Jonestown Bank & Trust Co., 162 F. Supp. 3d 438, 447 (M.D. Pa. 2016) (Conner, C.J.) (quoting Bruno v. Erie Ins. Co., 106 A.3d 48, 68 (Pa. 2014)). In particular, the Court should consider whether the duty allegedly beached is one created by the terms of a contract, or a broader social duty owed to all persons and existing regardless of the contract. Id. (citing Bruno, 106 A.3d at 447). The Court must also consider (1) whether the negligent action was Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 27 of 37 23 undertaken in the course of performing the contract, or directly pursuant to the terms of the contract, and (2) whether the contract serves only as the vehicle that establishes the parties’ relationship, or actually defines the defendant’s contested obligations. See id. at 447-48 (citing Bruno, 106 F.3d at 447-48). The gist of the action doctrine squarely applies to Plaintiff’s state law claims against Defendants because, under Pennsylvania law, “[i]n the case of a dispute between a student and a private school, Pennsylvania Courts apply a contract law analysis.” Gati v. Univ. of Pittsburgh, 91 A.3d 723, 731 (Pa. Super. Ct. 2014); see also Swartley v. Hoffner, 734 A.2d 915, 919 (Pa. Super. Ct. 1999) (“[W]e now hold that the relationship between a private educational institution and an enrolled student is contractual in nature. . . .”); Harris v. St. Joseph’s Univ., Civ. A. No. 13- 3937, 2014 U.S. Dist. LEXIS 65452, at *7 (E.D. Pa. May 13, 2014) (same); Reardon v. Allegheny Coll., 926 A.2d 477, 480 (Pa. Super. Ct. 2007) (defining the relationship between a student and private college as “strictly contractual in nature”). The relationship consists only of “written guidelines, policies, and procedures as contained in the written materials distributed to the student over the course of their enrollment in the institution.” Harris, 2014 U.S. Dist. LEXIS 65452, at *7 (quotation omitted). Because under Pennsylvania law the relationship between a student like Plaintiff and a private school like MHS is strictly contractual in nature, each of Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 28 of 37 24 Plaintiff’s state law claims are barred by the gist of the action doctrine. By way of illustration, in Reardon, a disgruntled student filed breach of contract and tort claims against Allegheny College and a professor. 926 A.2d at 479. The trial court granted a demurrer to all counts, particularly finding that the student’s tort claims were barred by the gist of the action doctrine. Id. at 485. The Superior Court affirmed, finding that: The only duties owed by Allegheny and Professor Nelson we can discern are rooted in The Compass [the student handbook]-not some external and undefined general duty of care. Indeed, The Compass represents the sole basis for the relationship between the parties. . . . If this context were stripped away, there would be no relationship between the parties. Any potential liability Allegheny and Professor Nelson could incur, therefore, would arise out of their breach of the terms set forth in The Compass. Id. at 487 (internal citations omitted). Plaintiff concedes that MHS is a private school and that she was enrolled at MHS for a number of years during which MHS allegedly failed to satisfy its obligations to her. See Compl. ¶¶ 3, 30. While Plaintiff devotes several pages of her Complaint to describing the relationship between herself and MHS, it is apparent from her own pleading that any duty that allegedly existed on the part of MHS, and any breach of such a duty, arose solely from the contractual relationship between MHS and Plaintiff, an enrolled student. See, e.g., Compl. ¶¶ 203-05 (describing MHS’ duties in its Non-Discrimination and Equal Opportunity Policy); Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 29 of 37 25 id. ¶¶ 209-11 (alleging that MHS breached the Non-Discrimination Policy in certain ways); id.¶ 260 (describing MHS’ custody and control of “its enrolled students”); id. ¶ 269 (alleging that MHS acted contrary to its Non-Discrimination Policy). Accordingly, Plaintiff’s state law claims are barred by the gist of the action doctrine, and should be dismissed. F. Plaintiff’s Claims for Intentional and Negligent Infliction of Emotional Distress Fail Because Plaintiff Does Not Allege Any Resulting Physical Harm. In Counts IV and V, Plaintiff asserts claims for intentional infliction of emotional distress and negligent infliction of emotional distress. Under Pennsylvania law, a claim for intentional infliction of emotional distress requires Plaintiff to allege, inter alia, “some type of resulting physical harm due to the defendant’s outrageous conduct.” Reedy v. Evanson, 615 F.3d 197, 231 (3d Cir. 2010) (quoting Swisher v. Pitz, 868 A.2d 1228, 1230 (Pa. Super. Ct. 2005)). Similarly, a claim for negligent infliction of emotional distress requires Plaintiff to allege, inter alia, “immediate and substantial physical harm.” Shemtov Michtavi v. United States, Civ. A. No. 07-0628, 2009 U.S. Dist. LEXIS 18926, at *23 (M.D. Pa. Mar. 4, 2009) (emphasis in original) (quoting Doe v. Phila. Cmty. Health Alternatives AIDS Task Force, 745 A.2d 25, 26 (Pa. Super. Ct. 2000)). The Complaint contains only the bare, conclusory allegation that Plaintiff suffered “physical harm.” Compl. ¶¶ 271, 276. That allegation is merely a Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 30 of 37 26 threadbare recital of an element of Plaintiff’s cause of action, and does not suffice to state a plausible claim. To the contrary, a plaintiff must “support the claim of physical harm resulting from emotional distress with competent medical evidence.” Kane v. Chest Cnty. Dep’t of Children, Youth & Families, 10 F. Supp. 3d 671, 693 (E.D. Pa. 2014) (dismissing such a claim because the complaint did not allege medical evidence supporting the allegation that the plaintiff suffered a physical manifestation of emotional distress). Plaintiff has failed to allege this required element of her claims and, as a result, the Court should dismiss Counts IV and V. G. Plaintiff’s Claim for Breach of Fiduciary Duty Fails Because No Fiduciary Duty Exists Between a Private School and Its Students. In Count VI, Plaintiff asserts a claim for breach of fiduciary duty. Under Pennsylvania law, “a fiduciary duty arises out of a confidential relationship where ‘the parties do not deal on equal terms, but, on the one side there is overmastering influence, or, on the other, weakness, dependence or trust, justifiably reposed.’” Manning v. Temple Univ., Civ. A. No. 03-4012, 2004 U.S. Dist. LEXIS 26129, at *27 (E.D. Pa. Dec. 30, 2004), aff’d 2005 U.S. App. LEXIS 26483 (3d Cir. 2005) (quoting Frowen v. Blank, 425 A.2d 412, 416-17 (Pa. 1981)). “In essence, the dominant party may not use his or her position to harm the subordinate party to the dominant party’s own advantage,” that is, for “personal gain.” Id. at *28 (quotations omitted). Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 31 of 37 27 Defendants are not aware of any Pennsylvania case which has found that a private school or a trustee of the school trust owes a fiduciary duty to enrolled students. See Gjeka v. Del. Cnty. Cmty. Coll., Civ. A. No. 12-4548, 2013 U.S. Dist. LEXIS 73054, at *30 (E.D. Pa. May 23, 2013) (describing the lack of Pennsylvania law finding a fiduciary relationship in these circumstances). There is no authority supporting Plaintiff’s conclusory allegation that the relationship between a private school and its enrolled students is fiduciary in nature. Moreover, in order to be liable for breaching a fiduciary duty, the defendant must act for its own personal gain. Plaintiff does not allege that Defendants acted for their own personal gain or advantage by terminating Plaintiff from MHS. And, while Plaintiff alleges that her houseparents acted out of some sort of personal malice, “[w]hatever else personal gain or advantage may be, it does not include the nefarious pleasure one may have from observing another person fail.” Id. at *29; see id. (dismissing a breach of fiduciary duty claim and rejecting the notion that “the satisfaction of seeing [a student] dismissed constitutes personal gain or advantage). Plaintiff also cannot maintain her breach of fiduciary duty against the Trust. As Plaintiff admits in her Complaint, the Trust’s sole purpose is to serve as the trustee of the School Trust. Compl. ¶ 9. While a fiduciary relationship may exist between the Trust and MHS, there is no such relationship between the Trust and Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 32 of 37 28 any student of MHS. See In re Kulzer Roofing, Inc., 139 B.R. 132, 140 (Bankr. E.D. Pa. 1992) (observing that there is a fiduciary relationship between a trustee and the beneficiary of the trust). Accordingly, Count VI should be dismissed. H. Plaintiff’s Negligence Per Se Claim is Not Cognizable. In Count VII, Plaintiff asserts a claim for negligence per se, alleging that Defendants’ violations of the ADA and FHA constitute a breach of the standard of care Defendants owed Plaintiff. However, “violation of an ADA regulation may not be used as evidence of negligence per se in a personal injury action.” McCree v. SEPTA, Civ. A. No. 07-4908, 2009 U.S. Dist. LEXIS 4803, at *41 n.11 (E.D. Pa. Jan. 22, 2009); see also Levin v .Dollar Tree Stores, Inc., Civ. A. No. 06- 00605, 2006 U.S. Dist. LEXIS 88595, at *9 (E.D. Pa. Dec. 7, 2006) (refusing to allow the plaintiff to “‘borrow’ the ADA regulations for use as evidence of the standard of care to prove negligence”); Aponik v. Verizon PA., Inc., 106 F. Supp. 3d 619, 624 (E.D. Pa. 2015) (“Because the ADA was not designed to protest those with disabilities from personal injuries, [p]laintiff is unable to state a claim for negligence per se.”). The same is true for the FHA. Hunter v. District of Columbia, 64 F. Supp. 3d 158, 189 (D.D.C. 2014) (concluding that the FHA cannot serve as the basis for a negligence per se claim). Because neither the ADA nor the FHA can serve as the basis for Plaintiff’s negligence per se claim, Count VII should be dismissed. Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 33 of 37 29 I. Plaintiff’s State Law Claims Against the Trust Must Be Dismissed. Plaintiff’s state law claims in Counts III-VIII are asserted against both MHS and the Trust. However, Plaintiff lumps in MHS and the Trust together and alleges that “Defendants” collectively committed the acts alleged in the Complaint. See, e.g., Compl. ¶ 259 (alleging a duty “on the Defendants’ part to care for [Plaintiff]”); id. ¶ 269 (alleging that “Defendants” inflicted emotional distress on Plaintiff); id. ¶ 291 (alleging that “Defendants” initiated criminal proceedings against Plaintiff). Courts “agree that this type of ‘group pleading’ does not satisfy Rule 8, because it does not place Defendants on notice of the claims against each of them.” Sheeran v. Blyth Shipholding S.A., Civ. A. No. 14-5482, 2015 U.S. Dist. LEXIS 168019, at *8 (D.N.J. Dec. 16, 2015); see also In re McNeil Consumer Healthcare, MDL No. 2190, 2011 U.S. Dist. LEXIS 76800, at *58 (E.D. Pa. July 15, 2011) (dismissing claims because the complaint “fails to distinguish between the J&J and Contractor Defendants, instead lumping both groups together under the term ‘defendants’”); Wilson v. Parisi, Civ. A. No. 04-1737, 2006 U.S. Dist. LEXIS 95952, at *38 (M.D. Pa. Feb. 7, 2006) (dismissing a claim because the defendants “have been lumped together . . . without any delineation of responsibility”). Plaintiff does not identify any sort of conduct that the Trust took separate and apart from MHS, and that would possibly subject the Trust to liability for Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 34 of 37 30 Plaintiff’s claims. This type of pleading is particularly improper since Plaintiff alleges that the Trust’s only function is to serve as trustee of the School Trust, and Plaintiff cannot plausibly allege that the Trust, for example, breached a duty of care to Plaintiff, or initiated legal proceedings against Plaintiff. Accordingly, the Court should dismiss the Trust as a Defendant to Plaintiff’s state law claims. 5 VI. CONCLUSION For all of the foregoing reasons, Defendants respectfully request that the Court dismiss the Complaint with prejudice. Respectfully, /s Jarad W. Handelman Jarad W. Handelman, Esquire (PA 82629) Kyle M. Elliott, Esquire (PA 306836) Elliott Greenleaf, P.C. 17 N. Second Street, Suite 1420 Harrisburg, PA 17101 717.307.2600 (phone) 717.307.2060 (fax) 215.977.1000 (phone) 215.977.1099 (fax) jwh@elliottgreenleaf.com kme@elliottgreenleaf.com Counsel for Defendants Dated: April 3, 2017 5 Although the Trust should be dismissed as a defendant to Plaintiff’s federal claims as a matter of law, see supra Section D, in the alternative, the Trust should also be dismissed as a defendant to Plaintiff’s federal law claims based on Plaintiff’s failure to plead any particularized conduct on the part of the Trust that could subject it to liability under the ADA and/or FHA. Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 35 of 37 CERTIFICATE OF WORD COUNT I, Kyle M. Elliott, Esquire, hereby certify that the word count of the foregoing brief, excluding the cover page, tables, signature blocks, and certificates, as determined by the Microsoft Word software with which it was produced, is 7,348 words. /s Kyle M. Elliott Kyle M. Elliott, Esquire Dated: April 3, 2017 Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 36 of 37 CERTIFICATE OF SERVICE I, Kyle M. Elliott, Esquire, hereby certify that I caused the foregoing Rule 12(b)(6) Motion to be filed electronically with the Court, where it is available for viewing and downloading from the Court’s ECF system, and that such electronic filing automatically generates a Notice of Electronic Filing constituting service of the filed document upon all counsel of record. /s Kyle M. Elliott Kyle M. Elliott, Esquire Dated: April 3, 2017 Case 1:16-cv-02557-CCC Document 12 Filed 04/03/17 Page 37 of 37 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JAIDEN BUCHAN, : Plaintiff : : No. 1:16-cv-02557 v. : : Chief Judge Conner THE MILTON HERSHEY SCHOOL, et al., : Defendants : Unpublished Opinions Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 1 of 175 Neutral As of: April 3, 2017 4:45 PM Z Bardelli v. Allied Servs. Inst. of Rehab. Med. United States District Court for the Middle District of Pennsylvania September 30, 2016, Decided; September 30, 2016, Filed CIVIL ACTION NO. 3:14-0691 Reporter 2016 U.S. Dist. LEXIS 135358 * TRACI BARDELLI, et al., Plaintiffs v. ALLIED SERVICES INSTITUTE OF REHABILITATION MEDICINE, Defendant Prior History: Bardelli v. Allied Servs. Inst. of Rehab. Med., 2015 U.S. Dist. LEXIS 27637 (M.D. Pa., Mar. 6, 2015) Core Terms dePaul, plaintiffs', dog, disability, attend, seizure, t-shirt, wearing, accommodations, trained, services, re-training, citations, animal, dander, summary judgment motion, compensatory damages, attend school, regulations, medically necessary, injunctive relief, summary judgment, deliberate indifference, material fact, allergy, breach of contract claim, reasonable accommodation, amended complaint, school year, requirements Counsel: [*1] For Traci Berardelli, on behalf of thier daughter M.B., a minor, and individually on their own behalf, Joseph Berardelli, on behalf of their daughter M.B., a minor, and individually on their own behalf, Plaintiffs: Joshua M. Kershenbaum, LEAD ATTORNEY, Frankel & Kershenbaum LLC, West Conshohocken, PA; Nicole Reimann, Schnader Harrison Segal & Lewis LLP, Philadelphia, PA. For Allied Services Institute of Rehabilitation Medicine, Defendant: James J. Conaboy, LEAD ATTORNEY, Abrahamsen Conaboy & Abrahamsen, P.C., Scranton, PA. Judges: MALACHY E. MANNION, United States District Judge. Opinion by: MALACHY E. MANNION Opinion MEMORANDUM Plaintiffs Traci and Joseph Bardelli, individually and on behalf of their minor daughter M.B., filed this action asserting claims under the Americans with Disabilities Act and the Rehabilitation Act as well as state law claims regarding their attempt to have M.B. attend the dePaul School with her service dog Buddy, trained to identify seizures in M.B. and to alert others when she has a seizure. M.B., a 12-year old student with severe epilepsy who was previously enrolled at the dePaul School, was prevented from attending the school with Buddy. After M.B. was barred from attending the school [*2] with Buddy and she was forced to miss school, her parents enrolled her in the Dunmore School District where they lived. Defendant Allied Services Institute of Rehabilitation Medicine ("Allied") then offered several accommodations to M.B., including to allow Buddy in the school wearing a dander control t-shirt, and M.B. returned to the dePaul School for a short period of time from January 2, 2014 until January 16, 2014. Plaintiffs then removed M.B. from the school after Buddy failed to perform properly while he was wearing the t-shirt. Allied filed a motion for summary judgment, (Doc. 43), arguing that plaintiffs failed to dispute its evidence that the accommodations offered to M.B. during her attendance at the dePaul School were reasonable. For the following reasons, the motion for summary judgment will be GRANTED IN PART and DENIED IN PART. I. MATERIAL FACTS1 M.B. is 12 years old and is the child of plaintiffs. M.B. has Chiari Malformation, Hydrocephalus, Complex 1 The material facts are derived from Allied's statement of facts, (Doc. 45), the plaintiffs' response, (Doc. 47), and the exhibits attached to both documents as well as to the briefs. Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 2 of 175 Page 2 of 13 Partial Epilepsy Intractable, Dyslexia and [*3] suffers from three types of seizures. In particular, M.B. has absent, complex partial, and full tonic-clonic grand mal seizures. When M.B. has a simple partial seizure she is still conscious but it may progress to a complex partial seizure where she loses consciousness. A complex partial seizure can then progress to a secondarily generalized seizure where M.B.'s body convulses and shakes. M.B. enrolled in the dePaul School in November of 2011 at age eight without a service dog but was waiting to get a new service dog after her previous service dog became ill. The dePaul School is a division of Allied. The mission of the dePaul School is to teach students with dyslexia and other specific learning differences how to learn, and it is accredited by the Pennsylvania Department of Education. Plaintiffs discussed with the principal of the dePaul School, Suzanne Rickard, why M.B. would need to attend school with her new service dog. In February of 2012, M.B. received Buddy, a certified service dog specially trained to identify seizure activity in M.B., to alert others of seizures, and to stay and provide comfort to M.B. during a seizure. M.B. and Buddy trained together. M.B. attended the dePaul [*4] School during the 2011- 2012 school year without Buddy. However, plaintiffs advised Rickard that after M.B. received her new service dog, the dog would be accompanying M.B. to school. Rickard refused to allow Buddy to be at the school with M.B. stating that Buddy would distract other students. During this school year, M.B. missed school when she experienced cluster seizures since she was not allowed to have Buddy at the school. Similarly, during the 2012-2013 school year, M.B. attended the dePaul School without Buddy. Before this school year started, plaintiffs again asked Rickard to allow M.B. to attend school with Buddy and Rickard again refused repeating that Buddy would be a distraction. Nonetheless, plaintiffs decided to send M.B. to the school without Buddy since "[i]t was important that [M.B.] be well educated to the best of our ability." The dePaul School provided some accommodations to M.B., namely, by agreeing to administer suppository medication if needed and by allowing M.B. to lay down after she had a seizure. During the 2013-2014 school year, M.B. attended the dePaul School without Buddy after plaintiffs' request to allow M.B. to attend school with Buddy was again denied by [*5] Allied. The dePaul School provided some accommodations to M.B. by assisting her with her feeding tube if required, by agreeing to administer suppository medication if needed and by allowing M.B. to lay down after she had a seizure if she was tired. The school also did not require M.B. to take gym class and allowed her to take another class in its place. At the October 25, 2013 parent/teacher conference, M.B.'s mother asked Rickard to allow Buddy to go to school with M.B. due to the increased seizure activity M.B. was experiencing after she was weaned off her prescribed ketogenic diet and due to the fear and anxiety M.B. was experiencing over the increased seizures. Rickard did not doubt M.B.'s mother that it was medically necessary to allow Buddy to attend school with M.B. and agreed to "check things out to see what, if anything, we can do." Rickard told M.B.'s mother she would get back to her with a response. As research for her response, Rickard reviewed the emergency contact cards of the students at the school and discovered that one student was allergic to dogs. Buddy attended a Holloween Bingo at the school with M.B. on October 26, 2013. Rickard told M.B.'s mother that she looked [*6] into whether Buddy could attend the school and said she discovered that a student at the school (M.H.) was "very, very allergic to dogs." This fact was indicated on M.H.'s student emergency card. Rickard told M.B's mother to keep Buddy far away from M.H. before going into the room for the bingo. Nonetheless, M.H. was unable to stay at the bingo because he had an allergic reaction to Buddy. Buddy was also allowed to attend other functions at the school as well. Subsequently, M.H.'s parents wanted M.B. to attend the school with Buddy and they also wanted M.H. to be able to visit his friends who had dogs. Thus, they took steps to address M.H.'s allergies, including having him get allergy shots. M.B.'s mother brought M.B. to school with Buddy on October 28 and October 29, 2013. On both days, Rickard told M.B.'s mother that M.B. could not have Buddy at school, and her mother then left the school with M.B. and Buddy. Nobody at the school told M.B. that she could not stay at school by herself on either day. In fact, Rickard invited M.B. to stay at school without Buddy. M.B. did not attend the dePaul School at any time between October 29, 2013 and January 2, 2014. The dePaul School sent home [*7] the work that the students were doing during the school day, but M.B. 2016 U.S. Dist. LEXIS 135358, *2 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 3 of 175 Page 3 of 13 was unable to complete this work without teacher instruction. In order to avoid having M.B. deemed as truant, her mother enrolled her at Dunmore Elementary School on November 18, 2013. However, M.B. was still enrolled at the dePaul School and her mother advised Rickard that she intended to have M.B. return to the school. On November 20, 2013, M.B.'s mother met with Rickard and Rickard asked her to remove M.B.'s possessions from the school. M.B.'s mother refused and told Rickard that she intended for M.B. to return to the school. She also gave Rickard a note from M.B.'s pediatrician, Dr. Martha Sauter, stating that it was medically necessary for Buddy to be with M.B. "24 hours/7 days a week." This letter was the first written documentation plaintiffs provided to the school indicating that it was medically necessary for M.B. to use her service dog at school. Additionally, plaintiffs completed Student Emergency Cards for M.B. for the 2011-2012, 2012-2013 and 2013- 2014 school years and these cards did not indicate that M.B.'s epilepsy required her to have a service dog at school. Plaintiffs however had verbalized this [*8] fact to the school in the past on several occasions. On November 25, 2013, plaintiffs' counsel wrote a letter to Rickard demanding that M.B. be allowed to attend the school with Buddy. On November 27, 2013, Allied's counsel responded to plaintiffs' letter stating that M.B. could return to the school at any time but the school could not yet accommodate her to attend the school with Buddy. After receiving Dr. Sauter's and plaintiffs' counsel's letters, Rickard began to discuss with staff at the school how they could accommodate both M.B. and M.H. The dePaul School changed the home room of M.H. and his schedule so that he would not be in the same room as Buddy. The school also arranged to have housekeeping vacuum and dust the rooms every night in order to reduce animal dander. The dePaul School offered additional accommodations to M.B., including rearranging her schedule after her brain surgery, allowing her to pick 2 or 3 buddies to stay in and play cards with her when she could not go outside for recess and excusing M.B. from the punishment of detention or in-school suspension due to absences related to health issues. Pursuant to Allied's suggestion, plaintiffs' counsel wrote a letter [*9] to the dePaul School on December 5, 2013 with proposed accommodations for M.B. to return to the school with Buddy on December 9, 2013. (Doc. 48-1). One of the proposals was that "Buddy will wear a shirt" in the school to reduce the spread of dander and allergens. Counsel for Allied responded in a December 6, 2013 letter stating that the dePaul School agreed to allow M.B. to return to the school on January 2, 2014 with Buddy under the following four conditions: a. Buddy will wear a shirt at all times that will control his dander. Parents will purchase the shirt and provide proof of the type of shirt to Allied Services and the dePaul School prior to January 2, 2014; b. Buddy will be restrained on a leash at all times while walking in the hallways of the dePaul School; c. Parents will arrange for the necessary individuals within the administration of the dePaul School to be trained with Buddy prior to January 2, 2014; and d. Parents will arrange for a presentation to the students, teachers and staff at the dePaul School regarding Buddy. This presentation will take place on January 2, 2014. Allied did not accept the other accommodations plaintiffs had proposed. M.B. returned to the dePaul School [*10] with Buddy on January 2, 2014.2 At first, Buddy wore the dander control t-shirt. Eventually, plaintiffs sent Buddy to school without the shirt since he was hot and failed to alert when M.B. had a seizure which caused her anxiety. Plaintiffs contacted New Hope Assistance Dogs ("New Hope") about the situation and one of the trainers, Ben Castro, responded in a letter on January 18, 2014 stating that "[o]ur dogs are not trained with any type of shirt, placing our dogs in shirts would have an effect that we cannot predict. We encourage our clients to keep with our training tactics and not to change any at any time." (Doc. 47-21). Castro did not suggest re-training Buddy. Nor did plaintiffs ask him if re-training Buddy to wear a t-shirt was possible. After M.B. returned to the dePaul School on January 2, 2014, M.H.'s teachers indicated that he appeared more tired in class since the medication he was taking to control his dog allergy, and that there were a few days when he suffered from severe nose bleeds. One day, M.H. had to lay down in Rickard's office for a short time. M.H.'s parents however did not report that he was [*11] ill when M.B. attended the school with Buddy. Nor is there any medical evidence that M.H.'s allergy medication caused him to be tired and to have nose 2 M.B. remained out of school from October 25, 2013 through January 2, 2014. 2016 U.S. Dist. LEXIS 135358, *7 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 4 of 175 Page 4 of 13 bleeds. The dePaul School advised plaintiffs that Buddy could not stay at the school unless he wore his dander control t-shirt. When Buddy appeared at the school without the shirt, the school put an ordinary t-shirt on him. However, Buddy failed to consistently perform as he was trained to and M.B. continued to have seizures at the school. On January 16, 2014, plaintiffs removed M.B. from the school after she was found asleep on the floor of Rickard's office following a seizure. This was the last day M.B. attended the dePaul School. Plaintiffs aver that Allied never suggested that Buddy be re-trained wearing a t-shirt and never offered to pay for any re- training. However, plaintiffs did not ask New Hope if Buddy could be re-trained wearing a t-shirt. Prior to January 16, 2014, plaintiffs never provided the dePaul School with a note from M.B.'s neurologist, Dr. Bergqvist, indicating that it was medically necessary for M.B.'s seizure dog to accompany her at all times. However, as mentioned, in November 2013 plaintiffs had provided Rickard [*12] with the letter from Dr. Sauter stating that it was medically necessary for Buddy to be with M.B. at all times, and plaintiffs had advised the school many times that it was medically necessary for Buddy to attend school with M.B. Amy Bennett, founder and head trainer of New Hope, was identified in plaintiffs' Disclosure of Expert Testimony pursuant to Fed.R.Civ.P. 26(a)(2) as one of their witnesses expected to present testimony under FRE 702, 703 and 705.3 At her April 30, 2015 deposition, seemingly to be used at trial, plaintiffs offered Bennett as "an expert in the protocol and procedure for training service dogs, the appropriate pairing of service dogs and the recipient disabled person, and the bond between the service dog and its recipient." (Doc. 45-8, at 5). Allied did not object to Bennett's qualifications. Bennett testified that she was a certified assistance dog trainer and the principal trainer for Buddy. Buddy was certified for the Public Access Test. Buddy was taught to get help if the child sensed a seizure was coming and to comfort the child during a seizure. M.B. and Buddy trained together and, Bennett testified that in her expert opinion they were well matched and had an excellent bond. Bennett also stated that in her opinion, "Buddy excels at 3 The admissibility [*13] of expert testimony is governed by FRE 702, which requires an expert witness to have "specialized knowledge" regarding the area of testimony. his job. He is quiet.... Knows his job, does it well. Follows [M.B.] everywhere. Listens to her commands. Stays out of the way. Is not excessively seeking attention from others...." Although the dogs at New Hope, including Buddy, are not trained to work while wearing a t-shirt, Bennett stated that "our dogs are taught to be very adaptable, they can learn to work in any situation." [Some dogs are trained to] wear[] a backpack. Some dogs wear identification vests that cover a larger part of the body. Some wear a body harness to offer stability for an individual who is walking." Additionally, Bennett stated that in her experience a dog wearing a t-shirt reduces his allergens "[b]y containing the dander and reducing exposure to the coat that has saliva because the dog licks himself. The dander and the saliva are more of an allergy irritant than the fur." (Id. at 9). As such, there is no dispute that Bennett admitted that "a dog can be trained to wear a t-shirt" and that after Buddy left New Hope with M.B. it would [*14] have been possible to train him to wear a dander control t-shirt in order to accompany her to school. (Id. at 10-11). Bennett stated that she was not contacted by anyone on behalf of plaintiffs from December 1, 2013 through January 2, 2014 requesting that Buddy be trained to wear a dander control tshirt with M.B. at school. Also, before plaintiffs removed M.B. from the dePaul School they did not contact Bennett to ask if Buddy could have such training. Further, Bennett stated that if she was contacted, she was capable of providing such training to Buddy and that he would have been able to adapt to it within a week. In her Declaration, (Doc. 47-11), M.B.'s mother stated that "neither [] Bennett nor anyone else at New Hope ever told me that Buddy could be retrained to wear a t- shirt." She also stated that "Allied never suggested that Buddy be retrained wearing a t-shirt and never offered to pay for retraining." Plaintiffs also conducted the expert deposition of Dr. Christina Bergqvist on May 1, 2015, who is a board certified child necrologist and epileptologist, and an expert in pediatric neurology, intractable epilepsy and ketogenic diet (a special diet to reduce seizures). Dr. Bergqvist has been [*15] M.B.'s neurologist since February 2009. M.B. was placed on a ketogenic diet but the doctor decided to wean her off of it due to complications she was experiencing. Dr. Bergqvist prepared a note on December 12, 2013 indicating that it was medically necessary for M.B. to attend school with her service dog and accompany her at all times. Dr. 2016 U.S. Dist. LEXIS 135358, *11 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 5 of 175 Page 5 of 13 Bergqvist stated that the service dog makes M.B. safer and alerts others when she has a seizure. However, Dr. Bergqvist never delivered her note of December 12, 2013 to the dePaul School. However, Allied never requested plaintiffs to produce documentation showing that Buddy was medically necessary. On May 18, 2015, Allied conducted an expert deposition of Ann Cook, a licensed social worker and M.B.'s therapist since the fall of 2013. Cook opined that M.B. suffers from moderate to severe social anxiety and depression, and that when M.B. was not allowed to bring Buddy to school her conditions exacerbated. Although Cook could not opine whether M.B.'s suffering from social anxiety or depression would be alleviated if Buddy was allowed in the dePaul School with her, Cook did state that M.B.'s depressive symptoms and low self- esteem intensified after she [*16] was barred from having Buddy at the school and that this was when M.B.'s depression was the most severe. Cook also stated that M.B. did not want to go to school without Buddy and it caused her to feel she was not safe there. Cook concluded that Buddy was M.B.'s "one sense of security" and he "makes her feel safe." II. PROCEDURAL BACKGROUND The plaintiffs brought this suit on April 9, 2014, asserting federal claims under Section 504 of the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. §794, and under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §12131, et seq. The plaintiffs also raised state law claims for breach of contract, negligence and intentional infliction of emotional distress ("IIED"). (Doc. 1). On June 13, 2014, Allied filed a motion to dismiss the plaintiffs' complaint with respect to their federal claims under Fed.R.Civ.P. 12(b)(1) and with respect to their adult state law tort claims under Fed.R.Civ.P. 12(b)(6). (Doc. 8). On March 6, 2015, the court denied Allied's motion with respect to all of the plaintiffs' claims. (Doc. 20, Doc. 21). See 2015 U.S. Dist. LEXIS 27637, 2015 WL 999115. On March 27, 2015, Allied filed an answer to plaintiffs' complaint with affirmative defenses and a cross-claim. (Doc. 22). On December 11, 2015, plaintiffs filed a motion for leave to file an amended [*17] complaint, (Doc. 36), and the court granted it, (Doc. 39). Plaintiffs filed their amended complaint on January 8, 2016, (Doc. 40), again raising federal claims under §504 of the RA and the ADA as well as state law claims for breach of contract, negligence, IIED and a violation under the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. §955(i)(1). Allied filed its answer to the amended complaint with affirmative defenses on January 11, 2016. (Doc. 42). On January 21, 2016, Allied filed a motion for summary judgment pursuant to Fed.R.Civ.P. 56 with respect to all of plaintiffs' claims in their amended complaint. (Doc. 43). Allied simultaneously filed its brief in support, (Doc. 44), with an attached copy of an investigative report commissioned by Allied from Corey Anders of Robson Forsensic, Inc., (Doc. 44-1). Allied also filed its statement of material facts with exhibits. (Doc. 45). On February 10, 2016, plaintiffs filed their brief in opposition, (Doc. 46), and their answer to Allied's statement of material facts with exhibits, (Doc. 47). Allied filed a reply brief on February 18, 2016. (Doc. 48). This court's jurisdiction over the plaintiffs' federal claims is based on 28 U.S.C. §1331 and, the court's pendent jurisdiction over their state claims is based [*18] on 28 U.S.C. §1337. III. STANDARD OF REVIEW Allied's motion for summary judgment is brought pursuant to the provisions of Fed.R.Civ.P. 56. Allied argues that under Rule 56, the undisputed material facts demonstrate that plaintiffs were provided with reasonable accommodations and it is entitled to summary judgment with respect to plaintiffs' federal claims. Summary judgment is appropriate "if the pleadings, the discovery [including, depositions, answers to interrogatories, and admissions on file] and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable jury could find for the non-moving party, and is material if it will affect the outcome of the trial under governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Aetna Cas. & Sur. Co. v. Ericksen, 903 F. Supp. 836, 838 (M.D.Pa. 1995). At the summary judgment stage, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249; see also 2016 U.S. Dist. LEXIS 135358, *15 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 6 of 175 Page 6 of 13 Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (a court may not weigh the evidence or make credibility determinations). Rather, the court must consider all evidence and inferences drawn therefrom in the light [*19] most favorable to the non-moving party. Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007). To prevail on summary judgment, the moving party must affirmatively identify those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323-24. The moving party can discharge the burden by showing that "on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party." In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003); see also Celotex, 477 U.S. at 325. If the moving party meets this initial burden, the non- moving party "must do more than simply show that there is some metaphysical doubt as to material facts," but must show sufficient evidence to support a jury verdict in its favor. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)). The nonmoving party "may not rest on the allegations set forth in its pleadings but must counter with evidence that demonstrates a genuine issue of fact." Big Apple BMW, 974 F.2d at 1363. However, if the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to [the nonmovant's] case, and on which [the non-movant] will bear the burden of proof at trial," Rule 56 mandates the entry of summary judgment because such a failure "necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 322-23; Jakimas v. Hoffmann-LaRoche, Inc., 485 F.3d 770, 777 (3d Cir. 2007). IV. DISCUSSION A. ADA and PHRA [*20] Claims, Counts II and VI Plaintiffs assert disability discrimination claims against Allied pursuant to the ADA and §955(i)(1) of the PHRA.4 Plaintiffs' ADA and PHRA claims are based on the alleged failure of Allied to provide M.B. with reasonable accommodations to attend the dePaul School with 4 The "analysis of an ADA claim applies equally to a PHRA claim." Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999) (citing Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996)). Therefore, the court will consider both claims together. Buddy. As relief in their ADA claim, plaintiffs seek "compensatory damages, costs and attorneys' fees, and any and all other relief deemed just and equitable by this Court." (Doc. 40, at 16). Plaintiffs do not specify in their ADA claim under which Title of the ADA they are proceeding. However, the court finds that plaintiffs' ADA claim falls under Title III since they allege, and Allied admits, that the school was a place of public accommodation. Plaintiffs also indicate in their brief in opposition, (Doc. 46, at 19), that their ADA claim is under Title III. (See also Doc. 47-24, declaration of plaintiffs' attorney). Under Title III of the ADA, discrimination is prohibited "against the disabled in the full and equal enjoyment of public accommodations." Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 128, 125 S.Ct. 2169, 162 L.Ed.2d 97 (2005). As such, entities that provide [*21] public accommodations, in part, must provide auxiliary aids and services to disabled individuals. Id. (citations omitted). "[A] plaintiff alleging a Title III claim [must] show that: "(1) he has a disability within the meaning of the ADA; (2) he was discriminated against by defendant on the basis of that disability; (3) he was thereby denied goods or services; and (4) the defendant owns, leases (or leases to), or operates a place of public accommodation." Hollinger v. Reading Health Sys., 2016 U.S. Dist. LEXIS 91393, 2016 WL 3762987, *9 (E.D.Pa. July 14, 2016) (quoting Haas v. Wyoming Valley Health Care Sys., 465 F.Supp.2d 429, 433 (M.D.Pa. 2006))). It is undisputed that M.B. had a disability within the meaning of the ADA. Discrimination under the ADA includes "a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities...." 42 U.S.C. §12182(b)(2)(A)(ii). Thus, it would be discriminatory for Allied to deny M.B. the opportunity to benefit from the educational services and to participate in the programs of the dePaul School based on her disability. 42 U.S.C. §12182(b)(1)(A)(i). Further, "the denial of reasonable accommodations [is] a denial of services based on [M.B.'s] disability in violation of Title III." Hollinger, 2016 U.S. Dist. LEXIS 91393, 2016 WL 3762987, *10. Initially, insofar as the plaintiffs only [*22] request monetary damages with respect to their claim under Title III of the ADA, such relief is improper. Shaika v. Gnaden Huetten Memorial Hosp., 2015 U.S. Dist. 2016 U.S. Dist. LEXIS 135358, *18 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 7 of 175 Page 7 of 13 LEXIS 87478, 2015 WL 4092390 (M.D.Pa. July 7, 2015). "Under Title III of the ADA, private plaintiffs may not obtain monetary damages and therefore only prospective injunctive relief is available." Anderson v. Macy's, Inc., 943 F.Supp.2d 531, 538 (W.D.Pa. 2013) (citation omitted); Hollinger, 2016 U.S. Dist. LEXIS 91393, 2016 WL 3762987, *10 (citations omitted). Despite the fact that Allied did not raise the issue of standing in its summary judgment motion and plaintiffs did not address it in their brief, the court can, in its discretion, sua sponte address this issue since it is jurisdictional. Hollinger, 2016 U.S. Dist. LEXIS 91393, 2016 WL 3762987, *10 (citation omitted); Pub. Interest Research Grp. of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 117 (3d Cir. 1997) ("Standing is a threshold jurisdictional requirement, derived from the 'case or controversy' language of Article III of the Constitution.") (citation omitted). The plaintiffs are permitted to request prospective injunctive relief with respect to their Title III ADA claim, but they have not done so. As such, plaintiffs' Title III ADA claim will be dismissed with prejudice. See Shaika, supra. The court finds futility in allowing plaintiffs leave to file a second amended complaint in order to request prospective injunctive relief with respect to their ADA claim since they have failed to show that M.B. is likely to suffer future injury from Allied's alleged illegal conduct. It is undisputed [*23] that on January 16, 2014 plaintiffs withdrew M.B. from the dePaul School and this was the last day M.B. attended the school. There is no evidence in the record indicating that plaintiffs intend to ever return M.B. to the dePaul School. Nor do plaintiffs contend that there is any likelihood of M.B. returning to the dePaul School, i.e., the place of the alleged ADA violation. In any event, M.B. has not attended the dePaul School in over two and one half years. Since prospective injunctive relief is plaintiffs' sole remedy under Title III of the ADA, as this court stated in Shaika, 2015 U.S. Dist. LEXIS 87478, 2015 WL 4092390, *4, "courts look beyond the alleged past violation and consider the possibility of future violations." (citation omitted). "To establish standing in an action for injunctive relief, a plaintiff must show that he or she is likely to suffer future injury from the defendant's illegal conduct." Doe v. Nat'l Bd. of Med. Examiners, 210 Fed.Appx. 157, 159 (3d Cir. 2006) (citation omitted). "Past illegal conduct is insufficient to warrant injunctive relief unless it is accompanied by "continuing, present adverse effects." Id. at 159-60. Additionally, "[t]he imminency requirement is applicable in Title III [ADA] cases." Phillips v. St. Mary's Medical Center, 2013 U.S. Dist. LEXIS 37489, 2013 WL 1124372, *3 (citing Doe, 199 F.3d at 153). As noted, the analysis of an ADA claim applies equally to a PHRA claim. See Kelly v. Drexel Univ., 94 F.3d at 105 (the court [*24] should treat PHRA and ADA claims coextensively since they define disability substantially the same). As such, the same reasoning that applies to the plaintiffs' Title III ADA claim also applies to their claim under the PHRA, "thus allowing courts to dispose of both ADA and PHRA claims on the same grounds." Michalesko v. Freeland Boro., 18 F.Supp.3d 609, 626 (M.D.Pa. 2014) (quoting Bialko v. Quaker Oats Co., 434 Fed.Appx. 139, 142 n. 5 (3d Cir. 2011)). Therefore, since the plaintiffs' ADA claim will be dismissed with prejudice for lack of standing, their PHRA claim will also be dismissed with prejudice. See Shaika, 2015 U.S. Dist. LEXIS 87478, 2015 WL 4092390, *11. The court must now determine whether the plaintiffs lack standing to bring a claim under Title III of the ADA means that the court also lacks subject-matter jurisdiction over the plaintiffs' other federal claim under the Rehabilitation Act. Just because the plaintiffs' Title III ADA claim will be dismissed for lack of subject matter jurisdiction does not mean the court also lacks jurisdiction over the plaintiffs' Rehabilitation Act claim. See Phillips v. St. Mary's Medical Center, 2013 U.S. Dist. LEXIS 37489, 2013 WL 1124372 (court dismissed plaintiffs' Title III claim for injunctive relief for lack of standing but permitted their claim under the Rehabilitation Act to proceed); Shaika, 2015 U.S. Dist. LEXIS 87478, 2015 WL 4092390, *8. Therefore, "a plaintiff must demonstrate standing separately for each form of relief sought." Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. at 185, 120 S.Ct. at 706; see also City of Los Angeles v. Lyons, 461 U.S. 95, 109, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (despite [*25] the fact that plaintiff had standing to seek damages, he lacked standing to seek injunctive relief). Thus, "standing is not dispensed in gross." Lewis v. Casey, 518 U.S. 343, 358 n. 6, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). B. Claim Under Section 504 of the Rehabilitation Act In Count I of their amended complaint, plaintiffs raise a claim under §504 of the RA, (Doc. 40, at 13-14). Allied moves for summary judgment with respect to plaintiffs' RA claim arguing that the accommodations offered by the dePaul School were reasonable. The question also arises as to whether the plaintiffs have stated a claim for money damages with respect to their RA claim. 2016 U.S. Dist. LEXIS 135358, *22 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 8 of 175 Page 8 of 13 Section 504 of the RA, 29 U.S.C. §794(a), states, in relevant part: No otherwise qualified individual with a disability in the United States, ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.... To prevail on a claim under the RA, plaintiffs must show that M.B.: "(1) has a disability; (2) was otherwise qualified to participate in a school program; and (3) was denied the benefits of the program or was otherwise subject to discrimination because of her disability." S.H. ex rel. Durrell v. Lower Merion School Dist., 729 F.3d 248, 260 (3d Cir. 2013) (citation omitted). Thus, [*26] the RA prohibits discrimination on the basis of disability in federally funded programs. Blunt v. Lower Merion School Dist., 767 F.3d 247, 274-75 (3d Cir. 2014). "[T]he substantive standards for determining liability under the Rehabilitation Act and the ADA are the same." Blunt, 767 F.3d at 275 (quoting Ridley School Dist. v. M.R., 680 F.3d 260, 282-83 (3d Cir. 2012)). Claims under §504 of the RA and the ADA are interpreted consistently but §504 has an additional federal financial assistance component. Langston v. Milton S. Hershey Med. Center, 2016 U.S. Dist. LEXIS 48332, 2016 WL 1404190, *6 (M.D.Pa. April 11, 2016) (citation omitted). However, the plaintiffs can recover money damages under the RA. See Hollinger, 2016 U.S. Dist. LEXIS 91393, 2016 WL 3762987, *12 ("[U]nlike the ADA, a plaintiff bringing a claim under the RA is permitted to seek monetary relief including compensatory damages.") (citing A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 804 (3d Cir. 2007)). In fact, the Third Circuit has held that the available remedies for a violation of §504 of the Rehabilitation Act "include compensatory damages, injunctive relief, and other forms of relief traditionally available under suits for breach of contract." A.W. v. Jersey City Pub. Sch., 486 F.3d at 804; see also Majocha v. Turner, 166 F.Supp.2d 316 (W.D.Pa. 2001); Shaika, 2015 U.S. Dist. LEXIS 87478, 2015 WL 4092390, *9. In their §504 RA claim, (Count I), the plaintiffs request compensatory damages. They do not request injunctive relief. (Doc. 40, at 14). Specifically, in their RA claim, plaintiffs allege that "defendant is a recipient of federal funds for the purposes of Section 504...." Plaintiffs also allege that "[w]ith deliberate indifference to M.B.'s rights, Defendant has barred Buddy from attending dePaul School with M.B." (Id.). [*27] There is no dispute that M.B. has a disability, that she qualified to attend the dePaul School and that the dePaul School is a place of public accommodation that receives federal funds. Nor is there any dispute that Buddy is a certified service dog. Moreover, "a school district must reasonably accommodate the needs of the handicapped child so as to ensure meaningful participation in educational activities and meaningful access to educational benefits...." Blunt, 767 F.3d at 274 (citations omitted). "However, §504 does not mandate 'substantial' changes to the school's programs, and courts 'should be mindful of the need to strike a balance between the rights of the student and [his or her] parents and the legitimate financial and administrative concerns of the [s]chool [d]istrict.'" Id. (citations omitted). "The requirements under Title II [of the ADA] to make 'reasonable modifications of policies, practices, and procedures,' and the requirement under Section 504 to make 'reasonable accommodations,' are, except with respect to causation, materially identical." Alboniga v. School Bd. of Broward County Fla.,87 F.Supp.3d 1319,1332 (S.D.Fla. 2015) (citation omitted). The United States Attorney General was required under the ADA to promulgate regulations implementing Title II and III of the Act. Id. As such, the DOJ has issued [*28] regulations "which contain provisions relating to covered entities' obligations to make reasonable modifications in policies, practices, or procedures when necessary to avoid discrimination on the basis of disability." Id. (citing 42 U.S.C. §§12134(a), 12186(b); 28 C.F.R. §§35.130(b)(7), 36.302). One of the Title II regulations is that "[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." 28 C.F.R. §35.130(b)(7). Thus, "a public entity need not allow an individual to use his service animal if it would fundamentally alter the nature of the entity's service, program, or activity, or if it would pose a direct threat to the health or safety of others." Id. at 1336 (citing §§35.130(b)(7), 35.139). In 2012, the Attorney General issued revised regulations which "contain certain provisions enforcing the ADA with respect to the use of service animals in public entities, such as public schools and other public facilities." Alboniga, 87 F.Supp.3d at 1332 (citing 28 C.F.R. 2016 U.S. Dist. LEXIS 135358, *25 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 9 of 175 Page 9 of 13 §35.136). "The regulation provides that '[g]enerally, a public entity shall modify its policies, practices, or procedures [*29] to permit the use of a service animal by an individual with a disability.'" Id. (citing §35.136(a)). See also (Doc. 46-1). There are two exceptions under the regulation, to wit: "A public entity may ask an individual with a disability to remove a service animal from the premises if (1) The animal is out of control and the animal's handler does not take effective action to control it; or (2) The animal is not housebroken." §35.136(b). It is undisputed that neither of these two exceptions applied to Buddy. The regulation also provides that "[i]ndividuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a public entity's facilities where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go." §35.136(g). This court agrees with the court in Alboniga,87 F.Supp.3d at 1333, that "the DOJ's regulations and interpretations thereof-which are entitled to significant deference [under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984)]-are a permissible construction of the ADA" and that "the Title II service animal regulatory provision is consistent with and a specific application of the reasonable modifications regulatory requirement." Thus, the regulations are enforceable against Allied in deciding whether [*30] it violated federal law. See id. at 1337 ("[T]he DOJ's regulations implementing Title II of the ADA regarding the use by a disabled person of a service animal in a public entity, and the accommodation that entity must make to permit such use, are valid, internally consistent, and therefore enforceable against the School Board []."). Deference is also afforded to the DOJ in deciding whether the regulations are a permissible construction of §504 of the RA. Alboniga, 87 F.Supp.3d at 1334 (citing Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1179-79 (11th Cir. 2003)); see also Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 591, 119 S. Ct. 2176, 144 L. Ed. 2d 540 (1999). To prove a violation under §504 "[t]he plaintiff must also demonstrate that the defendant knew or should have reasonably been expected to know of her disability. However, to establish liability [as opposed to damages], a plaintiff need not prove that defendant['s] discrimination was intentional." Chambers v. Sch. Dist. of Philadelphia Bd. of Educ., 827 F. Supp. 2d 409, 417 (E.D. Pa. 2011) reconsideration denied, 2012 U.S. Dist. LEXIS 113551, 2012 WL 3279243 (E.D. Pa. Aug. 13, 2012) (internal citations omitted); Durrell, 729 F.3d at 262. Additionally, "a plaintiff can assert a failure to accommodate as an independent basis for liability under the ADA and RA." Muhammad v. Court of Common Pleas of Allegheny Cnty., Pa., 483 Fed.Appx. 759, 763 (3d Cir. 2012); Alboniga, 87 F.Supp.3d at 1337. "To make out such a claim, a plaintiff must show that the accommodation he seeks is reasonable, ..., i.e., that it is "necessary to avoid discrimination on the basis of disability." Muhammad, 483 Fed.Appx. at 763 (internal citation omitted) (quoting 28 C.F.R. §35.130(b)(7)). Plaintiff has the "initial burden of demonstrating [*31] that his requested accommodations were reasonable, i.e., necessary to permit his meaningful participation; upon making such a showing, the burden shifted to the defendants to demonstrate that the requested accommodations were unreasonable." Id. (citations omitted). The parties do not contest the elements of a §504 claim. Allied argues that plaintiffs are not entitled to compensatory damages because they cannot prove intentional discrimination. No doubt, a plaintiff must demonstrate a showing of intentional discrimination or deliberate indifference as a prerequisite for an award of compensatory damages under §504 of the RA. Durrell, 729 F.3d at 261 ("claims for compensatory damages under §504 of the RA [] also require a finding of intentional discrimination."). In D.E. v. Central Dauphin School Dist., 765 F.3d 260, 269 (3d Cir. 2014), the Third Circuit held that where a plaintiff seeks compensatory damages as a remedy for violations of the RA, "it is not enough to demonstrate only that the plaintiff has made out the prima facie case [of disability discrimination]" and that "[h]e or she must also demonstrate that the discrimination was intentional." (citation omitted). Further, "[a] showing of deliberate indifference satisfies that standard." Id. (citation omitted). See also Durrell, 729 F.3d at 263 (Third Circuit held [*32] that "a showing of deliberate indifference may satisfy a claim for compensatory damages under §504 of the RA []."); Blunt, 767 F.3d at 272 ("plaintiffs bringing claims under the ADA and RA may establish intentional discrimination with a showing of deliberate indifference.") (citation omitted); Shaika, 2015 U.S. Dist. LEXIS 87478, 2015 WL 4092390, *9. Thus, since plaintiffs only seek compensatory damages, to prevent summary judgment they must demonstrate that there exists a genuine issue of material fact regarding whether Allied intentionally discriminated against M.B. or acted with deliberate indifference towards M.B. The Third Circuit Court in D.E., 765 F.3d at 269, stated: 2016 U.S. Dist. LEXIS 135358, *28 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 10 of 175 Page 10 of 13 To satisfy the deliberate indifference standard, a plaintiff "must present evidence that shows both: (1) knowledge that a federally protected right is substantially likely to be violated ..., and (2) failure to act despite that knowledge." Id. at 265 (citing Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001)). "Deliberate indifference does not require a showing of personal ill will or animosity toward the disabled person." Id. at 263 (quoting Meagley v. City of Little Rock, 639 F.3d 384, 389 (8th Cir. 2011) (internal quotation marks omitted)). It does, however, require a "'deliberate choice, rather than negligence or bureaucratic inaction.'" Id. (quoting Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 276 (2d Cir. 2009)). The evidence shows that Allied knew or should have reasonably been expected to know of M.B.'s disability and that Buddy [*33] was medically necessary to be with M.B. There is also evidence that Allied had knowledge that M.B.'s federally protected right to use her service dog was substantially likely to be violated by not allowing her to attend the school with Buddy. Further, there is evidence that Allied failed to act despite this knowledge. According to plaintiffs, "it is undisputed that over two years Allied summarily denied M.B. the use of [Buddy] in school no less than eight times (February 2012, before 2012-13 school year, before 2013-14 school year, October 25, 28, 29, 2013, November 20, 2013 and November 27, 2013)." (Doc. 46, at 22). Further, plaintiffs advised the dePaul School the reasons M.B. needed Buddy and the tasks Buddy was trained to perform beginning when M.B. was first paired with Buddy. In fact, well before Dr. Sauter's November 2013 letter stating that it was medically necessary for Buddy to be with M.B. at all times, plaintiffs had advised the school of this necessity many times and Rickard did not doubt the veracity of this information. The court finds that the evidence creates genuine factual disputes as to Allied's knowledge and failure to act, i.e., whether Allied was deliberately [*34] indifferent toward M.B. by not allowing her to attend the school with Buddy. The court also finds that plaintiffs have presented sufficient facts to show that M.B. was excluded from participating in educational services at the dePaul School based on her disability by not timely allowing her to attend school with Buddy, which was a reasonable accommodation. While Allied has presented evidence that the requested accommodation, i.e., allowing Buddy to attend school with M.B. without the t- shirt was unreasonable, the plaintiffs have disputed this evidence by showing that Buddy could not perform properly wearing the t-shirt and that the other precautions taken to prevent M.H. from having an allergic reaction were sufficient.5 Moreover, Allied has not established that permitting M.B. to use Buddy at school would have fundamentally altered the nature of the services provided by the dePaul School as required by 28 C.F.R. 36.302(a). In fact, there is no evidence that when M.B. attended the school with Buddy from January 2, 2014 through January 16, 2014 the service dog fundamentally altered the services the school provided. While Allied argues that it did provide a reasonable accommodation to M.B. by allowing Buddy in the school if he wore a dander control t-shirt and that plaintiffs' own expert (Bennett) testified that Buddy could have been re-trained in about one week to perform wearing a t-shirt, plaintiffs point out that they proposed the t-shirt in early December 2013 after Allied repeatedly refused to permit M.B. to attend school with Buddy. The evidence is disputed as [*36] to whether the t-shirt hindered Buddy's ability to perform his trained service tasks. Plaintiffs have presented evidence showing that Buddy was unable to assist M.B. with his trained services wearing the t-shirt and this caused M.B. to suffer both physically and emotionally. Despite the undisputed subsequent evidence that Buddy could have easily been re-trained to perform his tasks for M.B. wearing a t-shirt, neither plaintiffs nor Allied ever inquired during the relevant time as to whether such re-training was possible. Both parties point fingers at each other as to whose responsibility it should have been to make the inquiry but this does not change the fact that when plaintiffs contacted New Hope, Castro only responded that Buddy should stick to how he was trained, i.e., without a tshirt. Castro did not 5 The court recognizes that "[a] failure-to-accommodate claim differs from other ADA claims in that the ADA does not require a failure-to-accommodate plaintiff to show that his injury was the result of purposeful discrimination." Muhammad, 483 Fed.Appx. at 764 (citation omitted). Rather, in a failure-to- accommodate case, "the plaintiff must demonstrate that, but for the failure to accommodate, he would not be deprived of the benefit he seeks." Id. (citation omitted). The court also notes that where [*35] the plaintiff's claims are based on a failure to make reasonable accommodations for a disabled person, Title II of the ADA and §504 of the RA work in the same manner. See Alboniga, 87 F.Supp.3d at 1332 (citations omitted). However, in order to recover compensatory damages under the RA, plaintiffs must demonstrate that Allied intentionally discriminated against M.B. or acted with deliberate indifference toward her. 2016 U.S. Dist. LEXIS 135358, *32 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 11 of 175 Page 11 of 13 suggest re-training or even mention it as an option. Allied also fails to establish an affirmative defense of "direct threat." To prove this affirmative defense, there must be facts establishing a significant risk to the health or safety of others that cannot be eliminated or reduced to an acceptable level by modifications of policies, practices or procedures. See Doe, 242 F.3d at 447. Simply because [*37] M.H. was allergic to dogs is not sufficient to sustain this defense. Indeed, M.H. was willing to begin medical treatment for his allergies and did so. M.H.'s doctor suggested allergy shots and medications as well as a change in his home room from the room in which M.B. had her classes. Allied then made this change in the rooms. M.B. and M.H. were not in the same grade and after the change in M.H.'s home room, they did not share the same classrooms during the day. Moreover, other than the incident with M.H. having an allergic reaction when Buddy was in the school gym with M.B. for the bingo event, there is no evidence that M.H. became ill when M.B. actually attended the school with Buddy. Nor is there evidence to show that M.H. suffered adverse reactions caused by the allergy medications, and Allied's speculation that he did does not suffice. Finally, plaintiffs have presented sufficient evidence to show with reasonable certainty that M.B. suffered damages as a result of Allied's failure to allow Buddy attend school with her. Cook testified that M.B. experienced exacerbated feelings of alienation and anxiety by not having Buddy in school with her. Plaintiffs will also testify regarding [*38] the anxiety and emotional distress M.B. experienced. Thus, there is evidence that M.B. suffered mental anguish and anxiety caused by Allied's treatment of her. As such, Allied's motion for summary judgment with respect to plaintiffs' RA claim will be denied. C. Breach of Contract Claim Allied seeks summary judgment on plaintiffs' breach of contract claim raised in Count III of the amended complaint. Allied contends that even if an implied contract is found to exist, it is still entitled to summary judgment on plaintiffs' contract claim since plaintiffs failed to show that the dePaul School did not provide appropriate accommodations to M.B. during her attendance at the school. "Under Pennsylvania law, the relationship between a private university and a student is contractual, the contract being 'comprised of the written guidelines, policies, and procedures as contained in the written materials distributed to the student over the course of his or her enrollment in the institution.'" David v. Neumann Univ., F.Supp.3d , 2016 U.S. Dist. LEXIS 75710, 2016 WL 3213353, *2 (E.D.Pa. June 10, 2016) (citing Swartley v. Hoffner, 1999 PA Super 168, 734 A.2d 915, 919 (Pa.Super.Ct. 1999)). However, "the allegations must relate to a specific and identifiable promise that the school failed to honor." Id. (quoting Vurimindi v. Fuqua Sch. of Bus., 435 Fed.Appx. 129, 133 (3d Cir. 2011)). The student must specifically identify promises made in the school handbook [*39] that were allegedly violated to establish a breach of contract claim. Id. (citations omitted). Plaintiffs rely upon the 2013-2014 Allied Services dePaul School Parent/Student Handbook. The handbook states that "the dePaul School [provides] service to children with learning differences." Specifically, the plaintiffs' rely on the handbook's "Non Discrimination/Harassment Policy" which provides that the school "welcomes persons of all races, colors, national or ethnic origins and religions, both male and female to be full participants in the life of the school." The policy also states that "[i]f, with reasonable accommodation, the individual can meet the educational demands of the school program, he/she will be accepted." (Doc. 47-1 at 13). The handbook also provided a general "commitment against discrimination." The school's anti-discrimination policy alone is insufficient to constitute an enforceable contract per se between the school and M.B. since, "like all other contracts, the terms of the agreement must be "sufficiently definite to be enforced." David, 2016 U.S. Dist. LEXIS 75710, 2016 WL 3213353, *4 (citations omitted). The first sentence of the school's policy is clearly not definite enough to be enforced. Additionally, the court finds [*40] that the second sentence of the policy is not adequate to create a definite term to be enforced since it is a general statement of what the law requires. See id. (citing Nungesser v. Columbia Univ., F.Supp.3d , , 2016 U.S. Dist. LEXIS 32080, 2016 WL 1049024, at *9 (S.D.N.Y. Mar. 11, 2016) (explaining that "a general statement of a university's adherence to existing anti-discrimination laws does not create a separate and independent contractual obligation.")). The court in David, 2016 U.S. Dist. LEXIS 75710, 2016 WL 3213353, *4, also relied upon Vurimindi, 435 Fed.Appx. at 132, and stated in that case, "[t]he plaintiff cited the university's mission, diversity, and anti-harassment policy statements as the basis for his purported contract with the university" and "[t]he Third Circuit held that the 2016 U.S. Dist. LEXIS 135358, *35 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 12 of 175 Page 12 of 13 plaintiff could not base his breach of contract claim on these policy statements." Similar to David and Vurimindi, the court finds that plaintiffs fail to state a breach of contract claim based on the dePaul School's Handbook general anti-harassment and anti-discrimination policy since they have failed to show how the "general aspirational policy statement created any sort of affirmative, enforceable duty on the part of the [school]." David, 2016 U.S. Dist. LEXIS 75710, 2016 WL 3213353, *4 (citations omitted); see also Hart v. Univ. of Scranton, 2012 U.S. Dist. LEXIS 42629, 2012 WL 1057383, at *3 (M.D.Pa. Mar. 28, 2012). As such, Allied's motion for summary judgment regarding plaintiffs' breach of contract claim will be granted. D. Negligence Claim Allied moves [*41] for summary judgment on plaintiffs' negligence claim, Count IV. In their negligence claim, the plaintiffs aver: "80. Defendant owed M.B. a duty to accommodate her disabilities. 81. Defendant has breached this duty. 82. Plaintiffs have suffered harm as a result of Defendant's negligence." (Doc. 40 at 17). There is sufficient evidence in the record, which is detailed above, that Allied owed a duty to abide by §504 of the RA, that Allied breached its duty by failing to permit M.B. to use Buddy at school, that Allied denied M.B. her federally protected right to attend school with her service dog, and that Allied's actions caused M.B. harm. In short, the affirmative duty Allied owed to M.B. under the RA and plaintiffs' evidence, which is disputed by Allied, sufficiently shows Allied violated its obligations not to discriminate against M.B. Allied's expert, Corey Andres, who opines that Allied acted reasonably since it adhered to the requirements of the ADA, does not alter the court's finding regarding plaintiffs' negligence claim. In fact, as plaintiffs state, an expert may not provide legal opinions since that it is the duty of the court to decide. The law is settled that experts can provide [*42] an opinion about the ultimate issue in a case, but may not give an opinion tied to any legal conclusion, such as whether a defendant was negligent. Patrick v. Moorman, 536 Fed. App'x 255, 258 (3d Cir. 2013)(citing Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 217 (3d Cir. 2006); United States v. Leo, 941 F.2d 181, 196-97 (3d Cir. 1991)). Andres can render an opinion as to how Allied's conduct met with the requirements of the ADA and RA, but he cannot give an opinion as to whether Allied violated these statutes or was negligent. As discussed, the court has found the evidence to be disputed as to whether Allied complied with the requirements of the RA. Thus, Allied's motion for summary judgment regarding plaintiffs' negligence claim will be denied. E. IIED Claim Allied also moves for summary judgment on plaintiffs' IIED claim, Count V. In their IIED claim, the plaintiffs allege: "84. Defendant's conduct, including barring M.B. from school with her service dog, Buddy, is extreme and outrageous and intentionally or recklessly caused severe emotional distress to M.B. and M.B.'s parents. 85. As a result of Defendant's extreme and outrageous conduct, M.B. and M.B.'s parents have suffered physical injury or harm." (Doc. 40 at 18). To date, the Pennsylvania Supreme Court has not yet recognized a cause of action for IIED. Bamont v. Pa. Soc. for the Prevention of Cruelty to Animals, 163 F.Supp.3d 138, 155 (E.D.Pa. 2016). Other courts in Pennsylvania have recognized an IIED [*43] claim and have indicated that to state such a claim, a plaintiff must allege extreme and outrageous conduct which intentionally or recklessly causes him severe emotional distress. Id. (citations omitted); Reedy v. Evanson, 615 F.3d 197, 231-32 (3d Cir. 2010). Thus, to state an IIED claim "Defendants' conduct must be 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Hines v. Proper, 442 F. Supp. 2d 216, 224 (M.D. Pa. 2006) (citing Restatement Second of Torts §46, comment (d)(1965); Wilson v. American General Finance Inc., 807 F.Supp.2d at 303. Liability for an IIED claim is reserved "for only the most clearly desperate and ultra extreme conduct." Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745, 754 (1998). "In addition, Pennsylvania requires that competent medical evidence support a claim of alleged intentional infliction of emotional distress." Hines v. Proper, 442 F. Supp. 2d at 224 (citation omitted). "Finally, Pennsylvania law requires some type of physical harm due to the Defendant's outrageous conduct to satisfy the severe emotional distress element." Di Loreto v. Costigan, 600 F. Supp. 2d 671, 691 (E.D. Pa. 2009) (citations omitted); Wilson v. American General Finance Inc., 807 F.Supp.2d at 303 ("A resulting physical harm must also be alleged.") (citation omitted). In October 2013, when plaintiffs again asked for permission for M.B. to use her service dog at school and explained that because M.B. was being weaned off of 2016 U.S. Dist. LEXIS 135358, *40 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 13 of 175 Page 13 of 13 the ketogenic diet she had been on for years, her [*44] doctor expected her seizure activity to increase. Plaintiffs also told Allied that M.B. was very frightened about having to attend school without Buddy. Rickard promised to look into it and to get back to plaintiffs, but she did not do so for more than a month. In addition to being afraid to attend dePaul School without Buddy and getting sick in the morning prior to school, M.B. had an increase in night tremors and seizure activity when she attended the school with Buddy wearing a t-shirt since it was not trained with one and it interfered with his ability to alert when M.B. was going to have a seizure. Additionally, Cook's testimony, detailed above, provides competent medical evidence with respect to the IIED claim brought on behalf of M.B. (Doc. 47-3, Doc. 47-23). While it is a close call as to whether the evidence, viewed in a light most favorable to plaintiffs, is sufficient to support their IIED claim raised on behalf of M.B., the court finds that Allied's conduct toward M.B. was not so extreme and outrageous that a jury could reasonably find it constituted the "most clearly desperate and ultra extreme conduct" required to support an IIED claim. Allied's conduct in requiring Buddy [*45] to wear a dander control t-shirt could reasonably be construed as trying to ensure that the dePaul School provided a safe environment for all of its students, including M.H. who had severe dog allergies. This conduct simply does not rise to the level of being "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency." Additionally, as this court previously held in denying Allied's motion to dismiss, the adult plaintiffs were not basing their IIED claim upon alleged damages suffered by M.B. However, at this post-discovery stage of the case, the court finds that there is insufficient evidence to show that the adult plaintiffs themselves suffered some type of physical harm due to Allied's conduct. Nor do adult plaintiffs point to any competent medical evidence to support the IIED claim brought on their behalf. Thus, the court will grant Allied's summary judgment motion with respect to Count V of the plaintiffs' amended complaint, i.e., the IIED claim. V. CONCLUSION For the foregoing reasons, Allied's motion for summary judgment, (Doc. 43), will be GRANTED IN PART AND DENIED IN PART. The motion will be granted with respect to plaintiffs' ADA and [*46] PHRA claims, breach of contract claim, and the IIED claim. The motion will be denied with respect to plaintiffs' RA claim and their remaining state law claims, i.e., negligence claim and IIED claim as to M.B. A separate order shall issue. /s/ Malachy E. Mannion MALACHY E. MANNION United States District Judge Dated: September 30, 2016 ORDER In light of the memorandum issued this same day, Allied's motion for summary judgment, (Doc. 43), is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED with respect to plaintiffs' ADA and PHRA claims (Counts II and VI), breach of contract claim (Count III) and the IIED claim (Count V). The motion is DENIED with respect to plaintiffs' RA claim (Count I) and their remaining state law claim, i.e., negligence claim (Count IV).1 /s/ Malachy E. Mannion MALACHY E. MANNION United States District Judge Dated: September 30, 2016 End of Document 1 By separate order, the court will schedule the final pre-trial conference and trial dates. 2016 U.S. Dist. LEXIS 135358, *43 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 14 of 175 No Shepard’s Signal™ As of: April 3, 2017 4:45 PM Z Brown v. Maria Assocs. United States District Court for the Western District of Pennsylvania October 6, 2015, Decided; October 6, 2015, Filed Civil Action No. 14-1712 Reporter 2015 U.S. Dist. LEXIS 136093 * CHRISTOPHER E. BROWN, Plaintiff, vs. MARIA ASSOCIATES, Defendant. Core Terms allegations, disabled, barriers, parking space, requirements, four-factor, imminent, Courts, attend, notice, place of public accommodation, injury in fact, inaccessible, intends, slopes, visits, ramps, curb Counsel: [*1] For CHRISTOPHER E. BROWN, an individual, Plaintiff: Louis I. Mussman, LEAD ATTORNEY, PRO HAC VICE, Ku & Mussman, P.A., Miami Lakes, FL; Massimo A. Terzigni, LEAD ATTORNEY, Law Offices of Joel Sansone, Pittsburgh, PA. For MARIA ASSOCIATES, a Pennsylvania Limited Partnership, Defendant: Samuel A. Hornak, LEAD ATTORNEY, Thorp Reed & Armstrong LLP, Pittsburgh, PA; Lauren D. Rushak, Clark Hill Thorp Reed, Pittsburgh, PA. Judges: MAUREEN P. KELLY, CHIEF UNITED STATES MAGISTRATE JUDGE. Opinion by: MAUREEN P. KELLY Opinion Re: ECF No. 16 OPINION AND ORDER KELLY, Chief Magistrate Judge Presently before the Court is the Motion to Dismiss First Amended Complaint filed by Defendant Maria Associates. ECF No. 16. For the reasons that follow, the Motion is denied. I. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff Christopher E. Brown ("Plaintiff") is a resident of Bayside, New York. ECF No. 15 ¶ 3. He suffers from "Arthrogryposis, which causes him to be confined to a wheelchair. The condition also causes atrophy in his arms, hands, shoulders and elbows, which makes it extremely difficult to reach for, grip, and manipulate objects." Id. ¶ 4. Despite his condition, Plaintiff "enjoys traveling outside of New York to watch sporting events, [*2] among other things." Id. ¶ 11. In November of 2014, Plaintiff visited Pittsburgh, Pennsylvania to attend a hockey game between the Pittsburgh Penguins ("Penguins") and New York Rangers ("Rangers"). Id. While in Pittsburgh, he stayed at the Hyatt Place hotel ("the Hyatt") located at 6011 Campbells Run Road, Pittsburgh, Pennsylvania 15205. Id. ¶ 12. On two separate occasions during this stay at the Hyatt, Plaintiff travelled to a large shopping plaza known as the Robinson Crossroads ("the Property"), which is located at 6581 Steubenville Pike, Pittsburgh, Pennsylvania 15205, in the same complex as the Hyatt. Id. ¶¶ 6, 9-10, 12. From the Hyatt, Plaintiff was able to reach the Property in five minutes using his wheelchair on one occasion and in two minutes by car on the other. Id. ¶ 12. The Property is owned, leased, and/or operated by Defendant Maria Associates. Id. ¶ 6. During Plaintiff's November 2014 visits to the Property, he "encountered serious difficulty accessing the goods and utilizing the services therein" due to certain "architectural barriers." Id. ¶ 15. There were "excessive slopes and rough pavement" which caused designated disabled-use parking spaces throughout the Property [*3] and the pedestrian routes from them to the main entrances of stores to be "inaccessible." Id. ¶ 18. The Property's curb ramps were also "inaccessible . . . due to excessive slopes, steep side flares, and lack of smooth transitions." Id. Specifically, dangerously steep Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 15 of 175 Page 2 of 6 curb ramps protruded into the disabled use parking spaces and associated access aisles near the DiBella's Subs located on the Property. Id. Plaintiff either had to avoid these conditions or "exercise extreme caution" to avoid accidental falls. Id. The architectural barriers present on the Property have yet to be remedied. Id. ¶ 21. Although Plaintiff lives in New York, he intends to return to Pittsburgh "at least once a year to watch other sporting events, to visit tourist sites around town and to browse the stores and shops located there." Id. ¶ 11. He specifically booked a flight to return in mid-August 2015 to attend a Pittsburgh Pirates ("Pirates") baseball game. Id. ¶ 13. He also plans to take advantage of an offer to purchase a "deep discount" ticket for the 2015-2016 hockey season, which was extended to him by Penguins customer service during his November 2014 visit. Id. ¶ 14. Plaintiff plans to use this ticket [*4] to attend one of the Rangers versus Penguins games in Pittsburgh scheduled for this season. Id. On each of these future visits, he intends to stay at the Hyatt and will visit the Property "because it is very convenient to the Hyatt [] and because he likes the stores and restaurants located thereat." Id. ¶¶ 13-14. On December 18, 2014, Plaintiff filed a Complaint, seeking declaratory and injunctive relief for Maria Associates' alleged violations of Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181-12189. ECF No. 1. After the parties jointly consented to the adjudication of this matter by a United States Magistrate Judge in accordance with 28 U.S.C. § 636(c)(1), ECF No. 9, Plaintiff was granted leave to file a First Amended Complaint, ECF Nos. 10, 13, which he then filed on April 24, 2015, ECF No. 15. Maria Associates filed a Motion to Dismiss First Amended Complaint along with a supporting brief on May 8, 2015.1 ECF Nos. 16-17. Plaintiff filed a Brief in Opposition on June 11, 2015. ECF No. 21. The motion is now fully briefed and ripe for consideration. II. STANDARD OF REVIEW Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a complaint for lack of jurisdiction over the subject matter of the litigation or if the plaintiff lacks standing to bring his claim. Motions brought under Rule 1 Maria Associates first filed a Motion to Dismiss on March 23, 2015. ECF No. 6. However, this motion was rendered moot by the filing of the First Amended [*5] Complaint. ECF No. 13. 12(b)(1) may present either a facial or factual challenge to the court's subject matter jurisdiction. Gould Elec., Inc. v. U.S., 220 F.3d 169, 176 (3d Cir. 2000). In a facial attack, as has been presented here, the defendant contests the sufficiency of the well-pleaded allegations insofar as they provide a basis for the court's exercise of subject-matter jurisdiction. As such, the standard relative to a Rule 12(b)(6) motion applies, and mandates that the court treat the complaint's well-pleaded jurisdictional facts as true and view them in the light most favorable to the plaintiff. Stovic v. U.S. R.R. Ret. Bd., 2013 U.S. Dist. LEXIS 128737, 2013 WL 4829225, at *2 (W.D. Pa. Sept. 10, 2013) (citing NE Hub Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333, 341 (3d Cir. 2001)). Dismissal pursuant to a facial attack "is proper only when the claim clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or is wholly insubstantial and frivolous." Id. (quoting Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-1409 (3d Cir. 1991)) (internal quotes omitted). Further, once the court's subject matter jurisdiction over a complaint is challenged, the plaintiff bears the burden of proving that jurisdiction exists. Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977); see Sixth Angel Shepherd Rescue Inc. v. West, 790 F. Supp. 2d 339, 349 (E.D. Pa. 2011), aff'd, 477 F. App'x 903 (3d Cir. 2012). III. DISCUSSION Maria Associates argues that [*6] the First Amended Complaint should be dismissed because Plaintiff has failed to establish that he has standing to pursue his claims. ECF No. 17 at 5-10. Alternatively, Maria Associates asserts that Plaintiff's allegations are too vague to put it on notice of the claims against it. Id. at 10-11. Each of these arguments will be considered. A. Standing "Before addressing the 'merits' of [Plaintiff's] claim, we must determine whether []he has constitutional standing to sue." Green v. Joy Cone Co., 107 F. App'x 278, 279 (3d Cir. 2004). "Standing is a threshold jurisdictional requirement, derived from the 'case or controversy' language of Article III of the Constitution." Pub. Interest Research Grp. of New Jersey, Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 117 (3d Cir. 1997). Three requirements must be met to establish constitutional standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). First, the plaintiff must 2015 U.S. Dist. LEXIS 136093, *3 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 16 of 175 Page 3 of 6 demonstrate an "injury-in-fact." See Danvers Motor Co. v. Ford Motor Co., 432 F.3d 286, 290-291 (3d Cir. 2005) (citing Lujan, 504 U.S. at 560-61). The injury must be concrete and particularized and actual or imminent, as opposed to conjectural or hypothetical. Id. Second, the plaintiff must demonstrate "a causal connection between the injury and the conduct complained of." Id. Last, the plaintiff must show that it is likely, not merely speculative, that his or her injury will be redressed by a favorable decision. Id.; see also Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 399 F.3d 248, 254-55 (3d Cir. 2005); Lloyd v. Hovensa, LLC, 369 F.3d 263, 272 (3d Cir. 2004). Doe v. Nat'l Bd. of Med. Examiners, 210 F. App'x 157, 159 (3d Cir. 2006). An injury is "concrete" if it is real, or distinct and palpable, as opposed to merely abstract, [*7] and is sufficiently particularized if "'it affect[s] the plaintiff in a personal and individual way.'" New Jersey Physicians, Inc. v. President of the United States, 653 F.3d 234, 238 (3d Cir. 2011) (citing City of L.A. v. Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983)) (citing and quoting Lujan, 504 U.S. at 560 n.1). A harm is "actual or imminent" rather than "conjectural or hypothetical" where it is presently or actually occurring, or is sufficiently imminent. The determination of what is imminent is somewhat elastic, but it is fair to say that plaintiffs relying on claims of imminent harm must demonstrate that they face a realistic danger of sustaining a direct injury from the conduct of which they complain. Id. (citing Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S. Ct. 2301, 60 L. Ed. 2d 895 (1979)). Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 278 (3d Cir. 2014). As these "are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan, 504 U.S. at 561. Beyond these constitutional requirements, "the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing." Blunt, 767 F.3d at 279. These prudential principles "'serve to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to [*8] those best suited to assert a particular claim.'" Freeman v. Corzine, 629 F.3d 146, 154 (3d Cir. 2010) (quoting Joint Stock Soc'y v. UDV N. Am., Inc., 266 F.3d 164, 179 (3d Cir. 2001)). This so-called "prudential standing" "requires that (1) a litigant assert his or her own legal interests rather than those of third parties, (2) courts refrain from adjudicating abstract questions of wide public significance which amount to generalized grievances, and (3) a litigant demonstrate that her interests are arguably within the zone of interests intended to be protected by the statute, rule, or constitutional provision on which the claim is based." Freeman, 629 F.3d at 154 (3d Cir. 2010) (quoting Oxford Assocs. v. Waste Sys. Auth. of E. Montgomery Cnty., 271 F.3d 140, 145 (3d Cir. 2001)) (internal alterations omitted). Maria Associates bases its jurisdictional challenge solely on the assertion that Plaintiff has failed to establish the injury in fact element of constitutional standing. ECF No. 17 at 5-10. For the purposes of resolving the instant motion, therefore, Plaintiff's satisfaction of the remaining elements of constitutional standing and the establishment of prudential standing will be assumed. Given the stage of these proceedings, Plaintiff has also pled sufficient facts to establish an injury in fact. "Under Title III of the ADA[ ("Title III")], private plaintiffs may not obtain monetary damages and therefore only prospective injunctive [*9] relief is available." Anderson v. Macy's, Inc., 943 F. Supp. 2d 531, 538 (W.D. Pa. 2013) (citing Reviello v. Phila. Fed. Credit Union, No. 12-508, 2012 U.S. Dist. LEXIS 83449, 2012 WL 2196320, at *4 (E.D. Pa. June 14, 2012)). "When . . . prospective relief is sought, the plaintiff must show that he is 'likely to suffer future injury' from the defendant's conduct" to establish an injury in fact. McNair v. Synapse Grp. Inc., 672 F.3d 213, 223 (3d Cir. 2012) (quoting Lyons, 461 U.S. at 105). As the threatened future injury must be imminent, "'[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.'" Id. at 223 (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974)) (alterations in original). In the specific context of claims under Title III, the facts must indicate that the plaintiff "is likely to return to the place of the alleged ADA violation" 2015 U.S. Dist. LEXIS 136093, *6 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 17 of 175 Page 4 of 6 to sufficiently establish an injury in fact. Reviello, 2012 U.S. Dist. LEXIS 83449, 2012 WL 2196320, at *4. Courts have employed a variety of tests to determine plaintiffs' likelihood of returning to the place of an alleged ADA violation. A number of courts, including this one, have applied a "four-factor test," which considers: "'(1) the plaintiff's proximity to the defendant's place of public accommodation; (2) the plaintiff's past patronage; (3) the definitiveness of the plaintiff's plan to return; and (4) the plaintiff's frequency of nearby travel.'" Anderson, 943 F. Supp. 2d at 539 (quoting Harty v. Burlington Coat Factory of Pennsylvania, L.L.C., No. 11-01923, 2011 U.S. Dist. LEXIS 64228, 2011 WL 2415169, at *4 (E.D. Pa. June 16, 2011)); see also Reviello, 2012 U.S. Dist. LEXIS 83449, 2012 WL 2196320, at *4. This test "'is one of totality, [*10] and a finding in favor of the plaintiff does not require alignment of all four factors.'" Anderson, 943 F. Supp. 2d at 539 (quoting Harty, 2011 U.S. Dist. LEXIS 64228, 2011 WL 2415169, at *7). Despite its application in this and other District Courts in the Third Circuit, this test has yet to be adopted by the United States Court of Appeals for the Third Circuit.2 See Heinzl v. Boston Mkt. Corp., No. 14-997, 2014 U.S. Dist. LEXIS 157893, 2014 WL 5803144, at *4 (W.D. Pa. Nov. 7, 2014). Additionally, the United States Court of Appeals for the Fourth Circuit has noted that the four- factor test may "overly and unnecessarily complicate[] the issue at hand" in some cases, Daniels v. Arcade, L.P., 477 F. App'x 125, 129 (4th Cir. 2012), particularly "[a]t the pleading stage, [when] it is not in the province of the judge to decide the credibility of the plaintiff's stated intent to return," Reviello, 2012 U.S. Dist. LEXIS 83449, 2012 WL 2196320, at *5. Courts not specifically adopting the four-factor test have applied either the somewhat similar "intent to return test" or the "deterrent effect test." Heinzl, 2014 U.S. Dist. LEXIS 157893, 2014 WL 5803144, at *5-6. The intent to return test's three considerations are whether: "(1) the plaintiff alleges past injury under the ADA (encountering some kind of barrier); (2) it is reasonable to infer from the complaint that the discriminatory treatment will continue; and (3) it is reasonable to infer [*11] from the complaint that, based on the plaintiff's past frequency of visits and the proximity of the defendant's place of 2 The United States Court of Appeals for the Third Circuit has yet to consider the issue of standing in the specific context of a Title III action. Heinzl v. Boston Mkt. Corp., No. 14-997, 2014 U.S. Dist. LEXIS 157893, 2014 WL 5803144, at *4 n.2 (W.D. Pa. Nov. 7, 2014). business to the plaintiff's home, the plaintiff intends to return to this location in the future." 2014 U.S. Dist. LEXIS 157893, [WL] at *5 (citing Camarillo v. Carrols Corp., 518 F.3d 153, 158 (2d Cir. 2008)). By comparison, a plaintiff has suffered an injury in fact under the deterrent effect test "if he is deterred from visiting a non-compliant public accommodation because he has encountered barriers to his disability there." Id. (citing Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 950 (9th Cir. 2011)). Even under this test, the plaintiff's asserted "intent to return to the particular place or places where the violations are alleged to be occurring" is an essential element. 2014 U.S. Dist. LEXIS 157893, [WL] at *6 (citing Scherr v. Marriott Int'l, Inc., 703 F.3d 1069, 1074-75 (7th Cir. 2013)). Maria Associates argues extensively that the four-factor test should be applied and that Plaintiff has failed to satisfy any of its elements. ECF No. 17 at 5-10. Considering the stage of these proceedings, this argument fails. The overarching purpose of the four- factor test is "to determine the likelihood of the plaintiff returning to the place of the alleged ADA violation." Anderson, 943 F. Supp. 2d at 539. Here, Plaintiff alleged his specific intent to return to the Property while staying in Pittsburgh during August of 2015 to attend a Pirates game and sometime [*12] during the 2015-16 hockey season for a Rangers versus Penguins game.3 ECF No. 15 ¶¶ 13-14. These well-pleaded facts must be accepted as true at the pleadings stage. Stovic, 2013 U.S. Dist. LEXIS 128737, 2013 WL 4829225, at *2. As such, the facts that Plaintiff does not live in the same state as the Property, that he has only been there on two occasions in the past, and that he only intends to visit the Property once per year are insufficient to undermine his specifically stated intent to return. See Anderson, 943 F. Supp. 2d at 539 ("a finding in favor of the plaintiff does not require alignment of all four factors"). There is no need to determine the likelihood that Plaintiff will return to the Property, because his assertions that he will return must be credited. See Reviello, 2012 U.S. Dist. LEXIS 83449, 2012 WL 2196320, at *5 ("At the pleading stage, it is not in the province of the judge to decide the credibility of the plaintiff's stated intent to return."). 3 This Court offers no opinion as to whether Plaintiff's current allegations concerning his intent to return to the Property while attending a Penguins hockey game sometime during the 2015-16 season will be sufficient to maintain standing at the summary judgment phase as his intended trip to attend a Pirates game in August 2015 is no longer in the future. 2015 U.S. Dist. LEXIS 136093, *9 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 18 of 175 Page 5 of 6 Having pleaded sufficient [*13] facts to establish that he intends to return to a place of public accommodation where he was previously prevented from enjoying the facilities equally due to disability-based barriers which continue to exist, Plaintiff has established standing to bring a Title III claim.4 The Motion to Dismiss will be denied without prejudice to the right to renew arguments concerning standing by motion for summary judgment.5 B. Specificity of Allegations Having determined that Plaintiff has established standing to sue, the sufficiency of his allegations must now be considered. Title III dictates that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases [*14] to), or operates a place of public accommodation." 42 U.S.C. § 12182(a) (1990). To state a prima facie case under Title III, "a plaintiff must show '(1) discrimination on the basis of a disability; (2) in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation; (3) by the public accommodation's owner, lessor, or operator.'" Anderson, 943 F. Supp. 2d at 542-43 (quoting Harty, 2011 U.S. Dist. LEXIS 64228, 2011 WL 2415169, at *9). In a single paragraph unsupported by legal citation, Maria Associates argues that Plaintiff has pled inadequate "detail as to the precise areas of the Property that are allegedly deficient," and as a result, the First Amended Complaint's allegations "are insufficient to put [Maria Associates] on notice of the claims against it." ECF No. 17 at 10. This argument is without merit. "Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (internal citations omitted). Of course, "all civil complaints must 4 Although not raised here, this determination would be the same under either the intent to return or deterrent effect tests. 5 This disposition obviates the need to consider Plaintiff's arguments that the four-factor test violates the Commerce Clause and the fundamental right to interstate travel and is inconsistent with the express language of the ADA. ECF No. 21 at 17-21. contain 'more than an unadorned, the-defendant- unlawfully-harmed-me accusation.'" Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). To satisfy Rule 8, however, a complaint need only [*15] contain sufficient "factual allegations [to] suggest that the plaintiff has a plausible-as opposed to merely conceivable-claim for relief." W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 98 (3d Cir. 2010). This "notice pleading standard . . . applies in all civil actions, unless otherwise specified in the Federal Rules or statutory law. Thomas v. Independence Twp., 463 F.3d 285, 295 (3d Cir. 2006). No such law requires a heightened pleading standard in Title III actions. Under the notice pleading standard, Plaintiff has pled sufficient detail concerning "the precise areas of the Property that are allegedly deficient" to survive the pending Motion to Dismiss. ECF No. 17 at 10. With respect to "architectural barriers . . . which hindered his access to the Property," Plaintiff alleges that "throughout the Property" he encountered: (1) "inaccessible parking designated for disabled use . . . due to excessive slopes and pavement in disrepair within the parking spaces and their access aisles"; (2) "inaccessible curb ramps . . . due to excessive slopes, steep side flares and lack of smooth transitions"; and (3)"inaccessible routes along the pedestrian way between parking designated for disabled use and the main entrances to the stores . . . due to excessive slopes and rough pavement." ECF No. 15 ¶ 18. Despite the [*16] argument that allegations of barriers "throughout the Property" are impermissibly vague, ECF No. 17 at 2 n.2, they contain "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." W. Penn Allegheny Health Sys., Inc., 627 F.3d at 98 (internal citations omitted). While the First Amended Complaint lacks details as to which specific disabled use parking spaces, curb ramps, and pedestrian routes are at issue in these particular allegations, they are asserted to be somewhere on the Property. ECF No. 15 ¶ 18. Further, Plaintiff separately avers that he "was completely prevented from utilizing the disabled use parking spaces near DiBella's Subs due to curb ramps protruding into the disabled use parking spaces there." ECF No. 15 ¶ 18. Even Maria Associates concedes that this barrier is "specifically identified in the First Amended Complaint." ECF No 17 at 2 n.2. Considering these allegations together, the First Amended Complaint contains sufficient facts regarding allegedly deficient areas of the 2015 U.S. Dist. LEXIS 136093, *12 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 19 of 175 Page 6 of 6 Property to provide Maria Associates with fair notice of the claims against it and the grounds upon which they rest. At the pleading stage, this is all that is required. In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010) (citing Twombly, 550 U.S. at 555). IV. CONCLUSION [*17] For the reasons set forth above, the following Order is entered: AND NOW, this 6th day of October, 2015, IT IS HEREBY ORDERED that the Motion to Dismiss First Amended Complaint filed by Defendant Maria Associates, ECF No. 16, is DENIED without prejudice to the right to renew arguments concerning standing by motion for summary judgment. /s/ Maureen P. Kelly MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE End of Document 2015 U.S. Dist. LEXIS 136093, *16 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 20 of 175 Positive As of: April 3, 2017 4:45 PM Z Flores v. Vill. of Bensenville United States District Court for the Northern District of Illinois, Eastern Division March 25, 2003, Decided ; March 26, 2003, Docketed No. 00 C 4905 Reporter 2003 U.S. Dist. LEXIS 4693 *; 2003 WL 1607795 JUAN FLORES & ANTONIA FLORES, Plaintiffs, v. VILLAGE OF BENSENVILLE, ILLINOIS, BENSENVILLE BOARD OF TRUSTEES, JOHN GEILS, PEGGY WALBERG, JOE KRASS, RAY BASSO, BOB STRANDT, and BARBARA WANZUNG, individually, and in their capacities as members of the Bensenville Board of Trustees, and WILLIAM HAVEL, individually and in his capacity as Building Division Supervisor, Defendants. Subsequent History: Affirmed by Flores v. Bensenville, 2005 U.S. App. LEXIS 23442 (7th Cir. Ill., Oct. 28, 2005) Prior History: Flores v. Village of Bensenville, 2001 U.S. Dist. LEXIS 13953 (N.D. Ill., Aug. 28, 2001) Disposition: [*1] Defendants' motion for summary judgment claims granted; claims dismissed. Core Terms Zoning, regulations, repair, no evidence, inspected, Housing, discriminatory, reconstruction, nonconformity, plaintiff asserted, prima facie case, occupancy, summary judgment, non-Hispanic, revocation, dwelling, prevail, individual defendant, building permit, water supply, cutoff, requires, summary judgment motion, fire service, individuals, disparate, deprived, services Case Summary Procedural Posture Plaintiff property owners sued defendants, a village and village officials, alleging violations of the Fair Housing Act and 42 U.S.C.S. §§ 1981, 1982 and 1983. Defendants filed a Fed. R. Civ. P. 56(c) motion for summary judgment. Overview The owners owned several properties in the village. They alleged that the village intentionally (1) denied them water and tree removal services, (2) delayed in providing fire services to them, (3) enforced its parking regulations against them, (4) denied them a permit to rebuild a fire-damaged house, and (5) and enforced its building code against them, all because they were Hispanic. The court dismissed all claims against the officials: in their official capacity because they were redundant of the claims against the village; and in their individual capacity for lack of evidence of their participation, authorization, or direction of complained-of actions. Regarding the Fair Housing Act of 1968, the owners did not make a prima facie case of disparate treatment with respect to their parking and building code claims. Though the village cited the owners for various parking and building code violations, there was no evidence that anyone lost their dwelling as a result. Nor did they make a prima facie case on claims for discriminatory fire protection, water service and tree removal service, as they did not produce evidence that the village treated non-Hispanics more favorably. Outcome The district court granted defendants' motion for summary judgment and also dismissed, for lack of subject matter jurisdiction, any Fourteenth Amendment claim for the village's revocation of a building permit. LexisNexis® Headnotes Civil Procedure > ... > Summary Judgment > Motions for Summary Judgment > General Overview Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > General Overview Civil Procedure > ... > Summary Judgment > Entitlement as Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 21 of 175 Page 2 of 10 Matter of Law > Appropriateness Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Materiality of Facts Civil Procedure > ... > Summary Judgment > Supporting Materials > General Overview Civil Procedure > ... > Summary Judgment > Supporting Materials > Discovery Materials HN1[ ] To prevail on a summary judgment motion, the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, must show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). At this stage, a district court does not weigh evidence or determine the truth of the matters asserted. The court views all evidence and draws all inferences in favor of the non-moving party. Summary judgment is appropriate only when the record as a whole establishes that no reasonable jury could find for the non-moving party. Civil Procedure > Parties > Capacity of Parties > General Overview HN2[ ] An official capacity suit against a government official is really just a suit against the entity that employs him. Civil Procedure > Parties > Capacity of Parties > General Overview Civil Rights Law > ... > Contractual Relations & Housing > Equal Rights Under the Law (sec. 1981) > Proof of Discrimination Civil Rights Law > ... > Contractual Relations & Housing > Fair Housing Rights > General Overview Civil Rights Law > ... > Contractual Relations & Housing > Fair Housing Rights > Fair Housing Act Civil Rights Law > ... > Fair Housing Rights > Prohibited Conduct > Leasing & Sales Civil Rights Law > ... > Contractual Relations & Housing > Property Rights (sec. 1982) > General Overview Civil Rights Law > ... > Immunity From Liability > Local Officials > Customs & Policies Business & Corporate Compliance > ... > Public Health & Welfare Law > Housing & Public Buildings > Fair Housing HN3[ ] Though individuals are subject to liability under the Fair Housing Act and 42 U.S.C.S. §§ 1981, 1982 and 1983, such liability requires proof that they were personally or vicariously involved in the acts of discrimination. Civil Procedure > Parties > Capacity of Parties > General Overview Civil Rights Law > ... > Contractual Relations & Housing > Equal Rights Under the Law (sec. 1981) > Liable Parties Civil Rights Law > ... > Contractual Relations & Housing > Property Rights (sec. 1982) > General Overview Constitutional Law > Equal Protection > Full & Equal Benefit HN4[ ] If individuals are personally involved in discrimination or if they authorized, directed, or participated in the alleged discriminatory conduct, they may be held liable under 42 U.S.C.S. § 1981. Civil Rights Law > ... > Contractual Relations & Housing > Fair Housing Rights > General Overview Business & Corporate Compliance > ... > Contractual Relations & Housing > Fair Housing Rights > Enforcement Actions Civil Rights Law > ... > Contractual Relations & Housing > Fair Housing Rights > Fair Housing Act Civil Rights Law > ... > Contractual Relations & Housing > Fair Housing Rights > Fair Housing Amendments Act Civil Rights Law > ... > Contractual Relations & Housing > Fair Housing Rights > Prohibited Conduct Public Health & Welfare Law > Housing & Public Buildings > General Overview Business & Corporate Compliance > ... > Public Health & Welfare Law > Housing & Public Buildings > Fair Housing HN5[ ] The Fair Housing Act of 1968 (FHA) makes it unlawful to deny a dwelling to any person or to discriminate against any person in the provision of services to any dwelling because of race, color or national origin. 42 U.S.C.S. § 3604(a)-(b). A violation of the FHA can be proven under either a disparate treatment or disparate impact theory. 2003 U.S. Dist. LEXIS 4693, *1 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 22 of 175 Page 3 of 10 Civil Rights Law > ... > Contractual Relations & Housing > Fair Housing Rights > Prohibited Conduct Business & Corporate Compliance > ... > Real Property Law > Zoning > Building & Housing Codes HN6[ ] To prevail on denial of dwelling claims under the Federal Housing Act of 1968, the plaintiffs must first establish a prima facie case of discrimination by showing that: (1) they are members of a protected class; (2) the defendants were aware of their class membership; (3) they were ready, willing and able to buy, rent or otherwise inhabit a dwelling; and (4) the defendants refused to allow them to do so. Civil Rights Law > ... > Contractual Relations & Housing > Fair Housing Rights > Prohibited Conduct HN7[ ] To prevail on denial of services claims under the Fair Housing Act of 1968, the plaintiffs must show that: (1) they are members of a protected class; (2) they were qualified to receive the services in question; (3) the defendant denied or delayed services to them; and (4) the defendant treated a similarly situated person outside of the protected class more favorably. If the plaintiffs succeed in making a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. If the defendant does so, the plaintiffs must prove that the proffered reason is merely a pretext. Business & Corporate Compliance > ... > Protection of Rights > Federally Assisted Programs > Civil Rights Act of 1964 Business & Corporate Compliance > ... > Contractual Relations & Housing > Fair Housing Rights > Enforcement Actions HN8[ ] The Federal Housing Act of 1968 is the functional equivalent of Title VII of the Civil Rights Act of 1964 and the provisions of the two statutes should be given like construction and application. Labor & Employment Law > Discrimination > Racial Discrimination > Scope & Definitions Labor & Employment Law > ... > Evidence > Burdens of Proof > Employee Burdens of Proof Labor & Employment Law > Discrimination > Title VII Discrimination > General Overview HN9[ ] The elements of a Title VII of the Civil Rights Act of 1964 race discrimination in employment claim are (1) that the plaintiff was a member of a protected class; (2) that she was performing her job satisfactorily; (3) that she experienced an adverse employment action; and (4) that similarly situated individuals were treated more favorably. Business & Corporate Compliance > ... > Contractual Relations & Housing > Fair Housing Rights > Enforcement Actions Civil Rights Law > ... > Contractual Relations & Housing > Fair Housing Rights > Fair Housing Act Civil Rights Law > ... > Fair Housing Rights > Protected Classes > Racial Discrimination Governments > Local Governments > Claims By & Against HN10[ ] Regarding a claim that a municipality's occupancy regulations violate the Federal Housing Act of 1968 (FHA) because they disproportionately impact Hispanics, to succeed on this claim, the plaintiffs must first demonstrate that the regulations, in fact, have a disproportionate impact. If they do, the court must balance the following four factors to determine whether the demonstrated impact warrants imposition of FHA liability: (1) the strength of the showing of discriminatory impact; (2) the existence of evidence of discriminatory intent; (3) the defendant's interest in taking the contested actions; and (4) the nature of the requested relief. Civil Rights Law > Protection of Rights > Contractual Relations & Housing > General Overview Civil Rights Law > ... > Contractual Relations & Housing > Equal Rights Under the Law (sec. 1981) > Liable Parties Civil Rights Law > ... > Contractual Relations & Housing > Equal Rights Under the Law (sec. 1981) > Proof of Discrimination Civil Rights Law > ... > Contractual Relations & Housing > Equal Rights Under the Law (sec. 1981) > Protected Classes Civil Rights Law > ... > Contractual Relations & 2003 U.S. Dist. LEXIS 4693, *1 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 23 of 175 Page 4 of 10 Housing > Property Rights (sec. 1982) > General Overview Civil Rights Law > ... > Contractual Relations & Housing > Property Rights (sec. 1982) > Proof of Discrimination Civil Rights Law > ... > Contractual Relations & Housing > Property Rights (sec. 1982) > Protected Classes Civil Rights Law > ... > Contractual Relations & Housing > Property Rights (sec. 1982) > Protected Rights Contracts Law > Types of Contracts > Lease Agreements > General Overview HN11[ ] 42 U.S.C.S. § 1981 prohibits racial discrimination in the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. 42 U.S.C. § 1981(a), (b). 42 U.S.C.S. § 1982 guarantees all citizens the right to inherit, purchase, lease, sell, hold, and convey real and personal property, regardless of race. Liability under either statute requires proof of intentional discrimination. Civil Rights Law > ... > Immunity From Liability > Local Officials > General Overview Civil Rights Law > Protection of Rights > Section 1983 Actions > General Overview Civil Rights Law > ... > Section 1983 Actions > Elements > Causal Relationship Civil Rights Law > ... > Section 1983 Actions > Scope > Government Actions Governments > Local Governments > Claims By & Against Governments > Local Governments > Employees & Officials HN12[ ] To prevail on a 42 U.S.C.S. § 1983 claim against a municipality, the plaintiffs must show that they were deprived of a constitutional right pursuant to one of its policies, customs or practices. The plaintiffs can do so by showing that their injury was caused by: (1) an express municipal policy; (2) a municipal practice so widespread and permanent that it constitutes a custom or usage; or (3) a municipal employee with final policy- making authority. Constitutional Law > Bill of Rights > Fundamental Rights > Eminent Domain & Takings Constitutional Law > Substantive Due Process > General Overview Real Property Law > Inverse Condemnation > Constitutional Issues Real Property Law > Inverse Condemnation > Defenses HN13[ ] A federal regulatory taking claim--whether styled as a taking claim, a procedural due process claim or a substantive due process claim--is ripe for adjudication only if the plaintiff has pursued available state remedies for seeking compensation. Civil Procedure > ... > Justiciability > Ripeness > General Overview Business & Corporate Compliance > ... > Real Property Law > Zoning > Constitutional Limits HN14[ ] Federal courts are precluded from adjudicating land use disputes, unless the plaintiff has satisfied ripeness requirements. Counsel: For JUAN FLORES, ANTONIA FLORES, plaintiffs: Gerardo Solon Gutierrez, Attorney at Law, Chicago, IL. For IL VILLAGE OF BENSENVILLE, ILLINOIS, BENSENVILLE BOARD OF TRUSTEES, JOHN GEILS, PEGGY WALBERG, JOE KRASS, RAY BASSO, BOB STRANDT, BARBARA WANZUNG, defendants: James Gus Sotos, Michael William Condon, Kevin G. Kulling, Kimberly D. Fahrbach, Hervas, Sotos, Condon & Bersani, Itasca, IL. For IL VILLAGE OF BENSENVILLE, ILLINOIS, BENSENVILLE BOARD OF TRUSTEES, JOHN GEILS, PEGGY WALBERG, JOE KRASS, RAY BASSO, BOB STRANDT, BARBARA WANZUNG, defendants: Molly Maureen O'Reilly, John Francis O'Reilly, O'Reilly Law Offices, Wheaton, IL. Judges: Paul E. Plunkett, UNITED STATES DISTRICT JUDGE. Opinion by: Paul E. Plunkett Opinion MEMORANDUM OPINION AND ORDER Im their five-count amended complaint, plaintiffs allege that the Village of Bensenville, the members of its Board 2003 U.S. Dist. LEXIS 4693, *1 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 24 of 175 Page 5 of 10 of Trustees and the Supervisor of its Building Division violated the Fair Housing Act (Counts I and II) and [*2] 42 U.S.C. §§ 1981, 1982and 1983 (Counts III-V). 1 Defendants have filed a Federal Rule of Civil Procedure 56(c) motion for summary judgment. For the reasons set forth below, the motion is granted. Preliminary Statement [*3] Parties filing or opposing motions for summary judgment in this district must comply with Local Rule 56.1. That rule requires the moving party to submit a statement of material facts as to which there is no issue. The party opposing the motion must submit a response to the moving party's statement and "a statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon." LR 56.1(b). Plaintiffs did not submit two separate statements as contemplated by the rule. Instead, they inserted the additional facts that they believe require denial of summary judgment into their responses to defendants' fact statement. As a result, the Court has had to wade through page-long "responses" to individual fact statements to determine which facts are actually in dispute. Though we will not strike the nonconforming fact statement in this case, plaintiffs and their counsel should not expect such lenient treatment in the future. Facts 2 [*4] Juan and Antonia Flores own several properties in the Village of Bensenville ("the Village"): 234 Park Street, 235 Marion Court, 238 Park Street, 237 Marion 1 This is not, as plaintiffs argue, an appeal from the state administrative review proceeding concerning the Village's enforcement of the one-house-per-lot ordinance against plaintiffs or a proceeding to determine the constitutionality of the zoning decision that spawned it. (See, generally, Pls.' Supp. Mem. Law; Defs.' LR 56.1(a)(3) Stmt., Ex. H, Flores v. Village of Bensenville, 303 Ill. App. 3d 1105, 747 N.E.2d 1109 (Ill. App. Ct. May 12, 1999).) Rather, as we said in the Order granting in part defendants' motion to dismiss the original complaint, the Court lacks jurisdiction to entertain an appeal from a state court judgment and any claims concerning the constitutionality of the one-house-per-lot zoning decision are barred by res judicata. (See 8/28/01 Mem. Op. & Order.) 2 Unless otherwise noted, the following facts are undisputed. Court and 227 Garden Street. (Defs.' LR 56.1(a)(3) Stmt. P 2; Pl.'s LR 56.1(b) Stmt. P 2.) The houses at 234 Park Street and 235 Marion Court share a single lot of land as do the houses at 238 Park Street and 237 Marion Court. (Compl. P 5.) Plaintiffs have always resided at either 237 Marion Court or 238 Park Street. (Defs.' LR 56.1(a)(3) Stmt. P 5.) They rent the houses at 235 Marion Court and 234 Park Street to Hispanic individuals. (Id. PP 7-11.) In 1988, the Village enacted Ordinance No. 4-88. (Id., Ex. K.) The ordinance created an Existing Structures Code. (Id.) The regulations in article four of that code, which govern light, ventilation and space requirements, are identical to the regulations in article four of the 1987 BOCA National Existing Structures Code. (Compare id., Ex. L at 26-30 with id., Ex. J at 46-57.) Village Inspections In 1994, the Village inspected the houses at 234 and 238 Park Street. (Id. P 17.) Plaintiffs do not recall whether they received over-occupancy citations [*5] after those inspections, but no one moved out of either house as a result. (Id. P 18.) 3 On April 30, 1996, plaintiffs received a letter from their lawyer regarding repairs the Village wanted them to make to 234 and 238 Park Street. (Id. P 20.) Plaintiffs made the requested repairs. (Id.) In June or July 1997, the Village once again inspected 234 and 238 Park Street. (Id. P 21.) The inspector told plaintiffs they needed to repair the plumbing, which they did to the inspector's satisfaction. (Id.) The Village again inspected in April 1998. (Id. P 22.) The inspector told plaintiffs that the tenant who lived in the basement of 234 Park Street had to move. (Id.) Plaintiffs said there was no tenant and that was "the end of it." (Id.) In 1999, plaintiffs sought, and obtained, from the Village a permit to put a new roof on 234 Park Street. (Id. P 23.) [*6] In September 1999, the Village inspected and approved the roof. (Id.) In 1995, the Village inspected 235 Marion Court. (Id. P 19.) After the inspection, plaintiffs were told that the furnace was not working properly, so they replaced it. (Id.) 3 Plaintiffs object to the facts asserted in this paragraph, but their objection does not dispute the substance of the facts. 2003 U.S. Dist. LEXIS 4693, *1 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 25 of 175 Page 6 of 10 The Village never issued over-occupancy citations for 235 or 237 Marion Court. (Id. P 52.) 4 Zoning of Plaintiffs' Property In 1967, the Village rezoned some of its residential property to light industrial. (Id. P 70.) 238 Park Street was one of the rezoned properties. (Id. P 71.) Once the area was rezoned, 238 Park Street became a nonconformity under the Village Zoning Code. (Id. P 72; see id., Ex. M, Zoning Code.) Under the Zoning Code, minor reconstruction of a nonconformity is permitted, but major reconstruction is not. (Id. P 73.) 5 If a nonconformity requires major reconstruction, which is work that exceeds fifty percent of the replacement value of the structure, the nonconformity must be eliminated. [*7] (Id. PP 73-74.) 6 Fire at 238 Park Street In the early morning of October 24, 1999, there was a fire at 238 Park Street. (Id. P 26.) Plaintiff Juan Flores and various members of his family were living there at the time. (Id. P 27.) Fifteen to twenty minutes after the fire was reported, four fire trucks reported to the scene. (Id. P 32.) Once they arrived, plaintiff says, it was another fifteen to twenty minutes before the firefighters began dousing the fire, which they did only intermittently. (Id. P 34; Pls.' LR 56.1(b) Stmt. PP 35, 38.) After the fire, plaintiffs obtained from the Village a permit to repair 238 Park Street. (Id. P 41.) 7 Subsequently, however, plaintiffs received a letter from the Village saying that the permit had been rescinded. (Id. P 42.) 8 The letter said that the permit had been "inadvertently issued" and that the reconstruction project did not comply with the Village Zoning Code. (Id., Ex. I, 7/25/00 letter [*8] to J. Flores from B. Havel.) Because 238 Park Street was a nonconformity and the reconstruction would cost more than fifty percent of the structure's replacement value, the letter said, the permit was being rescinded. (Id.; see id., Ex. O, 11/24/99 letter to Barba 4 See n.3. 5 See n.3. 6 See n.3. 7 See n.3. 8 See n.3. from Prater (stating that the estimate to repair 238 Park Street was $ 75,163.24 and that the building was insured for $ 143,758.00).) Moreover, the Village told plaintiffs, the property at 238 Park Street could no longer "be used for residential purposes." (Id., Ex. I, 7/25/00 letter to J. Flores from B. Havel.) After the fire, the Village cut off the water service to 238 Park Street. (Id. P 45.) 9 Because the house at 237 Marion Court is on the same lot, its water supply was also cut off. (Id.) When plaintiffs complained to the Village, they were told that water could not be restored to 237 Marion Court because the meter was for 238 Park Street. (Id.) [*9] In June or July 2001, a Village inspector and police officer arrived at 237 Marion Court and told plaintiff Juan Flores that he had to vacate the premises. (Id. P 47.) Flores responded that a tree in front of the house posed a greater danger than the lack of water. (Id. P 48.) Subsequently, Flores spoke to someone at the Village about the tree. (Id. P 49.) Though it initially disclaimed responsibility for the tree, the Village ultimately removed it. (Id.) At some point during 2001, plaintiff was issued two parking tickets for parking his pick-up truck in front of 237 Marion Court, which has no driveway. (Id. P 50.) When plaintiff explained the situation to the Village police, however, the two tickets were voided and he was not ticketed again. (Id. P 51.) The Legal Standard HN1[ ] To prevail on a summary judgment motion, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, [must] show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). At this stage, we do not weigh evidence or determine [*10] the truth of the matters asserted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). We view all evidence and draw all inferences in favor of the non-moving party. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000). Summary judgment is appropriate only when the record as a whole establishes that no reasonable jury could find for the non-moving party. Id. Discussion 9 See n.3. 2003 U.S. Dist. LEXIS 4693, *6 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 26 of 175 Page 7 of 10 Individual Defendants Plaintiffs sue the individual defendants in both their official and their individual capacities. HN2[ ] An official capacity suit against a government official is really just a suit against the entity that employs him. Kentucky v. Graham, 473 U.S. 159, 166, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985). Thus, the official capacity claims, which are redundant of the claims asserted against the Village, are dismissed. The personal capacity claims must also be dismissed. HN3[ ] Though individuals are subject to liability under the Fair Housing Act ("FHA") and 42 U.S.C. §§ ("section") 1981, 1982 and 1983, such liability requires proof that they were personally or vicariously [*11] involved in the acts of discrimination. City of Chicago v. Matchmaker Real Estate Sales Ctr., Inc., 982 F.2d 1086, 1096 (7th Cir. 1992) (stating that direct or vicarious involvement in discrimination supports personal liability under the FHA); Al-Khazraji v. Saint Francis College, 784 F.2d 505, 518 (3rd Cir.) HN4[ ] ("If individuals are personally involved in the discrimination . . . or if they authorized, directed, or participated in the alleged discriminatory conduct, they may be held liable [under section 1981]."), aff'd, 479 U.S. 812, 93 L. Ed. 2d 21, 107 S. Ct. 62 (1986); Hamilton v. Svatik, 779 F.2d 383, 388 (7th Cir. 1985) (holding defendant liable under section 1982 for acts of her agent); Zimmerman v. Tribble, 226 F.3d 568, 574 (7th Cir. 2000) ("An individual cannot be held liable in a § 1983 action unless he caused or participated in the alleged constitutional deprivation.") (alteration, internal quotation marks and citation omitted). Plaintiffs have not proffered any evidence about the individual defendants, let alone evidence that suggests each of them participated in, authorized or directed [*12] the actions plaintiffs contest. Accordingly, the individual defendants are entitled to summary judgment on all of the personal capacity claims plaintiffs assert against them. The Village In Counts I and II of their complaint, plaintiffs allege that the Village's enforcement of its Building and Zoning Codes violated the Fair Housing Act ("FHA"). Among other things, HN5[ ] the FHA makes it unlawful to "deny . . . a dwelling to any person" or "to discriminate against any person . . . in the provision of services" to any dwelling because of race, color or national origin. 42 U.S.C. § 3604(a)-(b). A violation of the FHA can be proven under either a disparate treatment or disparate impact theory. Metropolitan Housing Dev. Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir. 1977). Disparate Treatment Plaintiffs allege that the Village intentionally: denied them water and tree removal services (Am. Compl. PP 14-16), delayed in providing fire services to them (id. P 18), enforced its parking regulations against them (id. P 17), denied them a permit to rebuild the fire-damaged house at 238 Park Street [*13] (id. PP 19, 20-22) 10, and enforced its Building Code against them (id. PP 20- 22), all because they are Hispanic. HN6[ ] To prevail on their denial of dwelling claims, plaintiffs must first establish a prima facie case of discrimination by showing that: (1) they are members of a protected class; (2) defendants were aware of their class membership; (3) they were ready, willing and able to buy, rent or otherwise inhabit a dwelling; and (4) defendants refused to allow them to do so. Hamilton, 779 F.2d at 387. HN7[ ] To prevail on their denial of services claims, plaintiffs must show that: (1) they are members of a protected class; (2) they were qualified to receive the services in question; (3) the Village denied or delayed services to them; and (4) the Village treated a similarly situated person outside of the protected class more favorably. Kyles v. J.K. Guardian Sec. Servs., Inc., 222 F.3d 289, 295 (7th Cir. 2000) (stating that HN8[ ] the FHA "is the functional equivalent of Title VII" and that "the provisions of the[] two statutes [should be] given like construction and application."); Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002) [*14] HN9[ ] (elements of Title VII race discrimination claim are "(1) that [plaintiff] was a member of a protected class; (2) that she was performing her job satisfactorily; (3) that she experienced an adverse employment action; and (4) that similarly situated individuals were treated more favorably."). If plaintiffs succeed in making a prima facie case, the burden shifts to the Village to articulate a legitimate, nondiscriminatory reason for its actions. Hamilton, 779 F.2d at 387. If the Village does so, plaintiffs must prove that the proffered reason is merely a pretext. Id. at 387-88. Plaintiffs have not made a prima facie [*15] case of disparate treatment with respect to their parking and 10 Plaintiffs also allege that the Village discriminatorily enforced its Zoning Code against them. The only alleged instance of Zoning Code enforcement, however, is the Village's revocation of the building permit for 238 Park Street. Thus, the Court construes plaintiffs' challenge to the enforcement of the Zoning Code as limited solely to the permit revocation. 2003 U.S. Dist. LEXIS 4693, *10 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 27 of 175 Page 8 of 10 Building Code claims. Though the record establishes that the Village cited plaintiffs for various parking and Building Code violations, there is no evidence that anyone lost their dwelling as a result. (See Defs.' LR 56.1(a)(3) Stmt. PP 17-14, 50-53; Pls.' LR 56.1(b) Stmt. PP 17-24, 50-53.) Because plaintiffs have not demonstrated that the Village's enforcement of its parking and building regulations denied them a dwelling, they have not satisfied the last element of the prima facie case. Plaintiffs have also not made a prima facie case on their claims for discriminatory fire protection, water service and tree removal service. Though there is no dispute that the Village cut off the water supply to 238 Park Street and 237 Marion Court after the fire, there is no evidence to suggest that it continued to supply water to any similarly situated non-Hispanic homeowner. Likewise, though the record suggests that the Village Fire Department may have been dilatory in responding to the fire at 238 Park Street, there is no evidence to suggest that it responds more quickly to fires at homes owned by non-Hispanic individuals. [*16] Finally, though the record suggests that the Village could have removed the tree from plaintiffs' property more promptly than it did, there is no evidence that non-Hispanic homeowners receive faster service. Absent evidence that the Village treated non-Hispanics more favorably, plaintiffs have not satisfied the last element of the prima facie case on their discriminatory service claims. They have, however, made a prima facie case with respect to the denial of dwelling claim based on the Village's revocation of the building permit for 238 Park Street. Thus, the burden shifts to the Village to articulate a legitimate, nondiscriminatory reason for its action. The permit was revoked, the Village says, because the repair work plaintiffs proposed to do constituted major reconstruction of a nonconformity, action that is prohibited by its Zoning Code. (See Defs.' LR 56.1(a)(3) Stmt. PP 70-74; id., Ex. M, Zoning Code; id., Ex. O, 11/24/99 letter to Barba from Prater (stating that the estimate to repair 238 Park Street was $ 75,163.24 and that the building was insured for $ 143,758.00).) Plaintiffs admit that 238 Park Street was a nonconformity, that the repair work constituted [*17] major reconstruction and that major reconstruction on a nonconformity is prohibited by the Zoning Code. (See Pls.' LR 56.1(b) Stmt. PP 70-74.) 11 Nonetheless, they 11 Plaintiffs object to the facts asserted by defendants in paragraphs seventy-three and seventy-four, but their contend that the Village's explanation is pretextual because it cut off the water supply to 238 Park Street and told plaintiffs, long before it knew that the repair work would constitute major reconstruction, that water would never be restored to that address. (See id. PP 25, 73.) Unfortunately for plaintiffs, the record does not support that contention. Both plaintiffs testified that the Village cut off the water supply to 238 Park Street sometime after the fire because the house was uninhabitable. (See Defs.' LR 56.1(a)(3) Stmt., Ex. B, J. Flores Dep. at 50-52; id., Ex. C, A. Flores Dep. at 54-57.) Moreover, both plaintiffs testified that the Village refused to restore [*18] water service to 237 Marion Court, which shares a lot with 238 Park Street, because the water meter was for 238 Park Street. (See id., Ex. B, J. Flores Dep. at 50-52; id., Ex. C, A. Flores Dep. at 54-55.) Neither plaintiff testified, however, that any Village official or employee told them that water service could never be restored to 238 Park Street. Absent such evidence, the fact that the Village cut off the water supply to 238 Park Street shortly after the fire does not cast any doubt on the veracity of the Village's explanation for its subsequent revocation of the building permit for that house. Because plaintiffs have no evidence that indicates the Village's explanation for revoking the building permit was pretextual, the Village is entitled to summary judgment on this claim. Disparate Impact Plaintiffs also HN10[ ] claim that the Village's occupancy regulations violate the FHA because they disproportionately impact Hispanics. To succeed on this claim, plaintiffs must first demonstrate that the regulations, in fact, have a disproportionate impact. Arlington Heights, 558 F.2d at 1290. If they do, the Court must balance the following four factors [*19] to determine whether the demonstrated impact warrants imposition of FHA liability: (1) the strength of the showing of discriminatory impact; (2) the existence of evidence of discriminatory intent; (3) the defendant's interest in taking the contested actions; and (4) the nature of the requested relief. Id. Plaintiffs do not even vault the first hurdle. The only evidence plaintiffs proffer in support of this claim is: (1) ten-year old national statistics that show Hispanic families have, on average, more children than white families and a greater number of household members (Am. Compl. P 24); (2) their testimony that the Village objections do not dispute the substance of those facts. 2003 U.S. Dist. LEXIS 4693, *15 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 28 of 175 Page 9 of 10 conducted eight interior inspections of 234 and 238 Park Street between October 1994 and the end of 2000, half of which were motivated by occupancy concerns (see Defs.' LR 56.1(a)(3) Stmt., Ex. D, Pls.' Interrog. Answers P 8); and (3) inadmissible hearsay to the effect that five Hispanic homeowners or tenants were cited, at some unidentified point, for violating the Village occupancy regulations (id., Ex. D, P 19). Plaintiffs offer no evidence about the ethnic and racial composition of the Village, the average size of the Hispanic households in the [*20] Village, the average size of the non-Hispanic households in the Village, the number of Hispanic and non-Hispanic households subjected to occupancy inspections each year, the number of over-occupancy citations issued by the Village each year and the ethnic and racial identity of the recipients of those citations. Absent such evidence, plaintiffs have not made a prima facie case that the occupancy regulations disproportionately impact Hispanic residents of the Village. Even if there were some evidence that the occupancy regulations had more of an impact on Hispanics than non-Hispanics, the Arlington Heights factors would still militate against imposing FHA liability in this case. Plaintiffs have made no showing of discriminatory impact; they have no evidence of discriminatory intent; the Village occupancy regulations, which mirror those in the BOCA Code, are premised on legitimate health and safety concerns; and the relief plaintiffs seek, including the creation of a Village Human Rights Commission and the institution of ethnic sensitivity training for all Village employees, is of a nature that courts are loathe to award in even the most compelling cases. Thus, even if plaintiffs [*21] had demonstrated that the Village's occupancy regulations disproportionately impact Hispanics, they would still not be prevail on this claim. In short, plaintiffs have not raised a genuine issue of fact on any of their FHA claims. The Village's motion for summary judgment on those claims is, therefore, granted. 42 U.S.C. §§ 1981, 1982 In Counts III and IV of their amended complaint, plaintiffs allege that the Village's actions violate 42 U.S.C. §§ ("sections") 1981 and 1982. HN11[ ] Section 1981 prohibits racial discrimination in "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981 (a)-(b). Section 1982 guarantees all citizens the right to "inherit, purchase, lease, sell, hold, and convey real and personal property," regardless of race. 42 U.S.C. § 1982. Liability under either statute requires proof of intentional discrimination. Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996) (section 1981); Phillips v. Hunter Trails Community Asso., 685 F.2d 184, 187 (7th Cir. 1982) [*22] (section 1982). As we noted above, plaintiffs have offered no proof that any of the Village's actions were motivated by discriminatory animus. Accordingly, the Village is entitled to summary judgment on plaintiffs' section 1981and 1982 claims. 42 U.S.C. § 1983 In the last count of their amended complaint, plaintiffs charge the Village with violating section 1983, the statute that provides redress for constitutional deprivations that occur at the hands of certain government actors. HN12[ ] To prevail on a section 1983 claim against the Village, plaintiffs must show that they were deprived of a constitutional right pursuant to one of its policies, customs or practices. Monell v. Department of Soc. Servs. of City of New York, 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Plaintiffs can do so by showing that their injury was caused by: (1) an express Village policy; (2) a Village practice so widespread and permanent that it constitutes a custom or usage; or (3) a Village employee with final policy-making authority. Baxter ex rel. Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 734-35 (7th Cir. 1994). [*23] Plaintiffs do not identify the constitutional right of which they were deprived. To the extent they claim their equal protection rights were violated, however, their claim must fail. Only intentional discrimination violates the equal protection clause. Washington v. Davis, 426 U.S. 229, 238-39, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976). Because there is no evidence that the Village acted with discriminatory intent, they cannot prevail on a section 1983 equal protection claim. Plaintiffs fare no better if their claim is that the Village, by failing to provide adequate water and fire service to 238 Park Street, deprived them of property without due process of law. To prevail on such a claim, plaintiffs would have to prove that the Village took those actions pursuant to one of its policies. Plaintiffs have offered no evidence to suggest that it did. Thus, to the extent plaintiffs assert section 1983 claims based on inadequate water or fire service, they are dismissed. Any Fourteenth Amendment claim based on the Village's refusal to allow plaintiffs to repair 238 Park 2003 U.S. Dist. LEXIS 4693, *19 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 29 of 175 Page 10 of 10 Street is also doomed. HN13[ ] A federal regulatory taking claim -- whether styled as a taking claim, a procedural [*24] due process claim or a substantive due process claim -- is ripe for adjudication only if the plaintiff has pursued available state remedies for seeking compensation. Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 187, 87 L. Ed. 2d 126, 105 S. Ct. 3108 (1985); River Park, Inc. City of Highland Park, 23 F.3d 164, 167 (7th Cir. 1994) ("[A] property owner may not avoid Williamson by applying the label 'substantive due process' to the claim. So too with the label 'procedural due process.' Labels do not matter. A person contending that state or local regulation of the use of land has gone overboard must repair to state court.") (citation omitted). Because there is no evidence that plaintiffs have pursued available state remedies for any taking the Village's permit revocation may have effected, any Fourteenth Amendment claim based on that land- use decision is not ripe for adjudication. Forseth v. Village of Sussex, 199 F.3d 363, 368 (7th Cir. 2000) (stating that Williamson "preclude[s] HN14[ ] federal courts from adjudicating land use disputes," unless the plaintiff has satisfied its ripeness [*25] requirements). Conclusion For the reasons set forth above, there is no genuine issue of material fact on: (1) any of the claims plaintiffs assert against the individual defendants; (2) the Fair Housing Act, section 1981 and section 1982 claims plaintiffs assert against the Village; and (3) the section 1983 equal protection claims and the section 1983 due process claims based on the provision of inadequate water and fire service to 238 Park Street that plaintiffs assert against the Village. Defendants' motion for summary judgment on those claims is, therefore, granted. Any Fourteenth Amendment claim premised on the Village's revocation of the building permit for 238 Park Street is dismissed for lack of subject matter jurisdiction. This is a final and appealable order. ENTER: Paul E. Plunkett UNITED STATES DISTRICT JUDGE DATED: 3-25-03 JUDGMENT IN A CIVIL CASE Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered. IT IS HEREBY ORDERED AND ADJUDGED that there is no genuine issue of material fact on: (1) any of the claims plaintiffs assert against [*26] the individual defendants; (2) the Fair Housing Act, section 1981 and section 1982 claims plaintiffs assert against the Village; and (3) the section 1983 equal protection claims and the section 1983 due process claims based on the provision of inadequate water and fire service to 238 Park Street that plaintiffs assert against the Village. Defendants' motion for summary judgment on those claims is, therefore, granted. Any Fourteenth Amendment claim premised on the Village's revocation of the building permit for 238 Park Street is dismissed for lack of subjection matter jurisdiction. This is a final and appealable order. Date: 3/25/2003 End of Document 2003 U.S. Dist. LEXIS 4693, *23 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 30 of 175 Caution As of: April 3, 2017 4:48 PM Z Forziano v. Indep. Group Home Living Program United States District Court for the Eastern District of New York March 26, 2014, Decided; March 26, 2014, Filed CV 13-0370 Reporter 2014 U.S. Dist. LEXIS 41358 * FRANK FORZIANO and ROSEANN FORZIANO as parents and Article 17A co-guardians of PAUL FORZIANO, NORMAN SAMUELS and BONNIE SAMUELS as parents and Article 17A co-guardians of HAVA SAMUELS, PAUL FORZIANO and HAVA SAMUELS, Plaintiffs, -against- INDEPENDENT GROUP HOME LIVING PROGRAM, INC., MARYHAVEN CENTER OF HOPE, INC., and COURTNEY BURKE, sued herein in her official capacity as the COMMISSIONER OF THE NEW YORK STATE OFFICE OF PERSONS WITH DEVELOPMENTAL DISABILITIES and STATE OF NEW YORK, Defendants. Subsequent History: Affirmed by Forziano v. Indep. Group Home Living Program, 2015 U.S. App. LEXIS 8785 (2d Cir. N.Y., May 26, 2015) Core Terms Plaintiffs', disability, group home, services, sexual, entity, married couple, cohabit, habilitation, immunity, funds, marry, injunctive relief, state action, Defendants', residential, reside, supervised, services provided, sex education, accommodate, disabled individual, sovereign immunity, motion to dismiss, allegations, Housing, damages, reasonable accommodation, living together, district court Counsel: [*1] For Plaintiffs: Martin J. Coleman, Esq., LAW OFFICE OF MARTIN J. COLEMAN, P.C., Woodbury, New York; Robert Briglio, Esq., ROBERT BRIGLIO, ESQ., Huntington, New York. For Independent Group Home Living Program, Inc., Defendant: Jeltje DeJong, Esq., Anne C. Leahy, Esq., David H. Arntsen, Esq., DEVITT SPELLMAN BARRETT LLP, Smithtown, New York. For Maryhaven Center of Hope, Inc., Defendant: Anna I. Hock, Esq., Robert Frank Elliott, Esq., BARTLETT, McDONOUGH & MONAGHAN, LLP, Mineola, New York. Susan M. Connolly, Esq., Assistant Attorney General, ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF THE STATE OF NEW YORK, Hauppauge, New York. Judges: LEONARD D. WEXLER, United States District Judge. Opinion by: LEONARD D. WEXLER Opinion MEMORANDUM AND ORDER WEXLER, District Judge: Before the Court are the Defendants' motions to dismiss Plaintiffs' Amended Complaint, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiffs oppose the motions. For the following reasons, Defendants' motions are granted and this action is dismissed in its entirety. BACKGROUND This is a disability discrimination action in which Plaintiffs assert that Plaintiff Paul Forziano ("Paul") and Plaintiff Hava Samuels ("Hava"), both of [*2] whom have developmental intellectual disabilities and were recently married, have been denied the opportunity to cohabit in a supervised group home by Defendants. Plaintiffs allege that this denial amounts to a violation of Paul and Hava's constitutional rights, as well as a failure by Defendants to provide Medicaid funded residential habilitation services, which are mandated by the New York State Mental Hygiene Law. (Am. Compl. ¶ 41.) Plaintiffs seek damages as well as declaratory and Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 31 of 175 Page 2 of 10 injunctive relief. Plaintiff Paul Forziano has been classified since childhood as being in the mild to moderate range of intellectual functioning. (Am. Compl. ¶ 14.) As a result of his intellectual disabilities, Paul is eligible for and receives residential and day habilitation services provided through the federal Medicaid Waiver Program and funded by the New York State Office of Persons with Developmental Disabilities ("OPWDD"). (Am. Compl. ¶ 15.) Up until July 1, 2013, Pual's residential habilitation services were provided by Defendant Independent Group Home Living Program, Inc. ("IGHL"). (Am. Compl. ¶ 15.) Paul's day habilitation services are provided by Defendant Maryhaven Center of Hope, Inc. ("Maryhaven"). [*3] (Am. Compl. ¶ 15.) Plaintiff Hava Samuels has been classified since childhood as being in the moderate range of intellectual functioning. (Am. Compl. ¶ 20.) As a result of her intellectual disabilities, Hava is eligible for and receives residential and day habilitation services through the federal Medicaid Waiver Program and funded by the OPWDD. (Am. Compl. ¶¶ 21, 24.) Up until July 1, 2013, Hava's residential habilitation services were provided by Defendant Maryhaven. (Am. Compl. ¶ 21.) Hava's day habilitation services continue to be provided by Maryhaven. (Am. Compl. ¶ 21.) On April 7, 2013, Paul and Hava were married, after a courtship of seven years and an engagement of two years. (Am. Compl. ¶ 2.) Beginning in 2010, after Paul and Hava announced their desire to marry, their parents - Plaintiffs Frank and Roseann Forziano (the "Forzianos") and Norman and Bonnie Samuels (the "Samuels") - began looking into ways for Paul and Hava to live together in one of their respective group homes. (Am. Comply. ¶¶ 84-94.) On August 24, 2010, a meeting was held to discuss accommodating Paul and Hava's desire to marry and live together. (Am. Compl. ¶ 95.) During this meeting, representatives from [*4] both IGHL and Maryhaven (collectively, the "Group Home Defendants") explicitly announced their opposition to housing Paul and Hava together in either group home, describing such an arrangement as "unprecedented," "impossible," and "fraught with difficulties." (Am. Compl. ¶¶ 96-97.) A representative of the OPWDD who also attended the meeting, Robert Lopez ("Lopez"), stated that he was not aware of any OPWDD funded persons who were married and resided together in a supervised group home. (Am. Compl. ¶ 99.) Lopez then went on to discuss Paul and Hava's capacity to consent to sexual activity and recommended that sexual consent evaluations be performed for both Paul and Hava. (Am. Compl. ¶¶ 100-01.) Lopez also recommended that Paul and Hava receive sex education related to their capacity to consent to sexual contact. (Am. Compl ¶ 101.) Finally, Lopez stated that a determination of whether Paul and Hava possessed the ability to marry and cohabit should be addressed by IGHL and Maryhaven through Paul and Hava's Individualized Service Plans ("ISPs"). (Am. Compl. ¶ 104.) Neither IGHL or Maryhaven included sex education, relationship counseling or sexual consent evaluation as a residential or [*5] day habilitation goal, service or treatment in either Paul or Hava's ISP. (Am. Compl. ¶ 105.) Although Dr. Barbara Carey-Shaw, IGHL's Clinical Director, offered to perform a sexuality consent evaluation of Paul, she never provided Paul with sex education or any assistance in obtaining such education. (Am. Compl. ¶ 107, 110.) Nor did Maryhaven provide any sex education to Hava. (Am. Compl. ¶ 131.) In addition, both the Forzianos and the Samuels were repeatedly advised by IGHL and Maryhaven that they do not provide sex education or relationship counseling as part of their residential habilitation services. (Am. Compl. ¶¶ 111, 133, 135.) Dr. Carey-Shaw conducted Paul's sexual consent evaluation on May 24, 2011, almost nine months after the August 2010 meeting. (Am. Compl. ¶ 112.) Dr. Carey-Shaw's evaluation found that Paul was not capable of consenting to sexual activity. (Am. Compl. ¶ 114.) Although Maryhaven had performed prior sexual consent evaluations for Hava in 2000 and 2008, the validity of the results were disputed. (Am. Compl. ¶¶ 101, 130.) Maryhaven did not offer to perform an updated sexual consent evaluation for Hava following the August 2010 meeting. (Am. Compl. ¶ 136.) Plaintiffs [*6] assert that as a result of the sexual consent evaluation roadblock put in place by Lopez and Defendants, Paul and Hava were "stymied in their efforts to live together as a married couple" after the August 24, 2010 meeting. (Am. Compl. ¶ 143.) Thereafter, the Forzianos and the Samuels reached out to Lopez in an effort to obtain assistance from the OPWDD with providing Paul and Hava with sex education. (Am. Compl. ¶¶ 145-47.) Although Lopez offered to set up a meeting with IGHL and Maryhaven, he did not provide OPWDD assistance in obtaining sex education or sexual consent evaluations for Paul and Hava. (Am. Compl. ¶ 150.) Nor did Lopez offer 2014 U.S. Dist. LEXIS 41358, *2 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 32 of 175 Page 3 of 10 assistance in obtaining housing with a different supervised group home that would agree to accommodate Paul and Hava as a married couple. (Am. Compl. ¶ 150.) Following their telephone conversation with Lopez, the Forzianos and the Samuels contacted legal counsel to consult about Paul and Hava's right to marry and cohabit. (Am. Compl. ¶ 153.) After some research, Plaintiffs' counsel discovered the Young Adult Institute ("YAI") Sexuality Consent Assessment,1 which was available to Paul and Hava even though they were not residents of a YAI group home. [*7] (Am. Compl. ¶ 153.) The Forzianos and the Samuels became members of the YAI network, applied for YAI's sexuality consent assessment and obtained specialized educational materials published by YAI that helped prepare Paul and Hava for the evaluation. (Am. Compl. ¶ 156.) YAI Sexuality Consent Assessments were conducted of Paul and Hava on June 14, 2012 and June 21, 2012, respectively. (Am. Compl. ¶ 160.) Both Paul and Hava were found to be able to give verbal informed sexual consent. (Am. Compl. ¶ 161.) Plaintiffs met with Lopez again regarding Paul and Hava's desire to marry and cohabit on July 30, 2012. (Am. Compl. ¶ 163.) During this meeting, Plaintiffs provided Lopez with the results of Paul and Hava's YAI Sexuality Consent Assessments. (Am. Compl. ¶ 164.) Plaintiffs asked Lopez if there was anything he could do to force IGHL or Maryhaven to accept Paul and Hava as a married couple in their group homes. (Am. Compl. ¶ 166.) Lopez advised [*8] Plaintiffs that he had no power to force the Group Home Defendants to permit Paul and Hava to reside together in their homes. (Am. Compl. ¶ 166.) Lopez further advised Plaintiffs that the Group Home Defendants could legally refuse to permit Paul and Hava to cohabit in either home. (Am. Compl. ¶ 167.) Lopez recommended that Plaintiffs either find another group home that would accommodate Paul and Hava's desire to cohabit or consider taking Paul and Hava back into their family homes. (Am. Compl. ¶¶ 168, 171.) Lopez also attempted to dissuade Plaintiffs from taking legal action against IGHL and Maryhaven. (Am. Compl. ¶ 170.) 1 The YAI Sexuality Consent Assessment has been approved as a sexuality consent evaluation tool by the OPWDD and is widely used in New York by entities providing residential habilitation services to developmentally disabled adults. (Am. Compl. ¶ 154.) On September 10, 2012, the Forzianos and the Samuels sent letters to both IGHL and Maryhaven, requesting that the they reconsider their opposition to permitting Paul and Hava to cohabit as a married couple in their homes. (Am. Compl. ¶ 176.) The Forzianos and the Samuels included the results of Paul's and Hava's YAI Sexuality Assessments with their letters. (Am. Compl. ¶ 176.) By letter dated September 24, 2012, IGHL responded that it had "significant concerns" regarding the YAI Sexuality Assessments, as well as with the "practicality of a married couple living in a [*9] group home with other non-married peers." (Am. Compl. ¶ 177.) IGHL further responded that its group homes "are not staffed or designed to house and supervise married couples or assist married couples with the dynamics of their relationships." (Am. Compl. ¶ 178.) By letter dated October 1, 2012, Maryhaven responded that it was rejecting the YAI Sexuality Assessment results for Hava and would continue to rely on the previous assessments performed in 2000 and 2008. (Am. Compl. ¶ 181.) By letter dated October 24, 2012, counsel for Plaintiffs sent demand letters to Lopez at the OPWDD, IGHL and Maryhaven, requesting a reasonable accommodation for Paul and Hava to marry and live together in either IGHL or Maryhaven or in an alternate group home within reasonable geographic proximity to their families. (Am. Compl. ¶ 184.) Counsel for IGHL responded by letter dated December 10, 2012, reiterating that IGHL was not set up to accommodate a married couple. (Am. Compl. ¶ 185.) Neither the OPWDD nor Maryhaven responded to Plaintiffs' demand letters. (Am. Compl. ¶¶ 186-87.) Plaintiffs commenced the within action on January 22, 2013. Shortly thereafter, Plaintiffs moved for a preliminary injunction, [*10] requesting that the Court order Defendants to allow Paul and Hava to reside together upon their marriage that was scheduled to take place on April 7, 2013. However, on July 1, 2013, Paul and Hava moved out of their respective group homes into a supervised group home that would allow them to cohabit, operated by East End Disability Associates ("East End"), a Suffolk County OPWDD funded program. (Am. Compl. ¶ 65.) Accordingly, by letter dated July 2, 2013, counsel for Plaintiffs advised the Court that Plaintiffs were withdrawing their request for preliminary injunctive relief since East End is now providing the services requested in the motion. Plaintiffs amended their Complaint on July 17, 2013, alleging violations of the Americans with Disabilities Act 2014 U.S. Dist. LEXIS 41358, *6 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 33 of 175 Page 4 of 10 ("ADA"), 42 U.S.C. § 12101 et seq., the Rehabilitation Act, 29 U.S.C. § 701 et seq., the Fair Housing Act, 42 U.S.C. § 3601 et seq., 42 U.S.C. § 1983 ("Section 1983"), the New York State Executive Law (the "Human Rights Law") and the New York Mental Hygiene Law. Plaintiffs seek money damages, as well as declaratory relief and a permanent injunction. Defendants now move to dismiss Plaintiffs' Amended Complaint in its entirety. DISCUSSION I. [*11] Legal Standards A. Federal Rule of Civil Procedure 12(b)(1) A district court should dismiss a case for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) where the court "lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); see also Fed. R. Civ. P. 12(b)(1). When reviewing a motion to dismiss for lack of jurisdiction, the Court "must accept as true all material factual allegations in the complaint, but [it is] not to draw inferences from the complaint favorable to Plaintiff[]." Wood v. GMC, No. CV 08-5224, 2010 U.S. Dist. LEXIS 96157, at *9 (E.D.N.Y. Aug. 23, 2010) (quoting J.S. v. Attica Cent. Sch.., 386 F.3d 107, 110 (2d Cir. 2004)) (additional citation omitted) (alteration in original). The Court may also "consider evidence outside the pleadings, such as affidavits" when determining whether it has jurisdiction. Stoothoff v. Apfel, No. 98 Civ. 5724, 1999 U.S. Dist. LEXIS 10459, at *1 n.1 (S.D.N.Y. July 7, 1999) (citing cases). "The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Wood, 2010 U.S. Dist. LEXIS 96157, at *9 [*12] (quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005)). B. Federal Rule of Civil Procedure 12(b)(6) "To survive a motion to dismiss [pursuant to Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). "Facial plausibility" is achieved when the "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). As a general rule, the court is required to accept as true all of the allegations contained in the complaint. See Iqbal, 129 S. Ct. at 1949; Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements . . . are not entitled to the assumption of truth." Iqbal, 129 S. Ct. at 1949-50 (citation omitted); see also Twombly, 555 U.S. at 555 (stating that the Court is "not bound [*13] to accept as true a legal conclusion couched as a factual allegation"). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations," which state a claim for relief. Iqbal,129 S. Ct. at 1950. A complaint that "tenders 'naked assertion[s]' devoid of 'further factual enhancement'" will not suffice. Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 555 U.S. at 557). Rather, only a complaint that "states a plausible claim for relief" will survive a motion to dismiss. Iqbal, 129 S. Ct. at 1950. II. Plaintiffs' Request for Injunctive Relief Plaintiffs' Amended Complaint seeks a permanent injunction, enjoining Defendants from refusing to allow Paul and Hava to reside together as a married couple in any supervised group home operated by IGHL, Maryhaven or by any other OPWDD certified supervised group home.2 According to Plaintiffs, while Paul and Hava are currently receiving all of the services requested through East End Disability Associates, East End does not currently have the capacity to permit Paul and Have to "age in place." (Am. Compl. ¶ 206.) Specifically, Paul and Hava currently reside in an upstairs apartment at East End. (Am. Compl. ¶ [*14] 206.) If either develops any impairments over time that restrict their ability to climb stairs, they may be 2 All Defendants raise arguments with respect to mootness, asserting that Plaintiffs' claims are moot because East End is already providing Paul and Hava with all of the services requested. As Plaintiffs' Amended Complaint notes, due to their placement at East End, there is no longer "any immediate need for a placement for residential habilitation by Paul and Hava" and that "[m]arital and counseling services are provided by East End Disability Associates." (Am. Compl. ¶ 203.) However, there is no request for in the Amended Complaint for immediate injunctive relief. Rather, the Amended Complaint seeks compensatory damages for alleged past discrimination and future injunctive relief. As such, the Court finds that Plaintiffs' claims are not moot. 2014 U.S. Dist. LEXIS 41358, *10 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 34 of 175 Page 5 of 10 forced to move out of East End in order to stay together. (Am. Compl. ¶ 206.) Thus, Plaintiffs seek a permanent injunction that would require IGHL, Maryhaven and any other OPWDD certified group home to provide them with a place to reside together as a married couple at any point in the future. Plaintiffs' request for future injunctive relief [*15] fails as it is not ripe for review. Nor do Plaintiffs have standing to seek such relief as there is no real case or controversy before the Court with respect to this issue. Constitutional standing requires a plaintiff to present a justiciable case or controversy. See U.S. Const., art. III, § 2, cl.1; see also Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S. Ct. 1249, 108 L. Ed. 2d 400 (1990). To demonstrate standing, a plaintiff must allege that he has personally suffered: (1) an injury-in-fact; (2) that is fairly traceable to defendants' alleged misconduct; and (3) is likely to be redressed by a favorable decision. See Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984). To satisfy Article III, the injury alleged by plaintiff must be "actual or imminent, not 'conjectural' or 'hypothetical.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990)). Similarly, "[r]ipeness is a doctrine rooted in both Article III's case or controversy requirement and prudential limitations on the exercise of judicial authority," Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 347 (2d Cir. 2005), that is designed to "prevent the courts, through avoidance of premature adjudication, [*16] from entangling themselves in abstract disagreements." Id. (quoting Abbott Labs v. Gardner, 387 U.S. 136, 148, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967)). "Determining whether a case [or, as here, an issue] is ripe generally requires [the court] to 'evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.'" Murphy, 402 F.3d at 347 (quoting Abbott Labs., 387 U.S. at 149). Here, Plaintiffs request that the Court issue a permanent injunction to prevent alleged harm that Paul and Hava may or may not suffer in the future. This request is based on nothing more than speculation and conjecture that the services currently being provided by East End may at some point become unavailable to Paul and Hava as a result of any number of circumstances that may or may not occur. Such allegations are insufficient to confer standing on the Court. Moreover, with respect to ripeness, for the same reasons that Plaintiffs lack standing to assert this claim, the issue of the availability of future services for Paul and Hava is not currently fit for review. Nor will Paul and Hava suffer any hardship by the Court's decision to decline consideration since they are currently [*17] receiving all of the services requested. Accordingly, Plaintiffs' claims for injunctive relief are dismissed. Since Plaintiffs' second cause of action, brought pursuant to Title III of the ADA seeks only injunctive relief, that claim is dismissed in its entirety. III. Eleventh Amendment Immunity "[A]s a general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity," Gorton v. Gettel, 554 F.3d 60, 62 (2d Cir. 1009) (quoting Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006)) (additional citation omitted), or there has been "an abrogation of constitutional immunity by Congress." Smith v. N.Y. State Dep't of Taxation and Fin., No. 01 CV 1776, 2002 U.S. Dist. LEXIS 10375, at *8 (E.D.N.Y. May 17, 2002) (citing Welch v. Texas Dep't of Highways and Public Transport., 483 U.S. 468, 472, 107 S. Ct. 2941, 97 L. Ed. 2d 389 (1987)). "This bar exists where the relief sought is legal or equitable." Dube v. State Univ. of New York, 900 F.2d 587, 594 (2d Cir. 1990) (quoting Papasan v. Allain, 478 U.S. 265, 276, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986)). The Eleventh Amendment also bars claims for money damages against state officials acting in their official capacities.3 See [*18] Kentucky v. Graham, 473 U.S. 159, 167-68, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985); see also Qader v. Cohen & Slamowitz, No. 10 cv 1664, 2011 U.S. Dist. LEXIS 2388, at *8 (S.D.N.Y. Jan. 10, 2011) ("A state agency with state officials acting in their official capacities is similarly entitled to immunity."). Both the State of New York and Defendant Courtney Burke, who is sued herein in her official capacity as the Commissioner of the New York State OPWDD (collectively, the "State Defendants"), assert that they are entitled to Eleventh Amendment immunity here. Plaintiffs and the State Defendants appear to agree that Eleventh Amendment immunity bars Plaintiffs' claims 3 Since all of Plaintiffs' claims for injunctive relief have already been dismissed, as discussed supra, the remainder of this Memorandum and Order pertains solely to Plaintiffs' claims for money damages. 2014 U.S. Dist. LEXIS 41358, *14 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 35 of 175 Page 6 of 10 brought against the State Defendants pursuant to the FHA. See Sierotowicz v. State of New York Div. of Housing & Community Renewal, Nos. 04-CV-3886, 04- CV-3887, 04-CV-3888, 2005 U.S. Dist. LEXIS 43028, at *5 (E.D.N.Y. June 14, 2005) (noting that the FHA does not abrogate sovereign immunity) (citing cases); Welch v. Century 21 Chimes Real Estate Inc., No. CV-90- 3410, 1991 U.S. Dist. LEXIS 2411, at *3-4 [*19] (dismissing plaintiffs' FHA claims against the New York Department of State Licensing Division on the grounds of Eleventh Amendment immunity). Those claims are accordingly dismissed. With respect to Plaintiffs' Section 1983 claims, "[i]t has long been held that Section 1983 does not allow a State to be called into Federal Court to answer in damages for the alleged deprivation of a federal right." A.A. v. Bd. of Educ., Central Islip Union Free Sch. Dist., 196 F. Supp. 2d 259, 266 (E.D.N.Y. 2002); see also Quern v. Jordan, 440 U.S. 332, 345, 99 S. Ct. 1139, 59 L. Ed. 2d 358 (1979) (holding that Congress did not abrogate state sovereign immunity in enacting 42 U.S.C. § 1983). "Absent a valid waiver, such lawsuits are barred by the Eleventh Amendment." A.A., 196 F. Supp. 2d at 266 (citing cases). Accordingly, Plaintiffs' Section 1983 claims against the State Defendants are hereby dismissed.4 Relying on Garcia v. State University of New York Health Sciences Center, 280 F.3d 98 (2d Cir. 2001), the Plaintiffs and the State Defendants appear to agree that Eleventh Amendment immunity also bars Plaintiffs' claims brought pursuant to Section 504 of the Rehabilitation Act. Plaintiffs and the State Defendants are incorrect. In Garcia, the Second Circuit held that when Congress enacts a statute pursuant to the Spending Clause of the United States Constitution, such as the Rehabilitation Act, it may condition a state's acceptance of funds upon a waiver of sovereign immunity. See id. at 113. However, such a waiver will only be found if it is knowing and intentional. See id. at 114. 4 The Court notes that even if Eleventh Amendment immunity did not bar Plaintiffs' Section 1983 claims against the State Defendants, those claims would still be subject to dismissal since "[n]eitherhr a State nor its officials acting in their official capacities are 'persons' under § 1983." Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989). [*20] Accordingly, Plaintiffs' Section 1983 claims against the State Defendants also fail on the merits. Garcia went on to hold that New York State's acceptance of Section 504 funds was not a knowing waiver of its sovereign immunity because, at the time the funds were accepted, New York was under the reasonable belief that it had no immunity under the essentially similar provisions of the ADA. See id. at 114- 15. Accordingly, when New York accepted Section 504 funds, it could not have believed it was waiving any [*21] rights. See id. However, while the Circuit found that New York mistakenly believed its immunity was lost during the time period in se, it "acknowledged New York's acceptance of federal funds at a later date 'might properly reveal a knowing relinquishment of sovereign immunity.'" Degrafinreid v. Ricks, 417 F. Supp. 2d 403, 414 (S.D.N.Y. 2006) (citing Garcia, 280 F.3d at 113 n.4). "Since Garcia, state agencies in New York . . . have continued to accept federal funds and, therefore, waived immunity from suit under Section 504 of the Rehabilitation Act." Doe v. Goord, No., 2004 U.S. Dist. LEXIS 24808, at *58 (S.D.N.Y. Dec. 10, 2004) (citing cases). While the district court decisions in this Circuit "disagree as to whether New York effectively waived its sovereign immunity only be accepting federal funds after Garcia was decided, on September 25, 2011, or whether the waiver occurred as early as February 25, 2001, when the [] Supreme Court handed down its decision in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955, 148 L. Ed. 2d 866 (2001)," finding that the Eleventh Amendment bars suits brought pursuant to Title I of the ADA, such a finding is irrelevant in this action. Id. at *58- 59. [*22] The actions complained of by Plaintiffs took place beginning in approximately 2010, at which time New York was clearly subject to suit under Section 504 of the Rehabilitation Act. Accordingly, the State Defendants are not entitled to invoke the protection of the Eleventh Amendment with respect to Plaintiffs' Rehabilitation Act claims. IV. The Remaining ADA, Rehabilitation Act and FHA Claims Title II of the ADA provides, in pertinent part, that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Similarly, under Section 504 of the Rehabilitation Act, "no otherwise qualified individual with a disability . . . shall, solely by reason of his or her disability, be 2014 U.S. Dist. LEXIS 41358, *18 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 36 of 175 Page 7 of 10 excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). "The purpose of both statutes is to 'eliminate discrimination on the basis of disability and to ensure evenhanded treatment [*23] between the disabled and the able-bodied.'" Maccharulo v. New York State Dep't of Correctional Servs., No. 08 Civ. 301, 2010 U.S. Dist. LEXIS 73312, at *7 (S.D.N.Y. July 21, 2010) (quoting Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998)). Similarly, the FHA makes it unlawful "to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap." 42 U.S.C. § 3604(f)(1). Due to the "similarities" between the FHA, the ADA and the Rehabilitation Act, courts typically "interpret them in tandem." Tsombanidis v. West Haven Fire Dep't, 352 F.3d 565, 573 n.4 (2d Cir. 2003) (citing Reg'l Econ. Cmty. Action Program v. City of Middletown, 294 F.3d 35, 45-46 (2d Cir. 2002)). To state a claim under all three statutes, a plaintiff must allege that he or she: (1) is a "qualified individual" with a disability; (2) was "excluded from participation in a public entity's services, programs or activities or was otherwise discriminated against by a public entity;" and (3) that such exclusion or discrimination was due to his or her disability. Hargrave v. State of Vermont, 340 F.3d 27, 34-35 (2d Cir. 2003) (quoting 42 U.S.C. § 12132). In addition, [*24] for purposes of the Rehabilitation Act, a plaintiff must demonstrate that the public entity receives federal funding. See Maccharulo, 2010 U.S. Dist. LEXIS 73312, at *8 (citation omitted). Here, there is no dispute that Paul and Hava fall under the protection of the ADA, the Rehabilitation Act and the FHA. Nor is there any dispute that Defendants are subject to the provisions of those statutes. However, while Plaintiffs argue in their Memoranda of Law that Defendants discriminated against them due to their disabilities, the claims alleged in the Amended Complaint all arise out of Defendants' purported refusal to accommodate Paul and Hava's desire to cohabit as a married couple in either IGHL or Maryhaven. Such alleged discrimination is based not on Paul and Hava's disabilities, but rather on their status as a married couple. Plaintiffs' Amended Complaint therefore fails to state a claim for disability discrimination under the ADA, the FHA or the Rehabilitation Act because Plaintiffs have failed to demonstrate that Defendants discriminated against them due to Paul and Hava's disabilities.5 Moreover, to establish discrimination under the ADA, the FHA or the Rehabilitation Act, Plaintiffs have three available theories: (1) disparate treatment, or intentional discrimination; (2) disparate impact; and (3) failure to provide a reasonable accommodation. See Tsombanidis, 352 F.3d at 573 (citing City of Middletown, 294 F.3d at 48). The Court notes that while Plaintiffs [*26] attempt to argue otherwise in their Memoranda of Law, Plaintiffs' claims "do not draw their substance from any allegedly discriminatory animus against the disabled, either under a disparate treatment or a disparate impact theory." Pfrommer, 148 F.3d at 82. Indeed, "[s]uch an argument would be beyond tenuous given [Defendants'] sole purpose in assisting the disabled." Id. Rather, the crux of Plaintiffs' Amended Complaint is that Defendants failed to provide Paul and Hava with the requested "reasonable accommodation" of allowing them to cohabit in one of their two group homes upon their marriage. In essence, Plaintiffs are "challenging the adequacy of [Defendants'] services, not illegal disability discrimination." Id. The ADA, the FHA and the Rehabilitation Act all require public entities to make reasonable accommodations for disabled individuals to ensure that they have meaningful access to public benefits. See Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 85 (2d Cir. 2004) (discussing the Rehabilitation Act's reasonable accommodation requirement); Henrietta D. v. Bloomberg, 331 F.3d 261, 273 (2d Cir. 2003) (discussing same under the ADA); Shapiro v. Cadman Towers. Inc., 51 F.3d 328, 333 (2d Cir. 1995) [*27] (discussing same under the FHA). "The purpose of these requirements is to ensure that services provided 5 With respect to Plaintiffs' FHA claim, the Amended Complaint also fails due to the fact that Plaintiffs [*25] are neither buyers nor renters within the meaning of the FHA. The Court notes that while Maryhaven raises this point in its moving papers, glaringly absent from Plaintiffs' opposition is any argument in response. As noted above, the FHA prohibits discrimination against any disabled "buyer or renter." 42 U.S.C. § 3604(f). Accordingly, the FHA requires that a disabled person "be either a renter or a buyer in order to bring a Fair Housing Act claim." Jenkins v. New York City Dep't of Homeless Servs., 643 F. Supp. 2d 507, 520 (S.D.N.Y. 2009) (dismissing plaintiffs FHA claim regarding placement in a homeless shelter). Since Paul and Hava are not renters or buyers in their respective group homes, but rather receive supervised housing as part of their Medicaid services, they cannot state a claim for relief under the FHA. 2014 U.S. Dist. LEXIS 41358, *22 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 37 of 175 Page 8 of 10 to non-disabled individuals are not denied to disabled individuals because of their disability." Maccharulo, 2010 U.S. Dist. LEXIS 73312, at *9 (citing Pfrommer, 148 F.3d at 83). Accordingly, where the plaintiff fails to allege that disabled individuals are being treated differently from non-disabled individuals, he or she has not stated a claim under the disability statutes. See Maccharulo, 2010 U.S. Dist. LEXIS 73312, at *9 (citing Pfrommer, 148 F.3d at 83): see also Atkins v. County of Orange, 251 F. Supp. 2d 1225, 1232 (S.D.N.Y. 2003) ("With no allegation of disparate treatment, no claim for discrimination under the ADA or Rehabilitation Act lies."). The Second Circuit, as well as district courts within the Circuit, have repeatedly held that "a claim that challenges the adequacy . . . or the substance . . . of services that are being provided to a disabled individual is not a valid claim under either the ADA or the Rehabilitation Act." Maccharulo, 2010 U.S. Dist. LEXIS 73312, at *10 (citing cases). Rather, "the central purpose of the ADA and § 504 of the Rehabilitation Act is [*28] to assure that disabled individuals receive 'evenhanded treatment' in relation to the able-bodied." Pfrommer, 148 F.3d at 83. "Neither the ADA nor the Rehabilitation Act establish an obligation to meet a disabled person's particular needs vis-a-vis the needs of other [disabled] individuals, but mandate only that the services provided by [covered entities] to non-[disabled] individuals not be denied to a disabled person because he is [disabled]." Id. (citing Flight v. Gloeckler, 68 F.3d 61, 63-64 (2d Cir. 1995)) (additional citation omitted). Here, Plaintiffs seek to have Defendants provide them with particularized services based on their status as a married couple. Accordingly, what Plaintiffs ultimately seek to challenge "is not illegal discrimination against the disabled, but the substance of the services provided to [them] through [Defendants]." Pfrommer, 148 F.3d at 84. Such a cause of action does not lie under the ADA, the FHA or the Rehabilitation Act. See Wright v. Giuliani, 230 F.3d 543, 548 (2d Cir. 2000) ("[T]he disabilities statutes do not require that substantively different services be provided to the disabled, no matter how great their need for the services may be. They [*29] require only that covered entities make 'reasonable accommodations' to enable 'meaningful access' to such services as may be provided, whether such services are adequate or not."). For the foregoing reasons, Plaintiffs' Amended Complaint fails to state a claim under Title II of the ADA, the Rehabilitation Act and the FHA and those claims are accordingly dismissed. V. The Section 1983 Claims Against the Group Home Defendants Plaintiffs' Amended Complaint contains two causes of action pursuant to 42 U.S.C. § 1983 - the first, for violation of the federal Medicaid Statute and the second, for violation of the Fourteenth Amendment to the United States Constitution. As the Court has already found that the State Defendants are entitled to Eleventh Amendment immunity with respect to Plaintiffs' Section 1983 claims, the following analysis only applies to Defendants IGHL and Maryhaven. In order to state a claim under Section 1983, a plaintiff must demonstrate that the defendant was either a state actor, or a private individual or entity who acted "under color of state law." Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002); Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). This is [*30] referred to as the "state action" requirement. Ciambriello, 292 F.3d at 323. While it is clear that private entities, such as IGHL and Maryhaven, are not state actors, such entities can be liable for civil rights violations under Section 1983 if they have conspired, or engaged in joint activity, with state actors. See Briscoe v. LaHue, 460 U.S. 325, 330 n.7, 103 S. Ct. 1108, 75 L. Ed. 2d 96; Ginsberg v. Healey Car & Truck Leasing, Inc., 189 F.3d 268, 271 (2d Cir. 1999). Plaintiffs here do not allege that either IGHL or Maryhaven is a state entity. Rather, they argue that state action exists here under either the "joint action" test, the "public function" test or the "state compulsion" test. See Sybalski v. Independent Group Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008) (articulating three tests formulated by the Supreme Court for determining the existence of state action). "It is not enough, however, for a plaintiff to plead state involvement in 'some activity of the institution alleged to have inflicted injury upon the plaintiff'; rather, the plaintiff must allege that the state was involved 'with the activity that caused the injury' giving rise to the action." Id. at 257-58 (quoting United States v. Int'l Bd. of Teamsters, 941 F.2d 1292, 1296 (2d Cir. 1991)) [*31] (emphasis in original). Under the joint action test, the actions of a private entity will be considered attributable to the state where "the state provides 'significant encouragement' to the entity, the entity is a 'willful participant in joint activity with the [s]tate,' or the entity's functions are 'entwined' with state 2014 U.S. Dist. LEXIS 41358, *25 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 38 of 175 Page 9 of 10 policies." Sybalski, 546 F.3d at 257 (quoting Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass'n, 531 U.S. 288, 296, 121 S. Ct. 924, 148 L. Ed. 2d 807 (2000)). According to Plaintiffs, the allegations in the Amended Complaint demonstrate that the State showed significant encouragement and support of the Group Home Defendants' decisions not to allow Paul and Hava to reside together once they were married. However, a plain reading of the Amended Complaint demonstrates that while Robert Lopez of the OPWDD attempted to assist Plaintiffs with facilitating Paul and Hava's desire to marry and cohabit, IGHL and Maryhaven would not accommodate such a request. (Am. Compl. ¶¶ 84, 100- 01, 104, 148-49, 165-66.) Rather, the Amended Complaint alleges that the State and the Group Home Defendants were actually at odds over how to handle Plaintiffs' request that Paul and Hava be permitted to cohabit. While Plaintiffs [*32] now attempt to paint Lopez as facilitating IGHL and Maryhaven's decisions not to allow Paul and Hava to reside together, the Amended Complaint tells quite a different story. Although it is clear that the State was "involved" in the Group Home Defendants' decision to deny Paul and Hava's request to cohabit, that involvement "is insufficient to render that decision 'state action' under the joint action test." Sybalski, 546 F.3d at 259. To satisfy the state action requirement under the "public function" test, the private entity must "perform a function that is 'traditionally the exclusive prerogative of the state.'" Archer v. Economic Opportunity Comm'n, 30 F. Supp. 2d 600, 606 (E.D.N.Y. 1998) (quoting Rendell- Baker v. Kohn, 457 U.S. 830, 842, 102 S. Ct. 2764, 73 L. Ed. 2d 418 (1982)). Although not clearly asserted, Plaintiffs appear to argue in their Memorandum of Law that the public function test applies because "the state's statutory and regulatory control over the issues of marriage as a civil right, and habilitation services provided to married couples, is so complete as to leave no legitimate discretion with the defendants to act independently of the federal and state laws at issue in this case." (Pl. Mem. of Law [*33] 15.) However, the Second Circuit has explicitly rejected such an argument in a similar case involving Defendant IGHL, in which plaintiffs' Section 1983 claims were dismissed for failure to demonstrate state action. See Sybalski, 546 F.3d at 260. Since the Second Circuit held in Sybalski v. Independent Group Home Living Program, Inc., 546 F.3d 255 (2d Cir. 2008), that it could not "conclude that care of the . . . mentally disabled, was a function 'traditionally' and 'exclusively' reserved by the state," id. at 260, Plaintiffs fail to plead circumstances here sufficient to satisfy the public function test. Finally, under the "state compulsion" test, a finding of state action requires that the private entity "acts pursuant to the 'coercive power' of the state or is 'controlled' by the state." Id. at 258 (quoting Brentwood Acad., 531 U.S. at 296). The Court finds that Plaintiffs have failed to satisfy this test because there is no indication from the Amended Complaint that there existed any coercion or encouragement by the state in the complained of conduct. To the contrary, although ultimately unsuccessful, Lopez of the OPWDD attempted to assist Plaintiffs in reaching a resolution of some [*34] type with the Group Home Defendants. Moreover, the Amended Complaint makes clear that Lopez specifically told Plaintiffs that "he had no power to force IGHL or Maryhaven to permit Paul and Hava to live together in their homes." (Am. Compl. ¶ 166.) While Plaintiffs argue that "federal and state laws at issue in this case compel [IGHL and Maryhaven] to assist residents with marriage goals," therefore making them "subject to the Medicaid comparability statute to the same degree as the state would be if it provided services directly," (Pl. Mem. of Law 16-17), the "compulsion" alleged by Plaintiffs does not satisfy the state compulsion test. As stated above, state involvement in "some activity" of the private entity alleged to have injured plaintiff is not enough to demonstrate state action. Sybalski, 546 F.3d at 257. "[R]ather, the plaintiff must allege that the state was involved 'with the activity that caused the injury' giving rise to the action." Id. at 258 (quoting Schlein, 561 F.2d at 428). This, Plaintiffs have failed to do. Accordingly, since Plaintiffs have failed to demonstrate state action on the part of either IGHL or Maryhaven, they have failed to state a viable claim under [*35] Section 1983 and those claims are accordingly dismissed. VI. Plaintiffs' State Law Claims Having found that Plaintiffs' federal claims fail as a matter of law, there is no longer any independent basis for federal jurisdiction in the within action. Although the Court has the discretion to exercise supplemental jurisdiction over plaintiff's remaining state law claims, see 28 U.S.C. § 1367(a), it declines to do so. See 28 U.S.C. § 1367(c)(3) ("The district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction . . . ."); Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998) ("In general, where the federal claims are dismissed before trial, the state claims should be dismissed as well."). 2014 U.S. Dist. LEXIS 41358, *31 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 39 of 175 Page 10 of 10 Accordingly, Plaintiffs' state law claims are dismissed without prejudice.6 CONCLUSION For the foregoing reasons, Defendants' motions to dismiss are granted and the Plaintiffs' Amended Complaint is dismissed in its entirety. The Clerk of the Court is directed to terminate docket entry numbers 78, 80 and 84 and to mark this case closed. SO ORDERED: Dated: March 26, 2014 Central Islip, New York /s/ Leonard D. Wexler LEONARD D. WEXLER United States District Judge End of Document 6 "Since [New York's CPLR § 205] allow[s] a plaintiff to recommence a dismissed suit within six months without regard to the statute of limitations,' plaintiffs will not be prejudiced by the dismissal of their [state law] claims." Tishman v. The Associated Press, No. 05 Civ. 4278, 2007 U.S. Dist. LEXIS 85588, at *29 (S.D.N.Y. Nov. 19, 2007) [*36] (quoting Trinidad v. N.Y City Dep't of Corr., 423 F. Supp. 2d 151, 169 (S.D.N.Y. 2006)) (alterations in original) (additional citations omitted). 2014 U.S. Dist. LEXIS 41358, *35 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 40 of 175 Caution As of: April 3, 2017 4:48 PM Z Gjeka v. Del. County Cmty. College United States District Court for the Eastern District of Pennsylvania May 23, 2013, Decided; May 23, 2013, Filed CIVIL ACTION NO. 12-4548 Reporter 2013 U.S. Dist. LEXIS 73054 *; 2013 WL 2257727 KSENIYA GJEKA, A/K/A KSENIYA MELNYCHENKO, Plaintiff, v. DELAWARE COUNTY COMMUNITY COLLEGE and JOHN PRESTON, Defendants. Core Terms alleges, statute of limitations, harassment, motion to dismiss, sexual harassment, fiduciary duty, e-mail, sex discrimination, tort claim, courts, fail to state a claim, common law, reasons, sexual, two year, cause of action, hostile environment, actual knowledge, immunity, provides, hiring, fiduciary relationship, administrative remedy, continuing violation, exhaust, intentional infliction of emotional distress, respondeat superior, inappropriate, damages, breach of contract Counsel: [*1] For KSENIYA GJEKA, also known as KSENIYA MELNYCHENKO, Plaintiff: PETER GEORGE MYLONAS, LEAD ATTORNEY, LAW OFFICE OF PETER GEORGE MYLONAS PC, BROOMALL, PA. For DELAWARE COUNTY COMMUNITY COLLEGE, Defendant: ALLISON S. PETERSEN, LEAD ATTORNEY, DAVID WILLIAM BROWN, TAMMY JOANNE SCHMITT, LEVIN LEGAL GROUP, P.C., HUNTINGDON VALLEY, PA. For JOHN PRESTON, Defendant: JOHN F. KENNEDY, THOMAS P. GRACE, BODELL BOVE LLC, PHILADELPHIA, PA. Judges: JOEL H. SLOMSKY, J. Opinion by: JOEL H. SLOMSKY Opinion Slomsky, J. I. INTRODUCTION Before the Court are two Motions to Dismiss for Failure to State a Claim (Doc. Nos. 19 and 21) filed by Defendant Delaware County Community College ("DCCC") and Defendant John Preston ("Preston"), respectively. Plaintiff Kseniya Gjeka ("Plaintiff") originally filed suit against Preston and DCCC in the Court of Common Pleas of Delaware County on July 10, 2012 (Doc. No. 3 at 3).1 In her Second Amended Complaint, she alleges that Preston, her professor at DCCC, sexually harassed her over a three year period and that DCCC knew or should have known about the harassment. The date Plaintiff filed her initial Complaint in state court is critical because the Court must determine the viability of her claims under the [*2] applicable Pennsylvania statute of limitations. The Motions to Dismiss are now ripe for adjudication.2 For reasons that follow, the Court will grant Preston's Motion in its entirety, and will grant DCCC's Motion in part and deny it in part. In considering the Motions to Dismiss, the Court has concluded that more than one reason warrants dismissal of certain claims. 1 As noted, on July 10, 2012, Plaintiff filed her initial Complaint in the Court of Common Pleas of Delaware County. (Doc. No. 1.) On August 10, 2012, the case was removed to this Court. (Id.) On December 4, 2012, Plaintiff filed a Second Amended Complaint. (Doc. No. 17.) The Second Amended Complaint is the only complaint filed after the original Complaint was filed and is the one Defendants are challenging in the Motions to Dismiss. 2 In reaching its decision, the Court considered Preston's Motion to Dismiss (Doc. No. 19), DCCC's Motion to Dismiss (Doc. Nos. 21 and 22), Plaintiff's Response in Opposition to DCCC's Motion (Doc. No. 23), Plaintiff's Response in Opposition to Preston's Motion (Doc. No. 24), and DCCC's Reply (Doc. No. 25). Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 41 of 175 Page 2 of 13 II. FACTUAL BACKGROUND Plaintiff, a Ukrainian citizen, registered about January 2008 as an international [*3] student in the Science for Health Professions program at DCCC. (Doc. No. 17 at 4.) From June to August 2008, Plaintiff was enrolled in the TOEFL3 Preparatory course offered by DCCC. (Id.) Defendant Preston, a DCCC employee, was the TOEFL course professor. (Id.) Plaintiff avers that Preston "flagrantly flirted with Plaintiff in class." (Id.) Plaintiff further alleges that during the course, Preston "handwrote a flagrant solicitation" on Plaintiff's classwork, "wrongfully providing Plaintiff with. . . Preston's personal e-mail address, telephone number, and an explicit and inappropriate request that Plaintiff send. . . Preston personal photographs. . . ." (Id. at 5.) Plaintiff contends that Preston asked her on August 6, 2009 to send him a "friend request" on the social media website Facebook.4 (Id.) On the same date, Preston sent Plaintiff an e-mail stating: "We should have lunch or dinner - I am not cheap like your ex-boyfriend; I will take you to a nice [*4] place. We both have some free time coming up."5 (Id. at 5.) Plaintiff further contends that from August 7, 2008 to July 4, 2011, Preston sent "unsolicited, inappropriate, flirtatious and harassing messages" to her through her personal e-mail account and Facebook. (Id. at 6.)6 On March 22, 2010, during the time when Preston was sending the e-mails and contacting Plaintiff over the internet, Preston was terminated from DCCC. (Id. at 50.) There are no averments in the Second Amended Complaint that Preston was terminated for reasons related to Plaintiff [*5] or her allegations against him. 3 The "Test of English as a Foreign Language" (or TOEFL, pronounced "toe-full") tests the ability of a person to use and understand English in an academic setting. TOEFL is designed and administered by the Educational Testing Service. 4 Plaintiff claims that Preston's request was ". . . unsolicited and unwelcomed by Plaintiff, which induced Plaintiff to sustain anxiety, embarrassment and mental anguish, all of which continues to and including the present." (Doc. No. 17 at 5.) 5 Plaintiff characterizes this e-mail as "inappropriate, lewd, and salacious. . . ." (Doc. No. 17 at 5.) 6 Plaintiff did not attach to the Second Amended Complaint or include in the record the e-mails, Facebook messages, or any other communication between Plaintiff and Preston from July 13, 2010 to July 4, 2011. (Doc. No. 17 at 16.) On July 4, 2011, Preston sent Plaintiff a sexually explicit e-mail. (Id.) (Doc. No. 22 at 5.) On July 13, 2010, Preston sent an e- mail to Plaintiff notifying her that he was no longer working for DCCC. (Id.) As a result of Preston's conduct, Plaintiff filed a claim on or about August 1, 2011 with the Pennsylvania Human Relations Commission ("PHRC") for sexual harassment/sexual discrimination under the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 951 et seq. (Id.) On May 15, 2012, Plaintiff voluntarily withdrew her claim filed with the PHRC. (Id.) On July 10, 2012, Plaintiff filed suit against DCCC and Preston in the Court of Common Pleas of Delaware County, asserting the following claims against each Defendant: 1) Count 1 alleges sex discrimination in violation of the Pennsylvania Human Relations Act ("PHRA"); 2) Count 2 alleges sex discrimination in violation of Title IX;7 3) Count 3 alleges sex discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment8 pursuant to § 1983;9 4) Count 4 alleges the creation of a hostile environment in violation of Pennsylvania common law, Title IX, and the PHRA; 5) Count 5 alleges Vicarious Liability/Respondeat Superior; 6) Count 6 alleges a breach of fiduciary [*6] duty; 7) Count 7 alleges negligent supervision and hiring; 8) Count 8 alleges a breach of contract; and 9) Count 9 alleges an intentional infliction of emotional distress. (See Doc. No. 17 at 20-64.) 7 Title IX is codified at 20 U.S.C. § 1681 et seq. and provides that "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 8 The Equal Protection Clause of the Fourteenth Amendment of the United States Constitution provides that "no state shall . . . deny to any person within its jurisdiction the equal protection of the laws." 9 42 U.S.C. § 1983 provides: "Every person who, under color of any statute . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 2013 U.S. Dist. LEXIS 73054, *2 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 42 of 175 Page 3 of 13 On September 13 and 14, 2012, Defendants filed Motions to Dismiss the original Complaint [*7] for Failure to State a Claim. (Doc. Nos. 9 and 10.) On October 24, 2012, the Court held a hearing on the Motions. At the hearing, Plaintiff agreed to file a Second Amended Complaint. (Tr. of Oral Argument 29:4-25, Oct. 24, 2012 [hereafter "Oral Argument"].) On December 12, 2012, Plaintiff filed the Second Amended Complaint.10 (Doc. No. 17.) On December 18, 2012, Preston and DCCC each filed another Motion to Dismiss for Failure to State a Claim. (Doc. Nos. 19, 21.) On January 2, 2012, Plaintiff filed her Response to the Motions to Dismiss. (Doc. Nos. 23 and 24.) On January 9, 2013, DCCC filed its Reply. (Doc. No. 25.) Only Counts 2, 3, and 4 of the Second Amended Complaint assert claims that are the basis of federal jurisdiction. For reasons set forth infra, these claims and others will be dismissed. The one remaining state law claim for breach of contract will be remanded to state court. III. [*8] STANDARD OF REVIEW To survive a motion to dismiss, a plaintiff must state a plausible claim in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). In Iqbal, the leading case on the matter, the court explained that the plausibility standard requires "more than a sheer possibility that a defendant has acted unlawfully." Id. at 678. This means that a simple recitation of the elements of a claim, accompanied by conclusory statements of law, will not suffice. Id. (citing Twombly, 550 U.S. at 555.) Applying this principle, in Malleus v. George, the Third Circuit explained that the inquiry requires that a district court: "(1) identify[] the elements of the claim, (2) review[] the complaint to strike conclusory allegations, and then (3) look[] at the well-pleaded components of the complaint and evaluat[e] whether all of the elements identified in part one of the inquiry are sufficiently alleged." 641 F.3d 560, 563 (3d Cir. 2011). Elements 10 At the hearing, Plaintiff was requested to identify each Defendant named in a Count at the beginning of the Count. (Oral Argument, 52: 4-19.) With the exception of Count 9, where no Defendant is listed, all Counts now state that they apply to "both named defendants." (See e.g., Doc. No. 17 at 39.) are sufficiently alleged when the facts in the complaint "show" that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Deciding whether a claim [*9] is plausible will be a "context- specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. IV. ANALYSIS A. The Statute of Limitations Bars All But One Claim against DCCC DCCC submits that most of the claims against it are time-barred under the Pennsylvania statute of limitations. (Doc. No. 22 at 9.) In Pennsylvania, any action to recover damages for injury to a person based on negligent, intentional, or otherwise tortious conduct must be commenced within two years of the occurrence of the injury. 42 Pa. Cons. Stat. § 5524(7). The two year statute of limitations also applies to any action to recover damages under 42 U.S.C. § 1983 or Title IX. See Kasteleba v. Judge, 325 F. App'x 153, 156 (3d Cir. 2009) (stating that federal courts apply a state's personal injury statute of limitations claims to § 1983 claims); Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 77- 78 (3d Cir. 1989) (concluding that "the most analogous statute of limitations [for a Title IX claim] is Pennsylvania's two-year statute of limitations period applicable to personal injury actions. . . ."). Actions based on breach of an express or implied contract, however, must be instituted [*10] within four years of the breach. 42 Pa. Cons. Stat. § 5525(a). Federal Rule of Civil Procedure 8(c)(1) provides: "In responding to a pleading, a party must affirmatively state any . . . affirmative defense, including . . . statute of limitations." An affirmative defense such as a statute of limitations defense must be raised at the earliest possible moment in litigation, which is normally in the answer. Robinson v. Johnson, 313 F.3d 128, 134-37 (3d Cir. 2002). Under what is commonly referred to as the "Third Circuit Rule," it is permissible for "a limitations defense to be raised by a motion under Rule 12(b)(6), but only if 'the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.'" Robinson, 313 F.3d at 135 (quoting Hanna v. U.S. Veterans' Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975)). Thus, a statute of limitations defense may be raised in a Rule 12(b)(6) motion "where the complaint facially shows noncompliance with the limitations period and the affirmative defense clearly appears on the face of the pleading." Oshiver v. Levin, Fishbein, Sedran & Berman, 2013 U.S. Dist. LEXIS 73054, *6 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 43 of 175 Page 4 of 13 38 F.3d 1380, 1385 n.1 (3d Cir. 1994). In considering [*11] whether the statute of limitations period expired against DCCC before the original Complaint was filed, the actions of its employee Preston are crucial to this decision. It is well settled that an employer can be vicariously liable for the actions of an employee that cause injuries to a third party, if the conduct of the employee is within the employee's scope of employment. See Costa v. Roxborough Mem'l Hosp., 708 A.2d 490, 493 (Pa. Super. Ct. 1998). "The conduct of an employee is considered 'within the scope of employment' for purposes of vicarious liability if: 1) it is of a kind and nature that the employee is employed to perform; 2) it occurs substantially within the authorized time and space limits; 3) it is actuated, at least in part, by a purpose to serve the employer; and 4) if force is intentionally used by the employee against another, the use of force is not unexpected by the employer." Id. (citing Fitzgerald v. McCutcheon, 270 Pa. Super. 102, 410 A.2d 1270, 1272 (Pa. Super. Ct. 1979). Plaintiff avers here that Preston continuously harassed her from approximately August 2008 until July 4, 2011. (Doc. No. 17 at 6.) Consequently, Plaintiff contends that she satisfied the Pennsylvania two year [*12] statute of limitations for tort claims, by filing this action on July 10, 2012. But Preston was terminated from DCCC on March 22, 2010, at which point he stopped being an employee of DCCC. (Doc. No. 17 at 50.) Since Preston was not an employee after March 22, 2010, his conduct after his termination was not within the scope of his employment and DCCC is therefore not vicariously liable for any post-termination conduct. Accordingly, any action against DCCC for Preston's actions should have been instituted by March 22, 2012, or two years after his termination from DCCC. Since the original Complaint was filed on July 10, 2012, the statute of limitations bars Plaintiff from asserting tort claims against DCCC. Recognizing this impediment to her case, Plaintiff argues, in the alternative, that the Pennsylvania statute of limitations was tolled for all claims existing on or before August 1, 2011, when she filed her PHRC claim. (Doc. No. 23 at 18-19.) Filing a discrimination action with the PHRC, however, does not toll the Pennsylvania statute of limitations for state law claims. See Hartman v. Sterling, Inc., No. 01-cv-2630, 2003 U.S. Dist. LEXIS 18140, 2003 WL 22358548, at *14 (E.D. Pa. Sept. 10, 2003) (state law claims [*13] of wrongful discharge, breach of contract, tortious interference with plaintiff's right to continue employment, negligent hiring, retention, and supervision, and intentional infliction of emotional distress were not tolled by filing an action with the PHRC). The same holding would apply to the federal causes of action alleged in the Second Amended Complaint. Accordingly, the Pennsylvania statute of limitations was not tolled when Plaintiff filed her PHRC claim. As a second alternative, Plaintiff argues that the Court should apply the continuing violations theory in order to overcome the statute of limitations bar. Under the continuing violations theory, discriminatory acts that are not individually actionable may be aggregated for purposes of a hostile work environment claim; such acts "can occur at any time so long as they are linked in a pattern of actions which continues into the applicable limitations period." O'Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006) (citing Nat. R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002) (explaining that a court may consider the "entire scope of a hostile work environment claim . . . so long as any act contributing to that hostile [*14] environment takes place within the statutory time period")). The Third Circuit has applied the continuing violations theory to a Title VII claim involving sexual discrimination. Mandel v. M. & Q. Packaging Corp., 706 F.3d 157, 165-66 (3d Cir. 2013). Neither party, however, has cited a case that applies the continuing violations theory to a Title IX claim of sexual discrimination. One court addressed the potential applicability of the continuing violations theory to a Title IX claim without deciding the issue. Folkes v. N.Y. Coll. of Osteopathic Med. Of N.Y. Inst. Of Tech., 214 F. Supp. 2d 273, 288- 289 (E.D.N.Y. 2002). The Folkes court expressed doubt that the theory would apply to a Title IX claim, reasoning that the theory "may well be a poor fit with the goals of Title IX." Id. The court elaborated: In Gebser, the Supreme Court explained the differences between Title VII and Title IX, noting that Title IX, . . . "condition[s] an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds." 524 U.S. at 286, 118 S.Ct. 1989. . . . Gebser shows the Supreme Court's reluctance to extend [*15] the reach of Title IX beyond that imposed by Congress. Id. at 287, 118 S.Ct. 1989 ("Title IX's contractual nature has implications for our construction of the scope of available remedies. When Congress attaches conditions to the award of 2013 U.S. Dist. LEXIS 73054, *10 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 44 of 175 Page 5 of 13 federal funds under its spending power, . . . as it has in Title IX and Title VI, we examine closely the propriety of private actions holding the recipient liable in monetary damages for noncompliance with the condition.") This reasoning led the Gebser Court to impose the actual notice standard discussed supra, and leads this court to question the advisability of applying the oft-disfavored continuing violation exception to Title IX claims. Id. This Court agrees with the rationale set forth in Folkes. With no precedent being cited to the contrary, the Court will not expand the continuing violations theory beyond its application to a hostile work environment claim under Title VII, which is not changed in this case. Since the continuing violations theory is not applicable here, for reasons noted above, all claims against DCCC that fall under Pennsylvania's two year statute of limitations for personal injury must be dismissed as untimely.11 These claims [*16] are: • Count 1, sex discrimination under the PHRA • Count 2, sex discrimination under Title IX; • Count 3, sex discrimination under the Fourteenth Amendment pursuant to 42 U.S.C. § 1983; • Count 4, hostile environment under Title IX and Pennsylvania common law; • Count 5, vicarious liability/respondeat superior for sex discrimination under Pennsylvania common law; • Count 6, breach of fiduciary duty under Pennsylvania common law; • Count 7, negligent supervision/hiring under Pennsylvania common law; and • Count 9, intentional infliction of emotional distress under Pennsylvania common law. (Doc. No. 22 at 9-10.) Count 8, alleging a breach of contract, is the only claim against DCCC which survives 11 See Kasteleba, 325 F. App'x. at 156 (noting that federal courts apply a state's personal injury statute of limitation for Section 1983 claims, which is two years in Pennsylvania); Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985) (affirming the use of states' statutes of limitations for torts in Section 1983 [*17] cases); Bougher, 882 F.2d at 74 ("[W]e conclude that the most analogous statute of limitations [for a Title IX claim] is Pennsylvania's two-year statute of limitations period applicable to personal injury actions . . . ."); see also 42 Pa. Cons. Stat. § 5524 (setting a two year statute of limitations for personal injury suits in Pennsylvania). the statute of limitations bar. The statute of limitations in Pennsylvania for breach of contract is four years, and Plaintiff filed her initial Complaint within this time period. 12 See 42 Pa. Cons. Stat. § 5525(a). B. Additional Reasons for Dismissal of Counts Barred by the Statute of Limitations There are additional reasons, apart from the statute of limitations, why certain claims made against DCCC will be dismissed. Moreover, there are also reasons why certain claims made against Preston will be dismissed. A discussion of these reasons follows. 1. Count 1: Sex Discrimination under the PHRA Count 1 of the Second Amended Complaint alleges that Plaintiff was sexually harassed by Preston in violation of the PHRA, and that DCCC was liable for the harassment under a respondeat superior theory. These claims will be dismissed for failure to exhaust administrative [*18] remedies. Even if Plaintiff had exhausted her administrative remedies, Plaintiff's PHRA claim against DCCC would be dismissed for failure to allege that DCCC had actual knowledge of the actions of Preston. a) Failure to Exhaust Administrative Remedies as to Defendants DCCC and Preston A plaintiff who seeks a judicial remedy for sexual harassment under the PHRA must first file an administrative complaint with the PHRC. Tlush v. Mfrs. Res. Ctr., 315 F. Supp. 2d 650, 656 (E.D. Pa. 2002) (citing Woodson v. Scott Paper Co., 109 F. 3d 913, 925 (3d Cir. 1997)). Under 43 Pa. Cons. Stat. § 962(c)(1), the PHRC has exclusive jurisdiction over claims for a period of one year in order to investigate and, if possible, conciliate the claims. After the expiration of the one year period, a complainant may bring suit regardless of whether the PHRC issues a right to sue letter. Tlush, 315 F. Supp. at 656. However, a plaintiff who fails to exhaust administrative remedies with the PHRC is barred from seeking judicial remedies. Id. Courts in this district consistently have dismissed PHRA claims filed prior to the expiration of the one year jurisdictional period of PHRC review. See Lyons v. 12 For reasons discussed infra, the statute of limitations would also bar the § 1983 claim of sex discrimination in violation of the Equal Protection Clause against Defendant Preston as alleged in Count 3. 2013 U.S. Dist. LEXIS 73054, *15 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 45 of 175 Page 6 of 13 Springhouse Corp., No. 92-6133, 1993 U.S. Dist. LEXIS 3039, 1993 WL 69515, at *3 (E.D. Pa. Mar. 10, 1993) [*19] (dismissing a PHRA claim and holding that the plaintiff, who filed a civil action only six months after having filed charges with the PHRC, had not exhausted his administrative remedies); Nicholls v. Wildon Indus., Inc., No. C.A. 98-6697, 1999 U.S. Dist. LEXIS 19137, 1999 WL 1211656, at *4 (E.D. Pa. Dec. 10, 1999) (dismissing a PHRA claim because the plaintiff failed to wait a full year before filing a writ of summons in the Common Pleas Court). Plaintiff filed her claim with the PHRC on August 1, 2011. (Doc. No. 17 at 50.) The PHRC therefore had exclusive jurisdiction over the claim for one year, or until August 1, 2012. On May 15, 2012, prior to the end of the one year period, Plaintiff voluntarily withdrew her claim. (Id.) The initial Complaint was filed in this action on July 10, 2012. (Doc. No. 22 at 12.) Thus, the instant action was filed prior to the expiration of the one year period when the PHRC would have exclusive jurisdiction. Since Plaintiff has failed to exhaust her administrative remedies under the PHRA, Count 1, alleging sex discrimination against both Defendants will be dismissed for failure to exhaust administrative remedies. b) Failure to Sufficiently Plead That Defendant DCCC Had Actual Knowledge [*20] of Sex Discrimination Count 1 will also be dismissed against Defendant DCCC because Plaintiff failed to plead sufficiently that DCCC had actual knowledge of the actions of Preston. Under both Title IX and the PHRA, a public entity can only be liable for damages where they are deliberately indifferent to sexual harassment. This requires that the public entity have actual knowledge of conduct that is so severe, pervasive, and objectively offensive that it deprived the victim of access to the educational opportunities or benefits of the school. Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999). It is not enough to allege that school officials "knew or should have known" of sexual harassment, but rather, one claiming such discrimination must establish actual knowledge on the part of school officials. Id. at 642; Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 292-93, 118 S. Ct. 1989, 141 L. Ed. 2d 277 (2006). Plaintiff alleges that "[DCCC's] agents, servants, and/or employees in supervisory capacities had constructive and/or actual knowledge that Defendant, Preston, was engaging in inappropriate sexual, harassing, and lewd willful misconduct towards Plaintiff and Defendant, [DCCC's] other female foreign students." [*21] (Doc. No. 17 at 21.) Plaintiff fails to plead, however, any facts to support this conclusory allegation. A review of the e-mails and Facebook messages attached to the Second Amended Complaint does not show that DCCC had knowledge of the harassing conduct. Plaintiff states that "Preston. . . made inappropriate yet ironic admissions that students at Defendant, DCCC complained to Defendant, DCCC Administrators about Defendant, Preston's conduct while as a professor. . . ." (Id.) Plaintiff then quotes an e- mail in which Preston stated that "[t]he main reason [the students] complained is I would not let them talk which was a direct result of [another professor] allowing students to have a free for all in class." (Id.) Contrary to the inferences Plaintiff wishes the Court to draw, this e- mail demonstrates that students complained to DCCC about Preston's classroom management, and not about sexual harassment. Plaintiff also alleges that DCCC had actual knowledge of the harassment because other students witnessed Preston's inappropriate comments. (Doc. No. 23 at 23; Doc. No. 17 at 15-16.) To support this allegation, Plaintiff cites various e-mails written by other students. (Doc. No. 23 at 23; [*22] Doc. No. 17 at 15-16.) None of these writings indicate that students complained to DCCC about sexual harassment. While a court "must accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn from them . . . [w]e are not, however, required to accept as true unsupported conclusions and unwarranted inferences." Schuylkill Energy Res., Inc. v. Pa. Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997). Nor is a court required to accept "a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986). Here, the inference that DCCC had actual knowledge of harassment by Preston is not warranted by the facts pled. The e-mails do not show that DCCC had knowledge of Preston's illicit conduct or that DCCC was aware of the e-mails sent by Preston from his personal e-mail account. For this additional reason, Count 1 will be dismissed as to DCCC. 2. Count 2: Sex Discrimination under Title IX In Count 2, Plaintiff alleges that DCCC and its 2013 U.S. Dist. LEXIS 73054, *18 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 46 of 175 Page 7 of 13 administrators or supervisors "had actual and/or constructive notice that Defendant, Preston[,] was engaging in inappropriate sexual, harassing and lewd willful misconduct towards Plaintiff [*23] and other female foreign students of Defendant, DCCC," in violation of Title IX. (Doc. No. 17 at 26.) As noted previously, Title IX provides that "[n]o person in the United States shall on the basis of sex be excluded from participation in, be denied the benefits of, or be subject to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681. Plaintiff further avers that Preston is liable for his actions in violation of Title IX. (Doc. No. 17 at 26.) a) As to Defendant DCCC The Third Circuit has held that a school district cannot be found liable under Title IX unless notice has been provided to an "appropriate person." Bostic v. Smyrna School Dist., 418 F.3d 355, 360 (3d Cir. 2005). An "appropriate person" is defined as someone "with the power to take action to correct the discrimination." Id. As noted supra, [*24] Plaintiff does not assert that she or other students complained to any school official about Preston's harassment. Thus, Plaintiff has failed to plead sufficient facts to demonstrate that DCCC had actual notice of Preston's harassing conduct. As such, Count 2 alleging sex discrimination under Title IX against DCCC will be dismissed. b) As to Defendant Preston With regard to Preston, a plaintiff cannot maintain a Title IX action against an individual. Rather, such actions may only be brought against educational institutions. Nelson v. Temple Univ., 920 F. Supp. 633, 638 (E.D. Pa. 1996) (holding that a Title IX action cannot be brought against an individual because only remedies against "private or public entities" are mentioned in Title IX). Thus, Count 2 alleging sex discrimination under Title IX against Defendant Preston will be dismissed. 3. Count 3: Sex Discrimination in Violation of the Equal Protection Clause of the 14th Amendment alleged under § 1983 In Count 3, Plaintiff claims her Fourteenth Amendment right to equal protection, filed pursuant to 42 U.S.C. § 1983, was violated.13 (Id. at 32.) 13 Section 1983 does not create an independent cause of a) As to Defendant DCCC Regarding DCCC, Count 3 will be dismissed because it was filed in violation of the two year statute of limitations, as discussed above. b) As to Defendant Preston To establish a § 1983 claim, Plaintiff must "demonstrate a violation of a right protected by the Constitution . . . that was committed by a person acting under the color of state law." Hiester v. Fischer, 113 F. Supp. 2d 742, 746 (E.D. Pa. 2000) (quotations and citations omitted). Defendant Preston was only a state actor for purposes of a violation of the equal protection clause when he was an employee of DCCC, a state entity. Plaintiff's Title IX claim against Preston alleging that he was a state actor is barred by the two year statute of limitations, which began when he was terminated [*26] on March 22, 2010. (Doc. No. 3 at 3.) After that date, he was no longer a state actor. Since the original Complaint was filed on July 12, 2010, Count 3 against Preston will be dismissed because it was filed in violation of the two year statute of limitations. 4. Count 4: Hostile Environment under Pennsylvania Common Law, Title IX, and the PHRA as to Defendants DCCC and Preston In Count 4, Plaintiff alleges a hostile environment was created by the failure of DCCC to properly train its administrators to prevent sexual harassment from occurring at DCCC. (Doc. No. 17 at 37-38.) Plaintiff further alleges that Preston is "jointly and severally liable" for the hostile work environment. (Id. at 38.) Plaintiff bases her claim on the Pennsylvania Common Law, Title IX, and the PHRA. First, a "hostile environment" claim does not appear to be a cognizable cause of action under Pennsylvania common law. Plaintiff has failed to provide Pennsylvania case law addressing a hostile environment claim under the common law, and the Court could not locate any such cases. It is apparent that hostile environment claims are properly brought under the PHRA or Title IX. action. It provides a means to redress [*25] alleged violations of rights secured by the Constitution and laws of the United States. Halstead v. Motorcycle Safety Found. Inc., 71 F. Supp. 2d 464, 472 (E.D. Pa. 1999) ("Section 1983 does not create a cause of action in and of itself; rather it provides redress for certain violations of rights arising under the federal constitution or laws of the United States which are caused by persons acting under color of state law."). 2013 U.S. Dist. LEXIS 73054, *22 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 47 of 175 Page 8 of 13 Therefore, Plaintiff's claim against both named [*27] Defendants for creating a hostile work environment in violation of Pennsylvania common law will be dismissed. To the extent the claim is brought under Title IX, this Court has already addressed this claim in the discussion above on Count 2. The claim is being dismissed because Plaintiff failed to plead facts showing that DCCC had actual knowledge of Preston's alleged harassing actions. Moreover, Title IX action cannot be maintained against an individual, and therefore Count 4 against Preston will be dismissed. See Nelson, 920 F. Supp. at 638. To the extent Plaintiff is also asserting a hostile environment claim in violation of the PHRA, it too will be dismissed against both Defendants for failure to exhaust administrative remedies, as discussed above. 5. Count 5: Vicarious Liability, Respondeat Superior as to Defendants DCCC and Preston Count 5 of the Second Amended Complaint alleges a cause of action for Vicarious Liability/Respondeat Superior under Pennsylvania law. Respondeat Superior is not a separate cause of action, but rather a method to impute liability to a principal for the actions of an agent. See e.g., Care v. Reading Hosp. & Med. Ctr., No. 2003- CV-04121, 2004 U.S. Dist. LEXIS 5485, 2004 WL 728532, at *12 (E.D. Pa. Mar. 31, 2004) [*28] ("[R]espondeat superior does not constitute a separate cause of action . . . ."). In the instant case, Plaintiff has alleged respondeat superior as a separate cause of action. Because respondeat superior is not a separate cause of action, Count 5 will be dismissed against both Defendants. 6. Count 6: Breach of Fiduciary Duty In Count 6, Plaintiff claims that both DCCC and Preston owed her a fiduciary duty. (Doc. No. 17 at 43.) Plaintiff alleges that DCCC owed Plaintiff a fiduciary duty when she enrolled as a student and breached its duty by failing to create an environment in which she could pursue an education free from sexual harassment. (Id. at 44.) Plaintiff also avers that Preston breached his fiduciary duty as a professor by harassing her as noted above. (Id. at 43.) As more fully explained below, Count 6 against both Defendants will be dismissed. a) Existence of a Fiduciary Duty A fiduciary relationship arises when a person has a duty to act for or give advice for the benefit of another person on matters within the scope of their relationship. Restatement (Second) of Torts, § 874 cmt. a (1979). Under Pennsylvania law, "[a fiduciary] relationship exists where one person has reposed [*29] a special confidence in another to the extent that the parties do not deal with each other on equal terms, either because of an overmastering dominance on one side or weakness, dependence or justifiable trust, on the other." Commw. Dept. of Transp. v. E-Z Parks, Inc., 153 Pa. Commw. 258, 620 A.2d 712, 717 (Pa. Commw. Ct. 1993). In Pennsylvania, to state a claim for breach of fiduciary duty, a plaintiff must allege that: "(1) the defendant acted negligently or intentionally failed to act in good faith and solely for the benefit of the plaintiff in all matters for which he or she was employed; (2) that the plaintiff suffered injury; and (3) that the agent's failure to act solely for the plaintiff's benefit . . . was a real factor in bringing about plaintiff's injuries." McDermott v. Party City Corp., 11 F. Supp. 2d 612, 626 n.18 (E.D. Pa. 1998). In Manning v. Temple University, the court described the law in Pennsylvania on the existence of a fiduciary relationship between a professor and student: Pennsylvania law holds that a per se fiduciary relationship exists between trustee and beneficiary, guardian and ward, attorney and client, and principal and agent. It also recognizes that the facts and circumstances [*30] in other situations may give rise to such a relationship. However, the parties have not called to our attention any Pennsylvania case which has ruled that a graduate school or its professors owe any fiduciary duties to graduate students. No. 03-4012, 2004 U.S. Dist. LEXIS 26129, 2004 WL 3019230, at *10 (E.D. Pa. Dec. 30, 2004), aff'd, 157 F. App'x. 509 (3d Cir. 2005). In a more recent decision discussing Manning, a court held "that university personnel do not owe a fiduciary duty to students under Pennsylvania law." Vurimindi v. Fuqua Sch. of Bus., No. 10-234, 2010 U.S. Dist. LEXIS 88094, 2010 WL 3419568, at *7 (E.D. Pa. Aug. 25, 2010) (quoting explanatory parenthetical following citation to Manning). In yet another decision, a court held, however, that a special education teacher owed a fiduciary duty to his autistic minor student because he was in an overmastering position. Vicky M. v. Ne. Educ. Intermediate Unit, 486 F. Supp. 2d 437, 459 (M.D. Pa. 2013 U.S. Dist. LEXIS 73054, *25 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 48 of 175 Page 9 of 13 2007). i. As to Defendant Preston As Plaintiff's professor, Preston was responsible for preparing her for the TOEFL examination. She assumed Preston would help her learn the English language at a level that would allow her to pass the TOEFL. DCCC hired Preston to teach the TOEFL class, and Plaintiff [*31] justifiably relied on Preston to help her prepare for the TOEFL. In this situation, it is possible that a fiduciary relationship existed between Preston and Plaintiff. Assuming arguendo that such a relationship existed, this duty ended when Plaintiff completed the TOEFL class in August 2008. Since the initial Complaint was filed on July 10, 2012, even if the fiduciary claim was a viable one, it is barred by Pennsylvania's two year statute of limitations. ii. As to Defendant DCCC To date, Pennsylvania courts have not spoken on the issue of whether a college owes a fiduciary duty to its enrolled students. DCCC has cited two cases outside Pennsylvania holding that a fiduciary relationship does not exist between a student and a university. See Morris v. Brandeis Univ., No. CA002161, 2001 Mass. Super. LEXIS 518, 2001 WL 1470357, at *6 (Mass. Super. Ct. Sep. 4, 2001) (the relationship between students and universities is contractual rather than fiduciary); Zumbrun v. Univ. of S. Cal., 25 Cal. App. 3d 1, 13, 101 Cal. Rptr. 499 (1972) (same). Neither case dealt with a teacher sexually harassing a student. On the other hand, Plaintiff cites a New Hampshire case in which a fiduciary relationship was found to exist between a student and a public [*32] university. See Schneider v. Plymouth State DCCC, 144 N.H. 458, 744 A.2d 101, 105-06 (N.H. 1999). In Schneider, the court stated that "[i]n the context of sexual harassment by faculty members, the relationship between a post- secondary institution and its students is a fiduciary one." Id. at 105. The court reasoned that, "the power differential between faculty and students . . . makes it difficult for [students] to refuse unwelcome advances and also provides the basis for negative sanctions against those who do refuse." Id. (citing Bogart & Stein, Breaking the Silence: Sexual Harassment in Education, 64 Peabody J. Educ. 146, 157 (1987); cf. M. Paludi, Sexual Harassment on College Campuses: Abusing the Ivory Power 85-87 (1990) (discussing student-professor power differential and role in sexual harassment)). In Schneider, the court concluded: When the plaintiff enrolled at [the college], she became dependent on the defendants for her education, thereby requiring them "to act in good faith and with due regard" for her interests. Lash, 124 N.H. at 439, 474 A.2d at 982. The relationship between students and those that teach them is built on a professional relationship of trust and deference, rarely seen [*33] outside the academic community. As a result, we conclude that this relationship gives rise to a fiduciary duty on behalf of the defendants to create an environment in which the plaintiff could pursue her education free from sexual harassment by faculty members. 744 A.2d at 105-106. Courts have disagreed with the holding in Schneider. See Valente v. Univ. of Dayton, 438 F. App'x. 381, 387 (6th Cir. 2011) (discussing Schneider and finding that under Ohio law, no fiduciary relationship exists between a university and its students); Leary v. Wesleyan Univ., No. CV055003943, 2009 Conn. Super. LEXIS 621, 2009 WL 865679, at *12 (Conn. Super. Ct. Mar. 10, 2009) (declining to find a fiduciary relationship between a university and student who complained to school safety officers of a panic attack and later committed suicide). Although courts have reached different results about the existence of a fiduciary duty to an enrolled student by a university, and this issue is unresolved in Pennsylvania, this Court need not decide if a fiduciary duty exists because, as with the claim against Preston, the alleged breach of such duty is time-barred under the statute of limitations. Moreover, DCCC has immunity on this claim under the [*34] Political Subdivision Tort Claims Act, as discussed below. b) Immunity Under the Tort Claims Act as to Defendant DCCC The Political Subdivision Tort Claims Act (the "Tort Claims Act") provides that: Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by an act of the local agency or an employee thereof or any other person. 42 Pa. Cons. Stat. § 8541. A community college is a local agency covered by governmental immunity under the Tort Claims Act. Cmty. Coll. of Allegheny Cnty. v. Seibert, 144 Pa. Commw. 616, 601 A.2d 1348, 1352 2013 U.S. Dist. LEXIS 73054, *30 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 49 of 175 Page 10 of 13 (Pa. Commw. Ct. 1992), aff'd, 533 Pa. 314, 622 A.2d 285 (Pa. 1993). Under this Act, for Plaintiff to hold DCCC liable in tort, Plaintiff must show that her injury was caused by the negligent acts of DCCC or its employee acting within the scope of their office or duties, and that the negligent acts fall within one of eight exceptions to immunity found in 42 Pa. Cons. Stat. § 8542(b). See Mascaro v. Youth Study Ctr., 514 Pa. 351, 523 A.2d 1118, 1120 (Pa. 1987). The exceptions are: (1) the operation of a motor vehicle; (2) the care, custody or control of personal property; (3) the care, custody or control of real [*35] property; (4) a dangerous condition of trees, traffic signs, or other traffic controls; (5) a dangerous condition of utility service facility; (6) a dangerous condition of streets; (7) a dangerous condition of sidewalks; and (8) the care, custody or control of certain animals. 42 Pa. Cons. Stat. § 8542(b). In this case, none of the acts of Preston that Plaintiff attempts to impute to DCCC fall within the eight exceptions to immunity under the Tort Claims Act. Rather, Plaintiff avers that DCCC violated a fiduciary duty by failing to provide an environment where Plaintiff could pursue an education free of sexual harassment. Since this alleged violation is not within the eight enumerated exceptions, the Tort Claims Act bars suit in this case against DCCC on the theory of breach of a fiduciary duty. See e.g., Sewickley Twp. Volunteer Fire Co. No. 3 v. First Nat'l Bank, 8 Pa. D. & C.4th 297 (Pa. Ct. Com. Pl. 1990) (dismissing a fiduciary duty claim because it did not fall within the enumerated exceptions); Vicky M. v. Ne. Educ. Intermediate Unit 19, 486 F. Supp. 2d 437, 459-60 (M.D. Pa. 2007) (same). Accordingly, since DCCC has immunity under the Tort Claims Act, the claim made in Count 6 [*36] against DCCC will be dismissed. 7. Count 7: Negligent Hiring and Supervision a) As to Defendant DCCC In Count 7, Plaintiff alleges that DCCC is responsible for the "negligent and careless hiring, retention, or lack of supervision" of Preston, and that Preston is jointly and severally liable for his own negligent hiring. (Doc. No. 17 at 50-51.) Count 7 against DCCC will be dismissed because DCCC has immunity under the Political Subdivision Tort Claims Act, as discussed above. See e.g., Joyner v. Sch. Dist. of Phila., 313 F. Supp. 2d 495 (E.D. Pa. 2004) (dismissing negligent hiring action because it did not fall within the enumerated exception); Erb v. Greenmount Comm. Fire Co., Inc., 63 Pa. D. & C.4th 353 (Pa. Ct. Com. Pl. 2003); and Moles v. Borough of Norristown, 780 A.2d 787 (Pa. Commw. Ct. 2001) (same). Even though DCCC is cloaked with immunity under the Act, a review of the claim made in Count 7 on the merits would produce the same result. Under Pennsylvania law, an employer is subject to liability for harm resulting from its conduct if it is negligent or reckless "in the employment of improper persons or instrumentalities in work involving risk of harm to others; . . . in the supervision [*37] of activity; or . . . in permitting, or failure to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control." Doe v. Schneider, 667 F. Supp. 2d 524, 531 (E.D. Pa. 2009) (citing R.A. ex rel. N.A. v. First Church of Christ, 2000 PA Super 58, 748 A.2d 692, 697 (Pa. Super. Ct. 2000)). Furthermore, an employer may be liable for negligent supervision of an employee where: the employer fails to exercise ordinary care to prevent an intentional harm to a third-party which 1) is committed on the employer's premises by an employee acting outside the scope of his employment and 2) is reasonably foreseeable. Mullen v. Topper's Salon and Health Spa, Inc., 99 F. Supp. 2d 553, 556 (E.D. Pa. 2000) (citing Dempsey v. Walso Bureau, 431 Pa. 562, 246 A.2d 418, 419-22 (Pa. 1968)). Once an employee informs an employer of harassment by another employee, the persistence of that harm becomes reasonably foreseeable. Id. at 556-57 (citing Mandy v. Minn. Mining and Mfg., 940 F. Supp. 1463, 1471 (D. Minn. 1996) (stating that under the Restatement (Second) of Torts § 317, after it was reported, continued harassment of plaintiff was foreseeable, and defendant [*38] had duty to protect against it)). In Mullen, the court found that because the plaintiff pled that she informed her employer about alleged harassment, that harassment was reasonably foreseeable. Id. at 557. The court held that the plaintiff sufficiently pled facts to survive a motion to dismiss. Id. at 557. Here, Plaintiff has failed to plead any facts indicating that she, or any other student, complained about Preston's actions to an appropriate administrator. Plaintiff's lone allegation in the Second Amended 2013 U.S. Dist. LEXIS 73054, *34 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 50 of 175 Page 11 of 13 Complaint that DCCC had knowledge of any misconduct by Preston is that Preston allegedly admitted that students complained about him. (Doc. No. 17 at 12-13.) However, a review of the e-mails from students cited in support of this allegation shows that the complaints related to Preston's classroom management, such as Preston prohibiting the students from talking to each other during class. Id. There is no indication that the complaints were related to sexual harassment or discrimination, or that any of the complaints were made by, or referenced, Plaintiff. Thus, despite filing a Second Amended Complaint, Plaintiff has failed to plead facts satisfying the "reasonably foreseeable" [*39] element of a negligent supervision claim. Therefore, Count 7 against DCCC will be dismissed. b) As to Defendant Preston To the extent Plaintiff is bringing a negligent supervision claim against Preston, there are no allegations in the Second Amended Complaint that Preston at any time hired or supervised anyone employed by Preston or DCCC who engaged in offensive conduct. Thus, Count 7 will be dismissed as to Preston. 8. Count 8: Breach of Contract under Common Law a) As to Defendant DCCC Plaintiff alleges in Count 8 that DCCC breached a contract with her as found in DCCC's Nondiscrimination and Harassment/Sexual Harassment Policy (the "Harassment Policy"). (Doc. No. 17 at 56.) Plaintiff claims that the Harassment Policy constitutes part of an implied contract that came into effect when Plaintiff enrolled at DCCC. (Id. at 55-56.) Plaintiff further avers that terms of the implied contract were contained in "DCCC's college catalogs, bulletins, circulars, and regulations made available to Plaintiff . . . ." (Id.) Plaintiff argues that under the implied contract, she agreed to pay tuition and complete educational course requirements, and in turn, DCCC would grant her an associate's degree. (Id. at 55.) [*40] She next alleges that DCCC violated the Harassment Policy, and thereby breached the terms of the implied contract, by not providing a learning environment free from discrimination and not encouraging faculty or students to "bring questions about sexual harassment or discrimination to the attention of [Defendant DCCC]." (Id. at 56-57.) To sustain a claim for breach of contract, a plaintiff must prove: "(1) the existence of a contract, including its essential terms; (2) a breach of a duty imposed by the contract; and (3) resultant damages." CoreStates Bank, Nat'l Ass'n v. Cutillo, 1999 PA Super 14, 723 A.2d 1053, 1058 (Pa. Super. Ct. 1999). DCCC cites Manning v. Temple University for the proposition that courts do not hold student handbooks to be contracts. 2004 U.S. Dist. LEXIS 26129, 2004 WL 3019230 at *12. In Manning, the student handbook in question stated that "[t]he rules, regulations, and information provided in this handbook are announcements only and in no way serve as a contract between the student and Temple University." Id. The court held that because the handbook specifically stated that it was not a contract, Plaintiff could not prove that a contract existed. Id. Here, there is no assertion by any party that the DCCC [*41] student handbook contains a provision similar to the handbook provision relied upon by the Plaintiff in Manning. In fact, one court in Pennsylvania has held that student catalogues, bulletins, circulars and regulations can become part of a contract: Our courts have been reluctant to recognize claims of educational malpractice in the academic environment but they have recognized that a contract exists between a student and a college. The courts have held that in general, the basic relationship between a student and a private university or college is contractual in nature. The catalogs, bulletins, circulars, and regulations of the institution made available to the matriculant become part of the contract. Questions of discipline, academic matters, and tuition and scholarship disputes have been addressed by courts and resolved on contract principles. At the same time, however, courts have been reluctant to apply strict contract concepts to the unique relationship that exists between students and universities or colleges. Barr v. Cmty. Coll. of Beaver Cnty., 968 A.2d 235, 238 (Pa. Cmmw. Ct. 2009) (emphasis in original). Plaintiff essentially bases her breach of contract claim on the Harassment [*42] Policy, which may fall under one or more of the categories of documents that can create a contact between a student and a school. Because Plaintiff has plausibly pled in Count 8 the existence of a contract, a breach by DCCC of a duty imposed by the contract and resultant damages, this Count will not be dismissed. b) As to Defendant Preston Plaintiff also brings an action for breach of contract 2013 U.S. Dist. LEXIS 73054, *38 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 51 of 175 Page 12 of 13 against Preston. There are no allegations in the Second Amended Complaint that Preston and Plaintiff entered into a contract at any time. Thus, Count 8 against Preston will be dismissed for failure to state a claim upon which relief can be granted. 9. Count 9: Intentional Infliction of Emotional Distress as to Defendants DCCC and Preston In Count 9, Plaintiff claims that Preston's harassing actions caused Plaintiff severe emotional distress. (Doc. No. 17 at 62-63.) Plaintiff further alleges that DCCC is jointly and severally liable for allowing the infliction of emotional distress on Plaintiff. (Id. at 63.) a) As to Defendant DCCC Plaintiff's claim against DCCC of Intentional Infliction of Emotional Distress ("IIED") will be dismissed because DCCC has immunity under the Political Subdivision Tort Claims [*43] Act, as discussed supra.14 In any event, a review of the merits of the claim made in Count 9 would not yield a different result. "For a plaintiff to recover on an intentional infliction of emotional distress claim, '[t]he conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.'" Imboden v. Chowns Commc'ns, 182 F. Supp. 2d 453 (E.D. Pa. 2002) (quoting Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988)). Here, Plaintiff alleges that Preston sexually harassed her and that DCCC allowed the harassment to occur. (Doc. No. 17 at 61.) However, even if these allegations were true, Imboden holds that such actions would not reach the level of IIED: [A]s a general rule, sexual harassment alone does not rise to the level of outrageousness necessary to make out a cause of action for intentional [*44] infliction of emotional distress. Andrews v. City of Phila., 895 F.2d 1469, 1487 (3d Cir. 1990). The extra factor that is generally required is retaliation for turning down sexual propositions. 14 Courts in this district have previously dismissed IIED claims under the Tort Claims Act. See e,g., Lakits v. York, 258 F. Supp. 2d 401 (E.D. Pa. 2003); Thompson v. Wynnewood of Lower Merion Twp., No. 12-2308, 2012 U.S. Dist. LEXIS 130742, 2012 WL 4033706 (E.D. Pa. Sept. 13, 2012) (Slomsky, J.). Offensive comments and gestures in the workplace, even though sexually explicit, are not enough to satisfy the Andrews extra requirement of sexual propositions. Andrews requires that a Plaintiff allege retaliation based on a rejection of sexual advances or propositions. Imboden, 182 F. Supp. 2d at 458. Thus, DCCC is only responsible for Preston's alleged harassment if it is found responsible for Preston's conduct and that his conduct rose to the level of outrageousness. Plaintiff has not alleged retaliation by DCCC or Preston based on a rejection of sexual advances or propositions. Therefore, Plaintiff's IIED claim against DCCC will be dismissed for failure to state a claim upon which relief can be granted. b) As to Defendant Preston For the same reasons as those discussed above with respect to the merits of Count 9, Plaintiff's IIED claim against Preston will be dismissed for failure to state a claim upon which relief can be granted. C. Remand Pursuant to 28 U.S.C. § 1331, this Court "shall have [*45] original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." On August 10, 2012, this case was removed from the Court of Common Pleas of Delaware County under federal question jurisdiction. (Doc. No. 1.) Counts 2, 3, and 4 were the basis of federal jurisdiction. These Counts will now be dismissed for the reasons set forth above. The only claim which remains in this case is Count 8, a state law breach of contract claim against DCCC. Pursuant to 28 U.S.C. § 1367(c)(3), "district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction." Here, the Court declines to exercise supplemental jurisdiction over the remaining state law breach of contract claim. Accordingly, this case will be remanded to the Court of Common Pleas of Delaware County for further adjudication on this claim. V. CONCLUSION For the above stated reasons, DCCC's Motion to Dismiss the Second Amended Complaint will be granted in part and denied in part, and Preston's Motion to Dismiss the Second Amended Complaint will be granted 2013 U.S. Dist. LEXIS 73054, *42 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 52 of 175 Page 13 of 13 in its entirety. The remaining [*46] claim of breach of contract against DCCC in Count 8 will be remanded to state court. An appropriate Order follows. ORDER AND NOW, this 23rd day of May 2013, upon consideration of John Preston's Motion to Dismiss for Failure to State a Claim (Doc. No. 19), Delaware County Community College's Motion to Dismiss for Failure to State a Claim (Doc. Nos. 21, 22), Plaintiff's Response in Opposition to Delaware County Community College's Motion to Dismiss for Failure to State a Claim (Doc. No. 23), Plaintiff's Response in Opposition to John Preston's Motion to Dismiss for Failure to State a Claim (Doc. No. 24), and Delaware County Community College's Reply to Plaintiff's Response in Opposition to Delaware County Community College's Motion to Dismiss for Failure to State a Claim (Doc. No. 25), and in accordance with the Opinion of the Court issued this day, it is ORDERED that: 1. Defendant Delaware County Community College's Motion to Dismiss (Doc. Nos. 21 and 22) is GRANTED IN PART AND DENIED IN PART. The Motion to Dismiss is GRANTED on Counts 1, 2, 3, 4, 5, 6, 7, and 9. The Motion to Dismiss is DENIED on Count 8. 2. Defendant Preston's Motion to Dismiss for Failure to State a Claim (Doc. No. 19) [*47] is GRANTED in its entirety. 3. Defendant John Preston is dismissed as a party in this action. 4. This case shall be remanded to the Court of Common Pleas of Delaware County. BY THE COURT: /s/ Joel H. Slomsky JOEL H. SLOMSKY, J. End of Document 2013 U.S. Dist. LEXIS 73054, *45 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 53 of 175 Neutral As of: April 3, 2017 4:48 PM Z Goldsmith v. CBS Tv Broad., Pittsburgh, Inc. United States District Court for the Western District of Pennsylvania March 26, 2015, Decided; March 26, 2015, Filed Civil Action No. 2:13-cv-00478 Reporter 2015 U.S. Dist. LEXIS 38506 *; 2015 WL 1411944 K. GOLDSMITH, Plaintiff, v. CBS TV BROADCASTING, PITTSBURGH, INC., et al., Defendants. Prior History: In re Goldsmith, 2012 Bankr. LEXIS 3585 (Bankr. W.D. Pa., Aug. 2, 2012) Core Terms accommodation, eviction, disability, hoarding, assertions, dismissal with prejudice, alleged conspiracy, state law claim, apartment, conspiracy, television, hoarder, supplemental jurisdiction, broadcast, landlord, rights, amend, allegations, handicapped, plausibly, mansion Counsel: [*1] K. GOLDSMITH, Plaintiff: Ken Goldsmith, Pittsburgh, PA. For MARTY GRIFFIN, KDKA TV, Individually, and acting under color of state law, CBS CORPORATION, STACY SMITH, KDKA TV, KEN RICE, KDKA TV, KDKA RADIO, CBS BROADCASTING PITTSBURGH, trading and doing business as KDKA TV, Defendants: Carolyn Batz McGee, Eckert Seamans Cherin & Mellott, LLC, Pittsburgh, PA; Daniel B. McLane, John R. McGinley, Eckert, Seamans, Cherin & Mellott, Pittsburgh, PA. For SERGEANT DEPUTY RICHARD F. FERSCH, Individually and in his Official Capacity, Defendant: Lisa G. Michel, LEAD ATTORNEY, Allegheny County Sheriff's Office, Pittsburgh, PA. For THE ALLEGHENY COUNTY DEPARTMENT OF HEALTH, SUPERVISOR RICHARD CHONGAWAY, Individually and in his Official Capacity, SOCIAL WORKER GINNI LEARY, Individually and in her Official Capacity, Defendants: Henry Miller, III, LEAD ATTORNEY, Melinda Sala, Allegheny County Health Department, Pittsburgh, PA. Judges: Mark R. Hornak, United States District Judge. Opinion by: Mark R. Hornak Opinion MEMORANDUM OPINION Mark R. Hornak, United States District Judge Plaintiff Kenneth Goldsmith is no stranger to the Court system1 and he has employed the processes of this Court, and the United States Bankruptcy Court2 in a seemingly [*2] endless campaign against his former landlord, Ms. Constance Lampenfeld Lucey ("Lucey"), various others that are seemingly family and business relations of hers, and now, a local television station and certain of its personnel. He was permitted by this Court to file this action in forma pauperis, and the Court has already once entered a Memorandum Opinion discharging its statutory obligation to consider whether such an IFP Complaint can pass pleading muster under even the most permissive of standards. ECF No. 2. Now before the Court is an Amended Complaint, ECF No. 29, that this Court permitted Mr. Goldsmith to file when it concluded that it was duty bound under applicable Third Circuit law to permit him yet another try at stating his case after rejecting his first Complaint. Further, he has now also filed several complexly- labelled motions that, boiled down to their substance, are requests that the United States Marshal, at government expense, execute service of process on his behalf, along with a motion to permit yet another 1 See 11-cv-747, 12-cv-517, 12-cv-589, 12-CV-684, 12-cv- 1315, and 14-cv-789. 2 See 12-bk-21157. Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 54 of 175 Page 2 of 7 amendment of his pro se Complaint.3 ECF No. 72. For the reasons that follow, most (but not all) of Mr. Goldsmith's claims will be dismissed with prejudice. Moreover, the Court will order that the Marshal make service of the Documents at ECF Nos. 29, 71 and 72 in this civil action upon the then-remaining Defendants. I. BACKGROUND The Court has addressed the core of Plaintiff's disputes in previous Memorandum Opinions, ECF No. 2, and ECF Nos. 2, 4 in 12-cv-684, and they will not be set out further except as specifically necessary for these purposes. Mr. Goldsmith now claims that he is a hoarder. Apparently in response to the accumulation of large volumes of personal possessions in his apartment, and his use of the living quarters of that apartment as a repository of all sorts of personal property, and waste, including human waste, he was evicted by Lucey. Fie has apparently challenged that action in the Pennsylvania state courts, and repeatedly in the Bankruptcy Court, all to no avail. He has sought, and received, an emergency hearing from this Court in response to his assertions of its necessity, with the Court concluding upon [*4] subsequent hearings in open court that such efforts were simply yet another attack by him on his forced removal from a litter-strewn apartment. Now, because it appears that there was a news story on KDKA television about his eviction, he claims a number of violations of federally-protected rights, along with state-law torts, by Lucey, various others he claims were associated with her, representatives of the Allegheny County Sheriff's Office (including the now-deceased Deputy in charge of the Real Estate Division of that office), the Allegheny County Health Department, and a number of employees of KDKA-TV along with its corporate owners. He also seeks to sue several people who appear to have no readily discernible connection to any of these matters. II. STANDARD OF REVIEW This Court has the duty under 28 U.S.C. §§ 1915(e)(2) and 1915A4 to consider, again, whether his now 3 To be safe, the Court [*3] has also considered the contents of that request, and its attachments, in making the rulings contained herein. 4 This provision is applicable due to Plaintiff's claims against Amended Complaint, and even his latest proposed amendment, state claims for relief under federal law, and to permit the claims that do to proceed here, and to dismiss all others.5 In the past, this Court has explained that the legal standard for dismissing a complaint for failure to state a claim pursuant to § 1915(e)(2)(B)(ii) or § 1915A (b)(1) is identical to the legal standard [*5] used when ruling on a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Detar v. U.S. Gov't, No. 13-1499, 2014 U.S. Dist. LEXIS 15426, 2014 WL 517715, at *2-3 (W.D. Pa. Feb. 7, 2014) (setting forth in detail the requirements of 28 U.S.C. §§ 1915). But before dismissing a complaint or claims for failure to state a claim upon which relief may be granted pursuant to the screening provisions of 28 U.S.C. §§ 1915 and 1915A, a court must grant the plaintiff leave to amend his complaint, unless amendment would be inequitable or futile. Id. (citing Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002)). While a court must employ less stringent standards when considering pro se pleadings than when judging the work product of an attorney, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. Detar, 2014 U.S. Dist. LEXIS 15426, 2014 WL 517715, at *2-3. At this point, the Court concludes that Mr. Goldsmith has received all of the opportunities that law of this Circuit [*6] provides or requires for amendatory activity, Grayson, 293 F.3d at 109-10, 114 nn. 10-11, so that line will be drawn here, and now. No more amendments, absent the showing of good cause based on newly discovered (and previously undiscoverable) evidence or a change in the intervening law by the Congress, the United States Supreme Court, or our Court of Appeals. The Court will now proceed with its analysis in that vein. III. DISCUSSION A. Conspiracy If there is a federal claim involved in this case at all, it must arise under a federal statute or the Constitution. one or more government officials. 5 Subject matter jurisdiction is a big deal in this case. Except perhaps as to KDKA-TV's owner, CBS, there is no diversity jurisdiction, 28 U.S.C. § 1332, revealed in Plaintiff's pleadings. As to all other Defendants, federal jurisdiction can exist only if there is federal question jurisdiction, 28 U.S.C. §§ 1331, 1337, or an appropriate basis to assert supplemental jurisdiction under 28 U.S.C. § 1367. 2015 U.S. Dist. LEXIS 38506, *2 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 55 of 175 Page 3 of 7 The only transaction or occurrence that can plausibly support any such Constitutional claim is that there was some sort of conspiracy between Lucey, the County Sheriff's office, and a supervisor from the County Health Department that was allegedly present at the eviction, to allow a KDKA reporter/videographer to enter Mr. Goldsmith's apartment "under color of state law" when the Sheriff evicted him. Hanlon v. Berger, 526 U.S. 808, 119 S. Ct. 1706, 143 L. Ed. 2d 978 (1999); Wilson v. Layne, 526 U.S. 603, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999). As to Lucey, Plaintiff now seems to assert6 that she pre- arranged with the Sheriff's Office, the Health Department Supervisor (Chongaway) and KDKA-TV for a KDKA-TV reporter (Griffin) and videographer (Lawson) to be present and to participate in the eviction by the [*7] Sheriff at Mr. Goldsmith's apartment. That could plausibly state a claim for a violation of his Constitutional rights by the Sheriff, and by those that had conspired with the Sheriff. The Court will deem the Complaint amended as to Deputy Richard Shim, another Defendant, based on ECF Nos. 72 and 74, on the basis of Plaintiff's very loose assertions that Deputy Shim has now been identified by Mr. Goldsmith as a Deputy actually involved in the eviction and by extension, the alleged conspiracy. That is enough, just barely, to state a plausible claim. Because the asserted state law claims for invasion of privacy against them arise from the same nucleus of operative fact, that too may proceed to the next step. B. Claims to be Dismissed with Prejudice Mr. Goldsmith names several parties that appear to have no connection to any claim his Amended [*8] Complaint can be construed to plausibly make. These parties and the claims against them will, as explained in the following paragraphs, be dismissed with prejudice. Mr. Goldsmith also makes vague relationship allegations against Ms. Lucey's mother and father, Robert and Margaret Lampenfeld, without in any way tying them into the publicized eviction activities or any plan to carry it out. Robert and Margaret Lampenfeld will therefore be dismissed from the action, with prejudice, 6 This Court previously dismissed this action, with prejudice, as to Ms. Lucey, ECF No. 2, because Plaintiff's assertions against her offered no support for a claim, nor any plausible hope that such could be found after an amendment. As noted below, as to certain claims now asserted as to her, Plaintiff has crossed the plausibility threshold, but only barely. as will all claims against them.7 Mr. Goldsmith next makes similar vague and factually unsupported claims against Jonathan and Virginia Rhoads as the managers of the apartment building, but again he makes no connection between them and the eviction and publicity about it, plausible or otherwise. They, too, will be dismissed from the action with prejudice, as will all claims against them. Mr. Goldsmith also asserts that [*9] one David Tkacik, a lawyer, is a Defendant, but makes no specific allegations of a legally or factually supported claim against him, asserting only that he was Lucey's lawyer. He in no way ties him into any alleged publicity/eviction conspiracy, and he too, will be dismissed from the case with prejudice, as will all claims against him. Plaintiff has also sued an Allegheny County Health Department social worker, Ginni Leary, but never says what she personally did that was illegal or violative of his federal or state law rights and certainly does not tie her into any alleged conspiracy to violate his Constitutional rights, so she too will be dismissed from the action with prejudice, as will all claims against her. Plaintiff has also sued two news anchors for KDKA-TV, Messrs. Stacy Smith and Ken Rice, but does not tie them into any alleged conspiracy to allegedly "invade" his apartment in any way, other than their being part of the television broadcast(s) as anchors (back at the television studio) of a news story about his eviction. He states no plausible claim against either of them, and they too will be dismissed from the action with prejudice, as will all claims against them. As to the [*10] governmental Defendants, Plaintiff sues the Allegheny County Health Department (and its employees Richard Chongaway and Ginni Leary), but does not tie that unit of Allegheny County government (or its employee Leary) into the alleged conspiracy other than by general averments as to actions by Chongaway and even less so, Leary, ECF No. 29 at 13, nor into the state law claims which are based on the broadcast by KDKA-TV of the condition of his apartment and his eviction. That Department will therefore be dismissed from the action with prejudice, as will Leary, as will all 7 Given that Plaintiff has been given leave to amend his initial Complaint, and he has done so (and has proffered yet another amendment which has been considered by the Court), the Court believes that it has more than fulfilled the "leave to amend" rule set forth by our Courts of Appeals in Grayson. 2015 U.S. Dist. LEXIS 38506, *6 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 56 of 175 Page 4 of 7 claims against them.8 Plaintiff also sues Richard Fersch, a Deputy of the Sheriff's Office. Richard Fersch is, as Mr. Goldsmith concedes, dead, and all claims against him will be therefore dismissed, with prejudice.9 As to the Allegheny County Sheriff's Office itself, the papers filed by the Plaintiff are utterly devoid of any sufficient or plausible allegations that any of the federal claims that Plaintiff asserts are the fruit of a custom, policy or practice of that unit of local government sufficient to allow those assertions to go forward. Respondeat superior is not a basis for constitutional liability of such a government unit actionable under 42 U.S.C. § 1983. Fagan v. City of Vineland, 22 F.3d 1283, 1291 (3d Cir. 1994) ("There is no respondeat superior liability under section 1983."). Vague generalities and baseless aspirations are not the standard by which even liberally-construed federal pro se pleadings are to be judged, and all such claims will therefore be dismissed with prejudice. Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002). It, and all claims against it, will be dismissed with prejudice from the case. C. Hoarding As to the balance of Plaintiff's federal statutory claims, a review of the Amended Complaint reveals that Plaintiff has (vaguely) alleged violations of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"), and the Fair Housing Amendments Act ("FHA"). Plaintiff has sued his landlord, Lucey, under the Americans [*12] with Disabilities Act ("ADA"), now asserting for the first time that he (Goldsmith) is a hoarder,10 that he is 8 Plaintiff cannot, of course, invoke respondeat superior as a basis of liability against the County based on the actions of Chongaway. As to Chongaway, he pleads that Chongaway was present at the eviction and participated in its television broadcast. ECF No. 29 at 22. 9 Mr. Goldsmith also sues Deputy Richard Shim. As already explained, the Court will deem the Complaint amended as to Deputy Shim based on ECF Nos. [*11] 72 and 74. The Plaintiff has asserted that Deputy Shim was the Deputy actually involved in the eviction and the alleged conspiracy. 10 "Hoarding Disorder" was added to the DSM V because "there is evidence for the diagnostic validity and clinical utility of a separate diagnosis of hoarding disorder, which reflects persistent difficulty discarding or parting with possessions due to a perceived need to save the items and distress associated with discarding them." See American Psychiatric Association, therefore "disabled" under those statutes, and that Lucey owed him the "reasonable accommodation" of providing him even more space in the apartment building for all of his stuff, because it was his disability that caused him to accumulate and hoard it. ECF 29, at 15-16. He further claims that his eviction was retaliation in violation of the ADA for his opposition to her not giving him more space in the building. Id. at 17. He also makes a similar claim of a violation of FHA, asserting that his eviction constituted unlawful housing discrimination against him based on a "handicap." Id. at 19-20. Highlights of Changes from DSM-IV-TR to DSM-5, at 7-8 (2013), http://www.dsm5.org/Documents/changes%20from%20dsm- iv-tr%20to%20dsm-5. pdf. What is perhaps the most iconic story of hoarding in the United States dates [*13] back to the 1940s: New Yorkers who grew up in the mid 1900s surely remember the Collyer brothers. The famous brothers filled their brownstone mansion with 130 tons of newspapers, possessions, and junk. Homer was a blind and paralyzed lawyer who was completely dependent on his sibling, Langley, a failed pianist. Because Langley feared home intrusion, he riddled the interior of the mansion with a framework of mazes and tunnels fixed with booby traps. In the end, Langley triggered one of his own traps and was crushed to death by toppling debris. In 1947, police found both brothers, Langley (age 61) and Homer (age 64), dead in their mansion. Homer died from starvation just ten feet from where his brother lay dead, buried under junk. Because of the extreme state of clutter, the mansion was "declared a public nuisance and tom down in 1947," eventually becoming a public space designated "'Collyer Brothers Park.'" The Collyer brothers became iconic hermits, and the source of the 1950s goad, "[c]lean up your room or you'll end up like the Collyer brothers!" To the public, the Collyer brothers have become synonymous with hoarding, from firefighters using the term "Collyer mansion" to describe dangerous [*14] debris filled sites, to psychiatrists and courts "refer[ring] to compulsive hoarding as 'Collyer Brothers Syndrome.'" Keith P. Ronan, Navigating the Goat Paths: Compulsive Hoarding, or Collyer Brothers Syndrome, and the Legal Reality of Clutter, 64 Rutgers L. Rev. 235, 244-45 (2011) (footnotes omitted). The current cultural ubiquity of the term "Hoarders" can perhaps be attributed to A&E's eponymous documentary series, which profiled interventions with hoarders. The show ran for six seasons with a total of 84 episodes. Hoarders (A&E television broadcast Aug. 17, 2009 - Feb. 4, 2013), available at http://www.aetv.com/hoarders. 2015 U.S. Dist. LEXIS 38506, *10 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 57 of 175 Page 5 of 7 Mr. Goldsmith cites no law to support his claims. A summary of the general law governing these claims can be found in Brooker v. Altoona Hous. Auth., No. 11-95, 2013 U.S. Dist. LEXIS 82228, 2013 WL 2896814 (W.D. Pa. June 12, 2013): A plaintiff attempting to establish a violation of the FHAA, the Rehabilitation Act or the ADA must demonstrate that his or her disability could have been reasonably accommodated. See Donahue v. Consolidated Rail Corp., 224 F.3d 226, 233-35 (3d Cir. 2000). The reasonableness of a proposed accommodation is a question of fact. Buskirk v. Apollo Metals, 307 F.3d 160, 170-71 (3d Cir. 2002). When the failure of a public housing agency to conduct the "individualized assessment" contemplated under the applicable regulations results in the eviction of an individual whose handicap or disability could have been reasonably accommodated, an actionable statutory [*15] violation occurs. Sinisgallo, 865 F.Supp.2d at 336. This principle flows from the fact that a covered entity's refusal to reasonably accommodate the needs of handicapped and disabled individuals constitutes a prohibited form of "discrimination." City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 729, 115 S. Ct. 1776, 131 L. Ed. 2d 801, (1995). No violation occurs, however, if an individual's disability could not have been reasonably accommodated in any event. Mengine v. Runyon, 114 F.3d 415, 420-21 (3d Cir. 1997). The statutes requiring covered entities to accommodate the needs of disabled individuals do not "demand action beyond the realm of the reasonable." US Airways, Inc. v. Barnett, 535 U.S. 391, 401, 122 S. Ct. 1516, 152 L. Ed. 2d 589 (2002). "Failure-to-accommodate" claims arising in the housing context must be considered in accordance with a burden-shifting framework. Sharpvisions, Inc. v. Borough of Plum, 475 F.Supp.2d 514, 526 (W.D. Pa. 2007). The contours of that framework were established by the United States Court of Appeals for the Third Circuit in Hovsons, Inc. v. Township of Brick, 89 F.3d 1096 (3d Cir. 1996), and Lapid- Laurel, L.L.C. v. Zoning Board of Adjustment, 284 F.3d 442 (3d Cir.2002). In Hovsons, the Court of Appeals held that a defendant alleged to have violated the FHAA by failing to accommodate a handicapped person's disability bears the burden of establishing the unavailability or unreasonableness of an accommodation that would have enabled that person to use and enjoy a dwelling on terms equal to others. Hovsons, 89 F.3d at 1103-04. The Court of Appeals later explained, in Lapid-Laurel, that "the plaintiff bears the initial burden of showing that the requested accommodation [*16] is necessary to afford handicapped persons an equal opportunity to use and enjoy a dwelling, at which point the burden shifts to the defendant to show that the requested accommodation is unreasonable." Lapid-Laurel, 284 F.3d at 457. In order to satisfy her initial burden, [the plaintiff] must establish a nexus between the reasonable accommodations that she was seeking and their necessity for affording her an equal opportunity to enjoy public housing. McKivitz v. Township of Stowe, 769 F.Supp.2d 803, 825-826 (W.D. Pa. 2010). A proposed accommodation cannot be said to be "necessary" if it "provides no direct amelioration of a disability's effect." Bryant Woods Inn, Inc. v. Howard County, 124 F.3d 597, 604 (4th Cir. 1997). 2013 U.S. Dist. LEXIS 82228, [WL] at *12-13. Further, other courts have indicated that a plaintiff must actually request an accommodation: In order to make a claim under the FHA, a plaintiff "must actually request an accommodation and be refused in order to bring a reasonable accommodation claim under the FHA." United States v. Hialeah Hous. Auth., 418 Fed.Appx. 872, 875 (11th Cir.2011)." [F]or a demand to be specific enough to trigger the duty to provide a reasonable accommodation, the defendant must have enough information to know of both the disability and desire for an accommodation, or circumstances must at least be sufficient to cause a reasonable landlord to make appropriate inquiries about the possible need for an accommodation." Id. at 876 (internal quotations omitted). [*17] Kromenhoek v. Cowpet Bay W. Condo. Ass'n, No. 2012-25, 77 F. Supp. 3d 462, 2014 U.S. Dist. LEXIS 177002, 2014 WL 7384784, at *4 (D.V.I. Dec. 24, 2014). If the plaintiff is then denied an accommodation after the formal request, he may then bring a claim under the FHA. Id. For the purposes of the analysis at this stage of the game, Mr. Goldsmith has alleged enough in his Amended Complaint to save his FHAA and ADA claims for now because he alleges that he made "repeated requests" that his landlord Lucey accommodate his 2015 U.S. Dist. LEXIS 38506, *14 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 58 of 175 Page 6 of 7 "perceived disability" as a hoarder by giving him (Goldsmith) "additional time and additional storage space to help reduce some non-essential surplusage and packing boxes/materials within the apartment, even if only by opportunity to pay an additional rent charge for the accommodation of storage in the otherwise empty basement area." ECF No. 29, at 16-17. This claim will survive against the only Defendant against whom it could survive: his landlord, Lucey. The Court need not, and will not, go further at this point in discussing the potential merits of those claims.11 D. Supplemental State Law Claims to be Dismissed The Plaintiff next alleges the tort of "tabloid outrage". That is a new one on this Court, and Plaintiff cites to no statutory or case law support for the definition, elements, existence or the standing of any such claim under state or federal law, and it is therefore dismissed with prejudice. As to the asserted state law claim for conversion, as to which there is no independent basis for the assertion of federal jurisdiction as to any Defendant, the Court concludes that to the extent the claim as asserted states a claim coming within this Court's supplemental jurisdiction, 28 U.S.C. § 1367, it would be improvident to assert that supplemental jurisdiction over such a purely state law claim, and it will be dismissed without prejudice. The same is the necessary action as to the [*19] asserted state law claims for a breach of warranty of habitability and for the covenant of quite enjoyment. Those claims, if anything, attack the eviction of the Plaintiff only under Pennsylvania state landlord/tenant law. They appear to the Court to have already been the subject of extensive state court litigation, and prolix litigation in our Bankruptcy Court, and in any event, are so distant to the alleged conspiracy to violate federal civil rights (or claimed violations of the ADA or the FHA) 11 Given the very large holes in the § 1915 sieve, the Court is constrained to allow this hoarding-based claim to seep through to the next stage of the case. The Court is not in any way concluding that limits of the FHAA and the ADA can be stretched so far as to cover [*18] a "hoarding disability." To the contrary, the Court is merely concluding that it cannot say that in no case (and under no circumstances) could hoarding constitute a disability for these purposes. It will be up to the crucible of the adversary system to determine whether Mr. Goldsmith's mountain of belongings and other stuff can be the terra firma on which a disability claim is based. so as to make it improvident for this Court to exercise supplemental jurisdiction over them, and they are to dismissed without prejudice as to all Defendants. 28 U.S.C. § 1367(a), (c). The Plaintiff's intentional infliction of emotional distress claim is simply a generalized broadside as to all Defendants and as to everything supposedly done by anyone named in this lawsuit. Plaintiff provides no specific causal basis as to such a claim as to a particular Defendant, nor specification of the necessary level of outrageousness necessary under Pennsylvania law to support it. Plaintiff having been given the opportunity to amend already, it is proper to dismiss this claim with prejudice due to its failure to state any [*20] plausible claim from relief as to any Defendant. This same conclusion is also appropriate as to the alternative claim for negligent infliction of emotional distress. IV. CONCLUSION What, and whom, does that now leave in the case? To restate, except as to claims which the Court has specifically stated may proceed further and those specifically dismissed without prejudice due to the Court's declination of supplemental jurisdiction, all claims, against all Defendants, are otherwise dismissed with prejudice, all of which leaves the following to proceed to the next step in this Court: (a) A claim for Conspiracy under § 1983 and Pennsylvania law as to Defendants Lucey, Shim, Chongaway, and Griffin, (b) State law claims for Invasion of Privacy by False Light and Intrusion Upon Seclusion as to Lucey, Shim, Chongaway, Griffin, Lawson, and the "CBS Defendants" (CBS Corporation, CBS Broadcasting Pittsburgh, KDKA TV, and KDKA Radio).12 (c) Claims under the ADA and the FHAA against Lucey. 12 There is no basis alleged to assert any § 1983-based liability as to any CBS Defendant or Lawson, Mr. Goldsmith makes no plausible allegation supporting Lawson's involvement in any conspiracy other than his simply showing up as the television [*21] station's videographer. That is insufficient to state a plausible conspiracy claim as to him. Further, there is no legally sufficient, plausible basis alleged to hold any of the CBS corporate Defendants liable for any alleged conspiracy to violate federal rights, and there is no plausible basis stated for finding that organizationally, they participated in any alleged conspiracy, or that it resulted from any custom, practice, policy or usage having its genesis in corporate policy. 2015 U.S. Dist. LEXIS 38506, *17 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 59 of 175 Page 7 of 7 To be clear, this Court's notation that the above-stated claims (as to the specified Defendants) may proceed forward, at least a bit further, is no more than this Court's preliminary assessment under 28 U.S.C. §§ 1915 and 1915A that they are plausibly enough stated to survive this Court's initial screening obligations, and nothing more. Each remaining Defendant may file either an Answer, or a Motion under Fed. R. Civ. P. 12, as to any remaining claims without limitation, which will then be considered on its own merits. Finally, the Plaintiff has requested that this Court order that service be accomplished by the Marshal. While that is an expense and process that would norm ally be avoidable, in the Court's estimation, it should be done here, given [*22] the complexity that the Plaintiff's efforts at service have previously entailed, and because such a process will provide the remaining parties with certainty as to where the case stands as it proceeds. Therefore, the Court will order that the Marshal make service of the Documents at ECF Nos. 29, 71 and 72 in this civil action upon the CBS Defendants, Griffin, Shim, Lucey, Chongaway and Lawson, once Plaintiff has provided the necessary service direction to the United States Marshal. An appropriate Order will be entered. /s/ Mark R. Honrak Mark R. Honrak United States District Judge Dated: March 26, 2015 ORDER AND NOW, this 26th day of March, 2015, for the reasons stated in the Court's Opinion of this date, it is HEREBY ORDERED that, except as to claims which the Court has specifically stated may proceed further and those specifically dismissed without prejudice due to the Court's declination of supplemental jurisdiction, all claims, against all Defendants, are otherwise dismissed with prejudice, all of which leaves the following to proceed to the next step in this Court: (a) A claim for Conspiracy under § 1983 and Pennsylvania law as to Defendants Lucey, Shim, Chongaway, and Griffin. (b) State law [*23] claims for Invasion of Privacy by False Light and Intrusion Upon Seclusion as to Lucey, Shim, Chongaway, Griffin, Lawson, and the "CBS Defendants" (CBS Corporation, CBS Broadcasting Pittsburgh, KDKA TV, and KDKA Radio). (c) Claims under the ADA and the FHAA against Lucey. Each remaining Defendant may file either an Answer, or a Motion under Fed. R. Civ. P. 12, without limitation, as to any remaining claims, which will then be considered on its own merits. For the reasons stated in the Court's Memorandum Opinion of this date, Plaintiffs Motion for Leave to File an Amended Complaint, ECF No. 72, is denied as moot. Finally, the Court orders that the Marshal make service of the Documents at ECF Nos. 29, 71 and 72 in this civil action, as well as this order and the Court's Memorandum Opinion of this date, upon the CBS Defendants, Griffin, Shim, Lucey, Chongaway and Lawson, contingent upon the Plaintiff's providing all necessary service instructions to the United States Marshal. This civil action will be STAYED and administratively closed until the earlier of the first filing of (1) a Rule 12 response by any remaining Defendant or (2) a Marshal's return of service as to any remaining Defendant. /s/ Mark R. Hornak Mark [*24] R. Hornak United States District Judge End of Document 2015 U.S. Dist. LEXIS 38506, *21 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 60 of 175 Positive As of: April 3, 2017 4:48 PM Z Harris v. St. Joseph's Univ. United States District Court for the Eastern District of Pennsylvania May 12, 2014, Decided; May 13, 2014, Filed, Entered CIVIL ACTION NO. 13-3937 Reporter 2014 U.S. Dist. LEXIS 65452 *; 2014 WL 1910242 BRIAN HARRIS v. SAINT JOSEPH'S UNIVERSITY, et al. Core Terms allegations, Handbook, motion to dismiss, emph, breached, Defendants', sexual misconduct, defamation, breach of contract, false light, purposes, community standard, proceedings, defamatory, employees, breach of contract claim, contractual relationship, complaints, outrageous, parties, terms, damages, train, conclusory allegation, survive, plaintiff's claim, defamation claim, negligence claim, gender bias, appears Counsel: [*1] For BRIAN HARRIS, Plaintiff: KENNETH M. DUBROW, LEAD ATTORNEY, THE CHARTWELL LAW OFFICES LLP, PHILADELPHIA, PA. For SAINT JOSEPH'S UNIVERSITY, JOSEPH KALIN, Defendants: JAMES A. KELLER, JOSHUA W.B. RICHARDS, SAUL EWING LLP, PHILADELPHIA, PA. For JANE DOE, Defendant: DANIEL J. RUCKET, JOHN H. MCCARTHY, RAWLE & HENEDERSON LLP, PHILADELPHIA, PA; TIMOTHY BURKE, ECKERT SEAMANS CHERIN & MELLOTT LLC, PHILADELPHIA, PA. For FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION, Movant: JOSEPH SHAPIRO COHN, Foundation for Individual Rights in Education, PHILADELPHIA, PA; WILLIAM A. BONNER, LAW OFFICE OF WILLIAM A BONNER, MEDIA, PA. Judges: L. FELIPE RESTREPO, UNITED STATES DISTRICT JUDGE. Opinion by: L. FELIPE RESTREPO Opinion MEMORANDUM RESTREPO, J. This case arises from an internal administrative disciplinary investigation and student conduct hearing at Saint Joseph's University ("SJU") resulting in plaintiff, Brian Harris, being found responsible for sexually assaulting defendant Jane Doe, both of whom were SJU students at the time. Plaintiff brought this action against defendants: SJU; Joseph Kalin, a Public Safety Officer at SJU; and Jane Doe. Against SJU only, plaintiff alleges: breach of contract (Count I); violation of Title IX of the Education Act Amendments of 1972 [*2] ("Title IX"), 20 U.S.C. § 1681, et seq. (Count II); negligence (Count III); and violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 P.S. § 201-1, et seq. (Count IV). Against all defendants, plaintiff alleges: defamation (Count V); making public statements about plaintiff placing him in a false light (Count VI); and intentional infliction of emotional distress ("IIED") (Count VII). Finally, against Jane Doe only, plaintiff alleges intentional interference with contractual relations (Count VIII).1 Pending before the Court are the Motions to Dismiss Plaintiff's Amended Complaint filed by defendants, SJU and Joseph Kalin (collectively, "University Defendants") (ECF Doc. 23) and defendant Jane Doe (Doc. 24), under Federal Rule of Civil Procedure 12(b)(6). For the reasons which follow, defendants' motions to dismiss are granted in part and denied in part. 1. LEGAL STANDARD UNDER FED. R. CIV. P. 12(b)(6) 1 Although Count VIII of the Amended Complaint was mistakenly identified as Count IX, by stipulation of the parties approved by the Court (ECF Document 22), the Amended Complaint was corrected in that regard. Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 61 of 175 Page 2 of 11 Dismissal under Rule 12(b)(6) is proper [*3] where the Amended Complaint fails to state a claim upon which relief may be granted, such as where the plaintiff is unable to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). Conclusory allegations are insufficient to survive a motion to dismiss. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The Court must consider only those facts alleged in the complaint and accept all of those allegations as true. Wiest v. Lynch, 2014 U.S. Dist. LEXIS 52472, 2014 WL 1490250, *8 (E.D. Pa. 2014) (citing ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994)). However, the Court "need not accept as true unsupported conclusions and unwarranted inferences," see id. (citing Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000) (citations and internal quotation marks omitted)), and "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions," see Iqbal, 556 U.S. at 678. 2. DISCUSSION (A) [*4] Count I - Breach of Contract Plaintiff's Amended Complaint alleges: At all times material hereto, a contractual relationship purportedly existed between SJU and [plaintiff]. The [Student] Handbook,2 the terms of which were unilaterally drafted by SJU, was deemed part of that contract. Pursuant thereto, SJU was required to act in accordance with the Handbook in resolving complaints of misconduct and violations of SJU's policies and regulations, in the investigation of those complaints, in the process of adjudicating complaints of sexual misconduct, and in resolving appeals brought challenging disciplinary decisions. Pl.'s Am. Compl. (Document 20), ¶ 81 (footnote added). 2 A copy of the 2012/2013 SJU Student Handbook ("Handbook") is attached as Exhibit A to the Declaration of Joshua W.B. Richards, counsel for University Defendants, accompanying the University Defendants' brief in support of their [*6] motion to dismiss. The Amended Complaint further alleges: "SJU breached its contract with Harris by failing to comply with the Handbook, a contract between Harris and SJU, including, without limitation, SJU's implicit duties of good faith and fair dealing in connection therewith, by:. . . ."Id. ¶ 83 (emph. added). Paragraph 83 of the Amended Complaint then includes 23 general averments regarding policies and procedures for investigation and adjudication of complaints of alleged sexual misconduct wherein plaintiff alleges SJU breached its [*5] contract with plaintiff. Id. ¶ 83(a)-(w). Finally, the Amended Complaint alleges damages as a result of SJU's alleged breach of contract including: having [plaintiff's] SJU school record improperly include a conviction and/or other finding of guilt of sexual misconduct (assault) based upon the unfounded charges brought against him, marring [his] ability to enroll in another college or university of similar or greater stature as SJU, stigmatizing [plaintiff] with a finding of guilt for an act he did not commit, and monetary losses. Id. ¶ 84. Thus, although the Amended Complaint states that "a contractual relationship purportedly existed between SJU and Harris" and that the "Handbook . . . was deemed part of that contract," id. ¶ 81, the specific allegations of breach of contract assert that "SJU breached its contract with [plaintiff] by failing to comply with the Handbook." Id. ¶ 83 (emph. added). The breach alleged was "failing to comply with the Handbook." Id. The parties acknowledge that to state a claim for breach of contract, a plaintiff must plead the following elements: (1) the existence of a contract, including its essential terms; (2) a breach of a duty imposed by the contract; and (3) resulting damages, see Dempsey v. Bucknell Univ., 2012 U.S. Dist. LEXIS 62043, 2012 WL 1569826, *17 (M.D. Pa. 2012) (citing Lackner v. Glosser, 2006 PA Super 14, 892 A.2d 21, 30 (Pa. Super. 2006)). See Univ. Defs.' Br. 8; Pl.'s Br. 10. Initially, it is noted that University Defendants "concede[] that 'the relationship between a private educational institution and an enrolled student is contractual in nature,' Swartley v. Hoffner, 1999 PA Super 168, 734 A.2d 915, 919 (Pa. Super. 1999), and here the terms of that contract are outlined in the Handbook.3 See Univ. Defs.' Br. 8 (footnote 3 As reflected by the caselaw cited by the parties in support of their respective positions, [*7] the parties appear to agree that Pennsylvania substantive law governs plaintiff's state law claims. See, e.g., Univ. Defs.' Br. 8 n.3 (citing cases) ("Pennsylvania substantive law governs Harris' breach of 2014 U.S. Dist. LEXIS 65452, *2 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 62 of 175 Page 3 of 11 omitted). Thus, it appears that for purposes of the motions to dismiss, the parties agree that if plaintiff has sufficiently and properly pled a violation by SJU of the rules and regulations set forth in the Handbook, plaintiff's claim of breach of contract survives the motion to dismiss with regard to the breach of contract claim. Indeed, under Pennsylvania law, "[t]he relationship between a private educational institution and an enrolled student is contractual in nature; therefore, a student can bring a cause of action against said institution for breach of contract where the institution ignores or violates portions of the written contract." Dempsey, 2012 U.S. Dist. LEXIS 62043, 2012 WL 1569826, at *17 (quoting Swartley, 734 A.2d at 919). "The contract between a private institution and a student is comprised of written guidelines, policies, and procedures as contained in the written materials distributed to the student over the course of their enrollment in the institution." Kimberg v. Univ. of Scranton, 2007 U.S. Dist. LEXIS 7714, 2007 WL 405971, *3 (M.D. Pa. 2007) (quoting Swartley, 734 A.2d at 919). Thus, it appears that plaintiff has sufficiently pled the existence of a contract between plaintiff and SJU, and the remaining issue is whether plaintiff's allegations are sufficient to support a finding that SJU breached the terms of the contract [*8] as contained in the Handbook.4 See, e.g., id.; Reardon v. Allegheny College, 2007 PA Super 160, 926 A.2d 477, 480 (Pa. Super. 2007) ("The relationship between a privately funded college and a student has traditionally contract claim.'). 4 In an attempt to show that there are "questions of unresolved fact" on which a denial of the University Defendants' motion may be based, see Pl.'s Resp. to Univ. Defs.' Mot. 8, plaintiff points to what he perceives to be a contradiction between SJU's concession that the Handbook is a contract and the Handbook's language that it "is not a contract," id. at 8, 11 (quoting Handbook at 3). However, this issue appears to be a red herring with regard to resolution of the motion to dismiss. As mentioned, plaintiff specifically pleads in his Amended Complaint: "SJU breached its contract with Harris by failing to comply with the Handbook, a contract between Harris and SJU . . ."See Pl.'s Am. Compl. [*9] ¶ 83 (emph. added). Thus, the allegations in the Amended Complaint upon which plaintiff basis his breach of contract claim assert that SJU breached its contract "by failing to comply with the Handbook." Id. To the extent that plaintiff is now arguing that, based on the Handbook's language, the Handbook may not be a contract, it would appear that plaintiffs breach of contract claims - which are based on the averment that the Handbook is a contract and that SJU breached that contract - must be dismissed for failure to state a claim. been defined in this Commonwealth as strictly contractual in nature. . . . As such, we review the agreement between the parties concerning disciplinary procedures, contained within a portion of the student handbook . . . as we would any other agreement between two private parties.") (citations omitted). In evaluating whether allegations in a Complaint survive a Rule 12(b)(6) motion, the plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully," see Iqbal, 556 U.S. at 678, and conclusory allegations are insufficient to survive a motion to dismiss, see Fowler, 578 F.3d at 210. Here, plaintiff's breach of contract claim in the Amended Complaint relies on conclusory and insufficient allegations. See, e.g., Pl.'s Am. Compl. ¶ 83(a)-(w). For example, plaintiff alleges that SJU "breached its contract with Harris by failing to comply with the Handbook" in "[f]ailing to provide adequate policies and procedures for the investigation [*10] and adjudication of complaints," "[f]ailing to provide adequate notice of the polices and procedures," and "failing to provide fair notice of the parameters of the charged offense." Id. ¶ 83(a), (b), and (e) (emph. added). Conclusory allegations such as these, with no clear averments as to what statement or regulations included in the Handbook (which the parties appear to agree for present purposes was a contract) were violated or breached, are insufficient to survive a motion to dismiss. See, e.g., Bradshaw v. Pa. State Univ., 2011 U.S. Dist. LEXIS 36988, 2011 WL 1288681, *2 (E.D. Pa. 2011) (giving plaintiff former student opportunity to amend her complaint to "allege specifically the terms of the contract in dispute"). To survive a motion to dismiss, Iqbal explains, "a complaint must contain sufficient factual matter," that if accepted as true, states a claim for relief "that is plausible on its face." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 556. In this case, plaintiff has failed to plead sufficient [*11] factual content to support his claim that SJU breached the contract. See Am. Compl. ¶ 83(a)-(w). For example, it is not at all clear which policy(ies) or procedure(s) in the Handbook plaintiff is alleging SJU breached. "[I]f a [claim] is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile." Wiest, 2014 2014 U.S. Dist. LEXIS 65452, *7 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 63 of 175 Page 4 of 11 U.S. Dist. LEXIS 52472, 2014 WL 1490250, at *8 (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008)). Therefore, here, the Amended Complaint is dismissed without prejudice to plaintiff's right to amend the Complaint to include sufficient factual allegations to support his claim of breach of contract.5 If plaintiff chooses to amend the Complaint, he should be mindful that "[w]hen a contract so specifies, generally applicable principles of contract law will suffice to insulate the institution's internal, private decisions from judicial review." See Reardon, 926 A.2d at 480-81. The Handbook clarifies that, among other things: Community Standards proceedings are not criminal or civil proceedings, but rather, internal administrative determinations of violations of institutional policy. Civil or criminal rules of procedure and evidence do not apply. . . . After receiving information at the hearing, the Hearing Officer, Peer Review Board, or Community Standards Board shall determine . . . whether the respondent(s) is responsible for violating the Community Standards. . . . Subsequent reviewers shall not determine anew whether there was a Community Standards violation. Handbook 35-36 (emph. added). The Handbook further provides: "The decision made on appeal [by the Vice President for Student Life/Associate Provost ('VPSL')] will be final. If the VPSL and Provost/designee find no merit to the [*13] appeal, the decision of the original hearing shall stand." Id. at 39-40 (emph. added). Plaintiff's Amended Complaint does not appear to allege that this provision is ambiguous. Under Pennsylvania law, to the extent that the unambiguous terms of the Handbook were not breached, "[t]his clause is adequate to insulate the merits of [SJU's] decision from intensive review." See Reardon, 926 A.2d at 482 (citing Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 777 5 Plaintiff would be well-advised to include in any amended pleading factual allegations identifying the specific provisions of the 120-page Handbook that SJU allegedly breached. See, e.g., Bradshaw, 2011 U.S. Dist. LEXIS 36988, 2011 WL 1288681, at *2 (dismissing without prejudice breach of contract claim where plaintiff former student failed to sufficiently "identify in the complaint the provisions of the handbook that the defendant [University] allegedly breached," the Court gave plaintiff an opportunity to amend the Complaint "to allege specifically [*12] the terms of the contract in dispute, the defendant's breach thereof, and the harm that resulted"). A.2d 418, 429 (Pa. 2001)) (finding that plaintiff's request that the Court review the "private, internal decisions" of the defendant College was something that was "forbidden by the terms of both [the handbook] and case law, where a clause in the student handbook stated 'The decision of the President is final.'").6 (B) Count II - Violation of Title IX Plaintiff's Amended Complaint alleges that SJU used "impermissible gender bias against Harris in the investigation and adjudication of Doe's accusations," see Pl.'s Am. Compl. ¶ 92, and "violated Title IX in the manner in which it improperly adjudicated the baseless charge of sexual misconduct by Doe against Harris," id. ¶ 93. Thus, plaintiff alleges that plaintiff "has been discriminated against by SJU on the basis of his gender in violation of Title IX." Id. ¶ 95. Title IX provides in pertinent part: "No person . . . shall, on the basis of sex, be excluded from participation in, be 6 "A distinction must be made between the allegation that [SJU] breached the terms of [the Handbook] by failing to adhere to its provisions, which is a reviewable claim, and the allegation that the way in which these provisions were implemented, or the outcome arrived at by such implementation, was unfair - a claim which is not reviewable according to the provisions of [the Handbook]." See Reardon, 926 A.2d at 482 n.5 (citing [*14] Murphy, 777 A.2d at 429). That having been said, although SJU's "internal, private decisions," see Reardon, 926 A.2d at 480-81, on whether there was a "Community Standards violation," see Handbook 35-36, may be insulated from judicial review, see Reardon, 926 A.2d at 480-81, by the Handbook's own terms "Community Standards proceedings are not criminal or civil proceedings, but rather, internal administrative determinations of violations of institutional policy," see Handbook 35-36 (emph. added). Defendant Doe argues that since SJU's administrative determination that plaintiff's conduct violated Community Standards and institutional policy was "final" under the terms of the Handbook, "Jane Doe cannot be found by this court to have made any statements regarding the sexual assault that are false, defamatory, or place Harris in a false light," or to have intentionally inflicted any emotional distress or intentionally interfered with the contract between SJU and Harris. See Doe's Br. 13 (emph. in orig.). However, defendant fails to cite specific authority or caselaw to support the proposition that because the contract (the Handbook) indicates that SJU's determination was final for purposes [*15] of making an internal administrative determination that Community Standards were violated, the Court is bound by SJU's findings of fact for purposes of plaintiff's civil action claims, such as defamation and intentional interference with contractual relations. 2014 U.S. Dist. LEXIS 65452, *11 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 64 of 175 Page 5 of 11 denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." Tafuto v. N.J. Inst. of Tech., 2011 U.S. Dist. LEXIS 81152, 2011 WL 3163240, *2 (D. N.J. 2011) (quoting 20 U.S.C. § 1681(a)). "A plaintiff alleging racial or gender discrimination by a university [under Title [*16] IX] must do more than recite conclusory assertions." Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d cir. 1994); see Tafuto, 2011 U.S. Dist. LEXIS 81152, 2011 WL 3163240, at *2 (quoting Yusuf) ("[W]holly conclusory allegations . . . [do not] suffice for purposes of Rule 12(b)(6)."). In Yusuf, two categories of claims of gender bias in university discipline were recognized: claims of an erroneous outcome from a flawed proceeding and claims of selective enforcement. Scott v. WorldStarHiphop, Inc., 2011 U.S. Dist. LEXIS 123273, 2011 WL 5082410, *4 (S.D. N.Y. 2011) (citing Yusuf, 35 F.3d at 714-16). However, "in neither case do wholly conclusory allegations suffice for the purposes of Rule 12(b)(6)." Id. (quoting Yusuf). When a plaintiff claims a flawed outcome, he must allege, among other things, "particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding." Id. (quoting Yusuf) (emph. added). Similarly, when a plaintiff claims selective enforcement, a plaintiff must allege, among other things, "particular circumstances suggesting that gender bias was a motivating factor behind the inconsistency." Id. (citing Yusuf) (emph. added). Here, plaintiff fails to allege facts sufficient to meet either standard. [*17] See, e.g., Scott, 2011 U.S. Dist. LEXIS 123273, 2011 WL 5082410, at *5 ("there is no nonconclusory allegation of gender bias") (emph. added); Tafuto, 2011 U.S. Dist. LEXIS 81152, 2011 WL 3163240, at *3. The averments in the Amended Complaint which purport to identify "[e]vidence of SJU's impermissible gender bias against Harris," see Am. Comp. ¶ 92(a)-(f), do not suggest gender bias as a motivating factor. Dismissal of the Amended Complaint is proper where plaintiff fails to plead "enough facts to state a claim to relief that is plausible on its face." See Twombly, 550 U.S. at 570; see also Iqbal, 556 U.S. at 678. Conclusory allegations are insufficient to survive a motion to dismiss. See Fowler, 578 F.3d at 210. (C) Count III - Negligence Plaintiff's Amended Complaint alleges generally that SJU "had a duty to hire competent personnel, adequately train its personnel, adequately supervise its personnel, and terminate and/or sanction personnel for substandard performance," see Am. Compl. ¶ 100, and that "SJU owed a separate duty of care to Harris to ensure that its staff and personnel were properly trained and supervised," id. ¶ 101. The Amended Complaint further alleges that SJU was negligent and breached its duty to Harris in failing to: "hire [*18] well-trained agents and employees, including, without limitation, investigators and community standards board panel members, including, without limitation, the proper selection of student panelist with requisite knowledge and majority"; "train its employees, agents or representatives in the proper method to thoroughly investigate and adjudicate, without bias, complaints of sexual misconduct"; "properly train its employees, agents or representatives regarding the requirements of Title IX"; "properly train its employees, agents or representatives in the discovery and preservation of relevant evidence"; "properly train its employees, agents or representatives in basic due process as it pertains to the investigation, adjudication, and appeal from adjudication of complaints of sexual misconduct"; "supervise its employees, agents or representatives to ensure complaints of sexual misconduct are adequately investigated and fairly adjudicated." Id. ¶ 102(a)-(f). Plaintiff further alleges that SJU was negligent and breached its duty to Harris in "[c]ontinuing to employ substandard employees, including investigators and community standards panel members." Id. ¶ 102(g). SJU argues that there is [*19] no articulated basis for these alleged duties other than plaintiff's self-serving conclusory averments that SJU had a duty "because it did." See Univ. Defs.' Br. 20. SJU further argues that even assuming the Amended Complaint identifies a plausible duty, plaintiff's negligence claims are barred by Pennsylvania's gist of the action doctrine. See Univ. Defs.' Br. 21. In Pennsylvania, the gist of the action doctrine maintains the distinction between breach of contract claims and tort claims by precluding recovery in tort in the following situations: (1) where liability arises solely from the contractual relationship between the parties; (2) when the alleged duties breached were grounded in the contract itself; (3) where any liability stems from the contract; and (4) when the tort claim essentially duplicates the breach of contract claim or where the success of the tort claim is dependent on the success of the breach of contract claim. Dempsey, 2012 U.S. Dist. LEXIS 62043, 2012 WL 1569826, at *21 (citing Sarsfield v. Citimortgage, Inc., 2014 U.S. Dist. LEXIS 65452, *15 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 65 of 175 Page 6 of 11 707 F. Supp.2d 546, 553 (M.D. Pa. 2010)); see Sarsfield, 707 F. Supp.2d at 553 (citing eToll v. Elias/Savion Adver., Inc., 2002 PA Super 347, 811 A.2d 10, 14 (Pa. Super. 2002)). In Reardon v. Allegheny College, 2007 PA Super 160, 926 A.2d 477 (Pa. Super. 2007), [*20] a former student sued a college asserting, among other things, breach of contract and negligence claims against the private college and a professor arising from the college's determination that the student was guilty of plagiarizing her classmate's work. With regard to the plaintiff's negligence claim against the college and the professor, Pennsylvania's Superior Court found that "[t]he only duties owed by [the private college] and [the professor] we can discern are rooted in [the student handbook] - not some external and undefined general duty of care. . . . Indeed, [the handbook] represents the sole basis for the relationship between the parties - [plaintiff] promises to adhere to the Honor Code in exchange for an education at [the college], while [the college, and to a lesser degree [the professor], promises to adhere to the terms of [the handbook] in giving this education in exchange for monetary compensation." Id. at 487 (citations omitted). Accordingly, the Superior Court found that the trial court "correctly applied the gist of the action doctrine in dismissing [the plaintiff's] negligence claim as legally defective." Id. Similarly, here, in that it appears that plaintiff's negligence [*21] claims arise from the contractual relationship between plaintiff and SJU, these negligence claims are barred by the gist of the action doctrine.7 See id. Indeed, plaintiff's allegations regarding damages suffered as a result of the alleged negligence, see Am. Compl. ¶ 104, are identical to the alleged damages suffered as a result of the alleged breach of contract, id. ¶ 84. Furthermore, as University Defendants point out, plaintiff fails to point to any caselaw indicating that a private university owes these specific duties to its students under Pennsylvania negligence law. See, e.g., Tran v. State Sys. of Higher Educ., 986 A.2d 179, 182 (Pa. Commw. 2009) (citing Reardon, 926 A.2d at 480) 7 It is noted that Count VI of the Amended Complaint, alleging a violation of the UTPCPL, specifically alleges that SJU "[r]epresent[ed], warrant[ed] and guarantee[ed] in writing that SJU trained its employees and agents in the proper and unbiased investigation and adjudication of complaints of sexual misconduct, when in fact it had not." See Am. Compl. ¶ 107(a) (emph. added). Arguably, this averment lends support to the contention that plaintiff's negligence claims sound in terms of breach of contract rather than tort. ("Pennsylvania courts have held consistently that the relationship between a student and a privately funded college is 'strictly contractual in nature.'") (emph. added). Moreover, other than making conclusory allegations and implications from its breach of contract claims, the Amended Complaint does not allege any facts "to support an inference that Defendant [SJU] breached a duty in the [actual] areas of hiring, training, or supervising its employees." See, e.g., Dempsey, 2012 U.S. Dist. LEXIS 62043, 2012 WL 1569826, at *22; [*22] see Iqbal, 556 U.S. at 678. Accordingly, University Defendants' motion to dismiss is granted with respect to plaintiff's claim of a Title IX violation and that claim is dismissed. (D) Count IV - Violation of Pennsylvania's UTPCPL The UTPCPL creates a private right of action for "[a]ny [person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property" as a result of the seller's deceptive or unlawful actions. Wise v. Am. Gen. Life Ins. Co., 2005 U.S. Dist. LEXIS 4540, 2005 WL 670697, *7 (E.D. Pa. 2005) (quoting 73 P.S. § 201-9.2(a)). Plaintiff's Amended Complaint alleges that "SJU committed various [*23] unfair and deceptive acts and practices in violation of the [UTPCPL], including, but not limited to": a. Representing, warranting and guaranteeing in writing that SJU trained its employees and agents in the proper and unbiased investigation and adjudication of complaints of sexual misconduct, when in fact it had not; b. Representing that Harris would receive a fair and impartial hearing in connection with any allegation of sexual misconduct, when he would not; c. Representing that Harris would receive adequate notice of and due process in connection with allegations of sexual misconduct, when he would not; and, d. Misrepresenting SJU's compliance with Title IX[.] Pl.'s Am. Compl. ¶ 107. Initially, SJU contends that "to have standing to state a claim under the UTPCPL, a party must be, as a threshold matter, someone who 'purchases or leases' goods or services for 'personal, family, or household purposes,'" see Univ. Defs.' Br. 23 (quoting 73 P.S. § 201-9.2(a)), and that "[i]t seems likely that Harris' parents, not Harris, paid for his tuition," id. However, the Amended Complaint does allege that plaintiff "purchased, inter alia, educational services from SJU for which he remitted payment [*24] in the form of tuition 2014 U.S. Dist. LEXIS 65452, *19 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 66 of 175 Page 7 of 11 and fees." See Am. Compl. ¶ 108. Therefore, at this stage of the proceedings, the Complaint appears sufficient in that regard. "To state a claim under the UTPCPL, a plaintiff must show: (1) deceptive conduct; (2) an ascertainable loss; (3) justifiable reliance on the defendant's wrongful conduct or misrepresentations; and (4) that such reliance caused an injury." Pellegrino v. State Farm Fire and Cas. Co., 2013 U.S. Dist. LEXIS 105511, 2013 WL 3878591, *8 (E.D. Pa. 2013) (citing Caroselli, Sr. v. Allstate Prop. & Cas. Ins. Co., 2010 U.S. Dist. LEXIS 83515, 2010 WL 3239356, *7 (E.D. Pa. 2010)). Although SJU contends that plaintiff's averments are insufficient to make out a claim under Pennsylvania's UTPCPL, it appears that considering the facts alleged in the Complaint and accepting all of those allegations as true, see Wiest, 2014 U.S. Dist. LEXIS 52472, 2014 WL 1490250, at *8 (citing ALA, Inc., 29 F.3d at 859), plaintiff has made sufficient allegations to allege a claim for a violation of the UTPCPL at this stage of the proceedings. (E) Count V - Defamation (against SJU, Doe, and Kalin) Plaintiff's Amended Complaint alleges that each of the defendants made communications about plaintiff which were defamatory in nature in that "each referred to Harris [*25] as the perpetrator of a sexual assault on Doe, even though they knew the allegations were false, or with reckless indifference to the truth or falsity of said allegations." See Am. Compl. ¶¶ 113-114. To state a claim for defamation under Pennsylvania law, a plaintiff must establish: (1) the defamatory character of the communication; (2) its publication by the defendant; (3) its application to the plaintiff; (4) the understanding by the recipient of the defamatory meaning; (5) the understanding by the recipient that the statement refers to the plaintiff; (6) special harm resulting to the plaintiff from its publication; and (7) abuse of a constitutionally privileged occasion. Dempsey, 2012 U.S. Dist. LEXIS 62043, 2012 WL 1569826, at *13 (citing 42 Pa. C.S. § 8343). "A publication is defamatory if it tends to blacken a person's reputation or expose him to public hatred, contempt or ridicule or injure him in his business or profession." Id. (quoting Dunlap v. Phila. Newspapers, Inc., 301 Pa. Super. 475, 448 A.2d 6, 10 (Pa. Super. 1982)) (citation and internal quotation marks omitted). "In order to be actionable, the words must be untrue, unjustifiable, and injurious to the reputation of another." Id. (quoting Joseph v. Scranton Times L.P., 2008 PA Super 217, 959 A.2d 322, 334 (Pa. Super. 2008)). University [*26] Defendants argue that plaintiff's defamation claims fail because plaintiff alleges that individuals within the University shared information about allegations of sexual misconduct with one another. "In general, publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed." Agriss v. Roadway Exp., Inc., 334 Pa. Super. 295, 483 A.2d 456, 463 (Pa. Super. 1984). Viewing plaintiff's Amended Complaint under the appropriate motion to dismiss standard, plaintiff appears to have sufficiently alleged, see Am. Compl. ¶¶ 112-130, publication of defamatory matter "to one other than the person defamed," see id. Next, University Defendants briefly argue that plaintiff does not allege "special harm" and that his defamation claims therefore fail. See Univ. Defs.' Br. 25. The term "special harm" is defined as "actual damages which are economic or pecuniary losses." Klimaski v. Parexel Intern., 2008 U.S. Dist. LEXIS 47125, 2008 WL 2405006, *3 (E.D. Pa. 2008) (citing Sprague v. Am. Bar Ass'n, 276 F. Supp.2d 365, 368-69 (E.D. Pa. 2003)). However, a "plaintiff may succeed in a claim for defamation absent proof of special harm where the spoken words constitute slander per se." Id. There are [*27] four categories of words that constitute slander per se: words that impute (1) criminal offense; (2) loathsome disease; (3) business misconduct; or (4) serious sexual misconduct. Id. Here, applying this standard, plaintiff's allegation that "each [defendant] referred to Harris as the perpetrator of a sexual assault on Doe, even though they knew the allegations were false, or with reckless indifference to the truth or falsity of said allegations," see Am. Compl. ¶¶ 113-114, would be considered slander per se. "In Pennsylvania, a defendant who publishes a statement which can be considered slander per se is liable for the proven, actual harm that the publication causes." Klimaski, 2008 U.S. Dist. LEXIS 47125, 2008 WL 2405006, at *4. Actual damages are divided into two types: general and special. Id. General damages typically flow from defamation, such as "impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering." Id. (citing Sprague, 276 F. Supp.2d at 368). Plaintiff's Amended Complaint includes averments of these types of damages caused by defendants' defamatory communications. See, e.g., Pl.'s Am. Compl. ¶¶ 128-29. Thus, in Agriss, Pennsylvania's Superior Court [*28] found that the trial court erred in granting nonsuit where the Superior Court found evidence was sufficient to show that the alleged defamatory remarks could have 2014 U.S. Dist. LEXIS 65452, *24 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 67 of 175 Page 8 of 11 "impaired appellant's reputation and caused him personal humiliation and mental anguish" and that testimony "tended to show that the charge held appellant up to ridicule and speculation among fellow employees that his dismissal was imminent." Agriss, 483 A.2d at 467. University Defendants' motion to dismiss is denied to the extent that it argues that the claim of defamation should be dismissed as failing to allege "special harm." University Defendants further argue that truth is a defense to plaintiff's defamation claim. In particular, defendants state that "Harris' specific allegations are that the University and Kalin repeated information about 'Harris' alleged sexual misconduct' as reported by Doe," and that "[t]he fact that Harris was alleged to have engaged in such sexual misconduct, however, is true - such allegations were made against Harris, and he acknowledges and pleads this himself." See Univ. Defs.' Br. 25 (citing Am. Comp. ¶¶ 122, 67) (emph. added). However, contrary to University Defendants' contention, plaintiff's [*29] Amended Complaint alleges that "each [defendant] referred to Harris as the perpetrator of a sexual assault on Doe, even though they knew the allegations were false, or with reckless indifference to the truth or falsity of said allegations." See Am. Compl. ¶ 114 (emph. added). Therefore, based on the allegations in the Amended Complaint, which must be taken as true at this stage in the litigation, University Defendants' contention in that regard is without merit.8 University Defendants also point to the common interest privilege as a defense to plaintiff's defamation claim. See Univ. Defs.' Br. 26. Under Pennsylvania statutory law, someone accused of defamation may assert the affirmative defense of "the privileged character of the occasion on which [the allegedly defamatory comment] was published." Aydin Corp. v. RGB Sales, 1991 U.S. Dist. LEXIS 10772, 1991 WL 152465, *10 (E.D. Pa. 1991) [*30] (citing 42 Pa. C.S. § 8343(b)(2)). As defendants and plaintiff appear to acknowledge, see Univ. Defs.' Br. 26 (citing Aydin Corp.); Pl.'s Br. 34 (citing Aydin Corp.), "[s]uch a conditional privilege attaches where the circumstances are such that facts exist which another sharing such common interest is entitled to know" and further, "a communication must be 8 It is noted University Defendants do not argue that, for purposes of plaintiff's defamation claim, the Court is bound by the findings of fact made during SJU's internal administrative determination with regard to plaintiff's violation of Community Standards and institutional policy. To the extent that defendant Doe makes that argument, it is addressed supra note 6. made on a proper occasion, with a proper motive, in a proper manner, and based upon reasonable cause," see Aydin Corp., 1991 U.S. Dist. LEXIS 10772, 1991 WL 152465, at *10. Accepting all of the allegations in the Amended Complaint as true, defendants' motion to dismiss the defamation claim on the basis of the common interest privilege is denied at this stage of the proceedings, without prejudice to defendants' right to raise the defense again at a later stage of the litigation. See, e.g., id. (holding at the summary judgment stage that, after reviewing evidence of record, the communications made in the course of an investigation were not defamatory in light of Pennsylvania's common interest privilege). Defendants contend that statements made regarding the alleged sexual assault "are absolutely privileged and cannot be the basis for a claim of defamation or false [*31] light invasion of privacy." See Def. Doe's Br. 16 (emph. in orig.); see also Univ. Defs.' Br. 26. In support of this contention, defendants state that "Pennsylvania . . . applies this absolute privilege to quasi-judicial proceedings." See Doe's Br. 17 (emph. in orig.); see also Univ. Defs.' Br. 26. However, as the Third Circuit has pointed out, "under Pennsylvania law government involvement is . . . a necessary condition for according quasi-judicial status to grievance procedures." Overall v. Univ. of Pa., 412 F.3d 492, 497 (3d Cir. 2005) (emph. added). Indeed, our Court of Appeals clarified that "Pennsylvania cases finding quasi-judicial privilege consistently involve proceedings before federal, state, or local governmental bodies, or proceedings held pursuant to a statute or administrative regulation." Id. (emph. added). In that this case involves an entirely private grievance procedure, the privilege available in Pennsylvania for communications made during quasi- judicial proceedings does not apply. Defendants' motions to dismiss are denied with regard to plaintiff's defamation claims. (F) Count VI - False Light (against SJU, Doe, and Kalin) Plaintiff's Amended Complaint avers that [*32] "SJU, Doe and Kalin each made public statements about Harris which placed him in a false light." See Am. Compl. ¶ 132. University Defendants argue that plaintiff's false light claim is insufficient because the Amended Complaint fails to sufficiently allege the publicity element of such a claim. See Univ. Defs.' Br. 26-27. In particular, University Defendants state: 2014 U.S. Dist. LEXIS 65452, *28 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 68 of 175 Page 9 of 11 Although the Amended Complaint alleges in conclusory fashion that the University and Kalin "made public statements about Harris," [see] Am. Compl. ¶ 132, the Amended Complaint contains not a single factual allegation about that purported publication, where it was made, and to whom. The first "publicity" that has resulted from Doe's allegations, ironically, occurred when Harris filed this lawsuit. Id. at 27. In order to sustain a claim for false light, "the element of publicity must be satisfied by widespread dissemination of the material." Jones v. City of Phila., 73 Pa. D. & C.4th 246, 256 (C.P. Phila. 2005) (citing Weinstein v. Bullick, 827 F. Supp. 1193, 1202 (E.D. Pa. 1993)); see Herron v. MortgageNOW Inc., 2013 U.S. Dist. LEXIS 32012, 2013 WL 867177, *2 (E.D. Pa. 2013) (false light claims in Pennsylvania require "publicity"). A plaintiff making such [*33] a claim must sufficiently allege "that a matter is made public by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." Id. (quoting DeBlasio v. Pignoli, 918 A.2d 822, 824 n.3 (Pa. Commw. 2007)). Publicity for purposes of a false light claim "requires more than the 'publication' required to sustain a claim for defamation." Schatzberg v. State Farm Mut. Auto. Ins. Co., 877 F. Supp.2d 232, 245 (E.D. Pa. 2012) (citing Harris v. Easton Pub. Co., 335 Pa. Super. 141, 483 A.2d 1377, 1384 (Pa. Super. 1984)). "Rather, it requires that 'the matter is made public by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." Id. (quoting Harris, 483 A.2d at 1384). In this case, plaintiff fails to sufficiently allege facts, see, e.g., Am. Compl. ¶¶ 131-137 (Count VI "False Light"), to support a claim that defendants publicized information about plaintiff so as to constitute publicity for a false light claim. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570. Conclusory allegations are insufficient to survive a motion [*34] to dismiss. See Fowler, 578 F.3d at 210. (G) Count VII - Intentional Infliction of Emotional Distress ("IIED") (against SJU, Doe, and Kalin) "The elements of [IIED] are: (1) a person who by extreme and outrageous conduct (2) intentionally or recklessly causes (3) severe emotional distress to another." Manley v. Fitzgerald, 997 A.2d 1235, 1241 (Pa. Commw. 2010). In order for a plaintiff to recover on an IIED claim: [T]he conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in any civilized society . . . [I]t has not been enough that the defendant has acted with intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort. Reardon, 926 A.2d at 488 (quoting Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745, 753-54 (Pa. 1998) (internal citation omitted)). "It is [the] Court's responsibility to determine if conduct alleged in the cause of action reaches the requisite level of outrageousness to support [*35] such a claim." Britt v. Chestnut Hill College, 429 Pa. Super. 263, 632 A.2d 557, 561 (Pa. Super. 1993). In addition, "the Pennsylvania Supreme Court has required that the plaintiff present competent medical evidence to support the [IIED] claim," id. (citing Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988 (Pa. 1987)), and the extreme and outrageous conduct must result in some physical injury, Hart v. O'Malley, 436 Pa. Super. 151, 647 A.2d 542, 554 (Pa. Super. 1994) (citing cases) ("it is clear that in Pennsylvania, in order to state a claim under which relief can be granted for the tort of [IIED], the plaintiffs must allege physical injury."). University Defendants argue that plaintiff's allegations do not rise to the requisite level of outrageousness to support a claim for IIED. Count VII of the Amended Complaint alleges in relevant part that "SJU, Doe and Kalin made public statements which were not true and took actions based upon false information to falsely portray Harris as a cruel sex offender, which was not true and caused him severe distress." See Am. Compl. ¶ 139. The Amended Complaint avers that, "[a]s a direct and proximate result of the aforementioned extreme, outrageous, intentional, willful and malicious [*36] conduct of SJU, Doe, and Kalin, Harris suffered and will continue to suffer, inter alia, severe emotional distress, mental anguish, embarrassment and humiliation, all of which may be permanent in nature." Id. ¶ 143. In Reardon, the plaintiff former student claimed that Allegheny College and a professor "intentionally and wrongly targeted and accused [her] of violations of the 2014 U.S. Dist. LEXIS 65452, *32 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 69 of 175 Page 10 of 11 college's honor code," despite their knowledge of the falsity of these allegations, and that the defendants deprived plaintiff of her "rights to a fair and impartial hearing." See Reardon, 926 A.2d at 488. Affirming the trial court's determination that the alleged actions of the defendants were not sufficient to support an action for IIED, see id. at 487, Pennsylvania's Superior Court found that, even if accepted as true, plaintiff's allegations "do not rise to a level that could be described as "clearly desperate and ultra extreme conduct." Id. at 488 (quoting Hoy, 720 A.2d at 754). In Stokley v. Bristol Borough School Dist., 2013 U.S. Dist. LEXIS 127919, 2013 WL 4787297 (E.D. Pa. 2013), plaintiff argued that "subjecting an African American student to harsher discipline than white students, particularly for an offense the African American student [*37] did not commit, is patently outrageous." 2013 U.S. Dist. LEXIS 127919, [WL] at *2. The Court pointed out that, "[a]s reprehensible as deliberate discrimination can be, '[c]ourts in this District have repeatedly found that racial discrimination alone does not meet the extreme and outrageous conduct standard necessary to state a claim for intentional infliction of emotional distress.'" 2013 U.S. Dist. LEXIS 127919, [WL] at *3 (citing Hargraves v. City of Phila., 2007 U.S. Dist. LEXIS 31951, 2007 WL 1276937, *3 (E.D. Pa. 2007) (collecting cases)). "Although racial discrimination is completely unacceptable in our society, . . . the plaintiff must prove that the conduct is outrageous in character, and not just in motive." Id. (citing Forbes v. Rhode Island Brotherhood of Correctional Officers, 923 F. Supp. 315, 330 (D. R.I. 1996) (emph. added)). "Discrimination cases in which accompanying [IIED] claims also are allowed to proceed involve much more egregious conduct than even that which is alleged here, most often involving assault or threats of assault." Id. (citing e.g., DiSalvio v. Lower Merion High Sch. Dist., 158 F. Supp.2d 553 (E.D. Pa. 2001) (denying motion to dismiss IIED claim when a teacher repeatedly sexually harassed a student, including by inappropriately touching [*38] her on multiple occasions); Lane v. Cole, 88 F. Supp.2d 402, 406 (E.D. Pa. 2000) (noting that while "[i]nvidious discrimination is not alone sufficient to support an [IIED] claim," "[t]he ejection of a tenant from her home with threats of violence in retaliation for her refusal to accede to racial discrimination is another matter")). In this case, the facts, as set forth by plaintiff in his Amended Complaint, are insufficient to support his claim of IIED. The averments fail to satisfy the requisite outrageous conduct for such a claim, under Pennsylvania law. Furthermore, the Amended Complaint fails to allege physical injury, see, e.g., Hart, 647 A.2d at 554 (where plaintiffs "fail[ed] to allege physical injury," court found that "under the tort of [IIED] in Pennsylvania, [plaintiffs] have failed to state a claim"), and that defendants' conduct caused him to seek medical treatment, see, e.g., Britt, 632 A.2d at 562 (affirming the trial court's Order dismissing the IIED claim as alleging insufficient facts, the Superior Court stated "it is apparent that Appellant has failed to allege that Appellees' conduct caused him to seek medical treatment"). 3. CONCLUSION Defendants' motions to dismiss [*39] are granted in part and denied in part. The motions are granted with regard to plaintiff's claims of breach of contract (Count I), violation of Title IX (Count II), negligence (Count III), making public statements which place plaintiff in a false light (Count VI), and intentional infliction of emotional distress (Count VII). Defendants' motions to dismiss are otherwise denied. Accordingly, plaintiff may continue to pursue his claims of a violation of the UTPCPL against defendant SJU (Count IV), defamation (Count V) against all defendants, and intentional interference with contractual relations (Count VIII) against defendant Jane Doe only.9 As mentioned, "if a [claim] is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile." Wiest, 2014 U.S. Dist. LEXIS 52472, 2014 WL 1490250, at *8 (quoting Phillips, 515 F.3d at 236). Therefore, plaintiff's claims of breach of contract, violation of Title IX, negligence, making public statements placing plaintiff in a false light, and intentional infliction of emotional distress (Counts I through III, and VI & VII) are dismissed without prejudice 9 Although defendant Jane Doe argues that plaintiff cannot bring a claim of intentional interference of contractual relations against her in light of SJU's finding that plaintiff violated institutional policy, as explained above, the fact that the contract indicates that SJU's determination that plaintiff's conduct violated institutional policy was "final" for purposes of the internal administrative determination under the contract does not mean that the Court is bound by SJU's findings for purposes of plaintiff's civil action claims in this Court. [*40] See supra note 6. Therefore, plaintiff may continue to pursue the intentional interference with contractual relations claim against defendant Doe as alleged in the Amended Complaint. 2014 U.S. Dist. LEXIS 65452, *36 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 70 of 175 Page 11 of 11 to the right of plaintiff to file a Second Amended Complaint to include any of these claims if he can within the confines of Rule 11(b), see Fed. R. Civ. P. 11(b), within twenty (20) days.10 Otherwise, these claims are dismissed with prejudice. An appropriate Order follows. ORDER AND NOW, this 12th day of May, 2014, upon consideration of the Motions to Dismiss of Defendants, Saint Joseph's University and Joseph Kalin ("University Defendants") (ECF Document 23) and Defendant Jane Doe (Document 24), and plaintiff's opposition thereto, for the reasons explained in the accompanying Memorandum, it is hereby ORDERED that: 1. Defendants' Motions to Dismiss Plaintiff's Amended Complaint (Docs. 23 & 24) are GRANTED in part and DENIED in part; 2. Defendants' motions (Docs. 23 & 24) are GRANTED with respect to Plaintiff's claims of breach of contract (Count I), violation of Title IX (Count II), negligence (Count III), making public statements placing plaintiff in a false light (Count VI), and intentional infliction of emotional distress (Count VII), and those claims are DISMISSED without prejudice to filing a Second Amended Complaint, if Plaintiff can do so under the confines of Fed. R. Civ. P. 11(b), [*42] within twenty (20) days of the filing of this Memorandum and Order. Otherwise, these claims are dismissed with prejudice; 3. Defendants' motions (Docs. 23 & 24) are otherwise DENIED; 4. Plaintiff may continue to pursue his claims of a violation of the UTPCPL (Count IV), defamation (Count V), and intentional interference with contractual relations (Count VIII). BY THE COURT: 10 The University Defendants request that defendant Kalin be dismissed in his individual capacity in that SJU "concedes an agency relationship with Kalin, and concedes that if Kalin were liable under any theory pleaded in the current Amended Complaint, [SJU] would be liable [*41] for Kalin's acts pursuant to principles of respondeat superior." See Univ. Defs.' Br. 29. However, defendants' request is declined as premature at this juncture, especially in light of the dismissal of the aforementioned claims without prejudice. /s/ L. Felipe Restrepo L. FELIPE RESTREPO UNITED STATES DISTRICT JUDGE End of Document 2014 U.S. Dist. LEXIS 65452, *40 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 71 of 175 Caution As of: April 3, 2017 4:48 PM Z Hollinger v. Reading Health Sys. United States District Court for the Eastern District of Pennsylvania July 14, 2016, Decided; July 14, 2016, Filed CIVIL ACTION NO. 15-5249 Reporter 2016 U.S. Dist. LEXIS 91393 * JAMES N. HOLLINGER, Plaintiff, v. READING HEALTH SYSTEM, et al., Defendants. Subsequent History: Dismissed by, Judgment entered by Hollinger v. Reading Health Sys., 2017 U.S. Dist. LEXIS 12871 (E.D. Pa., Jan. 30, 2017) Core Terms stabilization, screening, patient, disability, emergency room, hospitals, amended complaint, motion to dismiss, defendants', allegations, discharged, requires, alcohol, statute of limitations, staff, malpractice, emergency medical, withdrawal, days, set forth, attorneys', public accommodation, punitive damages, parties, injunctive relief, inpatient, notice, discriminated, obligations, decisions Counsel: [*1] For JAMES N. HOLLINGER, Plaintiff: CHRISTOPHER B. CONNARD, LEAD ATTORNEY, Mays, Connard & Rotenberg, LLP, Wyomissing, PA. For READING HEALTH SYSTEM, doing business as READING HOSPITAL, SACHIN L. SHRESTHA, MD, ROBERT JENKINS, MD, SHIKHA DOOMRA, MD, READING HOSPITAL AND MEDICAL CENTER, Defendants: MATTHEW W. RAPPLEYE, LEAD ATTORNEY, SAXTON & STUMP, LEOLA, PA. Judges: LAWRENCE F. STENGEL, J. Opinion by: LAWRENCE F. STENGEL Opinion MEMORANDUM Stengel, J. Plaintiff James Hollinger filed this complaint against Defendant Reading Health System, d.b.a. Reading Hospital ("RHS"), Sachin Shrestha, M.D., Robert Jenkins, M.D. Shikha Doomra, M.D., and Reading Hospital and Medical Center ("Hospital"), alleging the following claims: (1) failure to stabilize in violation of the Emergency Medical Treatment and Active Labor Act ("EMTALA") against RHS and the Hospital (Count One); (2) failure to screen in violation of EMTALA against RHS and the Hospital (Count Two); (3) discrimination in violation of Title III of the Americans with Disabilities Act ("Title III") against RHS and the Hospital (Count Three); (4) discrimination in violation of § 504 of the Rehabilitation Act of 1973 ("§ 504") against RHS and the Hospital (Count Four); and (5) negligence [*2] against RHS, the Hospital, Dr. Shrestha, Dr. Jenkins and Dr. Doomra (Count Five). The defendants filed a motion to dismiss the plaintiff's amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons discussed herein, I am dismissing with prejudice the plaintiff's failure to screen and failure to stabilize EMTALA claims, and dismissing without prejudice the plaintiff's Title III and § 504 claims. I am denying the defendants' motion to dismiss Hollinger's negligence claim. I. BACKGROUND On September 9, 2013, 63-year-old James Hollinger was found unresponsive and incontinent of stool on the porch of the building from which he had been evicted. Pl.'s Am. Compl. ¶¶ 15-16. According to witnesses, Hollinger had suffered a grand mal seizure. Id. at ¶ 17. EMS transported Hollinger to the emergency room of the Hospital where Dr. Kara Mischler admitted and treated him. Id. at ¶ 18. While in the emergency room, Hollinger continued to suffer seizures and Dr. Mischler noted that Hollinger was also experiencing confusion and loss of consciousness. Id. at ¶¶ 19, 21. Suspecting that the seizures were due to alcohol withdrawal, Dr. Mischler consulted with the trauma department. Id. at ¶ 20. Hollinger was given a CT scan which radiologist [*3] Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 72 of 175 Page 2 of 13 Dr. Brent Wagner interpreted. Id. at ¶ 22. Dr. Wagner stated that Hollinger's CT scan showed "advanced atrophy unusual for his age and chronic microvascular ischemia, which are indicative of small strokes." Id. at ¶ 23. That same day, September 9th, Hollinger was transferred from the trauma bay, admitted as an in- patient at the Hospital and assigned to attending physician Dr. Doomra. Id. at ¶¶ 24, 29. After his transfer, Nurse Judy Kilduff stated that Hollinger was alert but was "hollering obscenities" and refused to answer her questions. Id. at ¶ 25. On September 10th, neurologist Dr. Sowmya Lakshminarayanan evaluated Hollinger. Id. at ¶ 26. Dr. Lakshminarayanan noted that Hollinger had no new neurological complaints but was unable to remember the events transpiring right before his admission to the Hospital. Id. at ¶ 27. Additionally, Hollinger continued to use obscenities and was concerned about getting home to his newly adopted German Shepard puppy. Id. Dr. Lakshminarayanan concluded that Hollinger's seizures were most likely due to alcohol withdrawal. Id. at ¶ 28. At this point, both Dr. Mischler and Dr. Lakshminarayanan had concluded that Hollinger was suffering from alcohol withdrawal; [*4] however, the Hospital's Alcohol Withdrawal Protocol was still not imitated. Id. at ¶¶ 30-31. It was not until September 14th, when a nurse went to Dr. Shailaja Amirshetty and told Dr. Amirshetty her concerns regarding Hollinger's ongoing agitation that Hollinger was given an increased dose of Ativan. Id. at ¶¶ 32-33. The next day Dr. Doomra discontinued Hollinger's use of Ativan for alcohol withdrawal. Id. at ¶ 34. Although Hollinger's seizures stopped, he continued to experience agitation, mobility problems, delirium and impaired cognition. Id. at ¶ 35. Because of his continuing symptoms, Hollinger was unable to care for himself or to make decisions, and staff members consistently assessed him as unsafe for discharge. Id. at ¶ 40. Throughout his stay, Hollinger stated that he needed to return to his home to take care of his dog. Id. at ¶ 38. Hospital staff members confirmed that Hollinger's home had been foreclosed upon and his dog had been dead for more than a year. Id. Staff members related these delusions to the treating physicians. Id. at ¶ 39. Additionally, Hollinger was suffering acute symptoms of dysfunction related to mobility. Id. at ¶ 40. Hollinger was unable to walk independently [*5] and fell twice during his hospital stay. Id. at ¶¶ 42-43. Alarms were placed on his bed and chair to insure that staff would be notified if he moved. Id. at ¶ 44. On September 18th, Nurse Erin Lender noted that Hollinger continued to be in danger of falling and was "confused at times to surroundings." Id. at ¶ 46. Because of this, Nurse Lender had Hollinger's bed moved closer to the nursing station so that Hollinger could be monitored. Id. at ¶ 47. On the morning of September 19th, Hollinger went to physical therapy with Teresa Feiler, MSPT. Feiler noted that Hollinger was still agitated, confused, and unsafe to discharge, and had fixated on finding cigarettes which he had purchased but could not find "in his [apartment] yesterday when he was there." Id. at ¶¶ 49-50. Later that day, social worker Bonnie Werley, ACBSW, evaluated Hollinger and concluded that she did not feel that it was safe for Hollinger to be sent home despite his continued requests to return home. Id. at ¶ 51. Werley recommended that the Hospital seek a court-appointed guardian for Hollinger because she felt that he was incapable of making decisions and she had already made several unsuccessful efforts to locate a [*6] power of attorney for Hollinger. Id. at ¶ 54. Moreover, Werley stated that Hollinger was "unsteady on his feet and not safe to get around on his own." Id. at ¶ 55. Werely also recommended that Hollinger be placed in a skilled nursing facility. Id. at ¶ 56. In the early hours of September 20th, Nurse Aimme Crisco noted that Hollinger had begun to try to hit staff members and had insisted on going to the refrigerator. Id. at ¶ 57. Over the course of the morning, Hollinger became increasingly agitated, disoriented and combative. Id. at ¶ 58. Nurse Lydia Davis paged Dr. Shrestha to let Dr. Shrestha know of Hollinger's condition, but Dr. Shrestha did not issue any new orders to treat the increased aggressiveness which Hollinger was displaying.1 Id. at ¶ 59. That afternoon, Hollinger slapped Nurse Davis across the face with an open hand. Id. at ¶ 63. Hollinger was not fully ambulatory at the time and after slapping Nurse Davis, Hollinger fell over. Id. at ¶ 65. Hospital security responded and called the West Reading Police Department. Id. at ¶ 66. According to the amended complaint, Hospital Security requested that Hollinger be evaluated for discharge to facilitate Hollinger's transfer into [*7] police custody. Id. at ¶ 67. 1 Hollinger had seen psychiatrist Dr. Zahid Awan, on September 10th and Dr. Awan had recommended a dose of Haldol in the event that Hollinger became aggressive with staff. Id. at ¶ 60. 2016 U.S. Dist. LEXIS 91393, *3 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 73 of 175 Page 3 of 13 Dr. Shrestha requested that a psychiatrist reevaluate Hollinger. Id. at ¶ 77. Defendant Dr. Robert Jenkins reviewed the progress notes on Hollinger and spoke with Dr. Shrestha. Id. at ¶ 78. Dr. Jenkins had not previously treated or evaluated Hollinger during his hospitalization. Id. at ¶ 82. Dr. Jenkins concluded that Hollinger's delirium had resolved, but that he was "at high risk of violent behavior and 1:1 observation is recommended for safety." Id. at ¶ 80. Despite this conclusion, Dr. Jenkins stated that Hollinger "possesses capacity to make his own medical decisions." Id. at ¶ 81. At 7:28 p.m. on September 20th, the same day Hollinger slapped Nurse Davis, Dr. Shrestha discharged him from the Hospital with approval from Dr. Jenkins. Id. at ¶ 88. Dr. Shrestha's discharge summary described Hollinger's deliriums as "resolved" and noted that he was now capable of making a decision regarding his discharge. Id. at ¶ 89. Dr. Shrestha's summary made no reference to Hollinger's mobility [*8] issues or the physical therapy that Hollinger was undergoing. Id. at ¶ 91. Hollinger's discharge instructions advised him to follow up with a primary care physician and "highlighted a recommended change in [his] Ativan treatment." Id. at ¶ 96. Hollinger did not leave the Hospital with medication to control his seizures or his agitation. Id. at ¶ 97. After his discharge, West Reading police escorted Hollinger from the Hospital in a wheelchair to the Berks County Prison ("BCP"). Id. at ¶¶ 93, 99. Police charged Hollinger, who had no prior criminal history, with aggravated assault, a second degree felony. Id. at ¶¶ 98, 109. Shortly after Hollinger's arrival at BCP, he began to suffer grand mal seizures again. Id. at ¶ 99. However, medical staff did not attend to Hollinger until September 21st. Id. at ¶ 101. BCP medical staff placed Hollinger in suicide restraints and diagnosed him with alcohol withdrawal. Id. at ¶¶ 103-104. BCP continued to prescribe Ativan for Hollinger. Id. at ¶ 105. Hollinger reported to BCP that he had been held captive in a basement prior to his incarceration. Id. at ¶ 106. Hollinger was held at BCP for more than 200 days. Id. at ¶ 108. II. LEGAL STANDARD A motion to [*9] dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). Following the Supreme Court decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), pleading standards in federal actions have shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to allege facts sufficient to show that the plaintiff has a "plausible claim for relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). A facially plausible claim may not be supported by conclusory allegations, but must allow the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. When presented with a motion to dismiss for failure to state a claim under Rule 12(b)(6), district courts should conduct a two-part analysis. Fowler, 578 F.3d at 210. First, the court must separate the factual and legal elements of the claim. Id. The court "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Id. Second, the court must determine whether the facts alleged in the complaint demonstrate that the plaintiff has a "plausible claim of relief." Id. (citing Iqbal, 556 U.S. at 678). "Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a short and plain statement of the claim showing that the plaintiff is entitled [*10] to relief." Iqbal, 556 U.S. at 677-78. While Federal Rule of Civil Procedure 8(a)(2) does not require the plaintiff to plead detailed factual allegations, it does demand "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 678. In other words, a pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Moreover, a pleading is not sufficient if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id. III. DISCUSSION The defendants move to dismiss the plaintiff's amended complaint pursuant to Rule 12(b)(6) on the basis that: (1) all the claims against the Hospital are time-barred; (2) the plaintiff cannot sustain a lack of screening or stabilization claim under EMTALA on the facts as alleged; and (3) the plaintiff's Title III and § 504 claims are simply medical professional liability claims reworked as federal claims. The defendants also challenge the sufficiency of the plaintiff's negligence claim and the validity of the plaintiff's request for punitive damages and attorneys' fees. A. Statute of Limitations 2016 U.S. Dist. LEXIS 91393, *7 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 74 of 175 Page 4 of 13 1. The Hospital The defendants argue that all of the plaintiff's claims against the Hospital are time-barred and therefore, must be dismissed. The statute of limitations is an affirmative [*11] defense; however, "it may be raised in a motion to dismiss where the plaintiff's failure to comply with the limitations period is apparent from the face of the pleadings." Datto v. Harrison, 664 F.Supp.2d 472, 482 (E.D. Pa. 2009). A plaintiff filing an EMTALA claim must file his complaint within two years of his alleged EMTALA injury. 42 U.S.C. § 1395dd(d)(2)(C). Title III and § 504 do not set forth an express statute of limitations for claims arising under them. Therefore, the applicable statute of limitations is "determined by looking to the limitations period for the most analogous cause of action in the state in which it sits." Datto, 664 F.Supp.2d at 482. Claims under Title III and § 504 are best characterized as personal injury claims. See Disabled in Action of Pa. v. Se. Pa. Trans. Auth., 539 F.3d 199, 208 (3d Cir. 2008)(holding that § 504 claims are subject to the statute of limitations for personal injury actions); Soignier v. Am. Bd. of Plastic Surgery, 92 F.3d 547, 551 (7th Cir. 1996)(clarifying that claims under Title III are correctly classified as personal injury claims). In Pennsylvania, personal injury actions are subject to a two-year statute of limitations. 42 Pa. Cons. Stat. § 5524. Therefore, like his EMTALA claims, Hollinger's claims under Title III and § 504 are subject to a two-year statute of limitations. State law claims for negligence also fall within the scope of the two year statute of limitations set forth in § 5524. Floyd v. Brown & Williamson Tobacco Corp., 159 F.Supp.2d 823, 828- 29 (E.D. Pa. 2001). Therefore, all of Hollinger's claims against the Hospital must have been brought within [*12] two years of his alleged injury in order to survive. According to the defendants, Hollinger's claims against the Hospital arose on September 20, 2013, when Hollinger was discharged from the Hospital. Hollinger filed a complaint against RHS on September 21, 2015 but did not assert claims against the Hospital at that time.2 It was not until December 8, 2015, the date on 2 September 21, 2015 was a Monday. Rule 6 of the Federal Rules of Civil Procedure states: (a) Computing Time. The following rules apply in computing any time period specified in these rules, in any local rule or court order, or in any statute that does not specify a method of computing time. (1) Period Stated in Days or a Longer Unit. When the which Hollinger filed an amended complaint, that Hollinger asserted his claims against the Hospital as well as RHS. The defendants contend that the claims asserted against the Hospital in Hollinger's December 8th amended complaint are several months past the two-year statute of limitations and therefore, are time- barred. Hollinger argues that the claims in his amended complaint relate back to the claims set forth in his original complaint. I agree. Rule 15(c) of the Federal Rules of Civil Procedure sets forth three distinct requirements for an amendment of a complaint to relate back to the original complaint: (1) The claims in the amended complaint must arise out of the same occurrences set forth in the original complaint, (2) the party to be brought in by amendment must have received notice of the action within 120 days of its institution, and (3) the party to be brought in by amendment must have known, or should have known, that the action would have been brought against the party but for a mistake concerning its identity.3 period is stated in days or a longer unit of time: (C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that [*13] is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C). 3 When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when: (A) the law that provides the applicable statute of limitations allows relation back; (B) the amendment asserts a claim or defense that arouse out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading; or (C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake [*15] concerning the proper party's identity. 2016 U.S. Dist. LEXIS 91393, *10 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 75 of 175 Page 5 of 13 Arthur v. Maersk, Inc., 434 F.3d 196, 203 (3d Cir. 2006)(citing Fed. R. Civ. P. 15(c)). Rule 15(c) requires a party seeking relation back of an amended complaint to satisfy all three requirements. Singletary v. Pa. Dept. of Corr., 266 F.3d 186, 195 (3d Cir. 2001). To satisfy the third prong, a party seeking relation back may claim actual notice or may impute notice by two methods: "(i) the existence of a shared attorney between the original and proposed new defendant; and (ii) an identity of interest between these two parties." Id. at 189. The "shared attorney" method is premised on the notion that when the parties sought to be added are represented [*14] by the same attorney, "the attorney is likely to have communicated to the latter party that he may very well be joined in the action." Garvin v. City of Phila., 354 F.3d 215, 222-23 (3d Cir. 2003)(citing Singletary, 266 F.3d at 196). The "identity of interest" method "generally means that the parties are so closely related in their business operations or other activities that the institution of an action against one serves to provide notice of the litigation to the other." Id. at 223 (citing Singletary, 266 F.3d at 197). The defendants argue that Hollinger is not permitted to add a new party under Rule 15. Rather, the defendants contend that Rule 15 contemplates only substituting one party for another and not, as Hollinger attempts to do here, add a new distinct party. I decline to adopt such a restrictive view. See Atlantic Pier Associates, LLC v. Boardakan Rest. Partners, LP, No. CIV.A.08-4564, 2010 U.S. Dist. LEXIS 90127, 2010 WL 3431875, *6 (E.D. Pa. Aug. 30, 2010)("While the text of Rule 15(c) suggests that the mistake element only applies to misnamed or mis-described parties, the Rule is widely- understood to allow the addition of new parties that were never originally named or described."). Hollinger's claims against both RHS and the Hospital arise from the same occurrence, specifically his visit to the Hospital and his subsequent treatment there. The defendants do not dispute that the Hospital received notice of Hollinger's action within 120 days of the plaintiff's original complaint. As for the third prong of Rule 15(c), the shared attorney method of notice applies here. The attorney representing RHS also represents the Hospital and thus, it is reasonable to assume that the attorney is likely to have communicated to the Hospital that it may very well be joined in this action. All three requirements under Rule 15(c) have been met here and therefore, [*16] I find that the amended complaint adding the Hospital relates back to Hollinger's original Fed. R. Civ. P. 15(c). complaint. Because Hollinger's amended complaint relates back to the original complaint which was filed within the statute of limitations, his claims against the Hospital are not time-barred. 2. Dr. Doomra Additionally, the defendants claim that Hollinger's negligence action against Dr. Doomra was brought outside of the two-year statute of limitations for negligence actions and therefore, must be dismissed as time-barred. Hollinger filed his complaint on September 21, 2015. The defendants explain that Hollinger's amended complaint contains the following allegations against Dr. Doomra: The negligence of Defendant Doomra consists of the following: A. Failure to place Plaintiff on the Hospital's standard Alcohol Withdrawal Protocol upon admission on September 9, 2013; B. Failure to diagnose and effectively treat alcohol withdrawal in Plaintiff by eliminating Ativan from his prescribed medications only one day after he began the alcohol withdrawal protocol on September 14, 2013; C. Failure to recognize signs of delirium tremens. Pl.'s Am. Compl. ¶ 173 (A)-(C). Medical negligence actions have a two-year [*17] statute of limitations in Pennsylvania. 42 Pa. Cons. Stat. Ann. § 5524(2). The defendants point out that none of the allegations against Dr. Doomra assert that she saw Hollinger after September 14, 2013 or the following day. Defs.' Mot. 23. Therefore, Pennsylvania's two-year statute of limitations bars Hollinger's negligence action against Dr. Doomra. A Rule 12(b)(6) motion may raise a statute of limitations defense "only if the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations." Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014)(citations omitted). However, "[i]f the bar is not apparent on the face of the complaint, then it may not afford the basis for a dismissal of the complaint under Rule 12(b)(6)." Id. (citing Robinson v. Johnson, 313 F.3d 128, 134-35 (3d Cir. 2002)). Here, it is apparent on the face of the complaint that Hollinger's claims against Dr. Doomra for failure to place him on the Alcohol Withdrawal Protocol on September 9, 2013 and for failure to effectively treat his alcohol withdrawal on September 14, 2013 are time- barred.4 Accordingly, Hollinger may not bring a 4 The plaintiff responds that the discovery rule applies here to 2016 U.S. Dist. LEXIS 91393, *15 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 76 of 175 Page 6 of 13 negligence action against Dr. Doomra on the basis of these facts. However, Hollinger also alleges that Dr. Doomra was negligent for failure to recognize signs of delirium tremens. It is not clear on [*18] the face of the complaint whether the statute of limitations bars Hollinger's negligence claim against Dr. Doomra for failure to recognize signs of delirium tremens. It is certainly possible the alleged failure to recognize signs of delirium tremens occurred with the statute of limitations. Therefore, I will not yet dismiss Dr. Doomra from this action. B. EMTALA In the mid-1980s, Congress enacted EMTALA to address growing concerns about "patient dumping," a practice where hospitals would refuse to treat certain emergency room patients or would transfer them to other institutions for treatment. Torretti v. Main Line Hospitals, Inc., 580 F.3d 168, 173 (3d Cir. 2009)(citing 68 F.R. 53,222, 53,223 (Sept. 9, 2003)). EMTALA requires that hospitals provide appropriate medical screening and stabilizing treatment in a nondiscriminatory manner to any individuals seeking emergency care.5 Byrne v. Cleveland Clinic, 519 toll the statute of limitations. According to the plaintiff, he was "unaware of his surroundings, concerned about his dead dog and eager to return to a home that had been foreclosed." Pl.'s Resp. 23. I decline to apply the discovery rule here to toll the statute of limitations. 5 The statute states in relevant part: (a) Medical screening requirement In the case of a hospital that has a hospital emergency department, if any individual . . .comes to the emergency department and a request is made on the individual's behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital's emergency department . . .to determine whether or not an emergency medical condition . . .exists. . . (b) Necessary stabilizing treatment for emergency medical conditions and active labor (1) In general[:] [*20] If any individual . . .comes to a hospital and the hospital determines that the individual has an emergency medical condition, the hospital must provide either - (A) within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or F.App'x 739, 742 (3d Cir. 2013); Torretti, 580 F.3d at 172 ("EMTALA requires hospitals to give certain types of medical care to individuals [*19] presented for emergency treatment: (a) appropriate medical screening, (b) stabilization of known emergency medical conditions and labor, and (c) restrictions on transfer of unstabilized individuals to outside hospital facilities."). However, courts have consistently emphasized that EMTALA "does not . . . create a federal cause of action for malpractice." Delibertis v. Pottstown Hosp. Co. LLC, No. CIV.A.14-6971, 152 F. Supp. 3d 394, 2016 U.S. Dist. LEXIS 6913, 2016 WL 245310, *3 (E.D. Pa. Jan. 21, 2016)("[L]iability [under EMTALA] is determined independently of whether any deficiencies in the screening or treatment provided by the hospital may be actionable as negligence or malpractice."). 1. Failure to Screen Section 1395dd(a) of EMTALA states that hospitals are required to "provide for an appropriate medical screening examination within the capability of the hospital's emergency department . . . to determine whether or not an emergency medical condition . . . exists." 42 U.S.C. § 1395dd(a). EMTALA does not define "appropriate medical screening," but "circuit courts have interpreted the statute as requiring hospitals to provide uniform screening to all those who present substantially similar complaints." Blake v. Main Line Hospitals, Inc., No. CIV.A.12-3456, 2014 U.S. Dist. LEXIS 46677, 2014 WL 1345973, *3 (E.D. Pa. Apr. 3, 2014)(citations omitted). This provision governs only the application of screening procedures not the development of them. Kauffman v. Franz, No.CIV.A.07- 5043, 2009 U.S. Dist. LEXIS 88749, 2009 WL 3157333, *2 (E.D. Pa. Sept. 25, 2009)("Hospitals may develop their own screening procedures; EMTALA requires that hospitals apply those procedures even-handedly [*21] to all patients."). Again, EMTALA is not a substitute for state law malpractice actions; therefore, the key inquiry in evaluating a failure to screen claim under EMTALA is not whether the screening resulted in the correct diagnosis but whether the hospital "appl[ied] its standard of screening uniformly to all emergency room patients, regardless of whether they are insured or can pay." Davis v. Twp. of Paulsboro, 424 F.Supp.2d 773, 779 (D.N.J. 2006)(emphasis in the original); Blake, 2014 U.S. Dist. LEXIS 46677, 2014 WL 1345973, at *3 (B) for transfer of the individual to another medical facility in accordance with subsection (c) of this section. 42 U.S.C § 1395dd(a)-(b). 2016 U.S. Dist. LEXIS 91393, *17 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 77 of 175 Page 7 of 13 ("Crucial to any screening claim, the plaintiffs must allege that the hospital [failed to] apply its standard of screening uniformly to all emergency room patients."). Hollinger asserts a failure to screen claim against the Hospital under EMTALA alleging that Dr. Jenkins' and Dr. Shresthra's screening prior to Hollinger's discharge was "not calculated to identify an emergency condition," but instead, was performed to "provide cover for Defendant's colleagues who wanted Plaintiff off their ward." Pl.'s Resp. 11-12. Hollinger alleges his failure to screen as follows: On information and belief, the screening performed by Defendants' agent Jenkins on Plaintiff was not a screening of the nature of quality that the Hospital uniformly provides to other patients presenting with substantially [*22] similar complaints. On information and belief, the screening performed by Defendants' agent Shresthra was not a screening of the nature or quality that the Hospital uniformly provides to other patients presenting with substantially similar complaints. Pl.'s Am. Compl. ¶¶ 143, 146. Hollinger does not allege that his initial screening upon presenting at the emergency room was not performed much less that the emergency room's screening was not uniformly applied to him. Rather, Hollinger's failure to screen claim is based upon the "screening" which Dr. Jenkins and Dr. Shresthra performed shortly before his discharge, eleven days after being admitted. To preserve this claim would be to extend EMTALA's screening requirement far beyond the scope intended by Congress and reflected in the statutory language. Hollinger has not demonstrated any persuasive legal authority indicating that the EMTALA screening requirement applies to a screening given outside of the emergency room. Despite Hollinger's characterization of this case as one of "patient dumping," there is no factual basis for this characterization. Hollinger does not allege that he was turned away from the emergency room, or even that [*23] the emergency room treatment was inadequate. In fact, Hollinger makes no allegations whatsoever challenging the care he received in the emergency room. The legislative history and statutory language are clear that EMTALA's screening requirement is limited to the emergency room. Hollinger fails to allege that the screening performed in the emergency room was not uniformly applied. Therefore, I will grant the defendants' motion to dismiss on this claim. 2. Failure to Stabilize An EMTALA "stabilization" claim occurs under 42 U.S.C. § 1395dd(b)(1) where the plaintiff "(1) had an emergency condition; (2) the hospital actually knew of that condition; and (3) the patient was not stabilized before being transferred." Byrne v. Cleveland Clinic, 684 F.Supp.2d 641, 654 (E.D. Pa. 2010)(citations omitted). EMTALA defines the "stabilization" requirement to mean that "with respect to an emergency medical condition . . . [a hospital must] provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result or occur during the transfer of the individual from a facility." 42 U.S.C § 1395dd(e)(3)(A). The critical issue underlying Hollinger's stabilization claim is when EMTALA's stabilization requirement [*24] ends. Under Hollinger's interpretation of EMTALA's stabilization requirement, the Hospital was not required to provide Hollinger indefinite treatment, but they were obligated to stabilize Hollinger before discharging him. In other words, Hollinger argues that EMTALA's stabilization requirements extend beyond the emergency room and continue to apply even after a patient is admitted as an in-patient. Hollinger cites to Sixth Circuit case law, namely Moses v. Providence Hosp. & Med. Centers, 561 F.3d 573 (6th Cir. 2009), as support for this interpretation of EMTALA's stabilization requirement. In response, the defendants claim that EMTALA's stabilization requirement ends upon a patient's admission into the hospital. Accordingly, the Hospital had no obligation under EMTALA to stabilize Hollinger after his eleven-day inpatient stay. The defendants argue that broadening the scope of EMTALA's stabilization requirement beyond the emergency room would defeat the congressional intent behind enactment of the statute as it "transforms EMTALA into a federal medical malpractice statute." Defs.' Reply 1. Hollinger points to Moses as the most accurate guidance on this case. In Moses, the patient was brought to the emergency room of Providence Hospital after he exhibited [*25] signs of physical and mental illness. Moses, 561 F.3d at 576. The emergency room physician admitted the patient into the hospital for more testing. Id. After six days, the patient was released and ten days after his release, the patient murdered a third party. Id. at 577. The plaintiff, a representative of the third party, asserted an EMTALA claim alleging that the hospital's decision to admit the patient did not satisfy its 2016 U.S. Dist. LEXIS 91393, *21 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 78 of 175 Page 8 of 13 obligations under EMTALA. The Sixth Circuit agreed with the plaintiff stating "a hospital may not release a patient with an emergency medical condition without first determining that the patient has actually stabilized, even if the hospital properly admitted the patient." Id. at 583 (emphasis in the original). Thus, the Sixth Circuit denied the defendants' motion for summary judgment holding that "the hospital was required under EMTALA not just to admit [the patient] into the inpatient care unit, but to treat him in order to stabilize him" before discharging him. Id. at 584. The defendants argue that Moses conflicts with the majority of court opinions. Rather, the defendants urge me to adopt a more widely embraced interpretation of EMTALA which holds that a hospital's EMTALA stabilization obligations are satisfied [*26] once the patient is admitted. See Bryant v. Adventist Health Sys./West, 289 F.3d 1162, 1168 (9th Cir. 2002)("We hold that EMTALA's stabilization requirement ends when an individual is admitted for inpatient care."); Bryan v. Rectors and Visitors of Univ. of Va., 95 F.3d 349, 350 (4th Cir. 1996)("[The plaintiff's] essential contention is that EMTALA imposed upon the hospital an obligation not only to admit [the patient] for treatment of her emergency condition, which concededly was done, but thereafter continuously to 'stabilize' her condition, no matter how long treatment was required to maintain that condition. Such a theory requires a reading of the critical stabilization requirement in subsection (b)(1) of EMTALA that we cannot accept."); James v. Jefferson Reg'l, No. Civ.A.12-267, 2012 U.S. Dist. LEXIS 67763, 2012 WL 1684570, *3 (E.D. Mo. May 15, 2012)("Rejecting the analysis in Moses, the Court holds that a hospital meets its obligations under EMTALA once it admits a patient."). Although the Third Circuit has not yet addressed this specific issue, I believe that the court in Mazurkiewicz v. Doylestown Hosp., 305 F.Supp.2d 437 (E.D. Pa. 2004), set forth a detailed and instructive examination of the relevant case law and proves an important guidepost for the instant case.6 In Mazurkiewicz, the plaintiff arrived at 6 The plaintiff argues that Mazurkiewicz is distinguishable from this case "because it concerned the hospital's failure to detect an emergency condition that required a plaintiff to have surgery shortly after his discharge." Pl.'s Resp. 6. The plaintiff goes on to claim that this case is inapposite to Mazurkiewicz because "multiple staff members at Reading Hospital clearly knew that he suffered from unresolved emergency conditions at the time of his discharge." Id. I find this argument unpersuasive. Neither Mazurkiewicz nor this case turns on the the emergency department of Doylestown Hospital with signs indicative of a right peritonsilar abscess. Mazurkiewicz, 305 F.Supp.2d at 439. The plaintiff was hospitalized for five days after which he was discharged. Within twelve hours of his discharge, [*27] the plaintiff's condition worsened and the plaintiff went to another hospital's emergency department where he had to undergo emergency surgery. The plaintiff filed a claim under EMTALA seeking to hold the first hospital liable because he had an emergency medical condition that was not "stabilized" prior to his discharge. The Mazurkiewicz court examined case law from the Ninth, Fourth and Eleventh Circuits which declared that EMTALA failure to stabilize claims were not viable where the plaintiff was admitted into the hospital. Bryan 95 F.3d at 349; Bryant, 289 F.3d 1162; Harry v. Marchant, 291 F.3d 767 (11th Cir. 2002). The Mazurkiewicz court weighed the decisions of the Ninth, Fourth and Eleventh Circuits with case law from the Sixth Circuit holding that "once a patient is found to suffer from an emergency medical condition in the emergency room, she cannot be discharged until the condition is stabilized, regardless of whether the patient stays in the emergency room." Thornton v. Sw. Detroit Hosp., 895 F.2d 1131 (6th Cir. 1990). Ultimately, the Mazurkiewicz court adopted the reasoning of the Ninth, Fourth and Eleventh Circuits. The Mazurkiewicz court dismissed the plaintiff's EMTALA claim concluding that the most "persuasive synthesis" of the case law, the legislative history of EMTALA and the statutory language is that "admission [*28] [of a patient] is a defense so long as admission is not subterfuge." Mazurkiewicz, 305 F.Supp.2d at 447. Although Hollinger urges me to extend the stabilization requirements of EMTALA past the emergency room, I cannot reconcile such an interpretation with the relevant case law and the legislative intent behind EMTALA. Bryan, 95 F.3d at 351 ("Congress's sole purpose in enacting EMTALA was to deal with the problem of patients being turned away from emergency rooms for non-medical reasons."). Rather, I will adopt the interpretation of EMTALA's stabilization requirement as set forth in [*29] Mazurkiewicz and will consider in- patient admission a defense to EMTALA liability permitted that admission was not a deliberate effort to avoid EMTALA obligations. To do otherwise would be to thwart the legislative intent behind EMTALA and would set courts on the slippery slope of evaluating every medical decision through the lens of EMTALA. This knowledge of the hospital staff members, but rather, whether EMTALA obligations extend past admission as an inpatient. 2016 U.S. Dist. LEXIS 91393, *25 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 79 of 175 Page 9 of 13 involves the use of EMTALA as a vehicle to raise medical malpractice claims, a likely intrusion into an area that is appropriately governed by state law. Like his failure to screen claim, Hollinger's failure to stabilize claim does not set forth any allegations that he was turned away from the emergency room or that his care in the emergency room was insufficient to meet EMTALA's stabilization requirements. Hollinger alleges that: Defendants' staff were aware of Plaintiff's acute symptoms prior to his discharge on September 20, 2013 as Plaintiff's medical records are replete with references to his incapacity and inability to care for himself due to both physical and mental conditions. As a result of the actions of Defendants' agents, Plaintiff was discharged from the Hospital while suffering from multiple emergency medical conditions, in violation [*30] of EMTALA. Pl.'s Am. Compl. ¶¶ 128, 133. Clearly, the entirety of Hollinger's failure to stabilize claim relies upon Hollinger's discharge from the hospital after his eleven- day inpatient stay. Hollinger has not alleged that his admission from the emergency room into the Hospital was subterfuge to avoid EMTALA obligations nor do his allegations indirectly support such a contention. As I have adopted the reasoning of Mazurkiewicz, I am dismissing Hollinger's failure to stabilize claim. C. Title III of The Americans with Disabilities Act Hollinger also brings a claim against RHS and the Hospital under Title III of the Americans with Disabilities Act ("ADA") alleging that the defendants discriminated against him in the provision of public accommodations when they discharged him from the hospital on September 20, 2013. Hollinger seeks injunctive relief to require the defendants to stabilize all patients prior to discharge into law enforcement custody and to develop protocols governing administrative review of cases involving allegations of violence by patients seeking treatment for recognized disabilities. The defendants move for dismissal of Hollinger's Title III claim stating that his allegations [*31] set forth a medical malpractice action rather than a Title III claim. Title III of the ADA states that: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place or public accommodation. 42 U.S.C. § 12182(a). Section 42 U.S.C. § 12182(b)(2)(A)(i)-(v) delineates the scope of § 12182(a) and defines discrimination as: A failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. § 12182(b)(2)(A)(ii). The plain meaning of this language requires a plaintiff alleging a Title III claim to show that: "(1) he has a disability within the meaning of the ADA; (2) he was discriminated against by defendant on the basis of that disability; (3) he was thereby denied goods or services; and (4) the defendant owns, [*32] leases (or leases to), or operates a place of public accommodation." Haas v. Wyoming Valley Health Care Sys., 465 F.Supp.2d 429, 433 (M.D. Pa. 2006). 42 U.S.C. § 12181(7) defines "a place of public accommodation" and includes hospitals which affect interstate commerce. 42 U.S.C. §12181(7)(F). Thus, a hospital is required under Title III of the ADA "to make reasonable modifications to its policies, practices, and procedures where necessary to ensure full and equal access to its services by disabled individuals." Haas, 465 F.Supp.2d at 435 (citing 42 U.S.C. § 12182(b)(2)(A)(ii)). Hollinger's amended complaint alleges that he was disabled within the meaning of Title III as he suffered from alcoholism, brain atrophy and cognitive defects.7 Hollinger states that he was discharged because he slapped a nurse and that his actions against the nurse were a manifestation of his alcoholism. Therefore, he was discharged because of his disability. Hollinger states that "no reasonable accommodation or effort to 7 "Although the Third Circuit has not squarely addressed [*33] whether alcoholism is a per se disability, the Third Circuit's approach to the question of disability in other cases leads the Court to believe that the Third Circuit would require the Plaintiff, in accordance with the express language of the ADA, to establish that his alcoholism substantially limits a major life activity." Maull v. Div. of St. Police, Dept. of Public Safety, St. of De., 141 F.Supp.2d 463, 473 (D. Del. 2001). 2016 U.S. Dist. LEXIS 91393, *29 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 80 of 175 Page 10 of 13 treat the manifestations of his disability-such as providing the previously prescribed dose of Haldol-was made to permit his continuing care at Defendant Hospital." Pl.'s Am. Compl. ¶ 158. Accordingly, the denial of reasonable accommodations was a denial of services based on his disability in violation of Title III. Although the defendants have not raised the issue of standing in their motion to dismiss, it is well within my discretion to address the issue of standing sua sponte and I find that it is appropriate to do so at this point. McCormick v. Camp Pocono Ridge, Inc., 760 F.Supp. 1113, 1117 (M.D. Pa. 1991)("Although the plaintiff's standing has not been challenged by the defendants, the issue is jurisdictional and may be raised by the Court sua sponte."). The "irreducible constitutional minimum of standing contains three elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). First, "the plaintiff must have suffered an injury in fact of a legally protected interest that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.'" Garner v. VIST Bank, No. CIV.A.12-5258, 2013 U.S. Dist. LEXIS 179480, 2013 WL 6731903, *4 (E.D. Pa. Dec. 20, 2013)(citing Lujan, 504 U.S. at 560). "Second, there must be a causal connection between the injury and the conduct complained of." Lujan, 504 U.S. at 560. "Third, it must be likely as opposed to merely speculative, that the injury will [*34] be redressed by a favorable decision." Id. at 561 (citations omitted). Under Title III of the ADA, the only remedy available to a private plaintiff is prospective injunctive relief. Reviello v. Phila. Fed. Credit Union, No. CIV.A.12-508, 2012 U.S. Dist. LEXIS 83449, 2012 WL 2196320, *4 (E.D. Pa. June 14, 2012); Majocha v. Turner, 166 F.Supp.2d 316, 324 (W.D. Pa. 2001)("Other than attorneys fees, injunctive relief is the only relief available to plaintiffs under Title III of the ADA."). Because prospective injunctive relief is the sole remedy available, "courts look beyond the alleged past violation and consider the possibility of future violations." Shaika v. Gnaden Huetten Memorial Hosp., No. CIV.A.15-294, 2015 U.S. Dist. LEXIS 87478, 2015 WL 4092390, *4 (M.D. Pa. July 7, 2015). Thus, for purposes of establishing standing in an action for injunctive relief, "a plaintiff must show that he or she is likely to suffer future injury from the defendant's illegal conduct." Doe v. Nat'l Bd. of Med. Examiners, 210 F.App'x 157, 159-60 (3d Cir. 2006)("Past illegal conduct is insufficient to warrant injunctive relief unless it is accompanied by continuing, present adverse effects.")(citations omitted). "[The plaintiff] must demonstrate a 'real and immediate threat' of injury in order to satisfy the 'injury in fact requirement.'" Harty v. Burlington Coat Factory of Pa., L.L.C., No. CIV.A.11-1923, 2011 U.S. Dist. LEXIS 64228, 2011 WL 2415169, *3 (E.D. Pa. June 16, 2011)(citations omitted). A plaintiff seeking to meet his burden of showing a sufficient [*35] imminent injury in a Title III ADA case may use one of two methods: the intent to return method or the deterrent effect doctrine. Garner, 2013 U.S. Dist. LEXIS 179480, 2013 WL 6731903 at *4. The intent to return method requires a plaintiff to show that: (1) the plaintiff has alleged that the defendant engaged in past discriminatory conduct that violates the ADA; (2) it is reasonable to infer from allegations in the complaint that the discriminatory conduct will continue, and (3) it is reasonable to infer based on past patronage, proximity of the public accommodation to the plaintiff's home, business, or personal connections to the area, that the plaintiff intends to return to the public accommodation in the future. 2013 U.S. Dist. LEXIS 179480, [WL] at *5; Heinzl v. Cracker Barrel Old Country Stores, Inc., No. CIV.A.14- 1455, 2015 U.S. Dist. LEXIS 2795, 2015 WL 1925811, *8 (W.D. Pa. Apr. 24, 2015). Under the deterrent effect doctrine, a plaintiff has suffered an actual and imminent injury sufficient to confer standing where the plaintiff was "deterred from patronizing a public accommodation because of a defendant's failure to comply with the ADA." Kratzer v. Gamma Mgmt. Grp., Inc., No. CIV.A.04-6031, 2005 U.S. Dist. LEXIS 23689, 2005 WL 2644996, *2 (E.D. Pa. Oct. 12, 2005). A plaintiff seeking to satisfy the deterrent effect doctrine "must show that he or she has actual knowledge of barriers preventing equal access and a reasonable likelihood that the plaintiff would use the facility [*36] if not for the barriers." Garner, 2013 U.S. Dist. LEXIS 179480, 2013 WL 6731903, at *6. Hollinger's amended complaint states that he is entitled to prospective injunctive relief because the Hospital discharged him on September 20, 2013 without attempting to make reasonable accommodations for his disability. Hollinger does not allege that he may likely require future treatment at the Hospital or that the Hospital will likely discriminate against him in the future because of his disability. Nor does Hollinger allege any facts which establish a reasonable likelihood that he would patronize the Hospital if not for the barriers preventing equal access. Hollinger's complaint is devoid 2016 U.S. Dist. LEXIS 91393, *33 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 81 of 175 Page 11 of 13 of any factual allegations demonstrating that Hollinger intends to return to the Hospital. Hollinger's complaint alleges a single, isolated incident of past discriminatory conduct which is not sufficient to meet requirements to establish standing under either the intent to return method or the deterrent effect doctrine. Heinzl, 2015 U.S. Dist. LEXIS 2795, 2015 WL 1925811, at *10 ("It is true that, even under the deterrent effect test, the plaintiff must still assert an intent to return to the particular place or places where the violations are alleged to be occurring . . ."). Hollinger is not entitled to prospective injunctive [*37] relief without a sufficient showing that he is likely to suffer a future injury from the Hospital's allegedly discriminatory conduct. Anderson v. Macy's, Inc., 943 F.Supp.2d 531 (W.D. Pa. 2013)("A plaintiff's intention to return to defendant's place of public accommodation 'some day' . . . without any description of concrete plans, or indeed even any specification of when the some day will be-do not support a finding of the requisite actual or imminent injury."). Accordingly, I am dismissing Hollinger's Title III claim for lack of standing. D. Section 504 of the Rehabilitation Act Hollinger also claims that his discharge on September 20th after he struck a nurse was in violation of § 504 of the Rehabilitation Act ("RA"). Section 504 of the RA, 29 U.S.C. § 794(a), provides as follows: No otherwise qualified individual with a disability in the United States, . . . shall solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . . The plain meaning of this statutory language is to prohibit "federal agencies and private entities that receive federal funding from discriminating on the basis of disability . . . ." Kortyna v. Lafayette C., 47 F.Supp.3d 225, 238 (E.D. Pa. 2014). Given the similar language [*38] of the ADA and the RA, "the substantive standards for determining liability under § 504 of the RA are equivalent to the ADA, McDonald v. Dep't of Pub. Welfare, 62 F.3d 92, 94 (3d Cir. 1995), and claims under both provisions are interpreted consistently."8 8 "In order to establish a claim under both the ADA and the RA, a plaintiff must show: "(1) he is an individual with a disability; (2) he is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; Langston v. Milton S. Hershey Med. Ctr., No. CIV.A.15- 2027, 2016 U.S. Dist. LEXIS 48332, 2016 WL 1404190, *6 (M.D. Pa. Apr. 11, 2016)(citing Emerson v. Thiel C., 296 F.3d 184, 189 (3d Cir. 2002); Shaika, 2015 U.S. Dist. LEXIS 87478, 2015 WL 4092390, at *8 ("[T]he substantive standards for determining liability under the Rehabilitation Act and the ADA are the same.")(citing Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 275 (3d Cir. 2014)). However, unlike the ADA, a plaintiff bringing a claim under the RA is permitted to seek monetary relief including compensatory damages. A.W. v. Jersey City Pub. Schools, 486 F.3d 791, 804 (3d Cir. 2007). Hollinger states that he was "effectively discharged from Defendant Hospital [for] manifesting the symptoms of his disabilities, including agitation and confusion," and that "[i]n discharging [him], Defendant Hospital excluded [him] from a federally-funded program based on [*39] his disability." Pl.'s Am. Compl ¶¶ 165-166. Hollinger was "otherwise qualified to be at the Defendant Hospital; in fact, all Defendant Hospital staff members who reviewed his case as of September 20, 2013, had actively advocated for his continued stay." Id. at ¶ 164. According to the defendants, Hollinger's § 504 claim purports to contest the allegedly discriminatory conduct of the Hospital but in reality, questions Dr. Jenkin's determination that Hollinger possessed the capacity to make his own medical decisions and therefore, was capable of being discharged. In other words, the defendants contend that Hollinger's § 504 claim is not legally viable because it essentially sets forth allegations demonstrating a medical malpractice action and therefore does not fall within the scope of Section 504. Brown v. Ancora Psychiatric Hosp., No. CIV.A.11-7159, 2013 U.S. Dist. LEXIS 111391, 2013 WL 4033712, *6 (D.N.J. Aug. 7, 2013)("Section 504 is not designed as a vehicle for asserting medical malpractice actions."); Watson v. A.I. DuPont Hosp. for Child. of Nemours Found., No. CIV.A.05-674, 2007 U.S. Dist. LEXIS 23560, 2007 WL 1009065, *2 (E.D. Pa. Mar. 30 2007)("Defendants are correct insofar as they argue that § 504 should not be applied to medical treatment decisions."). I agree with the defendants that Hollinger's § 504 claim sounds in medical malpractice rather than discrimination. [*40] The majority of allegations supporting Hollinger's § 504 claims challenge Dr. Jenkin's decision to discontinue treatment and Dr. and (4) such exclusion, denial of benefits, or discrimination was by reason of [his] disability." O'Guinn v. Nevada Dept. of Corr., 468 F.App'x 651, 652 (9th Cir. 2012). 2016 U.S. Dist. LEXIS 91393, *36 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 82 of 175 Page 12 of 13 Shrestha's discharge of Hollinger from the Hospital. Although Hollinger attempts to frame his § 504 claim to demonstrate that Hollinger's disability was the motivating factor behind Dr. Jenkin's decision to discontinue treatment and Dr. Shrestha's discharge of Hollinger, the factual allegations as presented amount to no more than a failure to adequately treat claim. See Rosario v. Wash. Mem'l Hosp., No. CIV.A.12-1799, 2013 U.S. Dist. LEXIS 70012, 2013 WL 2158584, *5 (W.D. Pa. May 17, 2013)("[S]uch denial of treatment claims under the ADA and the RA simply do not state a claim upon which relief can be granted."). Simply stated, the complaint fails to set forth sufficient factual allegations to demonstrate that Hollinger was discriminated against and thereby discharged from the Hospital because he manifested symptoms of his disability. Despite alleging that his discharge was pretext for disability discrimination in violation of § 504, Hollinger's amended complaint contains only naked assertions and conclusory statements which are insufficient to state a plausible claim of discrimination. Accordingly, I am granting the defendants' motion to dismiss [*41] E. Negligence The defendants argue that Hollinger's medical malpractice claim must be dismissed pursuant to the Mental Health Procedure Act ("MHPA"). The MHPA grants limited immunity to certain persons who provide treatment for mentally ill persons. 50 P.S. § 7101, et seq. According to the defendants, the MHPA renders them immune from civil liability "in the absence of willful misconduct or gross negligence . . . ."9 50 P.S. § 7114(a). The defendants state that neither Dr. Jenkins nor Dr. Shresthra acted with willful misconduct or gross negligence and therefore, they are immune from liability 9 50 P.S. § 7114(a) states in full: [*42] In the absence of willful misconduct or gross negligence, a county administrator, a director of a facility, a physician, a peace officer or any other authorized person who participates in a decision that a person be examined or treated under this act, or that a person be discharged, or placed under partial hospitalization, outpatient care or leave of absence, or that the restraint upon such person be otherwise reduced, or a county administrator or other authorized person who denies an application for voluntary treatment or for involuntary emergency examination and treatment, shall not be civilly or criminally liable for such decision or for any of its consequences. under the MHPA.10 In response, the plaintiff claims that his treatment does not fall within the scope of the MHPA as his condition is specifically excluded from coverage under the MHPA and he never alleged that he was committed to the psychiatric ward of the Hospital. Dismissal of Hollinger's medical malpractice claim on the basis of the MHPA would be premature at this point. Moreover, the plaintiff's amended complaint presents sufficient factual allegations to establish a plausible claim for negligence. Therefore, I will deny the defendants' motion to dismiss for failure to state a claim on Hollinger's negligence claim. 1. Punitive Damages The defendants also move to dismiss Hollinger's claim for punitive damages on the basis that he has failed to establish that the defendants acted with evil motive or with reckless or callous indifference. Under applicable Pennsylvania law, punitive damages are appropriate "only in cases where the defendant's actions are so outrageous as to demonstrate willful, wanton or reckless conduct." Hutchison v. Luddy, 582 Pa. 114, 870 A.2d 766, 770 (Pa. 2005). While ordinary negligence will generally not support an award of punitive damages, "punitive damages are appropriate for torts sounding in negligence when the conduct goes beyond mere negligence and into the realm of behavior which is willful, malicious, or so careless as to indicate wanton disregard for the rights of the parties injured." Id. (citing Restatement (Second) of Torts § 908 (1979)). Viewing the facts set forth in Hollinger's amended complaint as true and in the light most favorable to him, I find that Hollinger has sufficiently stated a claim for punitive damages against the defendants. Although the facts may later prove at most that the defendants were merely negligent, discovery is necessary to make this 10 The court in Albright v. Abington Mem'l Hosp., 548 Pa. 268, 696 A.2d 1159, 1164 (Pa. 1997), addressed MHPA liability stating: It appears that the legislature intended to require that liability be premised on facts indicating more egregiously deviant conduct than ordinary carelessness, inadvertence, laxity, or indifference. We hold that the legislature intended the term gross negligence to mean a form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity, or indifference. The behavior of the defendant must be flagrant, grossly deviating from the ordinary [*43] standard of care. 2016 U.S. Dist. LEXIS 91393, *40 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 83 of 175 Page 13 of 13 determination. Dismissing Hollinger's punitive damages claim at this stage would [*44] be premature. Therefore, I will deny the defendants' motion to dismiss Hollinger's request for punitive damages. 2. Attorneys' Fees Finally, the defendants move to dismiss Hollinger's request for attorneys' fees on Count V on the grounds that no statutory basis exists for awarding attorneys' fees in medical malpractice cases in Pennsylvania. Under Pennsylvania law, "a litigant cannot recover attorney's fees unless there is express statutory authorization, an agreement between the parties, or some other exception." Option One Mortg. Corp. v. Fitzgerald, 687 F.Supp.2d 520, 528 (M.D. Pa. 2009)(citing Trizechahn Gateway v. Titus, 601 Pa. 637, 976 A.2d 474, 482-83 (Pa. 2009)). There is no express statutory authorization allowing a plaintiff to recover attorneys' fees in a negligence action and Hollinger has not alleged that there is an agreement between the parties or some other exception which might permit attorneys' fees. Therefore, I am dismissing Hollinger's request for attorneys' fees on Count V. IV. CONCLUSION I am granting the defendants' motion to dismiss Hollinger's failure to screen, failure to stabilize, Title III and § 504 claims in addition to Hollinger's request for attorneys' fees under Count Five. I am denying the defendant's motion to dismiss the Hollinger's negligence claim and request for punitive damages. Rule 15 of the Federal Rules of Civil Procedure mandates that "[t]he court should freely [*45] give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2). I will permit Hollinger leave to amend his Title III and § 504 claims, but I am dismissing with prejudice the failure to screen and failure to stabilize claims on the basis that permitting leave to amend would be futile. Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000)("'Futility' means that the complaint, as amended, would fail to state a claim upon which relief could be granted."). Hollinger cannot present any set of factual allegations regarding his treatment on September 20, 2013 that would state a legally viable claim for relief under EMTALA. The plaintiff shall have twenty days to submit an amended complaint. An appropriate Order follows. ORDER AND NOW, this 14th day of July, 2016, upon consideration of the defendants' motion to dismiss (Doc. Nos. 17, 18), the plaintiff's response (Doc. No. 23), the defendants' reply (Doc. No. 26), the plaintiff's surreply (Doc. No. 29), the defendants' supplemental submission of authority (Doc. No. 32) and the plaintiff's response (Doc. No. 33), IT IS HEREBY ORDERED that: 1. The defendants' motion to dismiss (Doc. Nos. 17, 18) is GRANTED in part and DENIED in part. 2. Counts I and II of the plaintiff's amended complaint are DISMISSED with prejudice. Counts III and [*46] IV are DISMISSED without prejudice. The defendants' motion to dismiss is DENIED with respect to Count V. 3. The plaintiff shall file an amended complaint within twenty (20) days of the date of this Order. BY THE COURT /s/ Lawrence F. Stengel LAWRENCE F. STENGEL, J. End of Document 2016 U.S. Dist. LEXIS 91393, *43 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 84 of 175 Caution As of: April 3, 2017 4:48 PM Z In re McNeil Consumer Healthcare United States District Court for the Eastern District of Pennsylvania July 14, 2011, Decided; July 15, 2011, Filed MDL NO. 2190 Reporter 2011 U.S. Dist. LEXIS 76800 * IN RE: MCNEIL CONSUMER HEALTHCARE, ET AL., MARKETING AND SALES PRACTICES LITIGATION; Applies to: ALL ACTIONS Subsequent History: Motion granted by, Complaint dismissed at In re McNeil Consumer Healthcare, 2012 U.S. Dist. LEXIS 98312 (E.D. Pa., July 13, 2012) Prior History: In re McNeil Consumer Healthcare Mktg. & Sales Practices Litig., 744 F. Supp. 2d 1379, 2010 U.S. Dist. LEXIS 108625 (J.P.M.L., 2010) Core Terms Products, Contractor, allegations, consumers, Recalled, refund, phantom, plaintiffs', Defendants', named plaintiff, quality control, manufactured, injury-in-fact, coupons, causation, deficiencies, injuries, cases, oral argument, lack of standing, economic injury, announcement, Healthcare, serious problem, compensated, individuals, third-party, conspiracy, conceal, non-plaintiff Counsel: For Liaison Counsel for Plaintiff, Plaintiff: Donald E. Haviland, Jr., LEAD ATTORNEY, HAVILAND HUGHES LLC, Philadelphia, PA. For Liaison Counsel for Defendant, Defendant: Andrew D. Schau, COVINGTON & BURLING LLP, LEAD ATTORNEY, New York, NY. Judges: [*1] MARY A. McLAUGHLIN, Judge. Opinion by: MARY A. McLAUGHLIN Opinion MEMORANDUM McLaughlin, J. This putative class action represents a consolidation of individual cases filed in various courts throughout the United States, which have been transferred to this Court by the Judicial Panel on Multidistrict Litigation. The litigation arises out of purported quality control issues affecting certain over-the-counter healthcare products manufactured by Johnson & Johnson's ("J&J") consumer healthcare division, McNeil Consumer Healthcare ("McNeil"). The plaintiffs allege that J&J and McNeil, along with certain executives and board members (collectively, the "J&J Defendants"), as well as third-party contractors (the "Contractor Defendants"), engaged in a conspiracy to conceal systemic quality control problems and manufacturing defects that began at least as early as 2008, and which affected adult and children's medications, many of which were manufactured at McNeil's facility in Fort Washington, Pennsylvania. As a consequence of this scheme, the plaintiffs allegedly purchased McNeil products at higher prices than they were worth, based on their reliance on the J&J Defendants' reputation for safe and effective medications. [*2] In this action, the plaintiffs seek to recover their out-of-pocket payments for the products in question. The plaintiffs also seek damages for the alleged conspiracy to conceal the quality control problems that first came to light in 2010. Both the J&J Defendants and the Contractor Defendants have filed motions to dismiss. The Court held oral argument on these motions on June 29, 2011. The Court will grant the motions and will dismiss the plaintiffs' claims in their entirety for lack of standing. The claims against the J&J Defendants will be dismissed without prejudice, and the Court will permit the plaintiffs to amend their complaint. The claims against the Contractor Defendants, however, will be dismissed with prejudice. Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 85 of 175 Page 2 of 17 I. Facts as Alleged in the Consolidated Amended Complaint1 As an initial matter, the Court notes that the allegations in the consolidated amended complaint ("CAC") are difficult to distill into a coherent summary. This is largely due to the fact that the plaintiffs' allegations relate to disparate and in some cases unrelated events, each of which implicates different sets of products manufactured by the J&J Defendants. 2 At no point in the CAC do the plaintiffs identify which particular products they purchased; instead, the plaintiffs use umbrella terms such as "Subject Products" and "Recalled Subject Products." With these issues in mind, the Court has done its best to piece together the plaintiffs' allegations below. A. Background: April 30, 2010, FDA Report and Recall The twenty-seven named plaintiffs are individuals from sixteen states plus Ontario, Canada, who [*4] bring suit on behalf of themselves and a putative nationwide class 3 of consumers who have purchased unspecified "Subject Products" manufactured by McNeil from at least December 2008 to the present. 4 The plaintiffs 1 In evaluating a motion to dismiss under Rule 12(b)(6), a court must accept all well-pleaded facts as true, and must construe the complaint in the light most favorable to the plaintiff, while disregarding any legal conclusions. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The court must then determine whether the facts alleged are sufficient to show that the plaintiff has a "plausible claim for [*3] relief." Fowler, 578 F.3d at 210. If the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, then the complaint has alleged, but it has not shown, that the pleader is entitled to relief. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2008). 2 In addition, the plaintiffs often refer to J&J, McNeil, and the individual defendants interchangeably. 3 The plaintiffs also purport to represent individuals from other countries, which the plaintiffs refer to as "Other Places," and which include Canada, the Dominican Republic, the United Arab Emirates, Fiji, Guam, Guatemala, Jamaica, Puerto Rico, Panama, Trinidad & Tobago, and Kuwait. CAC ¶ 1. 4 The plaintiffs refer to all drugs allegedly affected by quality control issues as the "Subject Products." The Subject Products include various forms of the following: Tylenol Infants' Drops, Tylenol Infants' Suspension, Tylenol Suspensions, Tylenol Plus Suspensions, [*5] Children's Tylenol Plus, Tylenol Meltaways, Tylenol, Motrin Infants' Drops, Motrin Suspensions, Motrin Cold Suspensions, Junior contend that these Subject Products were defective due to quality control problems in McNeil's manufacturing process. Although the quality control problems began at least as early as 2008, the plaintiffs did not become aware of such problems until April 30, 2010, when the Food and Drug Administration ("FDA") issued a report citing McNeil's Fort Washington facility for various deficiencies in its manufacturing process. CAC ¶¶ 5, 7. In a report issued on April 30, 2010, the FDA listed twenty separate "observations" that had been made by FDA investigators based on inspections of McNeil's Fort Washington facility between April 19 and April 30, 2010. These observations related to a number of deficiencies in McNeil's manufacturing operations, including failures of production controls to ensure consistency in the strength, quality and purity of products; the use of contaminated raw materials, some of which contained gram-negative organisms; the manufacture of "super- potent batches" of certain products; the presence of foreign materials in some products; and a general lack of cleanliness and record keeping. CAC ¶¶ 195, 202-03; April 30, 2010, FDA Report, Ex. C to CAC. On the evening of April 30, 2010, following the [*6] FDA report, McNeil announced a voluntary recall of a subset of the Subject Products identified above. The recall covered approximately forty types of children's and infants' products manufactured at the Fort Washington plant, and encompassed over 136 million bottles of products in total. The recall was issued only as to products bearing certain National Drug Codes, production dates and lot numbers. Throughout the CAC, the plaintiffs refer to the subset of Subject Products that were recalled on, and subsequent to, April 30, 2010, as the "Recalled Subject Products." 5 CAC ¶¶ 7, 9. In the wake of the recall announcement, McNeil shut down its manufacturing operations at the Fort Washington facility. In addition, the recall announcement triggered a congressional investigation that led to two hearings before Congress in 2010. CAC Strength Motrin, Motrin IB, Zyrtec Liquids in Bottles, Benadryl Allergy Liquids in Bottles, Children's Benadryl Fastmelt Tablets, Benadryl Allergy Tablets, Pepsid, Rolaids, Mylanta and Alternagel Liquid Products, Simply Sleep, and St. Joseph Aspirin. "Subject Products," Ex. A to CAC. 5 The "Recalled Subject Products" include various forms of Tylenol Infants' Drops, Children's Tylenol Suspensions, Children's Tylenol Plus Suspensions, Motrin Infants' Drops, Children's Motrin Suspensions, Children's Motrin Cold Suspensions, Children's Zyrtec Liquids in Bottles, and Children's Benadryl Allergy Liquids in Bottles. CAC ¶ 9. 2011 U.S. Dist. LEXIS 76800, *2 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 86 of 175 Page 3 of 17 ¶¶ 7-9, 169-71, 173. The plaintiffs [*7] allege that the J&J Defendants' recall was inadequate for multiple reasons, and has therefore not fully compensated the putative class members. First, although all of the Subjects Products identified in the CAC suffered from "serious problems," the J&J Defendants only recalled a subset of those products, which are identified in the CAC as the Recalled Subject Products. The plaintiffs have therefore paid inflated prices for defective products that have not been subject to any recall. 6 CAC ¶¶ 4, 7, 9, 232. Even with respect to the products that were subject to the April 30, 2010, recall (the Recalled Subject Products), the accompanying refund offer was substantively deficient and has not fully compensated the plaintiffs for several reasons. First, the recall announcement was deliberately delayed until the evening of Friday, April 30, 2010, so as to avoid substantial media attention. As a consequence, only a small portion of consumers who purchased [*8] the Recalled Subject Products have learned about the recall, and an even smaller number have availed themselves of the refund offer. CAC ¶¶ 7-8. Even those consumers who availed themselves of the refund offer were not adequately compensated. In the early stages, McNeil encouraged consumers to take "high value coupons" for future McNeil products instead of cash refunds. The coupons, however, have no present cash value, are not transferable, and are "worthless" because the McNeil Fort Washington plant has closed. The plaintiffs aver that "[s]ome members of the consumer Class in this case received such worthless coupons." CAC ¶ 16. The J&J Defendants later began offering consumers a "limited opportunity" to request a partial cash refund of their out-of-pocket payments. Both the coupons and cash refunds, however, were only offered to consumers who could satisfy the J&J Defendants' eligibility criteria. CAC ¶¶ 14-15, 18. In particular, to receive a cash refund or a coupon, consumers had to complete a web-based form that required the consumer to enter the specific product name, as well as its National Drug Code number, lot 6 Based on the CAC and the representations made by plaintiffs' counsel at oral argument, it appears that the broader category of "Subject Products" includes products manufactured at additional locations apart from McNeil's Fort Washington facility. number and expiration date. The refund webpage contained no provisions [*9] for consumers who did not retain the product bottle, notwithstanding the J&J Defendants' instructions to discard products subject to the recall. 7 Therefore, consumers who used up or discarded the products cannot receive a coupon or cash refund. CAC ¶¶ 225-29, 233. Apart from these general allegations, the CAC does not aver that any named plaintiff attempted to avail himself of the refund offer and was not made whole. Instead, the plaintiffs rely on the experiences of non-plaintiff third-party consumers to illustrate specific examples of the refund offer's deficiencies. In particular, the plaintiffs cite to comments posted by consumers on an internet blog maintained by the J&J Defendants as part of the refund offer. 8 For example, a man named Evan D. Owen criticized the J&J Defendants for delaying the recall announcement until late in the evening on Friday, April 30. Mr. Owen also complained that [*10] the operators handling the customer service lines were difficult to reach, and those who could be reached were "data collectors and coupon issuers." The plaintiffs aver that Mr. Owen's experience emphasizes the fact that the J&J Defendants were pushing coupons over cash refunds. 9 CAC ¶¶ 235-39. In addition, the plaintiffs cite [*11] to a blog poster named "Aaron L." to show that cash refunds, when offered, were inadequate. Aaron L. commented that he was having "issues" with the amount of his cash refund, 7 The J&J Defendants encouraged consumers, as a "precautionary measure," not to administer unused Recalled Subject Drugs to children, and instead to dispose of said products by mixing them with materials such as kitten litter or coffee grounds and placing the products in a sealed bag. CAC ¶ 13. 8 The plaintiffs' allegations regarding third-party consumers are derived from 98 pages of documents relating to the refund offer that the J&J Defendants furnished to the plaintiffs after an initial status conference before the Court on December 13, 2010. The 98 pages largely consisted of printouts from the J&J Defendants' websites. None of the third-party consumers are named plaintiffs in this action. See CAC ¶¶ 234-35; Pls.' Opp'n to Defs.' Mot. to Dismiss ("Pls.' Opp'n"), at 9. 9 The plaintiffs also cite to a document entitled "Recall Update: Change to Compensation Policy," an internal J&J document that directed customer service representatives, "[e]ffective immediately," to offer a check first and then a coupon. According to the plaintiffs, this only would have been necessary if the J&J Defendants had previously been pushing coupons instead of cash. CAC ¶ 244. 2011 U.S. Dist. LEXIS 76800, *6 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 87 of 175 Page 4 of 17 based on the fact that he had "to destroy 6 various McNeil products and received a check for $10.00." CAC ¶ 241. The plaintiffs also append to their complaint a document dated May 13, 2010, signed by Peter Luther, McNeil's President, that was issued to healthcare providers. In the document, Mr. Luther explained that cash refunds were calculated based on the "average retail price" of the product in question. According to the plaintiffs, the average retail price did not include any applicable taxes. In addition, average retail prices have been inconsistent between internal McNeil documents. Therefore, any consumer who receives the average retail price is not made whole. CAC ¶¶ 58, 242-43. In view of the foregoing allegations, the plaintiffs contend that the refund offer has failed to compensate them. The plaintiffs also allege that the quality control problems that first came to light on April 30, 2010, and that prompted the recall, had been ongoing at J&J and McNeil since at least 2008. These quality control issues, [*12] which affected at a minimum all Subject Products, were concealed as part of a conspiracy to avoid disclosure. The 2010 recall and the accompanying refund offer, which have failed to compensate consumers, are symptomatic of this scheme to conceal the truth and to minimize the consequences of the J&J Defendants' actions. The Court will turn to the conspiracy allegations below. B. Conspiracy Allegations The plaintiffs' conspiracy allegations relate to events that largely occurred prior to the April 30, 2010, FDA report and the subsequent recall of children's and infants' medications. Taken together, the plaintiffs argue that these allegations reveal systemic quality control problems that were intentionally concealed by the defendants. 1. Violations of State and Federal Laws The plaintiffs devote many allegations of the CAC to violations of state and federal laws by J&J and its various non-McNeil subsidiaries in recent years. The plaintiffs contend that these violations, which in several cases resulted in the imposition of criminal or civil fines, should have put the J&J Defendants on "heightened alert" for the conduct giving rise to this action. In brief, the plaintiffs' allegations relate [*13] to "kickback" arrangements, as well as schemes to promote the off- label use of prescription drugs. 10 10 The plaintiffs reference the following: (1) a kickback scheme The J&J Defendants argue in their motion to dismiss that these allegations are extraneous and should be stricken under Federal Rule of Civil Procedure 12(f) as immaterial and impertinent to the present action. The Court agrees that these allegations are irrelevant to the present suit, because they do not pertain to quality control problems in general, or the products at issue in this suit in particular. In addition, none of the allegations relate to McNeil Consumer Healthcare. The Court will therefore not go into additional detail with respect to these allegations. See CAC ¶¶ 93-120. 2. Prior Quality Control Problems at J&J and McNeil The plaintiffs allege that J&J and [*14] McNeil's quality control has deteriorated since 2002, largely as a consequence of internal management decisions. Starting in 2002, McNeil began to lay off its experienced quality control staff and replace them with inexperienced contract workers. In 2007, William C. Weldon, the Chairman and CEO of J&J, made significant cuts to J&J's Corporate Compliance Group, which was charged with conducting "tough audits" and overseeing quality control at all of the J&J companies. In the same year, McNeil issued an internal memorandum that reflected its ongoing quality control problems, including a high percentage of operator errors in every work center. CAC ¶¶ 129, 136-37. J&J and McNeil's quality control was also subject to FDA criticism on multiple occasions prior to April 30, 2010. In 2004, for instance, the FDA cited McNeil for bad sampling and poor record keeping. On January 11, 2006, the FDA issued an "Enforcement Report" citing problems with several of the same products that were again cited in the 2010 report. 11 For example, in the 2006 report, the FDA identified particulate matter in Children's Motrin Bubblegum Suspensions. This same observation appeared again in the 2010 report. Similarly, [*15] the 2006 report identified the presence of foreign substances in the Bubblegum and Cherry Blast Flavors of Tylenol Oral Suspensions. These two between J&J and Omnicare covering certain prescription drugs; (2) a kickback scheme involving DePuy hip and knee replacement products; (3) a $6.15 million fine assessed against non-McNeil J&J subsidiaries for lack of transparency and/or product misbranding; and (4) the off-label promotion of Topamax, Risperdal, and Nactrecor prescription drugs. CAC ¶¶ 93-120. 11 Several of the issues that were cited in the 2006 report had led the FDA to initiate a recall of certain products in 2005, before the report was released. CAC ¶¶ 207-09. 2011 U.S. Dist. LEXIS 76800, *11 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 88 of 175 Page 5 of 17 products were again cited in the 2010 report. Finally, the 2006 report identified Berry Flavor Children's Motrin Oral Suspension as being "sub-potent." In contrast, several products were cited in the 2010 report for being "super-potent." CAC ¶¶ 206-09. The FDA has conducted a number of additional inspections at McNeil's facilities in both Fort Washington and Lancaster, Pennsylvania, and has found deficiencies with regard to McNeil's laboratory controls, equipment cleaning processes, and its investigations of identified problems. 12 In January 2010, the FDA issued McNeil a warning letter expressing concerns about McNeil's quality control and its failure to investigate quality problems. CAC ¶¶ 194-96. 3. J&J [*16] and McNeil Product Recalls The plaintiffs allege that the J&J Defendants' quality control problems, as outlined above, have led to a number of product recalls. The manner in which the defendants have handled the recalls, in turn, evidences a conspiracy to conceal quality control problems. The plaintiffs focus in particular on a so-called "phantom recall" of Motrin IB and a subsequent public recall in July 2009. The plaintiffs allege that in August 2008, McNeil distributed over 88,000 packages of defective Motrin IB. Three months later, McNeil discovered a dissolution problem with the drug, and sometime thereafter hired third-party contractors to perform a clandestine, or "phantom," recall. Pursuant to this "phantom recall," McNeil hired third-party contractors Inmar, Inc. 13, and WIS International, 14 and instructed them to visit various retailers, act like normal customers, and purchase all of the Motrin IB off of the shelves. J&J's specific instructions to the third-party contractors were as follows: 12 In February 2008 and June 2009, the FDA issued reports citing McNeil's Fort Washington facility for inadequate investigations and for mishandling complaints. CAC ¶¶ 139- 40. 13 The plaintiffs also allege that Inmar's subsidiaries, Carolina Supply Chain Services, LLC ("CSCS"), and Carolina Logistics Services, LLC ("CLS"), participated in the "phantom recall." CAC ¶¶ 64-65. 14 The plaintiffs allege that Inmar, Inc. hired WIS International as a subcontractor to assist with the "phantom recall." See CAC ¶ 66. [Q]uickly enter each store, find ALL of the Motrin product described, make the purchase transaction, secure the receipt, and leave . . . THERE MUST BE NO MENTION OF THIS BEING A RECALL [*17] OF THE PRODUCT! CAC ¶¶ 145-50. 15 The plaintiffs allege that McNeil subsequently misrepresented to the FDA that the third-party contractors [*18] were simply performing an audit in order to determine whether McNeil should initiate a formal recall. However, the FDA ultimately received a copy of the internal memo containing the instructions to the third-party contractors and confronted McNeil. Finally, on July 9, 2009, McNeil publicly recalled the affected Motrin IB. The "phantom recall" was ultimately a subject of the two hearings held before Congress in 2010. CAC ¶¶ 151-54. The plaintiffs cite to additional recalls involving McNeil products spanning from the "phantom recall" in 2008 to a recall in December 2010. These recalls included, among others, a September 2009 recall of Tylenol products that had been contaminated with gram- negative bacteria. Prior to initiating the September 2009 recall, McNeil allegedly engaged third-party contractor Inmar, Inc., to conduct a "market assessment" to determine how much of the product remained on store shelves in July 2009. CAC ¶¶ 155-59. In November and December of 2009, McNeil also recalled certain Tylenol pills manufactured at its Las Piedrad, Puerto Rico facility. McNeil had received reports of musty, moldy odors emanating from said pills as early as 2008, but did not investigate for over [*19] a year. This recall was later expanded to other products, including Benadryl, Motrin, Rolaids, and other lots of Tylenol, in January, June, and July of 2010. 16 CAC ¶¶ 15 The plaintiffs do not allege a precise date when the "phantom recall" occurred, but instead imply in the CAC that the "phantom recall" occurred approximately eight months prior to the public recall. See CAC ¶ 153. At oral argument, however, the plaintiffs clarified that the "phantom recall" was part of a process that occurred over the course of several months, beginning with a "market assessment" in May 2009, and ending with the removal of products from shelves sometime thereafter. See Tr. of Oral Arg. on June 29, 2011 ("Tr."), at 96-97. The Contractor Defendants, by contrast, contend that the "phantom recall" occurred in June 2009, a point which the plaintiffs have not disputed. See Contractor Defs.' Mot. at 5; Tr. at 16, 94. 16 The J&J Defendants recalled additional products after the 2011 U.S. Dist. LEXIS 76800, *15 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 89 of 175 Page 6 of 17 160-66. 4. Allegations Regarding Individual Defendants The plaintiffs allege that certain individuals employed as executives and board members at J&J and McNeil were integrally involved in this conspiracy to conceal quality control issues. For instance, the plaintiffs allege that William C. Weldon, the Chairman and CEO of J&J, had personal knowledge of the conditions at J&J's manufacturing facilities, including the Fort Washington facility. In addition, Mr. Weldon was "integrally involved in and responsible for" [*20] the decisions that led to deteriorating quality control at J&J. CAC ¶ 55. Apart from these general averments, the plaintiffs offer three specific allegations about Mr. Weldon. First, Mr. Weldon made significant cuts to J&J's "corporate compliance group" in 2007. Second, in the wake of several recalls in 2010, Mr. Weldon announced: "This is not a systemic problem at J&J." CAC ¶ 141. Approximately one week after this announcement, however, J&J issued two additional recalls. Finally, when testifying before Congress on September 30, 2010, Mr. Weldon admitted that McNeil had secretly performed a "phantom recall" of defective Motrin products, and admitted "McNeil should have handled things differently." Mr. Weldon also acknowledged that J&J had let the public down by not maintaining high quality standards, and accepted full responsibility. CAC ¶¶ 137, 141-42, 222-23. The plaintiffs make the same general allegations of personal knowledge and involvement regarding Colleen Goggins, the former Worldwide Chairman of the J&J Consumer Health Segment, and Peter Luther, the President of McNeil. Apart from the general allegations noted above, the plaintiffs also aver that Colleen Goggins testified [*21] before Congress on May 27, 2010, and admitted that J&J and McNeil had "not lived up to [their] responsibility" in light of the April 30, 2010, recall. Ms. Goggins allegedly tried to minimize the severity of the recall, however, by claiming that there were no health risks related to the use of the recalled products. CAC ¶¶ 215-17. April 30, 2010 recall. These recalls include: (1) an October 2010 recall of Tylenol caplets manufactured at McNeil's Fort Washington plant, due to musty odors; (2) a November 2010 recall of Benadryl tablets and Motrin caplets because of uncharacteristic consistencies and manufacturing problems; and (3) a December 2010 recall of Mylanta and AlternaGel liquid antacid because alcohol was not disclosed as an active ingredient on the packaging. CAC ¶¶ 184-91. With respect to Mr. Luther, the plaintiffs aver that the FDA met with senior J&J and McNeil officials on February 19, 2010, to discuss their concerns regarding J&J and McNeil's conduct. Mr. Luther was allegedly present at this meeting, and was therefore put on notice of the FDA's concerns. At the meeting, the FDA specifically raised its concerns about quality control issues, and the J&J Defendants' failure to report material information to the FDA in a timely manner. CAC ¶¶ 196, 198-200. The plaintiffs also assert the same general allegations of personal knowledge and integral involvement against Rosemary Crane, a former Company Group Chairman at J&J, as well as Mary Sue Coleman, Ph.D.; Michael M.E. Johns, M.D.; Susan L. Lindquist, Ph.D.; and David Satcher, M.D., Ph.D., each of whom serves or served on the Board of Directors of J&J. No specific allegations regarding [*22] any of these defendants appear in the CAC. CAC ¶¶ 57, 59-62. C. Claims Asserted in the CAC Based on the foregoing allegations, the plaintiffs claim that they have paid inflated prices for McNeil products and have not been fully compensated. The plaintiffs do not claim that they suffered any physical injury; instead, their claims are based entirely on economic injuries. The allegations of specific economic injury pertaining to the named plaintiffs, however, are sparse. The plaintiffs do not allege which particular Subject Products or Recalled Subject Products they purchased. The plaintiffs also do not allege that they availed themselves of any refund offers, and were inadequately compensated thereby. Instead, the CAC sets forth identical allegations with respect to each of the twenty-seven named plaintiffs, as follows: [Name] is an individual and resident of [state] who, during the relevant time period, purchased a number of Subject Products, including some Recalled Subject Products. As a result, [Name], like other members of the Class (and/or possible Sub- Class of [State] consumers only), suffered damages from the unlawful scheme and conspiracy, and the concealment of the same by Defendants, [*23] which damages result from his out of pocket payments for Subject Products which were unsafe at the time of sale, were not of the same quality and condition as represented at the time of sale, and are now worthless as medicines. [Name] has not been reimbursed fully for his out-of-pocket payments for Subject Products. 2011 U.S. Dist. LEXIS 76800, *19 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 90 of 175 Page 7 of 17 CAC ¶¶ 28-52. The plaintiffs have named as defendants McNeil and J&J, as well as individual defendants William C. Weldon, Colleen Goggins, Rosemary Crane, Peter Luther, Mary Sue Coleman, Michael M.E. Johns, Susan L. Lindquist, and David Satcher (collectively, the "J&J Defendants"). The plaintiffs have also named as defendants the entities alleged to have performed "market assessments" and the "phantom recall": Inmar, Inc. and its subsidiaries, Carolina Supply Chain Services, LLC ("CSCS"), Carolina Logistics Services, LLC ("CLS"), as well as WIS International (collectively, the "Contractor Defendants"). Against all defendants, the plaintiffs assert claims for: violations of the consumer fraud laws of sixteen states (Count I); 17 violations of RICO (Count II); violations of the Magnuson-Moss Warranty Act (Count III); Negligence (Count VII); Negligent Misrepresentation/Fraud [*24] (Count VIII); Conspiracy, Concert of Action and Aiding and Abetting (Count IX); Unjust Enrichment (Count X); and Declaratory Relief (Count XI). Against the J&J Defendants, the plaintiffs also assert claims for Strict Products Liability - Manufacturing Defect (Count IV); Strict Products Liability - Failure to Warn (Count V); and Breach of Implied Warranties (Count VI). II. Procedural Background This action represents a consolidation of individual cases filed in various courts throughout the country. On May 12, 2010, the case Haviland v. McNeil Consumer Healthcare, Civil No. 10-2195, was filed in this Court, asserting economic injuries against J&J and McNeil in light of the April 30, 2010, recall. Eight additional cases, also arising out of the April 30, 2010, recall, were filed in other courts, including the Northern District of Illinois and the Central District of California. 18 Each case 17 The named plaintiffs represent a total of sixteen different states. If this case proceeds, the plaintiffs also intend to assert claims under all fifty states' consumer fraud laws. 18 Those cases include: Roberson v. McNeil Consumer Healthcare, Civil No. 10-5560 (N.D. Ill.); Rivera v. Johnson & Johnson, Civil No. 10-5579 (C.D. Cal.); Nguyen v. McNeil Consumer Healthcare, Civil No. 10-5580 (N.D. Ill); Michaud v. McNeil Consumer Healthcare, Civil No. 10-5587 (N.D. Ill.); Smith v. McNeil Consumer Healthare, Civil No. 10-5654 (N.D. Ill); Burrell v. McNeil Consumer Healthcare, Civil No. 10-5656 (N.D. Ill.); and DeGroot v. McNeil Consumer Healthcare, Civil No. 10-5657 (N.D. Ill.). asserted claims for economic injury only, with the exception of Rivera v. Johnson & Johnson, which also asserted claims [*25] for physical injury. On October 8, 2010, the Judicial Panel on Multidistrict Litigation transferred the above-referenced cases to this Court, where they and all future "tag-alongs" were consolidated into an MDL. Since that time, two "tag-along" cases have been transferred to this Court. 19 The Court held an initial status conference with counsel on December 13, 2010. A consolidated amended complaint was filed on January 12, 2011, which named as [*26] additional defendants the Contractor Defendants. The plaintiffs also widened the scope of their claims to include events both before and after the April 30, 2010, recall. 20 Both groups of defendants filed motions to dismiss the CAC in its entirety on April 1, 2011. The plaintiffs filed an omnibus opposition on May 13, 2011. Both groups of defendants filed reply briefs on June 9, 2011. The Court held oral argument on June 29, 2011. The Court will now grant the motions to dismiss. III. Analysis of the Motions to Dismiss As a threshold matter, both groups of defendants argue that the named plaintiffs lack standing under Article III of the United States Constitution, and all of their claims must therefore be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). 21 Specifically, the defendants argue that the named plaintiffs lack standing because they have not established any injury-in-fact. Although the plaintiffs allege [*27] in a conclusory fashion that they have not been fully reimbursed for their out-of-pocket expenses for the products in question, they do not allege what specific harm that they have suffered. With respect to the broad category of Subject Products, for instance, the plaintiffs allege only that the products suffered from "serious problems." The plaintiffs do not aver specifically what those problems were or how they were injured 19 Specifically, Coleman v. McNeil Consumer Healthcare, Civil No. 10-6905 (S.D. Ohio) and Harvey v. Johnson & Johnson, Civil No. 11-2363 (E.D. Mo), were transferred to this Court. The CAC also added additional plaintiffs not included in the above cases. 20 All claims for physical injury were omitted from the CAC. The plaintiffs seek damages for economic injury only. 21 The defendants have also moved to dismiss the CAC on other grounds, including failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). 2011 U.S. Dist. LEXIS 76800, *23 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 91 of 175 Page 8 of 17 therefrom. As for the subset of products that were recalled after the April 30, 2010, FDA report (the Recalled Subject Products), the plaintiffs identify only hypothetical deficiencies with the refund offer, based on the experiences of non-plaintiffs. The defendants argue that there are no allegations that any named plaintiff attempted to but was unable to obtain a refund, or received a refund that was otherwise inadequate. The Contractor Defendants additionally argue that the plaintiffs lack standing because they cannot show that the Contractor Defendants' conduct caused any injury to the plaintiffs. In particular, the Contractor Defendants are not alleged to have manufactured, distributed or promoted any Subject Products. Instead, the only allegations with respect [*28] to the Contractor Defendants are that they participated in the removal of Motrin IB from store shelves. According to the Contractor Defendants, the plaintiffs have not shown how this conduct led to any economic injuries. The Court will begin its analysis with the threshold issue of Article III standing. A. Article III Standing The doctrine of standing derives from Article III of the United States Constitution, which limits the jurisdiction of federal courts to "Cases" and "Controversies." U.S. Const. art. III, § 2. The "irreducible constitutional minimum" of standing requires that a plaintiff establish three elements in order to invoke federal jurisdiction. First, the plaintiff must have suffered an injury-in-fact, which is an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent. Second, the plaintiff must establish a causal connection between the injury and the conduct complained of. Third, the plaintiff must establish that it is likely, as opposed to merely speculative, that the injury will be "redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (U.S. 1992) (citations omitted). Standing is ordinarily [*29] a threshold issue for any case. To that end, "a plaintiff must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants." Warth v. Seldin, 422 U.S. 490, 501, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). The requirement that a named plaintiff have standing applies equally in the context of class actions. Therefore, "even named plaintiffs who represent a class must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent." Lewis v. Casey, 518 U.S. 343, 357, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996). If no named plaintiffs establish standing, none may seek relief on behalf of other members of the class. O'Shea v. Littleton, 414 U.S. 488, 494, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974). 22 The Court will begin by addressing the [*30] injury-in- fact prong, which constitutes the main dispute in this action. The Court will then turn to the causation prong, which the Contractor Defendants contend has not been satisfied. Neither group of defendants has addressed the third element of redressability. 1. Injury-in-Fact An injury-in-fact must be "distinct and palpable," not "abstract or conjectural or hypothetical." Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286, 291 (3d Cir. 2005) (citations omitted). The injury must be particularized, which means that the injury must affect the plaintiff "in a personal and individual way." Lujan, 504 U.S. at 561 n.1. This requirement ensures that a litigant has a personal stake in the litigation. Danvers Motor Co., 432 F.3d at 291. Although injury-in-fact cannot be reduced to a simple formula, economic injury is a "paradigmatic" form of injury-in-fact, and a claim for damages generally supports standing. Id. In addition, the injury-in-fact requirement is "very generous," requiring only that a plaintiff allege "some specific, 'identifiable trifle' of injury." Danvers Motor Co., 432 F.3d at 294 (citations omitted). To survive a motion to dismiss for lack of standing, therefore, the [*31] plaintiffs must plead that they suffered some concrete form of harm. Id. at 292. For purposes of this memorandum, the Court will analyze separately the broader category of Subject Products and the narrower category of Recalled Subject Products. This analytical structure corresponds with the allegations in the CAC, which distinguish between Subject Products and Recalled Subject Products and offer different factual averments with respect to each 22 A plaintiff must also establish standing on a claim-by-claim basis. Allen v. Wright, 468 U.S. 737, 752, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984). The Court need not conduct a claim-by- claim standing analysis at this time, however, because it concludes that the same pleading deficiencies plague each of the plaintiffs' claims. See Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 139 n.5 (3d Cir. 2009). 2011 U.S. Dist. LEXIS 76800, *27 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 92 of 175 Page 9 of 17 category. a. Subject Products The Court concludes that the plaintiffs have not established injury-in-fact with respect to the Subject Products, because the CAC does not permit the Court to discern what, if any, harm the named plaintiffs have suffered. As an initial matter, the CAC is deficient insofar as the plaintiffs do not allege which particular products they purchased. Instead, each named plaintiff alleges that he or she "purchased Subject Products including some Recalled Subject Products." CAC ¶¶ 28- 52. The Subject Products category, in turn, encompasses, "at a minimum," a list containing twenty- one different products, and at least seventy-four types of said products. At no point in the CAC do the plaintiffs identify a single product that [*32] they purchased from this large and indefinite list. In addition, the plaintiffs do not allege how the unspecified Subject Products they purchased were defective. 23 Instead, the plaintiffs allege only that each Subject Product suffered from "serious problems." CAC ¶ 4. The "serious problems" are not elaborated upon, and could therefore reference any of the allegations in the CAC that the Court described in Part I of this memorandum. For instance, it is possible that the serious problems include the dissolution issues that affected certain lots of Motrin IB, which prompted a "phantom recall" and a subsequent public recall in July 2009. It is also possible that the serious problems include the numerous FDA warnings and recalls to which the plaintiffs cite in the CAC, or simply the general allegations of deteriorating quality control at J&J. Notably, several of the products that appear on the "Subject Products" list [*33] are not even alleged to have been recalled or subject to any FDA citations. Because the plaintiffs do not identify which products were purchased, it is impossible to match the many incidents outlined in the CAC with the specific drugs that fall under the Subject Products category. Even assuming that the "serious problems" identified above encompass the allegations of specific product recalls and FDA citations, the plaintiffs fail to allege any personal harm arising therefrom. This deficiency follows from the plaintiffs' failure to allege which particular products they purchased. For instance, the plaintiffs 23 As noted, the Court will analyze separately the subset of Subject Products that were recalled after the April 30, 2010, FDA report (the Recalled Subject Products). make numerous allegations about the "phantom recall" and the subsequent public recall of Motrin IB. The plaintiffs do not, however, allege that they purchased the affected lots of Motrin IB and were not made whole. The same logic applies to all of the remaining allegations in the CAC: the plaintiffs cite to approximately eleven recalls apart from the April 30, 2010, recall, and a handful of FDA reports, but do not allege [*34] how they were harmed by any of these incidents. Instead, the plaintiffs only allege, in general terms, that they "suffered damage" as a result of their "out of pocket payments for Subject Products" that were unsafe and not as represented, and that they have "not been reimbursed fully" for their out-of-pocket payments. CAC ¶¶ 28-52. In view of these deficiencies, the Court concludes that the plaintiffs have not established injury-in-fact with respect to claims involving the Subject Products. Even if the Court were to read the allegations of "serious problems" generously, and assume that the plaintiffs have identified problems affecting certain Subject Products, the plaintiffs have not alleged that they, rather than non-plaintiff members of the class, have suffered injury as a result of said problems. Under Supreme Court case law, named plaintiffs must establish that they themselves have suffered injury. See Lewis v. Casey, 518 U.S. 343, 357, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996). In the absence of particularized harm, the plaintiffs' injuries are abstract and hypothetical, rather than distinct and palpable. See Danvers Motor Co., 432 F.3d at 291. Conclusory allegations that the plaintiffs have "not been reimbursed" [*35] are insufficient to show an invasion of a legally protected interest. See id. at 290-91. The Court's analysis is consistent with the case law cited by the parties. For instance, the defendants cite to Rivera v. Wyeth-Ayerst Laboratories, 283 F.3d 315 (5th Cir. 2002). In Rivera, the Fifth Circuit dismissed the claims of a putative class action brought against Wyeth, which sought damages for economic injuries arising out of a defective drug that caused liver failure in some patients. The Fifth Circuit concluded that the named plaintiffs had not established injury-in-fact, because the plaintiffs had failed to allege that the drugs were somehow defective as to them, or otherwise caused them specific injury. The plaintiffs' conclusory allegations of "economic injury" were never defined or elaborated upon. The Fifth Circuit explained that the plaintiffs could not prevail by establishing that Wyeth violated a legal duty owed to other consumers; instead, the injury must be personal. Rivera, 283 F.3d at 319-20. 2011 U.S. Dist. LEXIS 76800, *31 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 93 of 175 Page 10 of 17 Similarly, the defendants cite to Whitson v. Bumbo, 2009 U.S. Dist. LEXIS 32282 (N.D. Cal. Apr. 15, 2009). In Whitson, the plaintiff brought a putative class action for economic injuries [*36] arising out of defective baby seats, which had caused injuries to non-plaintiff children. The plaintiff asserted economic injury based on an overpayment theory, as in the present case. The Whitson court concluded that the plaintiff lacked Article III standing, because she had not alleged that her own product manifested any defect or that she had suffered any specific injury. Instead, the only allegations of injury were "entirely conclusory statements" that the plaintiff "did not receive the benefit of [her] bargain," without elaboration as to how. The Whitson court held that the plaintiff could not rely on the injuries of non-parties to establish standing. Whitson, 2009 U.S. Dist. LEXIS at *15-18 & n.4. These cases are consistent with the Court's reasoning in the present action. As in Rivera and Whitson, the plaintiffs in this case have not alleged that the Subject Products were defective as to them, or that the plaintiffs were otherwise injured. The plaintiffs assert in conclusory terms that they suffered out-of-pocket expenses and were not made whole, but do not make any specific allegations as to how. Therefore, their allegations of injury are based on harm that occurred to non-plaintiff [*37] third parties. Finally, the plaintiffs were unable to cure their deficient allegations either in their opposition brief or at oral argument. The plaintiffs devote the majority of their opposition to arguing that they have standing with respect to the Recalled Subject Products. With respect to the broader category of Subject Products, which were afflicted by "serious problems," the plaintiffs echo the allegations from the CAC and contend that the products were "filthy, adulterated, contaminated and sub- standard." Pls.' Opp'n at 5. On this basis, the plaintiffs argue: Plaintiffs' allegations of purchase of the J&J Defendants' "Subject Products" alone are sufficient to prove that they have suffered an injury in fact. Plaintiffs and the Class suffered actual economic loss via out-of-pocket payments for Subject Products which were not of the same quality and condition as represented at the time of sale and some of which were unsafe. Pls.' Opp'n at 15. As discussed above, such conclusory allegations cannot establish injury-in-fact. The Court will therefore dismiss the claims pertaining to the Subject Products for lack of standing. b. Recalled Subject Products The plaintiffs' allegations are somewhat [*38] more detailed with respect to the Recalled Subject Products. In contrast to the general allegations of "serious problems" pertaining to the Subject Products, the plaintiffs allege tangible defects affecting the Recalled Subject Products. Specifically, the plaintiffs allege that all Recalled Subject Products manifested a defect in at least one of two respects: (1) they suffered from the problems identified in the April 30, 2010, FDA report; and/or (2) consumers were urged to stop using and dispose of the products as part of the recall announcement, thereby rendering the products useless. In addition, the plaintiffs allege specific deficiencies in the J&J Defendants' refund offer in an attempt to establish injury. Notwithstanding these allegations, the Court concludes that the plaintiffs have failed to establish injury-in-fact with respect to the Recalled Subject Products. Although the Third Circuit has described the injury-in-fact requirement as "very generous," a plaintiff must still allege some form of specific injury, even if small, in order to survive a motion to dismiss for lack of standing. See Danvers Motor Co., 432 F.3d at 292, 294. The plaintiffs do not meet this burden. First, [*39] as with the Subject Products, the plaintiffs do not identify which products they purchased, and instead allege that they "purchased Subject Products including some Recalled Subject Products." CAC ¶¶ 28-52. More fundamentally, however, the plaintiffs do not allege individualized injuries, but instead rely entirely on injuries suffered by non-plaintiff class members. In order to establish injury, the plaintiffs allege a number of deficiencies in the J&J Defendants' refund offer. As described at length in Part I of this memorandum, the plaintiffs aver that: (1) the recall announcement was delayed, so as to minimize consumer awareness; (2) the J&J Defendants pushed "worthless" coupons over cash refunds; (3) consumers were required to furnish difficult-to-obtain information in order to obtain refunds, notwithstanding the J&J Defendants' instructions to dispose of unused products; and (4) cash refunds, when received, were inadequate and did not cover applicable taxes or disposal costs. As a consequence, the plaintiffs were not fully compensated for the Recalled Subject Products. Further, in order to particularize these general allegations, the plaintiffs cite to the experiences of various [*40] non-plaintiff consumers. Two such 2011 U.S. Dist. LEXIS 76800, *35 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 94 of 175 Page 11 of 17 individuals posted comments on the J&J Defendants' recall blog. As described above, a non-plaintiff named Evan D. Owen expressed his frustration both that the J&J Defendants delayed their recall announcement until the evening, and that the telephone lines were operated by "coupon issuers." A man named "Aaron L," by contrast, complained about the amount of his cash refund. The plaintiffs also make several allegations with respect to unidentified class members. With regard to the "worthless" coupons, the plaintiffs allege that "[s]ome members of the Consumer class in this case received such worthless coupons." CAC ¶ 16. In addition, with respect to the cash refunds, the plaintiffs allege that "[s]uch refunds were not offered to all consumers in the Class." Id. ¶ 18. None of these allegations are particularized to the named plaintiffs. For instance, although the plaintiffs allege that the recall announcement was delayed, no named plaintiff alleges that he or she was unaware of the recall as a consequence. Similarly, the plaintiffs allege that the defendants pushed "worthless" coupons over cash, but no named plaintiff alleges that he or she has received [*41] such a coupon; instead, the CAC alleges that "[s]ome members of the Consumer class" did. The same pleading deficiencies plague the allegations regarding cash refunds. The plaintiffs allege that cash refunds were contingent on strict eligibility criteria and did not fully compensate consumers for taxes and disposal costs. No named plaintiff, however, alleges that he or she attempted to obtain a cash refund, and was either denied a refund or received a refund that was inadequate. The plaintiffs have also failed to inject greater specificity into their allegations by way of their opposition brief or oral argument. Instead, the plaintiffs have repeated the same allegations that appear in the CAC. 24 Apart from general arguments about "class members," the only particular individuals whom the plaintiffs referenced in their opposition brief or at oral argument are the same two non-plaintiff consumers who posted on the J&J Defendants' recall blog. As a consequence, the plaintiffs have failed to establish that a single named plaintiff suffered any of the many injuries identified by the 24 In summary, the plaintiffs devote several pages to arguing that the recall announcement was [*42] deliberately delayed; that the J&J Defendants pushed coupons over cash; and that the criteria for obtaining coupons or cash refunds were vague and undefined. Pls.' Opp'n at 7-11. plaintiffs. 25 The plaintiffs also argue that [*43] the mere purchase of the Recalled Subject Products, in and of itself, is sufficient to establish injury-in-fact. Specifically, the plaintiffs contend that their economic losses arose at the moment the J&J Defendants recalled the products in question and advised consumers not to use them. In support of this argument, the plaintiffs rely on American Federation of State County and Municipal Employees v. Ortho-McNeil-Janssen Pharmaceuticals, Inc., 2010 U.S. Dist. LEXIS 23181, 2010 WL 891150 (E.D. Pa. Mar. 11, 2010). In American Federation, the issue was whether plaintiffs had standing based on their purchase of fentanyl patches, all of which were recalled and had to be disposed of, but only some of which manifested the defect in question. 2010 U.S. Dist. LEXIS 23181, [WL] at *3. The Court concluded that the plaintiffs, who were health and welfare trust funds that had purchased the fentanyl patches for their members, had standing regardless of whether the defect manifested itself. The plaintiffs had standing because they "paid or will pay expenses related to the purchase of and reimbursement of ... fentanyl patches that had to be discarded." 2010 U.S. Dist. LEXIS 23181, [WL] at *4. The plaintiffs argue that in this case, they too "have paid or will pay expenses related to the [*44] purchase and replacement of Recalled Subject Products." Pls.' Opp'n at 18. The Court finds American Federation to be distinguishable from the present case. A reading of the case reveals that the claims in American Federation were based on more particularized allegations of harm than exist here. First, the plaintiffs were able to identify 25 On this point, the parties dispute the applicability of In re Ford Motor Company Ignition Switch Products Liability Litigation, 1997 U.S. Dist. LEXIS 24064, 2001 WL 1266317 (D.N.J. Sept. 30, 1997). In Ford Motor, the plaintiffs owned vehicles that were subject to a recall due to a potentially defective ignition switch. The plaintiffs, whose own vehicles had not manifested the defect, sued for economic damages. The Court dismissed the claims of those particular plaintiffs, noting that they had failed to allege any injury that might require compensation apart from the defendants' offer to replace the ignition switches. Ford Motor, 1997 U.S. Dist. LEXIS 24064, 2011 WL at *5. To the extent that Ford Motor is relevant to this case, it is consistent with the Court's analysis. Ford Motor is illustrative of the requirement that plaintiffs allege some form of particularized injury. As in Ford Motor, the plaintiffs in this case have failed to show how they were inadequately compensated, either by the J&J Defendants' refund offer or otherwise. 2011 U.S. Dist. LEXIS 76800, *40 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 95 of 175 Page 12 of 17 the precise products they had purchased: fentanyl patches in specific dosages. Second, the plaintiffs were able to identify the precise harm they had suffered or would suffer: reimbursement and repurchase expenses for the patches that were procured for members, and which had to be discarded. Third and finally, it does not appear that any refund program was established in American Federation by which the plaintiffs could have been made whole. In the present case, by contrast, the plaintiffs do not identify which products they purchased, nor do they allege the precise manner in which they have been harmed. No plaintiff has alleged, for instance, that he has paid or will pay costs to replace a product that had to be discarded. Finally, no plaintiff alleges that any harm arising from the recall was not, or could not be, adequately resolved by the refund [*45] offer. 26 Additional cases cited by the defendants further undermine the plaintiffs' argument that the purchase of Recalled Subject Products alone establishes injury-in- fact. Specifically, these cases emphasize the importance of each named plaintiff's particular circumstances to the standing inquiry. For instance, several courts have held that individuals who consume defective products cannot sue for economic damages unless the products failed to work as intended. In the Rivera case discussed above, for example, the Fifth Circuit held that those plaintiffs who had consumed an allegedly defective drug could not establish economic [*46] injury, because the plaintiffs had not alleged that the products had been ineffective as to them; therefore, they received the benefit of the bargain. Rivera, 283 F.3d at 320. Similarly, in Myers-Armstrong v. Actavis Totowa, LLC, 2009 U.S. Dist. LEXIS 38112, 2009 WL 1082026 (N.D. Cal. April 22, 2009), a plaintiff sued for economic damages after consuming a product that was recalled due to contamination in the manufacturing process. The Myers-Armstrong court concluded that the plaintiff 26 The fact that the defendants offered a refund may not, in and of itself, defeat standing. Nonetheless, the plaintiffs must still show that the remedy offered by the defendants was somehow inadequate as to them. The plaintiffs' own case law makes this clear. See, e.g., In re Mattel, Inc. Toy Lead Paint Prods. Liab. Litig., 588 F. Supp. 2d 1111, 1116 (C.D. Cal. 2008) (holding plaintiffs' claims were not preempted by defendants' voluntary product replacement program, provided plaintiffs could "prove that the voluntary remedy offered by the defendant was inadequate"). lacked standing because she had consumed the pills and obtained their benefit with no downside. The plaintiff was therefore in a different position from a consumer who had purchased but not consumed the defective product. Myers-Armstrong, 2009 U.S. Dist. LEXIS 38112, 2009 WL at *4. Rivera and Myers-Armstrong are not binding on this Court. Nonetheless, these cases illustrate the weaknesses in the plaintiffs' argument. Specifically, the cases reveal that plaintiffs who have purchased Recalled Subject Products are not in a monolithic category. Instead, it is possible that the plaintiffs who purchased Recalled Subject Products could have, for instance: (1) consumed the products and received the benefit of the bargain; (2) disposed of the products and failed to avail [*47] themselves of the refund offer; (3) disposed of the products and obtained an inadequate refund; or (4) disposed of the products and were made whole. Any of these scenarios is plausible based on the vague allegations of the CAC, and each would result in a different standing analysis. The mere purchase of Recalled Subject Products, therefore, cannot be sufficient to establish injury-in-fact. In view of the plaintiffs' failure to establish injury-in-fact, the Court will dismiss their claims for lack of standing. 27 The dismissal will be without prejudice as to the claims against the J&J Defendants. 28 All claims against the 27 Because the Court will dismiss the CAC for lack of standing, it need not address the defendants' other bases for dismissal. 28 Although the Court will dismiss the claims against the J&J Defendants without prejudice, the Court notes that it considered dismissing with prejudice all claims against the individuals who serve or served on J&J's [*48] Board of Directors. The CAC is devoid of any specific allegations regarding these individuals. Indeed, apart from being named as defendants, these individuals are never again mentioned in the CAC. At oral argument, plaintiffs' counsel was unable to provide additional information regarding the director defendants. Tr. at 98-100. Out of an abundance of caution, the Court will permit the plaintiffs to amend their allegations against the director defendants. The Court alerts counsel, however, that it considers the claims to be dismissible, and will likely reach the same conclusion if the director defendants are named in the amended complaint, absent more specific allegations. The Court also expects more specific allegations regarding the executive defendants, Mr. Weldon, Ms. Goggins, Ms. Crane, and Mr. Luther. Although the CAC contains some specific allegations regarding these defendants, they are sparse. At oral argument, plaintiffs' counsel explained that the plaintiffs 2011 U.S. Dist. LEXIS 76800, *44 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 96 of 175 Page 13 of 17 Contractor Defendants will be dismissed with prejudice, however, because the Court concludes that the plaintiffs are unable to establish the second requirement of standing, causation. The Court turns to the causation requirement below. 2. Causation In addition to injury-in-fact, [*49] Article III standing requires a causal relationship between the injury and the conduct complained of. Winer Family Trust v. Queen, 503 F.3d 319, 325 (3d Cir. 2007) (citations omitted). To satisfy this causation requirement, the plaintiffs must establish that the injuries in question "fairly can be traced to the challenged action" of a particular defendant, rather than to the action of an independent third party. Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990); Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 137-38 (3d Cir. 2009). This requirement is not as demanding as the proximate causation required under tort law. Instead, an indirect causal relationship may suffice, so long as there is a "substantial likelihood" that the defendant's conduct caused the plaintiffs' harm. Pub. Interest Research Grp. v. Powell Duffryn Terminals, 913 F.2d 64, 72 (3d Cir. 1990). The Contractor Defendants argue that the plaintiffs cannot establish the requisite causation between their putative injuries and the particular actions of the Contractor Defendants. 29 Specifically, the sole allegations regarding the Contractor Defendants pertain to the market assessment and "phantom recall" of Motrin IB [*50] in 2009. According to the Contractor Defendants, the plaintiffs have failed to show how this "phantom recall" was causally related to the sweeping injuries alleged in the CAC. By contrast, the plaintiffs argue that the Contractor Defendants caused the injuries in question because, by conducting a "phantom recall," the Contractor Defendants helped the J&J Defendants to "unlawfully conceal[] the fact that the Subject Products ... were substandard and defective." Pls.' Opp'n at 21. This fraudulent concealment, in turn, caused injury to consumers who continued to pay inflated prices for defective Motrin IB. Id. In addition, had the Contractor could provide additional information upon amendment. Tr. at 99-101. The Court expects to see such allegations if the executives are named as defendants in the amended complaint. 29 The J&J Defendants have not raised the issue of causation. Defendants not participated in the "phantom recall," the J&J Defendants "would have been forced to publicly disclose the defective nature of their Subject Products and would have issued a broader recall." Id. at 23. The Court agrees that the plaintiffs have failed to establish causation. Assuming, arguendo, that certain named plaintiffs purchased the affected lots of Motrin IB, for purposes of the causation inquiry, such plaintiffs could have been injured at two different times: (1) prior to [*51] the "phantom recall"; or (2) during and after the "phantom recall," insofar as certain defective lots of Motrin IB were not captured by the recall and remained on store shelves. With respect to those plaintiffs who purchased Motrin IB prior to the "phantom recall," there are no allegations that the Contractor Defendants had any pre-existing relationship with the J&J Defendants or the products in question. The Contractor Defendants are not alleged to have participated in the manufacture, distribution, or marketing of the defective Motrin IB. Instead, based on the CAC, the Contractor Defendants first became involved with the J&J Defendants when they were engaged to conduct the "phantom recall" of Motrin IB. It follows, therefore, that any injuries that occurred prior to the "phantom recall" cannot be "fairly traced" to the Contractor Defendants' conduct. See Toll Bros., 555 F.3d at 137-38. The plaintiffs have also failed to establish causation with respect to any named plaintiffs who purchased affected Motrin IB during or after the "phantom recall." The plaintiffs rely on a theory of "but for" causation, and contend that the J&J Defendants would have been forced to conduct an earlier and [*52] more complete public recall, but for the Contractor Defendants' participation in the "phantom recall." This argument, however, finds no support in the CAC. First, there are no allegations that the Contractor Defendants participated in, or had influence over, the decision to conduct a "phantom recall," or decisions regarding the scope of said recall. Second, the plaintiffs have not alleged that the Contractor Defendants had any knowledge of the specific defects affecting Motrin IB, such that they would have or should have refused to conduct a "phantom recall." Finally, even if the Contractor Defendants had refused to conduct a "phantom recall," there is no basis for assuming that the J&J Defendants would have been unable to find other contractors to conduct the recall, or that the J&J Defendants otherwise would have foregone a "phantom 2011 U.S. Dist. LEXIS 76800, *48 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 97 of 175 Page 14 of 17 recall" in favor of a public recall. The plaintiffs' theory of causation, therefore, hinges on the Contractor Defendants' possessing a degree of influence over the J&J Defendants that is not plausible based on the limited allegations in the CAC. Instead, the plaintiffs' injuries appear to be based on conduct more appropriately attributed to the J&J Defendants [*53] alone. Focusing on the specific conduct attributable to the Contractor Defendants, the Court is left with allegations that the Contractor Defendants removed allegedly defective Motrin IB from store shelves. It is not clear how the plaintiffs could have been harmed by the removal of products that they contend were defective. Instead, each purportedly defective unit of Motrin IB that was removed from store shelves became unavailable for purchase by a consumer. It does not logically follow that the plaintiffs could have been injured by these actions. The causal relationship is even more tenuous with respect to Subject Products apart from Motrin IB. The plaintiffs rely on the same theory of "but for" causation, contending that: "but for" Contractor Defendants' actions in coordinating with J&J Defendants to remove only select Subject Products from select retail outlets, J&J would have been forced to make a full-blown, public recall and to properly inform consumers that their Subject Products were unsafe and defective. Pls.' Opp'n at 22. Once again, this argument is unsupported by any allegations in the CAC. The plaintiffs have alleged no connection between the Contractor Defendants and any [*54] of the Subject Products. As was the case with Motrin IB, the plaintiffs have not alleged that the Contractor Defendants were responsible for the production, distribution, or marketing of the Subject Products. Furthermore, the plaintiffs have not alleged that the 2009 "phantom recall" involved any products apart from Motrin IB. It is therefore unclear how the Contractor Defendants' participation in the "phantom recall" could have influenced the J&J Defendants' decisions with respect to other Subject Products. 30 30 The plaintiffs append to their opposition brief a series of email communications involving WIS International, and ask that the Court take judicial notice thereof. In the emails, WIS employees discuss the possibility of performing a "potentially larger recall" for J&J in July 2009 involving Children's Tylenol. The WIS personnel also stated that WIS and Inmar would be The plaintiffs' case law also fails to support their argument. The plaintiffs cite to Bennett v. Spear, 520 U.S. 154, 117 S. Ct. 1154, 137 L. Ed. 2d 281 (1997), in support of their "but for" theory of causation. In Bennett, the Fish and Wildlife Service (the "Service") issued an advisory "biological opinion," recommending that a federal bureau implement certain changes to avoid jeopardizing endangered species. The plaintiffs, who claimed injury based on these recommendations, brought suit against the Service after the bureau stated its intent to comply. The Supreme Court concluded that the plaintiffs' injuries were "fairly traceable" to the Service, because the Service's advisory opinion exerted a "powerful coercive effect" on the bureau that was "virtually determinative"; furthermore, the changes likely would [*56] not have been made absent the opinion. Bennett, 520 U.S. at 169-71. The plaintiffs contend that the Contractor Defendants exerted a similar coercive effect over the J&J Defendants in this case. The Court disagrees that Bennett is applicable to this case, because the plaintiffs have failed to show that the Contractor Defendants exerted any influence over the J&J Defendants. In contrast, it appears that the J&J Defendants provided all direction to the Contractor Defendants with respect to their limited conduct. In the absence of any coercive relationship, Bennett cannot support the plaintiffs' claims. Based on the foregoing, the Court concludes that the plaintiffs have failed to establish that their purported injuries are "fairly traceable" to the Contractor Defendants' conduct. The Court will therefore dismiss all claims against the Contractor Defendants for lack of standing. The dismissal will be with prejudice, because the Court concludes that the plaintiffs would be unable to establish causation upon amendment. Specifically, at oral argument, the plaintiffs were unable to articulate any additional allegations that could be performing a market assessment to determine the quantities of Tylenol remaining on store shelves. See June 30, 2009, Emails Attached to Congressional Letter, App. A to Pls.' Opp'n. These emails do not affect the Court's analysis. First, the plaintiffs have been unable to show, in the CAC, their opposition brief, [*55] or at oral argument, that an additional "phantom recall" ever took place. Furthermore, there is no plausible connection between a "market assessment" and the plaintiffs' purported injuries. The plaintiffs do not define the term "market assessment," or explain in any fashion how the Contractor Defendants, as part of this market assessment, could have influenced the J&J Defendants with respect to recall decisions. 2011 U.S. Dist. LEXIS 76800, *52 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 98 of 175 Page 15 of 17 made against the Contractor Defendants. Although the plaintiffs [*57] expressed their belief that the scope of the Contractor Defendants' conduct extended beyond the "phantom recall," they lacked information in support of this claim. Tr. 36-37. Instead, the plaintiffs repeated allegations from the CAC that the Contractor Defendants undertook a second market assessment involving Children's Tylenol sometime around July 2009, after the "phantom recall" of Motrin IB. 31 The plaintiffs suspect that, as part of this market assessment, the Contractor Defendants made certain recommendations to the J&J Defendants regarding whether to recall Children's Tylenol. The J&J Defendants, in turn, waited to recall the product until April 30, 2010, presumably on the basis of these recommendations. Tr. 39-41; 60-61. According to the plaintiffs, this reveals the Contractor Defendants' participation in the J&J Defendants' scheme. At oral argument, the plaintiffs were unable to provide any factual basis for the above-described argument. Instead, plaintiffs' [*58] counsel conceded that the plaintiffs had "very limited information," but expected to obtain additional information to support their arguments in the course of discovery. Tr. 60-61. The Court cannot permit amendment on this basis. Under the applicable pleading standards, the Court is required to assess factual allegations as they appear on the face of the complaint, not based on how claims might be shaped by the course of discovery. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). To that end, the allegations in the CAC, and as elaborated upon at oral argument, cannot plausibly establish causation. In view of the Court's conclusion that the plaintiffs cannot cure these deficiencies with amendment, the Court will dismiss all claims against the Contractor Defendants with prejudice. The Court's decision to dismiss the claims against the Contractor Defendants with prejudice is reinforced by the plaintiffs' failure to satisfy the Federal Rule 12(b)(6) pleading standard, as set forth in Twombly and Iqbal. As described above, the CAC contains few allegations regarding the Contractor Defendants' specific conduct. Notwithstanding these limited [*59] allegations, the 31 See CAC ¶¶ 155-59. As noted above, the plaintiffs also attached as Exhibit A to their opposition brief a series of email communications from WIS employees discussing a market assessment with respect to Children's Tylenol. plaintiffs assert eight substantive causes of action against the Contractor Defendants, based on sweeping and indefinite claims of injury. In the majority of the plaintiffs' substantive claims, however, the CAC fails to distinguish between the J&J and Contractor Defendants, instead lumping both groups together under the term "defendants." As a consequence of the plaintiffs' failure to distinguish among defendants, it is nearly impossible for the Court to discern the factual underpinning of each claim. Indeed, several claims are facially inapplicable to the Contractor Defendants. For instance, the plaintiffs assert a negligence claim against the Contractor Defendants, contending that "[d]efendants owed Plaintiffs a duty to exercise reasonable care in the designing, developing, manufacturing, testing, packaging, promoting, marketing, distributing, labeling, and/or selling" of the Subject Products. 32 CAC ¶ 502. Nowhere have the plaintiffs alleged, however, that the Contractor Defendants were engaged in any of these enumerated activities. In addition, many of the plaintiffs' substantive claims are based on allegations of misrepresentations or omissions. 33 Nowhere in the CAC, however, do the plaintiffs identify any statements made by the Contractor Defendants that could constitute misrepresentations. Instead, the plaintiffs group together all defendants, contending, for instance, that the "[d]efendants made representations that the Subject Products contained the ingredients, concentrations, components, quality and condition as is identified on the label and/or packaging that accompanied the Subject Products." CAC ¶ 512. These claims are deficient insofar as the plaintiffs have not alleged that the Contractor Defendants made, or 32 The Contractor Defendants purportedly breached this duty by: (1) failing to use due care in performing the above activities; (2) failing [*60] to provide adequate warnings on product labels and packaging; (3) failing to incorporate reasonable safeguards into the manufacture and design of the products; and (4) failing to investigate complaints. CAC ¶ 504. 33 For instance, the plaintiffs assert nearly identical allegations with respect to each of their claims under state consumer fraud statutes, based on "[d]efendants' untrue, deceptive, and misleading misrepresentations and non-disclosure [*61] of material facts relating to the safety, efficacy and cost effectiveness of the Subject Products." See, e.g., CAC ¶ 273. The plaintiffs make similar allegations in connection with their common law fraud and negligent misrepresentation claims. See CAC ¶¶ 508-19. 2011 U.S. Dist. LEXIS 76800, *55 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 99 of 175 Page 16 of 17 were in a position to make, any such representations. Several of the plaintiffs' claims, such as common law fraud, can also be satisfied based on allegations of fraudulent omissions, rather than misrepresentations. Such claims, however, generally require plaintiffs to allege, among other elements, a duty to disclose. 34 In this case, the plaintiffs have failed to allege that the Contractor Defendants owed any duty of disclosure towards the plaintiffs. To the extent that several of the plaintiffs' substantive claims are subject to heightened [*62] pleading under Rule 9(b), these pleading deficiencies become more acute. 35 The Court of Appeals for the Third Circuit has held that Rule 9(b) requires plaintiffs to allege "the who, what, when, where, and how" of the events at issue. In re Rockefeller Ctr. Props. Sec. Litig., 311 F.3d 198 (3d Cir. 2002). The conclusory allegations identified above, which often refer to the Contractor Defendants interchangeably with the J&J Defendants, lack the requisite specificity to satisfy this heightened pleading standard. Finally, the plaintiffs' RICO claim against the Contractor Defendants is independently dismissible because the plaintiffs cannot establish continuity of the alleged racketeering activity. RICO's continuity requirement is both a "closed [*63] and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition." H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 241, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989). Closed-ended continuity exists when the series of predicate acts extends over a substantial period of time. Id. at 242. Open-ended continuity might be present where, even though the predicate acts are close in time, the acts themselves pose a specific threat 34 The Court does not attempt to undertake a state-by-state survey to determine the applicable causes of action at this time. Instead, the Court notes for purposes of this discussion that a sample of the state laws at issue in this case require a duty of disclosure in the context of fraudulent omissions. See, e.g., Bermuda Container Line Ltd. v. Int'l Longshoremen's Ass'n, 192 F.3d 250 (2d Cir. 1999); Goodman v. Kennedy, 18 Cal. 3d 335, 134 Cal. Rptr. 375, 556 P.2d 737 (Cal. 1976). 35 The parties dispute the application of Rule 9(b) to the allegations in the CAC, particularly in connection with claims brought under state consumer fraud statutes. There is no dispute, however, that at a minimum, Rule 9(b) applies to the plaintiffs' RICO and common law fraud claims. of indefinite repetition or are part of an ongoing entity's regular way of doing business. Id. at 242-43. The alleged offenses involving the Contractor Defendants conceivably spanned from early 2009 to around July 2009. Specifically, the Contractor Defendants were engaged by the J&J Defendants sometime in early 2009 to perform a market assessment and "phantom recall" of Motrin IB. At the latest, this "phantom recall" was completed by June 2009. The plaintiffs allege that the second market assessment, which involved Children's Tylenol, occurred in July 2009. CAC ¶ 157. At most, therefore, the plaintiffs have alleged conduct spanning over the course of several months, which is insufficient to establish [*64] closed- ended continuity. See Hughes v. Consol-Pennsylvania Coal Co., 945 F.2d 594, 611 (3d Cir. 1991) (holding that twelve months is not sufficient to establish a closed- ended scheme). As the Court has already concluded, the plaintiffs cannot establish a connection between these discrete events and the J&J Defendants' subsequent product recalls. Further, there is nothing about these acts that involves an inherent threat of repetition or any indication that the alleged offenses are a regular way of doing business for the Contractor Defendants. Instead, the allegations suggest that the Contractor Defendants' work was a short-term project that came to an end. As a consequence, the plaintiffs have not established open- ended continuity, and therefore their RICO claim is not cognizable. See H.J. Inc., 492 U.S. at 242-43. IV. Conclusion For the foregoing reasons, the Court will dismiss the CAC in its entirety for lack of standing. The dismissal will be without prejudice as to the claims against the J&J Defendants, and the Court will permit the plaintiffs to file an amended complaint within thirty days of this Memorandum and Order. The claims against the Contractor Defendants, however, will be [*65] dismissed with prejudice. An appropriate order shall issue separately. ORDER AND NOW, this 14th day of July, 2011, upon consideration of the Johnson and Johnson Defendants' Motion to Dismiss (Docket No. 33), the Contractor Defendants' Motion to Dismiss (Docket No. 34), the oppositions and replies thereto, and following oral argument held on June 29, 2011, IT IS HEREBY 2011 U.S. Dist. LEXIS 76800, *61 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 100 of 175 Page 17 of 17 ORDERED, for the reasons set forth in a memorandum of law bearing today's date, that the motions are GRANTED. IT IS FURTHER ORDERED THAT: 1. All claims against Carolina Logistics Services, LLC; Carolina Supply Chain Services, LLC; WIS International; and Inmar, Inc. (the "Contractor Defendants"), are DISMISSED WITH PREJUDICE. 2. All claims against the Johnson and Johnson Defendants are DISMISSED WITHOUT PREJUDICE. 3. The plaintiffs may file an amended complaint within thirty days of the date of this Order. BY THE COURT: /s/ Mary A. McLaughlin MARY A. McLAUGHLIN, J. End of Document 2011 U.S. Dist. LEXIS 76800, *65 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 101 of 175 No Shepard’s Signal™ As of: April 3, 2017 4:51 PM Z J.M. v. Nobel Learning Cmtys., Inc. United States District Court for the Eastern District of Pennsylvania September 10, 2013, Decided; September 10, 2013, Filed CIVIL ACTION NO. 12-3882 Reporter 2013 U.S. Dist. LEXIS 129487 *; 2013 WL 4833846 J.M., et al., Plaintiffs, v. NOBEL LEARNING COMMUNITIES, INC., Defendant. Core Terms recipient, amended complaint, disability, federal financial assistance, services, federal funds, reinstatement, preschool, pleaded, entity, federal assistance, indirect, attach, attend, cause of action, district court, private school, Memorandum, plausibly, provides Counsel: [*1] For J.M., A MINOR, BY AND THROUGH HIS PARENT, M.M., Plaintiff: ILENE YOUNG, LEAD ATTORNEY, ILENE YOUNG LAW OFFICES, LANGHORNE, PA. For NOBEL LEARNING COMMUNITIES, INC., doing business as CHESTERBROOK ACADEMY, Defendant: WENDY BEETLESTONE, LEAD ATTORNEY, ALVA MATHER, HANGLEY ARONCHICK SEGAL & PUDLIN, PHILADELPHIA, PA. Judges: L. Felipe Restrepo, United States District Court Judge. Opinion by: L. Felipe Restrepo Opinion MEMORANDUM L. Felipe Restrepo, U.S. District Court Judge Plaintiff J.M., a minor, and his mother, M.M., each allege that Defendant Nobel Learning Communities discriminated against them on the basis of J.M.'s disability, in violation of Section 504 of the Rehabilitation Act of 1973, and in violation of Title III of the Americans with Disabilities Act. This Court has jurisdiction pursuant to 28 U.S.C. § 1331. On December 17, 2012, Defendant filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). On July 8, 2013, this case was transferred from the Honorable Gene E.K. Pratter. This Court heard argument on August 22, 2013. For the reasons that follow, Defendant's motion is granted. I. STANDARD OF REVIEW In reviewing a motion to dismiss for failure to state a claim, a district court must accept [*2] as true all well- pleaded allegations and draw all reasonable inferences in favor of the non-moving party. See Bd. of Trs. of Bricklayers & Allied Craftsmen Local 6 of N.J. Welfare Fund v. Wettlin Assocs., 237 F.3d 270, 272 (3d Cir. 2001). A court need not, however, credit "bald assertions" or "legal conclusions." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). To survive a motion to dismiss, a complaint must include "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). "Factual allegations [in a complaint] must be enough to raise a right to relief above the speculative level." Id. at 555. Although the federal rules impose no probability requirement at the pleading stage, a plaintiff must present "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]" of a cause of action. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant [*3] is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Simply reciting the elements will not suffice. Id.; see also Phillips, 515 F.3d at 231. Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 102 of 175 Page 2 of 6 II. FACTS J.M. is a minor child, born on May 21, 2007. (Am. Compl. ¶ 21.) Beginning when he was three months old, J.M. attended Chesterbrook Academy ("Chesterbrook Chalfont"), a private preschool in Chalfont, Pennsylvania. (Id. ¶ 21.) J.M.'s mother, M.M., was employed as a teacher at the same school. (Id. ¶ 23.) Chesterbrook Chalfont is part of a "network of day care centers and nursery, elementary and secondary private schools in numerous states" owned and operated by Nobel Learning Communities, Inc. ("NLCI" or "Defendant"). (Id. ¶ 4.) Prior to his enrollment in the three-year old program at Chesterbook Chalfont, J.M. suffered significant personal loss and upheaval in his life, including the death of his father and a move, with his mother, to live with his grandmother. (Id. ¶ 24.) As a result of this upheaval, J.M. began to exhibit behavioral problems at school. (Id. ¶ 24-25.) In response to these behavioral issues, M.M. asked Defendant to evaluate her son for special education support services, but Defendant did not do so. (Id. ¶ 26.) [*4] J.M., through the request of his mother, was eventually evaluated by the Bucks County Intermediate Unit ("IU"), J.M.'s Local Education Agency ("LEA") responsible for special education evaluation and services for preschool aged children. (Id. ¶ 12, 27-28.) The Bucks County IU provides services to special needs students as a requirement of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. (Id. ¶ 10-12, 16.) The Bucks County IU conducted an evaluation of J.M. on May 23, 2011, June 13, 2011 and July 11, 2011. (Id. ¶ 28, 30.) As a result of this evaluation, J.M. was identified to receive special education services. (Id. ¶ 31, 35.) M.M. relayed this information to her superiors. (Id. ¶ 31.) Soon thereafter, on July 22, 2011, her superiors told her to remove her son from Chesterbook Chalfont. (Id.) It was understood at this point that M.M. was going to attempt to secure outside services for J.M., and once she did so, J.M. could reenroll in the school. (Id. ¶ 33.) On August 25, 2011, the IU issued an evaluation determining J.M. eligible for a number of services. (Id. ¶ 35.) Soon thereafter, M.M. tried to re-enroll her son at Chesterbook Chalfont, but was told [*5] that he could instead enroll at another of Defendant's preschools, Chesterbrook Newtown. (Id. ¶ 36.) No modifications or programming were offered to him at this new school. (Id.) In September, 2011, the Bucks County IU determined that J.M. was best served at a regular education preschool, with some additional supportive accommodations, which would be provided at no cost to his preschool. (Id. ¶ 40.) On October 13, 2011, M.M requested through her attorney that J.M. be re-admitted to Chesterbrook Chalfont, with the accommodations provided to him at no cost to Defendant. (Id. ¶ 41.) Defendant refused to do so, and one day later M.M. was notified, through a note on J.M.'s cubby, that J.M. was no longer welcomed at Chesterbrook Newtown, either. (Id. ¶ 42.) Following J.M.'s dismissal from Chesterbrook Newtown, M.M.'s superiors at Chesterbook Chalfont stopped speaking with her, wrote her up for calling in sick, and warned her that she would not be permitted to leave to deal with the childcare needs occasioned by J.M.'s dismissal from Chesterbrook, thus forcing her to resign. (Id. ¶ 44-45.) J.M. began attending another school. (Id. ¶ 47.) He is now six years old. Hr'g Tr. 42:19. As a result [*6] of his age, he is neither eligible nor planning to return to Chesterbrook Newtown or Chesterbrook Chalfont. Hr'g Tr. 42-43. III. LEGAL ANALYSIS Accepting the allegations of the Amended Complaint as true, J.M. and M.M. present plausible evidence that Defendant mistreated them. However, despite these credible allegations of mistreatment, the Amended Complaint does not allege a viable cause of action at this time, and thus, the action must be dismissed. As outlined below, Plaintiffs are granted leave to amend, in part. a. Plaintiffs' Section 504 Claims Must be Dismissed for Failing to Adequately Demonstrate that Defendant is a Recipient of Federal Financial Assistance Both J.M. and M.M. first bring a claim against Defendant for a violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. To establish a violation of Section 504, J.M. "must demonstrate that: (1) [he] is a "handicapped individual"; (2) [he] is "otherwise qualified" for participation in the program; (3) the program receives "federal financial assistance"; and (4) [he] was "denied the benefits of" or "subject to discrimination" under the program. K.R. v. Sch. Dist. of Phila., No. 06-2388, 2007 U.S. Dist. LEXIS 68803, 2007 WL 2726236, at *2 (E.D. Pa. Sep. 14, 2007) [*7] (citing Nathanson v. Med. Coll. of Pa., 926 F.2d 1368, 1380 (3d Cir. 1991)). When 2013 U.S. Dist. LEXIS 129487, *3 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 103 of 175 Page 3 of 6 drawing every inference in his favor, the Court finds that the Amended Complaint adequately pleads that J.M. was a child with a qualified disability, otherwise eligible to participate at each Chesterbrook school and that he was subject to discrimination. However, even with every inference drawn in favor of the Plaintiffs, that the Amended Complaint fails to plausibly establish that NLCI receives federal financial assistance, directly or indirectly, such that it is liable under Section 504. As such, both Plaintiffs' claims under Section 504 must be dismissed. 1 i. The Complaint Does Not Adequately Allege that Defendant is a Direct Recipient of Federal Financial Assistance In recent years, district courts in the Third Circuit have found in certain circumstances that private schools may accept enough federal financial aid such that they may be considered recipients of federal assistance for Section 504 purposes. For example, [*8] participation in the National School Lunch and E-rate programs has attached Section 504 liability. Russo v. Diocese of Greensburg, No. 09-1169, 2010 U.S. Dist. LEXIS 96338, 2010 WL 3656579, at *3 (W.D. Pa. Sep. 15, 2010); Valesky v. Aquinas Academy, No. 09-800, 2011 U.S. Dist. LEXIS 103791, 2011 WL 4102584, at *10 (W.D. Pa. Sep. 14, 2011). However, when similar federal assistance is sufficiently small or attenuated, Section 504 liability does not attach. See Marshall v. Sisters of Holy Family of Nazareth, 399 F. Supp. 2d 597, 602-603 (E.D. Pa. 2005) ("The provision of a free lunch to a single student over the course of a year is de minimis-too little to alter my conclusion that the Academy does not receive federal financial assistance for purposes of the Rehabilitation Act."); see also Buckley v. Archdiocese of Rockville Centre, 992 F. Supp. 586, 589 n.5 (declining to extend Title IX protections to a Catholic high school based on the indirect provision of $1,600 of instructional materials). The Amended Complaint does not plausibly allege that NLCI is a recipient of these sorts of funds, and thus, liability cannot attach from them. ii. [*9] The Complaint Does Not Adequately Allege that Defendant is an Indirect Recipient of Federal Financial Assistance 1 The parties disagree over whether M.M. can plead an associational discrimination case under Section 504. Because neither claim can survive regardless, the Court declines to reach this issue. Because it provides little facts that would demonstrate that Defendant is a direct recipient of federal assistance, the Amended Complaint appears to instead argue that Defendant is an indirect recipient of federal financial assistance, such that federal liability still attaches. See Grove City College v. Bell, 465 U.S. 555, 556-70, 104 S. Ct. 1211, 79 L. Ed. 2d 516 (1984) (holding that an entity may receive federal financial assistance indirectly and still be considered a recipient within the meaning of the Rehabilitation Act if the grant maker intends the entity to receive the funding). For its claim that NLCI is an indirect recipient of federal funds, the Amended Complaint states that NLCI is a recipient of federal funds solely because it "receive[s] 'fair share' supports under the [Individuals with Disabilities Education Act] and Pennsylvania Law through the Bucks County Intermediate Unit, which is, in part, federally funded." (Am. Compl. ¶ 15.) Essentially, Plaintiffs argue that if the Bucks County IU itself provides any direct services to disabled students at NLCI, then NLCI itself is considered an indirect [*10] recipient of federal funds. I disagree. "Entities that receive federal assistance, whether directly or through an intermediary, are recipients within the meaning of [federal law]; entities that only benefit economically from federal assistance are not." NCAA v. Smith, 525 U.S. 459, 460, 119 S. Ct. 924, 142 L. Ed. 2d 929. Further, "when determining whether an entity is an indirect recipient of federal financial assistance, courts should not only consider the intent of the grantmaker, but also the degree to which the entity is able to control decisions made with respect to the money, the most important decision being whether the grant money should be accepted at all." J. v. Sch. Dist. of Phila., No. 06-3866, 2007 U.S. Dist. LEXIS 30433, 2007 WL 1221216, at *5 (E.D. Pa. Apr. 25, 2007) (citing Smith v. NCAA, 266 F.3d 152, 161 (3d Cir. 2001)). In specific scenarios, district courts in this Circuit have found that a private school's involvement with disability programs can attach liability. For example, in P.N. v. Greco, 282 F. Supp. 2d 221 (D.N.J. 2003), the District Court found that a private school, which accepted government paid placements of special needs students at a level such that "tuition of a substantial number of [the school's] students [was] [*11] paid by boards of education," was considered a recipient of federal funds under the Act. Id. at 241 ("There can be little doubt that [the private school] is a recipient of federal funds for the purposes of § 504: the fact that it receives federal funds indirectly as a result of placements by [a board of 2013 U.S. Dist. LEXIS 129487, *7 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 104 of 175 Page 4 of 6 education] and other public authorities is of no moment.") (internal citations omitted). The Court was persuaded that the private school in that case was receiving a significant amount of federal money, even if it passed through the student to the school. Nothing of the sort is alleged here. 2 In essence, Plaintiffs are alleging that if NLCI benefits at all from the presence [*12] of the Bucks County IU- presumably because the IU provides services that either expands the number of students that may attend NLCI or by paying for services that NLCI might pay for itself- federal liability attaches. Given the Supreme Court's holding that entities that "only benefit economically from federal assistance" are not considered recipients of federal funds for purposes of attaching civil rights liability, NCAA v. Smith, 525 U.S. at 460, this is an unsupportable argument. Further, Plaintiffs' claim that Defendant can simply refuse these services is not plausibly supported by the Amended Complaint, as such a blanket refusal would likely expose them to other federal liability. See U.S. v. Nobel Learning Cmtys., Inc., 676 F. Supp. 2d 379, 380 (E.D. Pa. 2009) (denying motion to dismiss of ADA claim against NLCI for failing to make reasonable modifications with regards to enrollment practices in its pre-schools.) Thus, finding that the Complaint does not plausibly allege that NLCI is a recipient of federal financial assistance, directly or indirectly, the Court must dismiss both claims under Section 504. At argument, Plaintiffs asked to file an amended complaint that outlines these [*13] facts in greater detail. Accordingly, to the extent that Plaintiffs can plead, with specificity and in good faith pursuant to Rule 11, facts that adequately demonstrate Defendant's receipt of federal financial assistance, Plaintiffs may re-plead within fourteen days of this Memorandum. b. M.M.'s Claim for Employment Discrimination is Not Viable Under Title III of the ADA 2 Conversely, in J. v. Sch. Dist. of Phila., No. 06-3866, 2007 U.S. Dist. LEXIS 30433, 2007 WL 1221216, (E.D. Pa. Apr. 25, 2007), the Court found that a private third party that provided classroom services for special needs students through a contract with the School District of Philadelphia was not a recipient of federal funds, because the Plaintiff "pleaded no facts suggesting [a private provider] has a relationship with the School District enabling it to control the decisions made with respect to the District's federal funding." 2007 U.S. Dist. LEXIS 30433, [WL] at *5. M.M. also asks, pursuant to the discrimination that resulted from her association with her son, that this Court declare that she was illegally discriminated against and order her reinstatement to her position with NLCI. M.M. has effectively alleged an associational discrimination case under Title I of the ADA, the section of the Act dealing with employment opportunities for disabled persons. 42 U.S.C. § 12112(b)(4) (defining discrimination as "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association"). Employment discrimination directed towards a non- disabled person because of her association with a disabled person can create a cause of action under Title I of the ADA. [*14] See Erdman v. Nationwide Ins. Co., 582 F.3d 500, 511 (3d Cir. 2009) ("a decision motivated by unfounded stereotypes or assumptions about the need to care for a disabled person may be fairly construed as because of the disability") (internal quotations omitted); Huggard v. Crown Bank, No. 11- 6194, 2012 U.S. Dist. LEXIS 20501, 2012 WL 529548, at *2-3 (D.N.J. Feb. 17, 2012). But, those cases also identify the fatal flaw in M.M's claim, in that each were brought under Title I of the ADA, which governs equal employment opportunities for the disabled. Erdman, 582 F.3d at 510; Huggard, 2012 U.S. Dist. LEXIS 20501, 2012 WL 529548 at *3. Unlike those claims, M.M.'s claim was brought under Title III of the Act, governing public accommodations. When discussing this issue at argument, it became apparent for the first time that M.M. has, in fact, also brought a separate Title I claim, along with a claim under the Pennsylvania Human Relations Act, each of which is currently being investigated by the Pennsylvania Human Relations Commission. Hr'g. Tr. 48-50. Despite this, Plaintiff still believes that under the rubric of Title III of the ADA, this Court may order her reinstatement. I disagree. While there may be certain circumstances where an employee can [*15] sue her employer under Title III, Title III does not apply to what is, effectively, a claim for discriminatory termination. Menkowitz v. Pottstown Mem'l Med. Ctr., 154 F.3d 113, 122 (3d Cir. 1998) ("Title III was not intended to govern disability discrimination in the context of employment"); see also Motzkin v. Trs. of Boston Univ., 938 F. Supp. 983, 996 (D. Mass. 1996) ("The legislative intent is so clear from the language of Titles I and III that one need not go beyond that 2013 U.S. Dist. LEXIS 129487, *11 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 105 of 175 Page 5 of 6 language to conclude that employment discrimination is the exclusive province of Title I."). Without her claim being brought under Title I, which itself carries its own pleading requirements and administrative remedies, Reddinger v. Hosp. Cent. Servs., Inc., 4 F. Supp. 2d 405, 409 (E.D. Pa. 1998), remedies which she is still apparently pursuing at this time, this Court must dismiss M.M.'s claim under Title III of the ADA, with prejudice. c. J.M.'s Claims Under Title III of the ADA Appear Moot In his ADA count of the Amended Complaint, J.M. asks this Court to require his reinstatement to school. (Am. Compl. 10). Because of this demand, the parties spent considerable time in their briefs discussing the availability [*16] of reinstatement as a remedy under Title III of the ADA. However, regardless of whether reinstatement is an available remedy here, J.M. is now six years-old. As explained at oral argument, he is neither eligible nor intends to re-enroll in his preschool, and counsel could not state with clarity that J.M. actually seeks to attend an NLCI elementary school. As such, the Court finds the matter moot, but will grant leave for Plaintiff to provide clarity. "Article III requires that a plaintiff's claim be live not just when he first brings the suit, but throughout the entire litigation, and once the controversy ceases to exist the court must dismiss the case for lack of jurisdiction." Walter v. Se. Pa. Transp. Auth., No. 05-418, 2007 U.S. Dist. LEXIS 22985, 2007 WL 966227, at *4 (E.D. Pa. Mar. 28, 2007) (quoting Lusardi v. Xerox Corp., 975 F.2d 964, 974 (3d Cir. 1992). At argument it became clear to this Court that that there are significant doubts that this remains a live claim. Plaintiff's counsel could not say that J.M. would actually attend one of the two elementary schools that NLCI runs in the Philadelphia metro area, neither of which apparently are close to his home, and neither of which he has any apparent relationship [*17] with. Hr'g Tr. 51-52. Without a desire for reinstatement, it appears that J.M. (along with M.M.) actually seeks a declaration that he was discriminated against by Defendant. Hr'g Tr. 58:12-21. District courts are not in a position to make such declarations without a live claim for remedy. See Walter, 2007 U.S. Dist. LEXIS 22985, 2007 WL 966227 at *4. At this point, such a claim appears to this Court to have ended. Finding that J.M.'s claim appears no longer live, and that the relief he seeks is moot, this count of the Amended Complaint is dismissed as moot. However, the Court notes that a significant amount of time has passed between the filing of the Amended Complaint and this decision, which may explain the lack of clarity about J.M.'s desires. As such, to the extent that J.M. can plead, with specificity and in good faith pursuant to Rule 11, that he actually desires to be reinstated and attend an NLCI school, despite the apparent inconvenience it would cause for him, the Court will allow him to amend. The Court withholds judgment about whether reinstatement is viable under the ADA until such a demand becomes an issue. d. Plaintiffs' Cause of Action for Attorney Fees is Improperly Pleaded The Court must also dismiss [*18] Count III of the Amended Complaint, a separately pleaded count for attorney's fees. Claims for attorney's fees in a civil rights action should not be pleaded as individual causes of action. See, e.g., Hughes v. Halbach & Braun Indus., Ltd., 10 F. Supp. 2d 491, 501 (W.D. Pa. 1998); Benjamin v. East Orange Police Dept., 937 F. Supp. 2d 582, No. 12-774, 2013 U.S. Dist. LEXIS 44480, 2013 WL 1314418 (D.N.J. Mar. 28, 2013). Plaintiffs state that they pleaded claims for fees only as part of the overall Section 504 and ADA claims, both of which will be dismissed, as noted above. Thus, should Plaintiffs amend the Complaint, pursuant to this Memorandum, they may also amend to include a claim for fees, but do so solely in their ad damnum clause, not as a separate cause of action. IV. CONCLUSION Finding that each count of the Amended Complaint must dismissed, the motion is granted. Should Plaintiffs file an Amended Complaint consistent with this memorandum, the Clerk will reopen the matter. An implementing Order follows. ORDER AND NOW, this 10th day of September, 2013, it is hereby ORDERED that: 1. Defendant's Motion to Dismiss the Amended Complaint (Doc. No. 10) is GRANTED. The Clerk shall mark the case closed. 2. Plaintiffs are [*19] granted leave to file an Amended Complaint, consistent with this Court's Memorandum, within fourteen (14) days of this Order. If Plaintiffs do so, the Clerk shall re-open the matter. 2013 U.S. Dist. LEXIS 129487, *15 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 106 of 175 Page 6 of 6 BY THE COURT: /s/ L. Felipe Restrepo L. Felipe Restrepo United States District Court Judge End of Document 2013 U.S. Dist. LEXIS 129487, *19 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 107 of 175 Positive As of: April 3, 2017 4:51 PM Z Levin v. Dollar Tree Stores, Inc. United States District Court for the Eastern District of Pennsylvania December 6, 2006, Filed; December 7, 2006, Entered CIVIL ACTION, NO. 06-00605 Reporter 2006 U.S. Dist. LEXIS 88595 *; 2006 WL 3538964 MORRIS LEVIN AND PHYLLIS LEVIN, Plaintiff, v. DOLLAR TREE STORES, INC. AND FEDERAL REALTY INVESTMENT TRUST, Defendants. Core Terms standard of care, negligence claim, utilizing, business invitee, regulations, negligence per se, Pleadings, motion for judgment, duty owed, motions, cart, Disabilities, violations, asserting, borrow Counsel: [*1] For MORRIS LEVIN, PHYLLIS LEVIN, Plaintiff: BRUCE M. ROTFELD, LEAD ATTORNEY, ROTFELD AND ROTFELD, PHILADELPHIA, PA; JOSEPH STRAMPELLO, LEAD ATTORNEY, OCKS & BARSKY, PHILA, PA For DOLLAR TREE STORES, INC., Defendant: CAROL ANN MURPHY, LEAD ATTORNEY, MARGOLIS, EDELSTEIN & SCHERLIS, PHILADELPHIA, PA; MATTHEW J. ZAMITES, LEAD ATTORNEY, MARGOLIS EDELSTEIN, PHILADELPHIA, PA For FEDERAL REALTY INVESTMENT TRUST, Defendant: MAUREEN ROWAN, LEAD ATTORNEY, GALLAGHER, ROWAN & EGBERT, P.C., PHILADELPHIA, PA For DOLLAR TREE STORES, INC., Cross Claimant: CAROL ANN MURPHY, LEAD ATTORNEY, MARGOLIS, EDELSTEIN & SCHERLIS, PHILADELPHIA, PA. Judges: CHARLES B. SMITH, CHIEF UNITED STATES MAGISTRATE JUDGE. Opinion by: CHARLES B. SMITH Opinion MEMORANDUM AND ORDER CHARLES B. SMITH CHIEF UNITED STATES MAGISTRATE JUDGE December 6, 2006 I. Procedural and Factual Background Plaintiff, Morris Levin, brought the instant action against defendants, Dollar Tree Stores ("Dollar Tree") and Federal Realty Investment Trust ("FRIT") for injuries he alleges he sustained on February 11, 2004, while attempting to return a shopping cart to the store after shopping at a Dollar Tree Store. Plaintiff filed a Complaint on February 9, 2006, basing [*2] jurisdiction on both diversity and the Americans With Disabilities Act ("ADA"), and appearing to seek monetary damages under both Title III of the ADA and tort theories of negligence and loss of consortium. He contends that upon leaving the Dollar Tree Store, he placed his purchases in a cart and, after loading them into his car, he attempted to return the shopping cart to the store. Plaintiff alleges that Dollar Tree failed to provide a curb cut or access ramp in proximity to the parking lot in order to return a cart to the store. According to plaintiff, the curb was seven and three-eighths inches high. He alleges that he lifted the front wheels of the cart over the curb, and that when he attempted to lift the rear wheels of the cart over the curb, he fell. As a result, he claims to have suffered serious and permanent injury. Both defendants Dollar Tree and FRIT filed cross claims against each other seeking contribution and indemnification. This Court granted a prior Motion for Judgment on the Pleadings filed by Defendant Dollar Tree, Inc. for failure to state a claim under the ADA, in which Dollar Tree asserted that the ADA does not allow for a private cause of action for monetary [*3] damages. In response, Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 108 of 175 Page 2 of 4 plaintiff stated that he mistakenly indicated jurisdiction should be based on the ADA. Further, he indicated that his complaint does not assert a private cause of action under the ADA, but rather utilizes the ADA as the standard of care for a negligence per se claim. This Court granted the Motion to the extent that plaintiff was precluded from bringing a claim for damages under the ADA, but declined to rule the viability of a claim of negligence per se utilizing the ADA. Currently pending before the Court are Motions for Judgment on the Pleadings filed by both Defendant Dollar Tree Stores, Inc and Defendant Federal Realty Investment Trust, seeking dismissal of the claim of negligence per se utilizing the ADA as the standard of care. Having heard oral argument on the motions, the Court now grants the motions to the extent that plaintiff is precluded from bringing any claim for negligence per se utilizing the ADA or from "borrowing" the ADA as the standard of care. However, as we find that the plaintiff has alleged a claim of common law negligence, asserting that defendants breached the duty owed to plaintiff as a business invitee, we will not dismiss [*4] the Complaint. A Motion for Judgment on the Pleadings under Federal Rule of Civil Procedure 12(c) ("FRCP") utilizes the same standard as a motion to dismiss under FRCP 12(b)(6). Katzenmoyer v. City of Reading, Pa., 158 F. Supp. 2d 491, 496 (E.D. Pa. 2001). The court must view the facts presented in the light most favorable to the non-moving party. Id. A motion for judgment on the pleadings cannot be granted "unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law." Kruzits v. Okuma Machine Tool, 40 F.3d 52, 54 (3d Cir. 1994) (quoting Soc'y Hill Civic Ass'n. v. Harris, 632 F.2d 1045, 1054 (3d Cir. 1980)). The Court may grant the motion only if the non-movant can plead no facts that would support his claim for relief. Constitution Bank v. DiMarco, 815 F. Supp. 154, 157 (E.D. Pa. 1993). III. Discussion Currently pending are Motions for Judgment on the pleadings filed by both defendants, seeking to dismiss a claim of negligence per se [*5] utilizing the ADA as the standard of care. In response to the previous Motion for Judgment on the Pleadings, plaintiff indicated an intention to utilize the ADA as the standard of care, i.e. negligence per se. In response to the present motion, however, plaintiff has eschewed such a legal theory. 1 Indeed, plaintiff specifically conceded that "the [ADA] regulations are not sufficiently specific such that a violation should be deemed to rise to a finding of negligence per se." Plaintiff's Response at p.4. Instead, he now asserts that he is "simply utilizing the Regulations promulgated pursuant to the ADA to define the requisite standards of care in their negligence claim, as that of a reasonable man and have those standards apply as the appropriate conduct standard that the defendants be held to." Plaintiff's Brief at p. 4 (citing Shamnoski v. PG Energy, 579 Pa. 652, 858 A.2d 589 (2004)). Defendants have responded that they find little distinction between a claim of negligence per se and the violations of the ADA serving as evidence of the standard of care. Accordingly, they argue that plaintiff is still asserting a claim of negligence per se and [*6] have asked that the Court strike and dismiss the Complaint. The negligence alleged by plaintiff in this case is an alleged breach of the duty owed to a business invitee. The duty owed to a business invitee by the defendants is described in the Restatement (Second) of Torts § 343, which provides: A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the existence of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect [*7] them against the danger." Id. This section of the Restatement was adopted by the Pennsylvania Supreme Court in Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (Pa.1983). To establish liability under this standard, "an invitee must prove either the proprietor of the land had a hand in creating the harmful condition, or he had actual or constructive notice of such condition ." Estate of Swift v. Northeastern Hospital of Philadelphia, 456 Pa.Super. 330, 690 A.2d 719, 723 (Pa. Super.1997) (quoting Moultrey v. Great A & P Tea Co., 281 Pa.Super. 525, 1 Specifically, plaintiff stated in his brief, "Let it be clear, plaintiffs are not contending the defendants' violations of the AD A Regulations as the basis for a finding of negligence per se." 2006 U.S. Dist. LEXIS 88595, *3 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 109 of 175 Page 3 of 4 422 A.2d 593 (Pa. Super.1980)). Upon review of plaintiff's complaint, the Court finds that both Counts I (against Dollar Tree Stores) and II (against Federal Realty Investment Trust), in addition to the numerous references to the ADA, set forth claims of common law negligence, alleging a violation of the defendant's duty owed to plaintiff as a business invitee. While most of the examples of alleged breaches of duty in plaintiff's complaint refer to violations of the ADA, plaintiff has also alleged that there was a danger which defendants knew or should have known existed and that [*8] defendants breached the duty owed to plaintiff as a business invitee. Accordingly, this portion of the Complaint remains viable. As to the ADA's application to the case, however, the question remains whether plaintiff can "borrow" the ADA regulations for use as evidence of the standard of care to prove negligence, as he now attempts. There are no cases within the Third Circuit which have specifically allowed or disallowed a claim of negligence per se utilizing the ADA as the standard of care or have dealt with the issue of whether evidence of a violation of the ADA could be used as evidence in a negligence action. 2 [*10] Defendants, however, rely on a persuasive case 2 In an effort to bolster his argument, plaintiff refers this Court to two cases from within the Third Circuit, both of which we deem inapposite. First, he cites to Rolick v. Collins Pine, 975 F.2d 1009, 1013 (3d Cir. 1992), in which the court allowed evidence of an OSHA violation to be admitted after applying the Federal Rules of Evidence. He asserts that the AD A regulations are as relevant to the standard of care in this case as the OSHA regulations were in Rollick. The Court must disagree. Unlike the ADA, OSHA is a public safety statute, which would naturally be relevant to the issue of a negligence claim and may even serve as the standard in a negligence per se claim. The same holds true with regards to plaintiff's citation of Wayne v. Childcare Information Services of Erie County, 2006 U.S. Dist. LEXIS 43926, 2006 WL 169 9506 (W .D. Pa May 22, 2006). In that case, the court, when ruling upon a motion to dismiss a negligence claim where injunctive relief was also being sought, found that plaintiff's claims survived a motion to dismiss because he had alleged a common law negligence claim involving a duty "either under the ADA and/or as a business invitee." Unlike the instant case, however, that case also involved a claim for injunctive relief under the ADA. At no point did the court specifically rule upon admissibility of the ADA in proving a common law negligence claim or negligence per se, but simply found that plaintiff's claims survived a motion to dismiss. from the Southern District of Florida, White v. NCL Am., Inc., 2006 U.S. Dist. LEXIS 24756, 2006 WL 1042548 (S.D. Fla. 2006), in which the court held that the ADA was not designed to protect against personal injury and declined to impose a per se duty based upon the ADA. The Court stated that "[b]ecause the ADA was not designed to protect those with disabilities from personal injuries, Plaintiff is unable to state a claim for negligence per se. Indeed, 42 U.S.C. § 12101(b) expressly states that [*9] the purpose of the ADA is the elimination of discrimination against individuals with disabilities." Noting that there was no mention of promoting safety or eliminating hazards in the Act, the Court held that "while protection from injury for the disabled is no doubt a fortunate by-product of the ADA, it is clear that the statute was not designed with that duty in mind." Id.; see also James v. Peter Pan Transit Mgmt., Inc., 1999 U.S. Dist. LEXIS 2565, 1999 WL 735173 at *9 (E.D.N.C. Jan. 20, 1999), (considering the purpose of the ADA and holding that "it is unlikely that the North Carolina courts would find that the ADA is a safety statute or that violation of the ADA constitutes negligence per se."). 3 Likewise, in this case, the Court finds that the ADA has no relevance. While evidence that a condition was in violation of a safety statute is relevant in proving whether such a duty was breached, evidence of an alleged violation of the ADA, a statute intended to prevent discrimination, may not be relevant in proving whether defendants violated the duty owed to plaintiff as a business invitee. The ADA has no bearing on whether there was a dangerous condition on the property of which defendants knew or should have known. Furthermore, [*11] even if such evidence were relevant, it would be both confusing and prejudicial. The Federal Rules of Evidence require that evidence must be relevant to be admissible. Fed. R. Evid. 402. The Rules define relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the 3 Plaintiff attempts to argue that the holding in White supports his claim that the ADA should be permitted to prove negligence since he has alleged an independent claim of negligence based upon the duty owed to plaintiff as a business invitee. We must disagree. The court, in White, concluded that in order to bring an action in this context a plaintiff must allege an independent common law duty, as plaintiff has done in this case. It did not hold that once a plaintiff has done so, the ADA would serve as the standard or as evidence of the standard of care. 2006 U.S. Dist. LEXIS 88595, *7 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 110 of 175 Page 4 of 4 evidence." Fed. R. Evid. 401. Nonetheless, even if the evidence is relevant, Rule 403 provides that a court may exclude the evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Fed. R. Evid. 403; United States v. Long, 574 F.2d 761, 767 (3d Cir.), cert. denied, 439 U.S. 985, 99 S. Ct. 577,58 L. Ed. 2d 657 (1978). In this case, while evidence of an ADA violation would serve little if any purpose in proving whether a defendant breached the duty owed to a business invitee, it would most certainly confuse and/or prejudice the jury. As defendant's counsel argued, it would be difficult for a jury to apply the appropriate standard [*12] once it is informed of the ADA regulations. In sum, the Court agrees with defendants that there seems to be little difference in bringing a claim of negligence per se utilizing the standard of care, which plaintiff now concedes is not appropriate, and allowing the alleged violations of the ADA to serve as evidence of the standard. Both seem to allow for recovery of damages for personal injuries for violations of the ADA, which are specifically not permitted under the ADA itself. Furthermore, since the negligence alleged in the complaint is a breach of the duty of care owed to a business invitee, a standard of care recognized by law, we must agree with defendants that there is no need to "borrow" a standard from the ADA regulations. Accordingly, while the common law negligence claims survive these motions, the motions are granted to the extent that plaintiff may not "borrow" the standard of care from the ADA regulations. An appropriate Order follows. ORDER AND NOW, this 6th day of December, 2006, upon consideration of Defendant Dollar Tree Stores, Inc. and Defendant Federal Realty Investment's Motions for Judgment on the Pleadings and Plaintiff's Responses thereto, it is [*13] hereby ORDERED that the Motions are DENIED to the extent that Plaintiff has alleged common law negligence claims against the Defendants. However, the Motions are GRANTED to the extent that plaintiff is precluded from asserting a claim of negligence per se utilizing the Americans with Disabilities Act ("the ADA") as the standard of care and/or from borrowing the standard of care from the ADA. It is so ORDERED. BY THE COURT: /s/ CHARLES B. SMITH CHIEF UNITED STATES MAGISTRATE JUDGE End of Document 2006 U.S. Dist. LEXIS 88595, *11 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 111 of 175 Caution As of: April 3, 2017 4:51 PM Z Manning v. Temple Univ. United States District Court for the Eastern District of Pennsylvania December 30, 2004, Decided ; December 30, 2004, Filed; December 30, 2004, Entered CIVIL ACTION NO. 03-4012 Reporter 2004 U.S. Dist. LEXIS 26129 *; 2004 WL 3019230 VALERIE MANNING v. TEMPLE UNIVERSITY, et al. Subsequent History: Affirmed by Manning v. Temple Univ., 2005 U.S. App. LEXIS 26483 (3d Cir. Pa., Dec. 5, 2005) Disposition: Defendants' motion for summary judgment was granted. Judgment was entered. Complaint as to defendants John Doe Nos. 1-25 was dismissed. Core Terms medical school, Promotions, exam, grade, Handbook, advice, fraudulent misrepresentation, summary judgment, outrageous, Appeals, courses, misrepresentation, proceedings, Faculty, repeat, procedural due process, fiduciary, alleges, asserts, race discrimination, similarly situated, property interest, cause of action, right to appeal, personal gain, fraudulent concealment, medical education, conditioned, justifiable, probation Case Summary Procedural Posture Plaintiff former medical student sued defendants, a university, its medical school, and various medical school professors, based on her dismissal from the medical school. The student alleged racial discrimination, violation of her constitutional rights, and violation of federal, state, and common law. Defendants moved for summary judgment, seeking dismissal of the complaint. The student contested the motion. Overview The student was an African-American female. She failed two courses during her first year, and she was placed on academic probation. She failed three courses and received a "conditioned" grade in one course the next year. The dean rejected the student's appeal of her dismissal. The court granted the motion. There was no racial discrimination. The student was not treated differently from similarly situated students who were not members of a protected class. The dismissal did not violate equal protection or substantive due process rights. The student's procedural due process rights were not violated. She had an opportunity to present her case to the medical school committee and the dean. Alleged duplicitous conduct by a certain professor did not constitute extreme and outrageous conduct necessary for an intentional infliction of emotional distress claim. There was no fiduciary relationship to support a breach of fiduciary duty claim. A professor's alleged misrepresentations regarding the committee proceedings did not support a claim of fraud, fraudulent misrepresentation, negligence, and/or negligent misrepresentation. Defendants did not breach any contractual duty to the student. Outcome The court granted defendants' motion for summary judgment and entered judgment in favor of defendants and against the student. LexisNexis® Headnotes Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > General Overview Civil Procedure > ... > Summary Judgment > Supporting Materials > General Overview Civil Procedure > ... > Summary Judgment > Supporting Materials > Discovery Materials HN1[ ] Under Fed. R. Civ. P. 56(c), a court may grant summary judgment only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 112 of 175 Page 2 of 14 genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. A court reviews all evidence and make all reasonable inferences from the evidence in the light most favorable to the non-movant. Civil Procedure > ... > Summary Judgment > Burdens of Proof > General Overview Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes HN2[ ] The non-moving party on summary judgment may not rest upon mere allegations or denials of the moving party's pleadings but must set forth specific facts showing there is a genuine issue for trial. Civil Rights Law > General Overview Civil Rights Law > ... > Contractual Relations & Housing > Equal Rights Under the Law (sec. 1981) > Protected Classes Constitutional Law > Equal Protection > Full & Equal Benefit Education Law > ... > Racial Discrimination > Title VI > Coverage of Title VI HN3[ ] Whether a plaintiff has made out a claim for racial discrimination is essentially the same whether the claim is brought under 42 U.S.C.S. § 1981, Title VI of the Civil Rights Act, 42 U.S.C.S. § 2000d, or the Pennsylvania Human Relations Act, Pa. Stat. Ann. tit. 43, § 951, et seq. Civil Rights Law > ... > Contractual Relations & Housing > Equal Rights Under the Law (sec. 1981) > Proof of Discrimination Labor & Employment Law > ... > Evidence > Burdens of Proof > Burden Shifting Labor & Employment Law > ... > Evidence > Burdens of Proof > Burden Shifting Labor & Employment Law > ... > Evidence > Burdens of Proof > Employee Burdens of Proof HN4[ ] In McDonnell Douglas Corp. v. Green, the United States Supreme Court outlined the formula for making out a prima facie case of race discrimination in employment. This formula has been adapted for the educational context and requires the plaintiff to prove that (1) she is a member of a protected class; (2) she suffered an adverse action at the hands of the defendants in her pursuit of her education; (3) she was qualified to continue in her pursuit of her education; and (4) she was treated differently from similarly situated students who are not members of the protected class. Civil Procedure > Judgments > Summary Judgment > Evidentiary Considerations Civil Procedure > ... > Summary Judgment > Supporting Materials > General Overview HN5[ ] The evidence a court may consider on a motion for summary judgment is limited to evidence that would be admissible at trial. Civil Rights Law > Protection of Rights > Section 1983 Actions > General Overview Civil Rights Law > ... > Elements > Color of State Law > General Overview Civil Rights Law > Protection of Rights > Section 1983 Actions > Scope Constitutional Law > Equal Protection > Nature & Scope of Protection HN6[ ] 42 U.S.C.S. § 1983 provides a cause of action for any person who has been deprived of rights secured by the Constitution or laws of the United States by a person acting under color of law. Civil Rights Law > ... > Section 1983 Actions > Scope > Educational Institutions HN7[ ] Temple University and its professors are state actors. Constitutional Law > Equal Protection > Nature & Scope of Protection HN8[ ] The Equal Protection Clause provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV, § 2004 U.S. Dist. LEXIS 26129, *26129 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 113 of 175 Page 3 of 14 1.) This is a direction that all persons similarly situated should be treated alike. To state a violation of equal protection rights, a plaintiff must allege facts that a similarly situated person was treated differently. Constitutional Law > Substantive Due Process > General Overview Constitutional Law > Substantive Due Process > Scope HN9[ ] The substantive due process protection of the Fourteenth Amendment prohibits those acting under color of state law from taking away a person's property interest for reasons that are "arbitrary, irrational, or tainted by improper motive. The property interest must be one that is considered fundamental under the United States Constitution. The United States Supreme Court has never held that an interest in the continuation of one's medical school education is a fundamental property interest. In several decisions, it has merely assumed, without deciding, the existence of such a constitutionally protectable property right in continued enrollment in medical school. The United States Court of Appeals for the Third Circuit has so far limited non- legislative substantive due process review to cases involving real property ownership. Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Scope of Protection Constitutional Law > Substantive Due Process > General Overview Constitutional Law > Substantive Due Process > Scope HN10[ ] To succeed on a claim of infringement of procedural due process rights, a plaintiff must show that a protected property interest was involved, and that the procedural safeguards surrounding the deprivation were inadequate. The property analysis for procedural due process is separate and distinct from such an analysis for substantive due process. For purposes of procedural due process, courts look to state law to determine whether a property interest exists. Under Pennsylvania law, it has been held that a graduate student has a property interest protected by procedural due process in the continuation of her course of study. Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Scope of Protection HN11[ ] Procedural due process attaches to an academic dismissal. Nonetheless, the United States Supreme Court has held that significant flexibility exists in the procedures required to satisfy procedural due process under this circumstance. Procedural safeguards are adequate if the student is notified of her impending dismissal, if the student can engage in an "informal give- and-take" with the administrative body dismissing her, and if the decision to dismiss the student is "careful and deliberate." Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Scope of Protection HN12[ ] Not every deviation by a university from its established regulations violates procedural due process. Only significant and unfair departures do so. Torts > Intentional Torts > Intentional Infliction of Emotional Distress > General Overview Torts > Intentional Torts > Intentional Infliction of Emotional Distress > Elements HN13[ ] A necessary element of intentional infliction of emotional distress is that the defendant's conduct be "extreme and outrageous. In defining extreme and outrageous conduct, the Restatement (Second) of Torts, § 46 cmt. d provides: Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an averages member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" Civil Procedure > Trials > Jury Trials > Province of Court & Jury Torts > Intentional Torts > Intentional Infliction of Emotional Distress > General Overview HN14[ ] A court must make the initial determination of whether a defendant's conduct was so extreme and outrageous that recovery may be justified. Only in the 2004 U.S. Dist. LEXIS 26129, *26129 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 114 of 175 Page 4 of 14 most extraordinary circumstances has conduct been considered extreme and outrageous by the courts of Pennsylvania. Business & Corporate Law > Agency Relationships > Fiduciaries > General Overview Contracts Law > Contract Interpretation > Fiduciary Responsibilities Governments > Fiduciaries HN15[ ] In Pennsylvania, a fiduciary duty arises out of a confidential relationship where the parties do not deal on equal terms, but, on the one side there is overmastering influence, or, on the other, weakness, dependence or trust, justifiably reposed. The essence of such a confidential relationship is trust and reliance on one side, and a corresponding opportunity to abuse that trust for personal gain on the other. In essence, the dominant party may not use his or her position to harm the subordinate party to the dominant party's own advantage. Business & Corporate Law > Agency Relationships > Fiduciaries > General Overview Business & Corporate Law > Agency Relationships > Fiduciaries > Fiduciary Duties Business & Corporate Law > Agency Relationships > Agents Distinguished > Guardians & Wards Contracts Law > Contract Interpretation > Fiduciary Responsibilities Estate, Gift & Trust Law > Trusts > General Overview Estate, Gift & Trust Law > ... > Private Trusts Characteristics > Trustees > General Overview Governments > Fiduciaries HN16[ ] Pennsylvania law holds that a per se fiduciary relationship exists between trustee and beneficiary, guardian and ward, attorney and client, and principal and agent. It also recognizes that the facts and circumstances in other situations may give rise to such a relationship. However, there is no Pennsylvania case which has ruled that a graduate school or its professors owe any fiduciary duties to graduate students. Torts > Business Torts > Fraud & Misrepresentation > General Overview Torts > ... > Fraud & Misrepresentation > Nondisclosure > General Overview Torts > ... > Fraud & Misrepresentation > Nondisclosure > Elements HN17[ ] To prove either fraud or fraudulent misrepresentation, a plaintiff must provide clear and convincing evidence of (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. The elements of fraudulent concealment are identical except that the wrongdoer intentionally conceals a material fact rather than making an affirmative misrepresentation. Civil Procedure > ... > Summary Judgment > Opposing Materials > General Overview Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > General Overview Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes Torts > Business Torts > Fraud & Misrepresentation > General Overview HN18[ ] While the breach of a promise to do something in the future is not a proper basis for a cause of action for fraud or fraudulent misrepresentation, a statement of present intention which is false when uttered may constitute a fraudulent misrepresentation of fact. Mere non-performance of a promise, however, does not by itself prove a lack of present intent. In order to defeat a motion for summary judgment, a plaintiff must point to evidence in the record that creates a genuine issue of the defendant's fraudulent present intention. Torts > Business Torts > Fraud & Misrepresentation > General Overview HN19[ ] In a fraud claim, if "common prudence or diligence" could have ascertained the truth, the reliance is not justified. 2004 U.S. Dist. LEXIS 26129, *26129 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 115 of 175 Page 5 of 14 Contracts Law > Breach > Breach of Contract Actions > General Overview Contracts Law > Breach > General Overview Education Law > Faculty & Staff > Employment Contracts HN20[ ] To sustain a claim for breach of contract, a plaintiff must prove: (1) the existence of a contract, including its essential terms; (2) a breach of a duty imposed by the contract; and (3) resultant damages. Contracts Law > Breach > Breach of Contract Actions > General Overview Education Law > Students > Right to Education HN21[ ] Pennsylvania refuses to recognize a general cause of action where the allegation is simply that an educational institution failed to provide a quality education. Torts > ... > Fraud & Misrepresentation > Negligent Misrepresentation > General Overview Torts > ... > Fraud & Misrepresentation > Negligent Misrepresentation > Elements Torts > Negligence > General Overview HN22[ ] Negligence and negligent misrepresentation are premised on the existence of a duty owed by one party to another. Furthermore, negligent misrepresentation, like fraudulent misrepresentation, requires that a plaintiff justifiably rely on a misrepresentation and suffer injury as a result. Counsel: [*1] For VALERIE MANNING, Plaintiff: RICHARD J. SILVERBERG, RICHARD J. SILVERBERG & ASSOCIATES, PC, PHILADELPHIA, PA. FOR TEMPLE UNIVERSITY, TEMPLE UNIVERSITY SCHOOL OF MEDICINE, RICHARD J. KOZERA, M.D., GERALD H. STERLING, PH.D., JAMES P. RYAN, PH.D., THOMAS MARINO, PH.D., HELEN PEARSON, PH.C., JOHN DOE NOS. 1-25, DEFENDANTS: LANCE DAVID LEWIS, OFFICE OF LANCE DAVID LEWIS, ESQUIRE, GLENSIDE, PA. Judges: Harvey Bartle III, J. Opinion by: Harvey Bartle III Opinion MEMORANDUM Bartle, J. December 30, 2004 Plaintiff, Valerie Manning, brings this action as a result of her dismissal as a student from Temple University's School of Medicine. Before the court is the motion of all named defendants for summary judgment. Plaintiff has sued the following defendants: Temple University; Temple University School of Medicine; Richard J. Kozera, M.D.; Gerald H. Sterling, Ph.D; James P. Ryan, Ph.D; Thomas Marino, Ph.D; and Helen Pearson, Ph.D. 1 The statutory claims which plaintiff is currently pursuing are brought under: (1) 42 U.S.C. § 1983; (2) 42 U.S.C. § 1981; (3) Title VI of the Civil Rights Act, 42 U.S.C. § 2000d; (4) The Pennsylvania Human [*2] Relations Act ("PHRA"), PA. STAT. ANN. tit. 43, § 951, et seq.; and (5) the Pennsylvania Fair Educational Opportunities Act ("PFEOA"), PA. STAT. ANN. tit. 24, § 5004. She also asserts common law claims against all defendants for: (1) intentional infliction of emotional distress; (2) breach of contract; (3) fraud/fraudulent misrepresentation/fraudulent concealment; (4) negligent misrepresentation; (5) negligence; and (6) breach of fiduciary duty. 2 [*3] HN1[ ] Under Rule 56(c) of the Federal Rules of Civil Procedure, we may grant summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A dispute is genuine if the 1 Plaintiff has also named John Doe Nos. 1-25 as defendants. They are simply identified in the amended complaint as a group of employees of Temple University and Temple University School of Medicine. 2 Manning's amended complaint also alleged counts under: (1) 42 U.S.C. § 1985(3); (2) 42 U.S.C. § 1986; (3) The Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961, 1962(a)-(d); and (4) under the common law of civil conspiracy. She has now agreed to the entry of summary judgment in favor of the defendants on these claims. 2004 U.S. Dist. LEXIS 26129, *26129 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 116 of 175 Page 6 of 14 evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 254. We review all evidence and make all reasonable inferences from the evidence in the light most favorable to the non- movant. See Wicker v. CONRAIL, 142 F.3d 690, 696 (3d Cir. 1998). HN2[ ] The non-moving party may not rest upon mere allegations or denials of the moving party's pleadings but must set forth specific facts showing there is a genuine issue for trial. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990). I. Viewing the record in the light most favorable to the plaintiff, the facts are [*4] as follows. Manning is an African-American female and, as noted above, a former student at Temple University School of Medicine ("medical school"). She began her first year as a medical student in September, 1999 during which time she failed Gross Anatomy and Neuroanatomy. At the end of her first semester in December, 1999, she took a leave of absence. She received a letter from the medical school notifying her that upon her return to school in September, 2000, she would be placed on academic probation and would be required to repeat her first year in its entirety. Although Manning did not verify the meaning of academic probation with anyone at the medical school and does not remember whether she referred to her student handbook for the definition, she knew that it "probably meant" that she "couldn't fail any courses." After returning to school for her repeat year, Manning continued to score poorly on her exams. By the end of that year she had failed Histology, Embryology, and Biochemistry, and had "conditioned" 3 Physiology. Manning was curious about her grade of zero on her Embryology final exam, given that she had received a score of 82 in the course during her first year. Sometime [*5] around December, 2000, she attempted to meet with her Embryology professor, Dr. Thomas Marino, to discuss her exam performance, but, according to Manning, he "never agreed to meet with [her]." Although Manning did not fail Neuroanatomy the second 3 Dr. Gerald Sterling, one of the defendants, has testified that a condition grade is "close to passing but not quite passing." While a "condition grade" is not a passing grade, it is less detrimental than a "fail grade" to a student's ability to be promoted to the next academic year. time around, she was having difficulties with this course during her repeat year. In approximately January, 2001, she met with her professor, Dr. Helen Pearson, to discuss her study habits. Dr. Pearson asked Manning whether she had visited the school's Recruitment, Admission, and Retention Office ("RAR"), which is a student support organization. Manning thought this advice was inappropriate because she believed that the RAR was designed primarily to support minority students and did [*6] not believe the RAR could assist her with her medical school courses. Dr. Pearson also advised plaintiff to study from her notes, rather than from index cards. As a result of using Dr. Pearson's advice, Manning passed Neuroanatomy. In April or May, 2001, Manning met with her Biochemistry and Physiology professors, Dr. James Burke and Dr. James Ryan, respectively, to discuss her poor performance in those classes. Dr. Burke advised Manning to study from past exams because it would help her focus on what course material was important for final exam purposes. He asked her whether she had sought study advice from any other professors, and when she responded that she had previously met with Dr. Pearson, Manning states that Dr. Burke was surprised that Dr. Pearson did not suggest studying from old exams. Later that same week, while meeting with Dr. Ryan regarding her poor performance in Physiology, he agreed with Dr. Burke's advice regarding the use of past exams. Manning initially found Dr. Pearson's advice helpful, and as pointed out above, passed Neuroanatomy as a result of utilizing Dr. Pearson's suggested method of study. Her impression of that advice changed, however, sometime in [*7] May, 2001, after speaking with a Caucasian student one year her senior, known to her only as Tracy. Tracy informed Manning that Dr. Pearson had advised her to study from past exams. Manning was "upset" to hear that Dr. Pearson had counseled Tracy to this effect but not her. She felt that while Dr. Pearson's advice about studying from her notes was beneficial when applied to Neuroanatomy, a course taken by itself during a specific time within the semester, it did not turn out to be beneficial for other classes that were taken in a group. On or about June 8, 2001, Dr. Ryan notified Manning by e-mail that she would need to appear before the Student Promotions Committee ("SPC"), which he chairs. The SPC determines whether students will advance from one year to the next or be dismissed. Dr. Ryan requested a meeting with Manning to discuss the SPC 2004 U.S. Dist. LEXIS 26129, *3 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 117 of 175 Page 7 of 14 proceedings. At her deposition, Manning testified that during this meeting, Dr. Ryan assured her that she would not be dismissed from medical school and would only have to retake some of her final exams. She asked Dr. Ryan whether she should appear before the SPC with an advocate. He discouraged her from bringing anyone who was not a professor. [*8] Instead, according to Manning, he offered to advocate on her behalf. On June 27, 2001, Manning received a letter dated June 21, 2001 and signed by Dr. Gerald Sterling, the Assistant Dean for Medical Education, that said she was being considered for dismissal from the medical school because she had failed three courses and conditioned one course during her repeat year. The letter added that it was the medical school's policy for the SPC to consider a student for dismissal if, while on "academic probation … 'during a repeat semester, a repeat year, or a repeat clerkship, the student receives a final grade of C or F for any Group I, II, or III course.'" Manning was informed that she could write a letter to Dr. Ryan, the Chairman of the SPC, appeal her dismissal under the guidelines and request an appearance before the SPC. Manning timely submitted her appeal letter to Dr. Ryan. She explained that her poor performance was due to ineffective study methods and that she had recently discovered effective methods. Manning made no mention of Dr. Pearson's reference to the RAR or of any race discrimination or stereotyping. She simply noted that Dr. Pearson had advised her to study from her [*9] notes and that this study method worked well enough that she received a 90 on her Neuroanatomy final exam. She added that she had recently been advised by Drs. Burke and Ryan of the even more efficient method of studying from past exams and that, if she were allowed to retake them, she would do well. There was no adverse comment about Dr. Marino. Manning appeared alone before the eight person SPC on July 5, 2001. The committee members were defendants Dr. Ryan, Dr. Pearson, and Dr. Sterling, and non-defendants Dr. John Harding, Dr. Inyanga Mack, Dr. Ronald Rubin, Dr. Dianne Soprano, and Dr. David Wald. During the meeting, which lasted about 10 minutes, Manning was given an opportunity to present her position against dismissal. She was then asked to leave the room while the SPC members deliberated. After 10 minutes of discussion, the SPC voted unanimously to dismiss her. Immediately following the vote, Dr. Ryan told Manning, who remained outside the room, of the SPC's action and of her right to appeal. At this time, he did not mention that the vote against her was unanimous. On July 5, 2001, Manning received a letter from Dr. Sterling, the Assistant Dean for Medical Education, documenting [*10] the action taken by the SPC and outlining the process of appeal. The letter stated that "the promotional guidelines shall be upheld and the student shall be dismissed." It also contained the following excerpt from the Grading and Promotional Policy section of the Student and Faculty Advisor Handbook: F. Appealing Promotional Decisions b. Appeal to the Dean - A student may appeal to the Dean the decision of the Student Promotions Committee … only for cause, i.e., procedural irregularity. An appeal on the basis of the Committee's judgment is not permitted. Process of Appeal 1) Within 10 days of the Student Promotions Committee's verbal response to the initial appeal the student must communicate to the Dean in writing the fact that s/he is appealing the Student Promotions Committee's decision and the basis for the appeal. 2) The Dean may resolve an appeal solely on the basis of the student's letter, or after meeting with the student, or after referring the matter back to the Student Promotions Committee. The Dean will overrule the decision of the Committee only because of improper procedure in hearing the initial appeal. The decision of the Dean [*11] will be communicated promptly in writing and may not be appealed further. In the letter, Dr. Sterling also informed Manning that she should call him if the process was not clear to her. Although the letter stated that the proper appeals procedure for Manning would require her to appeal directly to the Dean only for a procedural irregularity, the medical school's Student and Faculty Advisor Handbook outlined a different procedure for students in Manning's category: 3. Appealing Dismissal Decisions by the Student Promotions Committee when Student on Probation has received Condition or Fail Grade(s) Appeal to the Ad Hoc Appeals Committee - When in accordance with the requirements of Probation the Student Promotions Committee has "considered a student for dismissal" and acted to dismiss a 2004 U.S. Dist. LEXIS 26129, *7 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 118 of 175 Page 8 of 14 student, the student may appeal this action to the Ad Hoc Appeals Committee either for cause or because of extenuating circumstance. Procedural Irregularity - documented error in, or divergence from, the prescribed or customary process of evaluating and grading students. Extenuating Circumstances - severe and documented situations which were beyond the student's control [*12] and which prevented the student from performing in a manner truly reflective of his/her knowledge and skills. Manning informed Dr. Ryan on July 6, 2001 that she intended to appeal her dismissal by the SPC. She asked him if he would write a letter of support to the Executive Dean, Dr. Richard Kozera, for her to include in her package of appeal materials. Manning states that Dr. Ryan agreed to do so. Later that same day, Manning picked up the letter from the Dean's office. She then e- mailed Dr. Ryan to request a copy of it. When he did not respond to her request over the weekend, she opened the sealed letter she had obtained because she wanted to review it prior to submitting it to Dean Kozera. The letter did not support Manning's appeal of her dismissal. Instead, it stated that its purpose was to "describe [Dr. Ryan's] role in [Ms. Manning's] interaction with the Committee." It noted that the vote in favor of dismissing Manning was unanimous. It went on to say that Manning was "inefficient in her approach to learning," and that, despite being given advice on her study habits, "her final exam performance showed little improvement." In the letter, Dr. Ryan admitted that he told [*13] Manning that he "would present her view to the Committee" and stated that he "served as her advocate." He also wrote that he had advised Manning that a letter of support would not be appropriate, but that he "would explain [his] actions leading up to [the meeting before the SPC]." Manning did not submit Dr. Ryan's letter to Dean Kozera and instead obtained a letter of support from Dr. Burke, another one of her professors. She transmitted her appeal materials to Dean Kozera on July 10, 2001. In her letter, she explained that her failure in her various courses was due to inefficient study methods. Again, she did not mention Dr. Pearson's reference to the RAR or any race discrimination or race stereotyping on the latter's part. Nothing was said about Dr. Marino's giving her grade of zero on her Embryology final exam. Nor did she complain of Dr. Ryan's behavior with respect to her appeal. On July 13, 2001, Manning met with Dean Kozera to discuss her appeal. Even though Manning had not transmitted it, the Dean had read Dr. Ryan's letter. On July 16, 2001, Manning received a letter from Dean Kozera informing her of his decision to uphold the SPC's decision to dismiss her from the medical [*14] school. He stated that he had reviewed her academic file, her letter, and the proceedings of the SPC and "determined that the promotional standards be upheld." II. We begin with a discussion of Manning's race discrimination claims against all defendants. Her amended complaint alleges that they violated the following statutes: (1) 42 U.S.C. § 1981, which generally prohibits discrimination on the basis of race in the making or enforcement of a contract; (2) Title VI of the Civil Rights Act, 42 U.S.C. § 2000d, which prohibits race discrimination with respect to participation in programs receiving Federal financial assistance; (3) the PHRA, PA. STAT. ANN. tit. 43, § 951 et seq., which forbids race discrimination by public colleges and universities, among other things; and (4) the PFEOA, PA. STAT. ANN. tit. 24, § 5004, which generally prohibits discrimination on the basis of race with respect to educational opportunities within the Commonwealth. HN3[ ] Whether a plaintiff has made out a claim for racial discrimination is essentially the same whether the claim is brought under section 1981, [*15] Title VI, or the PHRA. See Pryor v. NCAA, 288 F.3d 548, 569 (3d Cir. 2002); Pamintuan v. Nanticoke Mem. Hosp., 192 F.3d 378, 385 (3d Cir. 1999); Hankins v. Temple University, 1987 U.S. Dist. LEXIS 2420, Civ. A. No. 86- 1148, 1987 WL 8818, at *1 (E.D. Pa. March 31, 1987). While we have found no case discussing the subject with respect to the PFEOA, we see no reason why the analysis would be different with respect to it. HN4[ ] In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), the United States Supreme Court outlined the formula for making out a prima facie case of race discrimination in employment. This formula has been adapted for the educational context and requires the plaintiff to prove that "(1) she is a member of a protected class; (2) she suffered an adverse action at the hands of the defendants in her pursuit of her education; (3) she was qualified to continue in her pursuit of her education; and (4) she was treated differently from similarly situated students who are not members of the protected class." Bell v. Ohio State Univ., 351 F.3d 240, 252-53 (6th Cir. 2004 U.S. Dist. LEXIS 26129, *11 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 119 of 175 Page 9 of 14 2003). In support [*16] of her claims, Manning alleges that: (1) Dr. Marino gave her a grade of zero during her repeat year on her Embryology exam despite her having passed the course in the previous year; (2) Dr. Marino refused to meet with her to discuss her grade of zero; (3) Dr. Pearson failed to give her study advice that was given to a Caucasian student named Tracy; (4) Dr. Pearson asked her whether she had spoken to anyone from the RAR office, an office that Manning believes is primarily designed to support minority students; (5) Dr. Ryan claimed to be her advocate, yet voted in favor of her dismissal and wrote a letter unsupportive of her to be submitted to Dean Kozera; (6) Drs. Ryan and Sterling misrepresented her appeal rights; (7) Dr. Kozera improperly accepted a direct appeal from the SPC rather than one from the Ad Hoc Committee; (8) an organization known as the Student Progress Committee failed to identify her academic difficulties and monitor her progress as outlined in the Student and Faculty Advisor Handbook; and (9) all of the defendants failed to support her properly and provide her with the assistance necessary to complete successfully her medical school education because of their [*17] "antipathy toward the RAR program and the students admitted through that program." Simply put, none of the evidence before us, taken separately or together, establishes a prima facie case of racial discrimination. Manning cannot satisfy the third and fourth elements of the McDonnell test, as applied in the educational setting. Manning has not come forth with evidence that she is qualified to continue in pursuit of her medical education. She failed two courses in the first semester of her first year, took a leave of absence, and then returned to fail three more courses and to condition a fourth. Assuming, however, that Manning was capable of passing these courses but for her ineffective study habits, she cannot establish that she was treated differently from similarly situated students who were not members of a protected class. The only purported evidence on this point is her testimony that a Caucasian student named Tracy, whose last name is unknown, was given good study advice by Dr. Pearson that was not given to her. Tracy has not been deposed and the record does not contain any affidavit from her. HN5[ ] The evidence we may consider on a motion for summary judgment is limited to evidence [*18] that would be admissible at trial. Blackburn v. United Parcel Serv. Inc., 179 F.3d 81, 95 (3d Cir. 1999) (citation omitted). The introduction of Tracy's statement through Manning would be inadmissible hearsay. Thus, we cannot consider anything Tracy may have told Manning about what Dr. Pearson told her. Furthermore, Manning has not come forth with any proof that any of the other defendants treated her differently than similarly situated non-African American students. Manning belatedly attempts to argue that she was a victim of racial stereotyping. This eleventh-hour argument surfaced for the first time in her brief in opposition to the defendants' motion for summary judgment. She claims that her "claim is not that the faculty harbored a discriminatory animus towards all African-Americans, but rather towards those who performed poorly whom they believed were improperly admitted to the medical school in the first instance by virtue of the RAR program." This argument is totally without merit. There is simply nothing in the record to support it. Accordingly, Manning's claims of racial discrimination under § 1981, Title VI, the PHRA, and the PFEOA, have no factual basis. [*19] III. We next consider Manning's claims under § 1983 for due process and equal protection violations. HN6[ ] Section 1983 provides a cause of action for "any person who has been deprived of rights secured by the Constitution or laws of the United States by a person acting under color of law." Curley v. Klem, 298 F.3d 271, 277 (3d Cir. 2002). It is undisputed that HN7[ ] Temple University and its professors are state actors. Molthan v. Temple Univ., 778 F.2d 955, 961 (3d Cir. 1985). Manning alleges that the defendants violated her right to equal protection of the laws, as secured by the Fourteenth Amendment to the Constitution. HN8[ ] "The Equal Protection Clause provides that no state shall 'deny to any person within its jurisdiction the equal protection of the laws.'" Artway v. Attorney Gen. of State of New Jersey, 81 F.3d 1235, 1267 (3d Cir. 1996) (quoting U.S. Cons. amend. XIV § 1.) This is "a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985). A plaintiff must allege facts that "a similarly situated person … was treated [*20] differently." Nichelson v. Redwine, 2000 U.S. Dist. LEXIS 15654, Civ. A. No. 99- 1769, 2000 WL 1599246, at *3 (E.D. Pa. Oct. 26, 2000) (citing Artway, 81 F.3d at 1267). As we have previously stated, Manning has failed to 2004 U.S. Dist. LEXIS 26129, *15 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 120 of 175 Page 10 of 14 provide any evidence that she was treated differently than other similarly situated persons. With respect to the defendants other than Dr. Pearson, she does not even attempt to argue differential treatment. Moreover, as noted above, the statement that Dr. Pearson gave a Caucasian student named Tracy beneficial study advice not given to her is inadmissible hearsay that cannot be considered in opposition to a motion for summary judgment. Blackburn, 179 F.3d at 95. As such, Manning's Equal Protection claim under § 1983 must fail. Manning further argues that the defendants violated her substantive due process rights to property under the Fourteenth Amendment. HN9[ ] The substantive due process protection of the Fourteenth Amendment prohibits those acting under color of state law from taking away a person's property interest for reasons that are "arbitrary, irrational, or tainted by improper motive." Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 139 (3d Cir. 2000) [*21] (citation omitted). The property interest must be one that is considered fundamental under the United States Constitution. Id. at 140 (citations omitted). The Supreme Court has never held that an interest in the continuation of one's medical school education is a fundamental property interest. In several decisions, it has merely assumed, without deciding, the existence of such a constitutionally protectible property right in continued enrollment in medical school. E.g., Regents of the Univ. of Michigan v. Ewing, 474 U.S. 214, 223, 88 L. Ed. 2d 523, 106 S. Ct. 507 (1985); Board of Curators of the Univ. of Missouri v. Horowitz, 435 U.S. 78, 91-92, 55 L. Ed. 2d 124, 98 S. Ct. 948 (1978). Our Court of Appeals has "so far limited non-legislative substantive due process review to cases involving real property ownership." Nicholas, 227 F.3d at 141. Consequently, Manning's dismissal from the medical school does not violate substantive due process. Manning's final argument under § 1983 is that the defendants infringed her procedural due process rights. HN10[ ] To succeed on this claim she must show that a protected property interest was involved, and that [*22] the procedural safeguards surrounding the deprivation were inadequate. Board of Regents v. Roth, 408 U.S. 564, 568-69, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). The property analysis for procedural due process is separate and distinct from such an analysis for substantive due process. Nicholas, 227 F.3d at 140. For purposes of procedural due process, we look to state law to determine whether a property interest exists. Roth, 408 U.S. at 577. Under Pennsylvania law, it has been held that a graduate student has a property interest protected by procedural due process in the continuation of her course of study. Ross v. Pennsylvania State Univ., 445 F. Supp. 147, 152 (M.D. Pa. 1978). Accordingly, HN11[ ] procedural due process attaches to an academic dismissal. Nonetheless, the Supreme Court has held that significant flexibility exists in the procedures required to satisfy procedural due process under this circumstance. Horowitz, 435 U.S. at 86. Procedural safeguards are adequate if the student is notified of her impending dismissal, if the student can engage in an "informal give-and-take" with the administrative body dismissing [*23] her, and if the decision to dismiss the student is "careful and deliberate." Id. at 84-85; Mauriello v. The Univ. of Medicine and Dentistry of New Jersey, 781 F.2d 46, 50 (3d Cir. 1986). Manning argues that the procedures afforded to her were inadequate. She asserts that Dr. Sterling and Dr. Ryan did not advise her of her right to appeal to an Ad Hoc Committee before appealing to the Dean as described in the Student and Faculty Advisor Handbook. Furthermore, she maintains that Dr. Ryan acted with duplicity and that the SPC's decision to dismiss her was predetermined without consideration of her academic record or the arguments she presented. HN12[ ] Not every deviation by a university from its established regulations violates procedural due process. E.g., Bates v. Sponberg, 547 F.2d 325, 329-30 (6th Cir. 1976); Winnick v. Manning, 460 F.2d 545, 550 (2d Cir. 1972). Only significant and unfair departures do so. See Jones v. Bd. of Governors of Univ. of North Carolina, 704 F.2d 713, 717 (4th Cir. 1983) (citing United States v. Caceres, 440 U.S. 741, 752-53, 59 L. Ed. 2d 733, 99 S. Ct. 1465 & n.15, 440 U.S. 741, 59 L. Ed. 2d 733, 99 S. Ct. 1465 (1979)). [*24] However, no such departure occurred here. Although Manning may not have been given an opportunity to appeal the SPC's decision to an Ad Hoc Committee, she ultimately had the benefit of an "informal give-and-take" session with Dean Kozera. He was the final arbiter of whether she would be dismissed, and decisions of the Ad Hoc Committee would only be advisory to him. Manning has presented no evidence that Dean Kozera's decision was not "careful and deliberate." In addition to meeting with her, he considered her "academic file, the proceedings of the Student Promotions Committee, and [her] letter to [him]." 2004 U.S. Dist. LEXIS 26129, *20 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 121 of 175 Page 11 of 14 Dr. Ryan's actions, even if we accept Manning's version, do not constitute a violation of procedural due process. He informed Dean Kozera that he "served as [Ms. Manning's] advocate, even though [he] was also a member of the [SPC]," and that he voted for her dismissal. Thus, Dean Kozera was made fully aware of any potential taint in the proceedings before the SPC and was able to weigh Dr. Ryan's actions against the overwhelming evidence of Manning's poor academic record. Manning's argument that the SPC's decision to dismiss her was predetermined and made without reference [*25] to her academic record is completely without merit. If she were correct, it is strange that she only names three of the eight members of the SPC as defendants in this action. More significantly, it is undisputed that she failed five courses and conditioned a sixth. In light of these facts, her assertion that the SPC did not consider her academic record is totally implausible. In sum, the procedural standards enumerated by the Supreme Court for processing Manning's academic dismissal were satisfied. IV. Manning brings a claim under state law against all defendants for intentional infliction of emotional distress. Yet, she only points to proof of Dr. Ryans's alleged duplicitous conduct in support of her claim. HN13[ ] A necessary element of this cause of action is that the defendant's conduct be "extreme and outrageous." Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir. 1979). In defining extreme and outrageous conduct, the RESTATEMENT (SECOND) OF TORTS § 46 cmt. d provides: Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible [*26] bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an averages member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" HN14[ ] "[A] court must make the initial determination of whether a defendant's conduct was so extreme and outrageous that recovery may be justified." Small v. Juniata College, 452 Pa. Super. 410, 682 A.2d 350, 355 (Pa. Super. Ct. 1996). After a review of relevant cases, we conclude that Manning cannot establish extreme and outrageous conduct. Only in the most extraordinary circumstances has conduct been considered extreme and outrageous by the courts of Pennsylvania. For example, in Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (Pa. 1970), extreme and outrageous conduct was found where the defendant struck and killed plaintiff's son and hid the body in his garage. After a few days, the defendant placed the body in a hand-dug grave. Plaintiff was not aware of his son's whereabouts until the partially decomposed remains were found and returned to him. In Jones v. Nissenbaum, Rudolph and Seidner, 244 Pa. Super. 377, 368 A.2d 770 (Pa. 1976), [*27] the defendant's conduct, while deplorable, did not rise to the level of extreme and outrageous conduct. In that case, a law firm hired a credit card company to inform plaintiffs that their home would be sold to satisfy their debts. The law firm knew that the sale could not lawfully be conducted absent a hearing. Manning's situation is more analogous to that in Jones. As stated above, while we agree that Dr. Ryan's alleged conduct, if true, should be condemned, we cannot say that it extends beyond all bounds of decency. To hold otherwise would transform every misrepresentation and misdeed into an action for intentional infliction of emotional distress in clear derogation of the narrow scope accorded this tort. V. In addition, Manning claims that all of the defendants were in a fiduciary relationship with her and that they breached their respective duties.HN15[ ] In Pennsylvania, a fiduciary duty arises out of a confidential relationship where "the parties do not deal on equal terms, but, on the one side there is overmastering influence, or, on the other, weakness, dependence or trust, justifiably reposed." Frowen v. Blank, 493 Pa. 137, 425 A.2d 412, 416-17 (Pa. 1981). [*28] "The essence of such a [confidential] relationship is trust and reliance on one side, and a corresponding opportunity to abuse that trust for personal gain on the other." In re Estate of Scott, 455 Pa. 429, 316 A.2d 883, 885 (Pa. 1974); Basile v. H&R Block, 2001 PA Super 136, 777 A.2d 95, 101 (Pa. Super. Ct. 2001) (citing Estate of Scott). In essence, the dominant party may not use his or her position to harm the subordinate party to the dominant party's "own advantage." Young v. Kaye, 443 Pa. 335, 279 A.2d 759, 2004 U.S. Dist. LEXIS 26129, *24 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 122 of 175 Page 12 of 14 763 (Pa. 1971). HN16[ ] Pennsylvania law holds that a per se fiduciary relationship exists between trustee and beneficiary, guardian and ward, attorney and client, and principal and agent. Basile, 777 A.2d at 102. It also recognizes that the facts and circumstances in other situations may give rise to such a relationship. See, e.g., Frowen, 425 A.2d at 418; Basile, 777 A.2d at 102. However, the parties have not called to our attention any Pennsylvania case which has ruled that a graduate school or its professors owe any fiduciary duties to graduate students. Cf. [*29] , Chou v. Univ. of Chicago, 254 F.3d 1347, 1362-63 (Fed. Cir. 2001). In any event, in order to breach a fiduciary duty, the dominant party must act for his or her own personal gain or to his or her own advantage. That has not occurred here. There is nothing in the record to indicate that any of the defendants had "an opportunity to abuse … [any] trust for personal gain." Estate of Scott, supra. All Manning can suggest is that their personal gain or advantage was the satisfaction in seeing her dismissed. Besides the total lack of evidence on this score, we reject the notion that such motivation constitutes personal gain or advantage as articulated in Estate of Scott, supra or Young, supra. Whatever else personal gain or advantage may be, it does not include the nefarious pleasure one may obtain from observing another person fail. Plaintiff cannot prevail on her breach of fiduciary duty claim. VI. Manning also asserts a claim against all defendants for "fraud/fraudulent misrepresentation/fraudulent concealment." HN17[ ] To prove either fraud or fraudulent misrepresentation, a plaintiff must provide clear [*30] and convincing evidence of "(1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance." Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882, 889 (Pa. 1994). The elements of fraudulent concealment are identical except that the wrongdoer intentionally conceals a material fact rather than making an affirmative misrepresentation. Id. at 889 n.12. Manning first asserts that Dr. Ryan misrepresented that the SPC proceedings would not result in dismissal and that he would serve as her advocate in the SPC proceedings. HN18[ ] While the breach of a promise to do something in the future is not a proper basis for a cause of action for fraud or fraudulent misrepresentation, Krause v. Great Lakes Holdings, Inc., 387 Pa. Super. 56, 563 A.2d 1182, 1187 (Pa. 1989), "[a] statement of present intention which is false when uttered may constitute a fraudulent misrepresentation of fact." Brentwater Homes, Inc. v. Weibley, 471 Pa. 17, 369 A.2d 1172, 1175 (Pa. 1977). [*31] Mere non-performance of a promise, however, does not by itself prove a lack of present intent. Fidurski v. Hammill, 328 Pa. 1, 195 A. 3, 4 (Pa. 1937). In order to defeat a motion for summary judgment, a plaintiff must point to evidence in the record that creates a genuine issue of the defendant's fraudulent present intention. Mellon Bank Corp. v. First Union Real Estate Equity and Mortgage Investments, 951 F.2d 1399, 1409-10 (3d Cir. 1991) (citations omitted). Dr. Ryan's statements regarding the outcome of the SPC proceedings and his serving as Manning's advocate are promises of future actions. She presents no evidence that Dr. Ryan had fraudulent intentions at the time he allegedly agreed to serve as her advocate and allegedly promised that the SPC proceedings would not result in her dismissal. Manning also asserts that Dr. Ryan and Dr. Sterling informed her of an appeals process that denied her right to appeal to an Ad Hoc Committee. In addition, she asserts that she was not advised of the correct grounds upon which her appeal could be reviewed. With respect to these allegations, Manning fails to meet two essential elements of fraud, fraudulent [*32] misrepresentation, or fraudulent concealment -- that there was justifiable reliance on the statement or omission and that there was a resulting injury proximately caused by the reliance. Gibbs, 647 A.2d at 889 & n.12. First, HN19[ ] if "common prudence or diligence" could have ascertained the truth, the reliance is not justified. In Reimer v. Tien, 356 Pa. Super. 192, 514 A.2d 566 (Pa. Super. Ct. 1986), a medical student brought a cause of action against her medical school alleging fraudulent misrepresentation because, among other things, prior to her matriculation the school represented that the size of classes was thirty students when in fact many contained as much as two hundred students. The court found that her reliance was not justified because 2004 U.S. Dist. LEXIS 26129, *28 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 123 of 175 Page 13 of 14 she had received school brochures depicting classrooms with numerous chairs, and thus should have realized the discrepancy. The same reasoning applies here. Manning received a copy of the Student and Faculty Advisor Handbook that explained the appeals process in detail. In his letter of July 5, 2001, in which he officially notified her of her right to appeal the decision of the SPC, Dr. Sterling stated [*33] that the letter contained an "excerpt from the Grading and Promotional Policy … [which was] abstracted." Thus, Manning was put on notice that the information contained in the letter may not have been complete. Given the importance of what was at stake, Manning failed to exercise the appropriate prudence or diligence when complete information on the appeals process was detailed in her student handbook. Moreover, Manning has not shown how she was proximately injured by being informed of an appeals process different than that which may have technically applied to her. The bottom line is that Manning had the opportunity to present all the facts as well as all her arguments to Dean Kozera. In sum, Manning has not presented evidence to establish fraudulent intent, justifiable reliance, or injury with respect to her claims of "fraud/fraudulent misrepresentation/ fraudulent concealment." VII. Manning alleges that the defendants breached their contract with her "by failing to follow the terms and conditions of the Handbook [with respect to her appeal rights] …, and more generally by failing to provide [her] with a medical education." HN20[ ] To sustain a claim for breach of contract, [*34] a plaintiff must prove: "(1) the existence of a contract, including its essential terms; (2) a breach of a duty imposed by the contract; and (3) resultant damages." CoreStates Bank, Nat'l Ass'n v. Cutillo, 1999 PA Super 14, 723 A.2d 1053, 1058 (Pa. Super. Ct. 1999). Manning argues that the Student and Faculty Advisor Handbook represents a part of her contract with the medical school that obligates the defendants to conform to certain procedures regarding dismissal appeals. The first page of the handbook, however, states that "the rules, regulations, and information provided in this handbook are announcements only and in no way serve as a contract between the student and Temple University." Manning therefore cannot prove the existence of a contract between her and the medical school which obligates it or any of the defendants to conform to certain specific procedures before she may be dismissed. Manning further maintains that the defendants breached their contractual duty to provide her with a medical education. Specifically, she argues that the "faculty failed and refused to honor their contractual obligations to teach [her]." HN21[ ] Pennsylvania refuses "to recognize [*35] a general cause of action … where the allegation is simply that the educational institution failed to provide a quality education." Swartley v. Hoffner, 1999 PA Super 168, 734 A.2d 915, 918 (Pa. Super. Ct. 1999). Although a cause of action for breach of contract may lie if a student is provided with no instruction at all, or if the university promises to offer a particular curriculum and fails to do so, none of these situations is present. See id.; Cavaliere v. Duff's Bus. Inst., 413 Pa. Super. 357, 605 A.2d 397, 404 (Pa. Super. Ct. 1992). Manning's breach of contract claim falls short of the mark. VIII. Finally, Manning asserts a claim against all defendants for negligence and negligent misrepresentation based upon the same allegations she presents in support of her fraudulent misrepresentation claim. HN22[ ] Negligence and negligent misrepresentation are premised "on the existence of a duty owed by one party to another." Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882, 890 (Pa. 1994). Furthermore, negligent misrepresentation, like fraudulent misrepresentation, requires that a plaintiff justifiably rely on a misrepresentation and suffer [*36] injury as a result. Id. Manning has simply not presented evidence that any of the defendants failed her with respect to any such duty recognized by law. IX. When all is said and done, it is undisputed that Manning failed five courses and conditioned one course while a student at Temple University's School of Medicine. The School, after notice and at the very least a fair hearing before the Dean, dismissed her because of poor academic performance. No legal theories that have been advanced, whether predicated on federal or state law, can mask this unfortunate reality. Accordingly, we will grant the motion of all the named defendants for summary judgment in its entirety and dismiss the complaint as to the unidentified defendants John Doe Nos. 1-25. See Rodriguez v. City of Philadelphia, 1996 2004 U.S. Dist. LEXIS 26129, *32 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 124 of 175 Page 14 of 14 U.S. Dist. LEXIS 4768, Civ. A. No. 94-1450, 1996 WL 180015, at *2 (E.D. Pa. Apr. 15, 1996); Boone v. Domalakes, 1995 U.S. Dist. LEXIS 12700, Civ. A. No. 94-3293, 1995 WL 519703, at * 2 (E.D. Pa. Aug. 30, 1995). ORDER AND NOW, this 30th day of December, 2004, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that: (1) the motion of defendants Temple University, Temple University [*37] School of Medicine, Richard J. Kozera, M.D., Gerald H. Sterling, Ph.D., James P. Ryan, Ph.D., Thomas Marino, Ph.D., and Helen Pearson, Ph.D. for summary judgment is GRANTED; (2) judgment is entered in favor of defendants Temple University, Temple University School of Medicine, Richard J. Kozera, M.D., Gerald H. Sterling, Ph.D., James P. Ryan, Ph.D., Thomas Marino, Ph.D., and Helen Pearson, Ph.D. and against plaintiff Valerie Manning; and (3) the complaint as to defendants John Doe Nos. 1-25 is DISMISSED. BY THE COURT: /s/ Harvey Bartle III J. End of Document 2004 U.S. Dist. LEXIS 26129, *36 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 125 of 175 Positive As of: April 3, 2017 4:51 PM Z McCree v. SEPTA United States District Court for the Eastern District of Pennsylvania January 22, 2009, Decided; January 22, 2009, Filed; January 23, 2009, Entered. CIVIL ACTION NO. 07-4908 Reporter 2009 U.S. Dist. LEXIS 4803 *; 2009 WL 166660 MARLENE McCREE v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY Core Terms ramp, summary judgment, bus driver, passengers, parties, disability, wheelchair, sovereign immunity, driver, no evidence, notice, discovery, courts, intentional discrimination, constructively, kneeler, amend, steps, seat, federal regulation, pleadings, asserts, scooter, operation of a vehicle, nonmoving party, motionless, regulation, summary judgment stage, negligence claim, federal claim Case Summary Procedural Posture Plaintiff passenger sued defendant transportation authority in the Philadelphia County Court of Common Pleas (Pennsylvania) for negligence. The case was removed to federal district court. The authority moved for summary judgment. The passenger filed a cross- motion to amend the complaint. Overview The passenger claimed that she was injured when the motorized scooter on which she was riding fell off the wheelchair ramp as the passenger was attempting to board a bus. The case was removed after the passenger's counsel informed the authority that it was the passenger's position that the authority violated 49 C.F.R. § 37.165 (2002), which was promulgated under the Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12101 et seq. The court held that the passenger's negligence claims were barred by the Pennsylvania Sovereign Immunity Act, 42 Pa. Cons. Stat. §§ 8521- 8522. The vehicle liability exception under § 8522(b)(1) did not apply because the bus was not in "operation" at the time of the accident; the bus and the ramp were not moving, and the passenger was not injured by any moving parts. The passenger's motion to amend the complaint to conform with the pleading requirements of the ADA was mooted because the complaint was constructively amended under Fed. R. Civ. P. 15(b) by the parties' litigation of the ADA claim. The claim failed because there was no evidence of intentional discrimination as required for a compensatory damages claim under the ADA. Outcome The authority's motion for summary judgment was granted. The passenger's cross-motion to amend was denied as moot. LexisNexis® Headnotes Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Appropriateness Evidence > Inferences & Presumptions > Inferences HN1[ ] When deciding a motion for summary judgment, a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor. Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > General Overview Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Materiality of Facts Civil Procedure > ... > Summary Judgment > Supporting Materials > General Overview Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 126 of 175 Page 2 of 16 HN2[ ] Summary judgment is appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue of material fact exists only when the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Civil Procedure > ... > Summary Judgment > Burdens of Proof > Movant Persuasion & Proof Civil Procedure > ... > Summary Judgment > Burdens of Proof > Nonmovant Persuasion & Proof HN3[ ] A party moving for summary judgment bears the initial burden of demonstrating that there are no facts supporting the nonmoving party's legal position. Once the moving party carries this initial burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). Civil Procedure > ... > Summary Judgment > Burdens of Proof > Nonmovant Persuasion & Proof Civil Procedure > ... > Summary Judgment > Opposing Materials > Accompanying Documentation HN4[ ] Upon a summary judgment motion, the nonmoving party must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party cannot rely merely upon bare assertions, conclusory allegations or suspicions to support its claim. Rather, the party opposing summary judgment must go beyond the pleadings and present evidence through affidavits, depositions, or admissions on file to show that there is a genuine issue for trial. Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Appropriateness Evidence > ... > Testimony > Credibility of Witnesses > General Overview HN5[ ] When deciding a motion for summary judgment, a court must view facts and inferences in the light most favorable to the nonmoving party. However, the court must not resolve factual disputes or make credibility determinations. Civil Procedure > Discovery & Disclosure > General Overview Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Appropriateness HN6[ ] Summary judgment is not appropriate until the nonmoving party has been afforded a reasonable opportunity to obtain discovery. The court must give a party opposing summary judgment an adequate opportunity to obtain discovery. Governments > State & Territorial Governments > Claims By & Against Torts > Public Entity Liability > Immunities > Sovereign Immunity Torts > ... > Liability > State Tort Claims Acts > Entities Covered Transportation Law > Public Transportation HN7[ ] The Southeastern Pennsylvania Transportation Authority (SEPTA) is an agency of the Commonwealth of Pennsylvania that is generally entitled to sovereign immunity under the Pennsylvania Sovereign Immunity Act. 74 Pa. Cons. Stat. §§ 1711(a) and 1711(b)(3) note that SEPTA shall exercise the public powers of the Commonwealth as an agency and instrumentality thereof and shall continue to enjoy sovereign and official immunity, as provided by the statutory provisions that comprise and pertain to the Sovereign Immunity Act. Governments > State & Territorial Governments > Claims By & Against Torts > Public Entity Liability > Immunities > Sovereign Immunity Torts > ... > Liability > State Tort Claims Acts > Construction & Interpretation HN8[ ] Sovereign immunity under the Pennsylvania Sovereign Immunity Act is not absolute. The Act includes nine exceptions to sovereign immunity. 42 Pa. Cons. Stat. § 8522 lists the nine exceptions. The nine exceptions are as follows: (1) vehicle liability; (2) medical-professional liability; (3) care, custody or control of personal property; (4) Commonwealth real estate highways and sidewalks; (5) potholes and other dangerous conditions on highways; (6) care, custody 2009 U.S. Dist. LEXIS 4803, *4803 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 127 of 175 Page 3 of 16 and control of animals; (7) liquor store sales; (8) National Guard activities; and (9) toxoids and vaccines. 42 Pa. Cons. Stat. § 8522(b). The exceptions must be strictly construed and narrowly interpreted. Governments > State & Territorial Governments > Claims By & Against Torts > Public Entity Liability > Immunities > Sovereign Immunity HN9[ ] See 42 Pa. Cons. Stat. § 8522(b)(1). Torts > Public Entity Liability > Immunities > Sovereign Immunity Torts > ... > Liability > State Tort Claims Acts > Construction & Interpretation HN10[ ] 42 Pa. Cons. Stat. § 8522(b)(1) of the Pennsylvania Sovereign Immunity Act does not define "operation" of a motor vehicle. The term "operation" as found in § 8522(b)(1) of the vehicle liability exception to sovereign immunity encompasses only those situations where the injury results from either the vehicle moving or from a moving part of the vehicle. Torts > Public Entity Liability > Immunities > Sovereign Immunity Torts > ... > Liability > State Tort Claims Acts > Construction & Interpretation Transportation Law > Public Transportation HN11[ ] Pennsylvania courts have not applied the personal property exception under 42 Pa. Cons. Stat. § 8522(b)(3) of the Pennsylvania Sovereign Immunity Act to Southeastern Pennsylvania Transportation Authority buses, holding that to conclude that a bus is not a motor vehicle but personal property is to ignore the plain language of the vehicle exception. Torts > Public Entity Liability > Immunities > Sovereign Immunity Torts > ... > Liability > State Tort Claims Acts > Construction & Interpretation HN12[ ] The vehicle liability exception under 42 Pa. Cons. Stat. § 8522(b)(1) of the Pennsylvania Sovereign Immunity Act does not define the term "operation" and the word is therefore construed according to its common usage: To operate something means to actually put it in motion. Merely preparing to operate a vehicle, or acts taken at the cessation of operating a vehicle are not the same as actually operating that vehicle. Getting into or alighting from a vehicle are merely acts ancillary to the actual operation of the vehicle. Torts > Public Entity Liability > Immunities > Sovereign Immunity Torts > ... > Liability > State Tort Claims Acts > Construction & Interpretation Transportation Law > Public Transportation HN13[ ] "Operation" of a vehicle under 42 Pa. Cons. Stat. § 8522 of the Pennsylvania Sovereign Immunity Act does not apply when a passenger is merely entering into or alighting from a stationary bus. Many acts, such as providing assistance to passengers who need help getting on or off the bus, are all associated with operating a bus. Nonetheless, they are not themselves "operation." Rather they are acts ancillary to the actual operation of the vehicle. Torts > Public Entity Liability > Immunities > Sovereign Immunity Torts > ... > Liability > State Tort Claims Acts > Construction & Interpretation HN14[ ] The vehicle liability exception under 42 Pa. Cons. Stat. § 8522 of the Pennsylvania Sovereign Immunity Act may apply if movement of only a part of a vehicle causes an injury. Torts > Public Entity Liability > Immunities > Sovereign Immunity Torts > ... > Liability > State Tort Claims Acts > Construction & Interpretation HN15[ ] The movement of parts of a vehicle, or an attachment to a vehicle, is sufficient to constitute "operation" under 42 Pa. Cons. Stat. § 8522 of the Pennsylvania Sovereign Immunity Act. Although 2009 U.S. Dist. LEXIS 4803, *4803 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 128 of 175 Page 4 of 16 generally the entire vehicle is moving in order for the vehicle liability exception to apply, a moving part, such as a bus door, has been found to be "in operation." Torts > ... > Elements > Duty > General Overview Torts > Public Entity Liability > Immunities > Sovereign Immunity HN16[ ] A defendant's duty is irrelevant if an underlying negligence action fails to satisfy any of the exceptions to sovereign immunity. Governments > State & Territorial Governments > Claims By & Against Torts > Public Entity Liability > Immunities > Sovereign Immunity Torts > ... > Liability > State Tort Claims Acts > Construction & Interpretation HN17[ ] The Pennsylvania Supreme Court has rejected a general rule to the effect that all negligent decision making of government actors occurring within the course of the operation of a vehicle falls under the vehicle liability exception under 42 Pa. Cons. Stat. § 8522 of the Pennsylvania Sovereign Immunity Act. Torts > Public Entity Liability > Immunities > Sovereign Immunity Torts > ... > Liability > State Tort Claims Acts > Construction & Interpretation HN18[ ] Failure to train and failure to properly maintain equipment do not fall within the vehicle liability exception under 42 Pa. Cons. Stat. § 8522 of the Pennsylvania Sovereign Immunity Act or any other exception to sovereign immunity. Civil Procedure > ... > Pleadings > Complaints > Requirements for Complaint HN19[ ] The function of a complaint is to give defendants fair notice of plaintiffs' claims and the grounds on which they rest and to show why the plaintiff is entitled to relief. Civil Procedure > ... > Pleadings > Amendment of Pleadings > Conforming Pleadings to Evidence HN20[ ] During and after trial, when an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings. Fed. R. Civ. P. 15(b)(2). Thus, courts may treat an issue that is tried by consent squarely presented and foisting no surprise on any party, as included in a constructively amended complaint even though no technical amendment was ever made. Civil Procedure > ... > Pleadings > Amendment of Pleadings > Conforming Pleadings to Evidence HN21[ ] Fed. R. Civ. P. 15(b) provides that during and after trial, when an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move--at any time, even after judgment--to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue. Civil Procedure > ... > Pleadings > Amendment of Pleadings > Conforming Pleadings to Evidence Civil Procedure > Judgments > Summary Judgment > General Overview HN22[ ] The United States Court of Appeals for the Third Circuit has not addressed the issue of whether Fed. R. Civ. P. 15(b) allows for the constructive amendment of a complaint at the summary judgment stage of a case. District courts within the Third Circuit appear to have split on the issue. The circuit courts are also split on the issue, though the majority of circuit courts have concluded that Rule 15(b) applies at the summary judgment stage. Governments > Courts > Rule Application & Interpretation HN23[ ] Fed. R. Civ. P. 1 states that rules of procedure should be construed and administered to secure the just, speedy, and inexpensive determination 2009 U.S. Dist. LEXIS 4803, *4803 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 129 of 175 Page 5 of 16 of every action and proceeding. Civil Procedure > ... > Pleadings > Amendment of Pleadings > Conforming Pleadings to Evidence Civil Procedure > Judgments > Summary Judgment > General Overview HN24[ ] Fed. R. Civ. P. 15(b) applies at the summary judgment stage, as well as at trial. When both parties squarely address a claim in their summary judgment briefs, it may be argued that the complaint was constructively amended pursuant to Rule 15(b). Civil Procedure > ... > Pleadings > Amendment of Pleadings > Conforming Pleadings to Evidence Civil Procedure > Judgments > Summary Judgment > General Overview HN25[ ] When an issue that was not in the complaint is pretried at a motion for summary judgment, without objection by either party, it does not matter that it was not mentioned in the complaint. When issues not mentioned in the complaint are nevertheless litigated with the consent of the parties, the complaint is not "constructively amended"; it is simply an irrelevance so far as those issues are concerned. Civil Rights Law > ... > Protection of Disabled Persons > Americans With Disabilities Act > Scope HN26[ ] See 42 U.S.C.S. § 12132. Civil Rights Law > ... > Protection of Disabled Persons > Americans With Disabilities Act > Scope HN27[ ] To prevail on a claim for a violation of Title II of the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., a plaintiff must show that: (1) she is a qualified individual with a disability; (2) she was either excluded from or otherwise denied the benefits of some public entity's services, programs or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits or discrimination was by reason of the plaintiff's disability. Civil Rights Law > ... > Protection of Disabled Persons > Americans With Disabilities Act > Accommodations Transportation Law > Carrier Duties & Liabilities > General Overview HN28[ ] See 49 C.F.R. § 37.165 (2002). Civil Rights Law > ... > Protection of Disabled Persons > Americans With Disabilities Act > Remedies HN29[ ] Compensatory damages are unavailable under Title II of the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., absent a showing of intentional discrimination. Civil Rights Law > ... > Protection of Disabled Persons > Americans With Disabilities Act > Remedies HN30[ ] A plaintiff must show intentional discrimination in order to recover money damages under Title II of the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq. Civil Rights Law > ... > Protection of Disabled Persons > Americans With Disabilities Act > Scope Transportation Law > Public Transportation HN31[ ] The Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12101 et seq., regulations do not contemplate perfect service for wheelchair-using bus commuters. Occasional problems, without more, do not constitute a violation of the ADA. Civil Rights Law > ... > Protection of Disabled Persons > Americans With Disabilities Act > Remedies Torts > ... > Proof > Violations of Law > Rules & Regulations HN32[ ] Violation of an Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12101 et seq., regulation may not be used as evidence of negligence per se in a personal injury action. A plaintiff may not "borrow" ADA 2009 U.S. Dist. LEXIS 4803, *4803 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 130 of 175 Page 6 of 16 regulations for use as evidence of the standard of care to prove negligence per se in a personal injury action, since to do so would allow for recovery of damages for personal injuries for violations of the ADA, which are specifically not permitted under the ADA itself. Business & Corporate Compliance > ... > Protection of Disabled Persons > Americans With Disabilities Act > Enforcement Actions Civil Rights Law > ... > Protection of Disabled Persons > Americans With Disabilities Act > Scope HN33[ ] What constitutes a compensable violation of the Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12101 et seq., is determined by Congress and the courts. A state agency's characterization of what the ADA requires is not determinative. Counsel: [*1] For MARLENE MCCREE, Plaintiff: BRYAN A. GEORGE, LEAD ATTORNEY, HUNTINGDON VALLEY, PA. For SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Defendant: JUSTIN P. BORKOWSKI, LEAD ATTORNEY, PHILADELPHIA, PA. Judges: R. Barclay Surrick, United States District Judge. Opinion by: R. Barclay Surrick Opinion SURRICK, J. MEMORANDUM & ORDER Presently before the Court are Defendant's Motion for Summary Judgment (Doc. No. 10), and Plaintiff's Cross Motion to Amend Complaint (Doc. No. 11). For the following reasons, Defendant's Motion will be granted, and Plaintiff's Motion will be denied. I. FACTUAL BACKGROUND 1 1 In reciting the factual background, we view all facts and inferences in the light most favorable to Plaintiff, the nonmoving party. See Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007) (citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000)) (noting that HN1[ ] when The Southeastern Pennsylvania Transportation Authority ("Defendant" or "SEPTA") is a municipal authority of the Commonwealth of Pennsylvania that provides public transportation [*2] services to the Philadelphia Metropolitan Area. SEPTA services are provided through its bus, trolley, subway, and regional railroad systems. On August 16, 2005, at an intersection in South Philadelphia, Marlene McCree ("Plaintiff") attempted to board one of Defendant's buses. (Pl.'s Dep. at 22.) Plaintiff was riding in a motorized scooter as a result of recent foot surgery. (Id. at 8, 23-24, 27- 28.) The bus driver therefore deployed a flip-down ramp to the street-level onto which Plaintiff could drive her motorized scooter and board the bus. (Id. at 30, 32; Hickerson Dep. at 8.) Plaintiff proceeded to drive up the ramp, facing forward and "moving slow," when she noticed a "lump" or "hump" in the ramp that she "couldn't get past" to enter the bus. (Pl.'s Dep. at 28, 31- 32, 34; see also Pl.'s Interrog. P 6(d) ("There was a lump in the ramp of the SEPTA vehicle.")) The bus driver told her to "go back and come back in" and to "come back in faster" so that the wheels of Plaintiff's motorized scooter could clear the hump. (Pl.'s Dep. at 31-32, 34.) While Plaintiff was backing up the motorized scooter and situated halfway down the ramp, Plaintiff asked the bus driver if she "was okay to go [*3] back," and the bus driver answered in the affirmative. (Id. at 33; see also Pl.'s Interrog. P 7(e) ("I asked the driver was I okay to back up[.] He said yes[.]")) Plaintiff's motorized scooter then fell off the side of the ramp, and Plaintiff and the scooter landed on the street. 2 (Pl.'s Dep. at 33, 36.) At the time of Plaintiff's fall, the bus was stopped and the ramp was motionless. (Id. at 41-42.) The bus did not move in any way to cause Plaintiff to fall from the ramp. (Id. at 42.) Plaintiff does not know what caused her to fall. (Id. at 33.) The bus driver testified that Plaintiff fell because one of the wheels of Plaintiff's motorized scooter hit the side of the ramp as she was backing up. (Hickerson Dep. at 29.) Plaintiff was injured in the fall. She was taken to the hospital emergency room, treated, and released. (Id. at 37; see also Pl.'s Interrog. P 15(a).) deciding a motion for summary judgment, the court "must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor"). 2 The bus driver testified to a different cause of Plaintiff's backing up, but the difference is not material. According to the bus driver, the reason he told Plaintiff to back up was because one of her wheels was "in the air" and not grounded on the ramp. (Hickerson Dep. at 20-21, 29.) Unlike Plaintiff, the bus driver [*4] did not testify about a hump in the ramp. 2009 U.S. Dist. LEXIS 4803, *4803 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 131 of 175 Page 7 of 16 II. PROCEDURAL HISTORY On April 15, 2007, Plaintiff filed this lawsuit in the Court of Common Pleas of Philadelphia County. (See Doc. No. 10, Ex. A (Compl.)) In her Complaint, Plaintiff alleges that: The negligence of [Defendant] consisted of but was not limited to the following: a. Failure to properly train . . . employees in the proper means of assisting handicapped individuals in allowing them to enter or exit the vehicle. b. Failure to properly maintain the vehicle and handicapped equipment. c. Failure to properly aid [Plaintiff] in entering the vehicle. d. Allowing [Defendant's] driver to sit on the bus and render no assistance to [Plaintiff] while attempting to enter the vehicle; e. Failure to use due care. (Compl. P 11.) On November 16, 2007, at the conclusion of Plaintiff's deposition, Plaintiff's counsel handed Defense counsel a copy of a federal regulation, 49 C.F.R. § 37.165 (2002), 3 that was promulgated under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. (See Doc. No. 10 P 8; Doc. No. 11 P 8.) Plaintiff's counsel told Defense counsel that it was Plaintiff's position that Defendant violated the federal regulation. [*5] (Id.) On November 21, 2007, Defendant filed a Notice of Removal in this Court pursuant to 28 U.S.C. § 1446(b) (2008). The statute provides, in pertinent part, that a notice of removal may be filed "within thirty days after receipt by the defendant, through service of otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable . . . ." (emphasis added). 28 U.S.C. § 1446(b). Defendant removed the action to this Court asserting that the federal regulation constituted "other paper" under Section 1446(b). (See Doc. Nos. 1, 3.) On December 12, 2007, Plaintiff filed a Motion to Remand arguing that the removal was untimely. (See Doc. No. 2.) Plaintiff contended that Defendant did not file the notice of removal "within thirty days" after 3 The regulation provides that "[w]here necessary or upon request, [a public or private entity's transportation vehicle] personnel shall assist individuals with disabilities with the use of securement systems, ramps and lifts. If it is necessary for the personnel to leave their seats to provide this assistance, they shall do so." 49 C.F.R. § 37.165. receiving [*6] notice of a federal claim, since the Complaint placed Defendant "on notice" seven months earlier of the existence of federal claims under the ADA. (Doc. No. 2 P 11.) Specifically, Plaintiff contended that "Defendant was on notice of the exact nature of Plaintiff's claim in April 2007 [when the Complaint was filed] and should have removed the case at that time" since "it is inconceivable that Defendant did not understand" that Plaintiff's lawsuit involved a disabled person's use of transportation, and "Defendant is presumed [to be] aware of the laws and statutes governing passengers with disabilities, including Federal laws." (Doc. No. 2 P 7.) We denied Plaintiff's Motion to Remand, concluding that the Complaint did not put Defendant on notice of a federal question and finding that "the act of providing Defendant with a copy of the federal regulation, accompanied by an oral representation of an intent to rely upon that regulation, constituted notice of Plaintiff's intent to pursue a federal claim." (Doc. No. 7.) Defendant filed the instant Motion seeking summary judgment on Plaintiff's negligence and ADA claims. (Doc. No. 10.) Defendant contends that Plaintiff's negligence claim is barred [*7] by the doctrine of sovereign immunity. In addition, Defendant contends that Plaintiff's federal claim under Title II of the ADA fails because there is no evidence of intentional discrimination or discriminatory animus. Plaintiff filed a Cross Motion to Amend the Complaint "to more fully plead facts in order to adequately allege a violation of the ADA." (Doc. No. 11 at 7.) III. LEGAL STANDARD HN2[ ] Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists only when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). HN3[ ] The party moving for summary judgment bears the initial burden of demonstrating that there are no facts supporting the nonmoving party's legal position. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once the moving party carries this initial burden, the nonmoving party must set forth specific facts showing that there is a genuine [*8] issue for trial. Fed. R. Civ. P. 56(e); see also Matsushita Elec. 2009 U.S. Dist. LEXIS 4803, *4 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 132 of 175 Page 8 of 16 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (explaining that HN4[ ] the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"). "The nonmoving party . . . 'cannot rely merely upon bare assertions, conclusory allegations or suspicions' to support its claim.'" Townes v. City of Phila., No. 00-0138, 2001 U.S. Dist. LEXIS 6056, 2001 WL 503400, at *2 (E.D. Pa. May 11, 2001) (quoting Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982)). Rather, the party opposing summary judgment must go beyond the pleadings and present evidence through affidavits, depositions, or admissions on file to show that there is a genuine issue for trial. Celotex, 477 U.S. at 324. HN5[ ] When deciding a motion for summary judgment, we must view facts and inferences in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255; Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995). However, we must not resolve factual disputes or make credibility determinations. 4 Siegel Transfer, 54 F.3d at 1127. IV. DISCUSSION 4 After Plaintiff's Motion to Remand was denied, the Clerk of Court [*9] scheduled the case for an Arbitration trial on February 18, 2009. (See Doc. Nos. 8, 12.) A pretrial conference was not requested nor was a Scheduling Order entered. HN6[ ] Summary judgment is not appropriate until the nonmoving party has been afforded a reasonable opportunity to obtain discovery. Prisco v. United States, No. 85-6739, 1990 U.S. Dist. LEXIS 13606, 1990 WL 156319, at *3 (E.D. Pa. Oct. 10, 1990) (citing Penn Galvanizing Co. v. Lukens Steel Co., 59 F.R.D. 74, 80 (E.D. Pa. 1973)); see also Radich v. Goode, 886 F.2d 1391, 1393 (3d Cir. 1989) ("The court must give a party opposing summary judgment an adequate opportunity to obtain discovery."). Plaintiff does not contend that she has not been afforded an adequate opportunity for discovery. See Radich, 886 F.2d at 1393. Moreover, there is no indication in the record that more discovery is needed. Over the course of a year, the parties have taken depositions and exchanged written discovery. Plaintiff responded to Defendant's Motion for Summary Judgment. Plaintiff neither filed a Rule 56(f) motion detailing any discovery needed, nor a separate motion for additional discovery. See Fed. R. Civ. P. 56(f). This case is therefore ripe for summary adjudication. Cf. Johnson v. City of Detroit, No. 07-13752, 2008 U.S. Dist. LEXIS 48079, 2008 WL 2510184, at *2 (E.D. Mich. Jun. 23, 2008) [*10] (denying motion for summary judgment filed prior to the close of discovery where "neither side has conducted any discovery," "[n]o depositions have been taken," and "[n]o Rule 26(a)(1) disclosures have been made and no written discovery has been exchanged"). A. Plaintiff's Negligence Claims Defendant asserts that it is entitled to summary judgment on Plaintiff's negligence claims based on the Pennsylvania Sovereign Immunity Act, 42 Pa. Cons. Stat. Ann. §§ 8521-8522. HN7[ ] Defendant is an agency of the Commonwealth of Pennsylvania that is generally entitled to sovereign immunity under the Sovereign Immunity Act. See 74 Pa. Cons. Stat. Ann. §§ 1711(a), 1711(c)(3) (noting that SEPTA "shall exercise the public powers of the Commonwealth as an agency and instrumentality thereof" and "shall continue to enjoy sovereign and official immunity, as provided [by the statutory provisions that comprise and pertain to the Sovereign Immunity Act]"); see also Cooper v. SEPTA, 548 F.3d 296, 307 (3d Cir. 2008) (citing cases in which Pennsylvania state courts have recognized SEPTA to be a Commonwealth agency under the Sovereign Immunity Act); Jones v. SEPTA, 565 Pa. 211, 772 A.2d 435, 444 (Pa. 2001) (holding [*11] SEPTA immune in a tort case because the case did not fall within an exception to the Sovereign Immunity Act); Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270, 1276-77 (Pa. 1986) (finding SEPTA to be "an agency of the Commonwealth" against whom "it would be inappropriate to assess punitive damages"). However, HN8[ ] sovereign immunity under the Act "is not absolute." Bottoms v. SEPTA, 805 A.2d 47, 48 (Pa. Commw. Ct. 2002). The Act includes nine exceptions to sovereign immunity. See 42 Pa. Cons. Stat. Ann. § 8522 (listing the nine exceptions). The nine exceptions are as follows: (1) vehicle liability; (2) medical- professional liability; (3) care, custody or control of personal property; (4) Commonwealth real estate highways and sidewalks; (5) potholes and other dangerous conditions on highways; (6) care, custody and control of animals; (7) liquor store sales; (8) National Guard activities; and (9) toxoids and vaccines. 42 Pa. Cons. Stat. § 8522(b); Brown v. Blaine, 833 A.2d 1166, 1173 n.15 (Pa. Commw. Ct. 2003) (listing the nine exceptions). The exceptions "must be strictly construed and narrowly interpreted." Bufford v. Pa. Dep't of Transp., 670 A.2d 751, 753 (Pa. Commw. Ct. 1996) (citations omitted). Plaintiff [*12] specifically relies on the vehicle liability exception to sovereign immunity in bringing her negligence claim against Defendant. 5 (See Doc. No. 11 5 The only other exception that could possibly apply here is the exception for personal property. However, HN11[ ] Pennsylvania courts have not applied the personal property 2009 U.S. Dist. LEXIS 4803, *8 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 133 of 175 Page 9 of 16 at 16, citing 42 Pa. Cons. Stat. § 8522(b)(1).) The exception for vehicle liability provides that: HN9[ ] [T]he defense of sovereign immunity shall not be raised to claims for damages caused by: 1) Vehicle liability -- The operation of any motor vehicle in the possession or control of a Commonwealth party. As used in this paragraph, "motor vehicle" means any vehicle which is self- propelled and any attachment thereto[.] 42 Pa. Cons. Stat. § 8522(b)(1). HN10[ ] The statute does not define "operation" of a motor vehicle. Defendant contends that "[t]he Pennsylvania Supreme Court and Pennsylvania Commonwealth Court have stated that the term 'operation' as found in § 8522(b)(1) of the vehicle liability exception to sovereign immunity encompasses only those situations where the injury results from either the vehicle moving or from a moving part of the vehicle." (Doc. No. 10 P 30.) Defendant cites a number of cases for this proposition. See Warrick v. Pro Cor Ambulance, Inc., 559 Pa. 44, 739 A.2d 127, 128 (Pa. 1999); White v. Sch. Dist. of Phila., 553 Pa. 214, 718 A.2d 778, 780 (Pa. 1998); [*13] Love v. City of Phila., 518 Pa. 370, 543 A.2d 531, 533 (Pa. 1988); Mosley v. SEPTA, 842 A.2d 473, 476 (Pa. Commw. Ct. 2003); Miller v. Erie MTA, 152 Pa. Commw. 64, 618 A.2d 1095, 1097 (Pa. Commw. Ct. 1992), appeal denied, 537 Pa. 643, 644 A.2d 165 (Pa. 1994); Bottoms, 805 A.2d at 50; Greenleaf v. SEPTA, 698 A.2d 170, 173 (Pa. Commw. Ct. 1997); Bazemore v. SEPTA, 657 A.2d 1323, 1327 (Pa. Commw. Ct. 1995); Simpkins, 648 A.2d at 591; Hall v. SEPTA, 141 Pa. Commw. 591, 596 A.2d 1153, 1156 (Pa. Commw. Ct. 1991); see also Lee v. SEPTA, 418 F. Supp. 2d 675, 682 (E.D. Pa. 2005) ("The Pennsylvania Supreme Court has addressed the scope of the motor vehicle exception in several decisions and has consistently held that the exception for the 'operation' of a motor vehicle, including a passenger bus, pertains only to actions taken while the vehicle is in motion and does not refer to the loading and unloading of passengers."). We agree that the vehicle liability exception applies only when the injury results from the vehicle moving or from a moving part of the vehicle. The case of Love v. City of exception to SEPTA buses, holding that "[t]o conclude that a bus is not a motor vehicle but personal property is to ignore the plain language of the vehicle exception." SEPTA v. Simpkins, 167 Pa. Commw. 451, 457, 648 A.2d 591 (Pa. Commw. Ct. 1994); [*14] see also Ross v. SEPTA, 714 A.2d 1131, 1134 (Pa. Commw. Ct. 1998) (holding same in the context of a SEPTA train). Philadelphia is instructive. 543 A.2d at 531. In Love, the plaintiff, an elderly woman, fell as she was alighting from the steps of a van owned by the City of Philadelphia. Id. The plaintiff alleged that the City's negligence caused her injuries, and a jury found in the plaintiff's favor. Id. at 532. On appeal, the Pennsylvania Supreme Court affirmed the Commonwealth Court's reversal of the jury's verdict, finding that the facts of the case did not fall under the vehicle liability exception. Id. In reaching its decision, the Supreme Court observed that HN12[ ] the vehicle liability exception does not define the term "operation" and it therefore construed the word according to its common usage: [T]o operate something means to actually put it in motion. Merely preparing to operate a vehicle, or acts taken at the cessation of operating a vehicle are not the same as actually operating that vehicle. Thus, according [*15] to the common and approved usage of the word "operation," the van was not in operation at the time of [the plaintiff's] accident. Getting into or alighting from a vehicle are merely acts ancillary to the actual operation of the vehicle. Id. at 533 (emphasis in original). Courts applying Love have consistently held that HN13[ ] "operation" of a vehicle under Section 8522 does not apply when a passenger is merely entering into or alighting from a stationary bus. See, e.g., Bazemore, 657 A.2d at 1323 (passenger's injury sustained from tripping on steps when exiting bus did not satisfy exception for vehicle liability under Section 8522); Rubenstein, 668 A.2d at 283 (bus driver's failure to recognize uneven ground at point of departure, allegedly contributing to the plaintiff's injuries, did not satisfy exception for vehicle liability); Berman v. SEPTA, 698 A.2d 1362, 1364 (Pa. Commw. Ct. 1997) ("Many acts, such as . . . providing assistance to passengers who need help getting on or off the bus, are all associated with operating a bus. Nonetheless, they are not themselves 'operation[.]' Rather they . . . are acts 'ancillary to the actual operation of the vehicle.'") (emphasis in original) (citations [*16] omitted). The case of Bottoms v. SEPTA is similarly instructive. 805 A.2d at 50. In Bottoms, the plaintiff brought a negligence action against SEPTA alleging that the bus driver failed to lower the steps closer to the ground using the bus's "kneeling" mechanism, causing the plaintiff to fall while alighting from the bus. Id. at 48. The plaintiff argued that the driver's failure to engage the "kneeling" mechanism satisfied the vehicle liability exception. Id. at 51. The trial court disagreed and granted summary judgment in favor of SEPTA. Id. at 48. 2009 U.S. Dist. LEXIS 4803, *12 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 134 of 175 Page 10 of 16 On appeal, the Commonwealth Court affirmed the trial court's grant of summary judgment, concluding that "[i]t was not a movement of the bus itself that caused [the plaintiff] her injury. . . . The SEPTA bus was standing still, at a curb, discharging passengers; it was not 'in operation' as required for the vehicle liability exception to apply." Id.; see also Regester v. County of Chester, 568 Pa. 410, 797 A.2d 898, 903 n.7 (Pa. 2002) (reaffirming Love and noting that failure to provide adequate assistance to an alighting passenger "falls within the general conferral of governmental immunity and outside the vehicle liability exception"). HN14[ ] The vehicle liability [*17] exception may apply, however, if movement of only a part of the vehicle causes an injury. See Sonnenberg v. Erie MTA, 137 Pa. Commw. 533, 586 A.2d 1026, 1028 (Pa. Commw. Ct. 1991). In Sonnenberg, the plaintiff was alighting from the rear door of a bus when the door suddenly closed, striking her in the back and locking her into a position, causing injury. Id. at 1027. The bus driver heard the plaintiff's cries and released the door. Id. The plaintiff brought a negligence action under the vehicle liability exception. Id. The trial court determined that the vehicle liability exception did not apply because the stationary bus was not "in operation" when the plaintiff was injured, and granted summary judgment in favor of the defendant. Id. The Commonwealth Court reversed, finding that the plaintiff's injuries "are alleged to have been directly caused by a moving part of [the defendant's] bus." Id. at 1028. The court noted that HN15[ ] "[t]he movement of parts of a vehicle, or an attachment to a vehicle, is sufficient to constitute 'operation.'" Id.; see also Bottoms, 805 A.2d at 50 (noting that although generally the entire vehicle is moving in order for the vehicle liability exception to apply, "a moving part, such [*18] as a bus door, has been found to be 'in operation'"). In this case, Plaintiff was boarding a stationary bus using a motionless wheelchair ramp. (See Pl.'s Dep. at 41, stating that the bus was "stopped" and "in a steady position" and the ramp was "motionless.") As the plaintiffs' alighting from stationary vehicles in Love and Bottoms was ancillary to the operation of the vehicles, Plaintiff's boarding of the stationary bus here with the assistance of a motionless wheelchair ramp is "ancillary to the actual operation of the vehicle." See Love, 543 A.2d at 533; Bottoms, 805 A.2d at 50; see also Bazemore, 657 A.2d at 1323 (passenger's injury sustained from tripping on steps when exiting bus did not satisfy exception for vehicle liability); Berman, 698 A.2d at 1364 (holding that the act of "providing assistance to passengers who need help getting on . . . the bus . . . are not themselves 'operation'" and are instead "ancillary"). Plaintiff contends that these cases are distinguishable since they do not involve "a disabled person who is trying to negotiate a wheelchair lift ramp." (Doc. No. 11 at 16.) This is a distinction without a difference. Regardless of whether Plaintiff fell on a motionless [*19] wheelchair ramp or on motionless steps like the passengers in Love, Bottoms, and Bazemore, there is no dispute that the bus was not moving when Plaintiff fell, and that Plaintiff was not injured by any moving parts. Plaintiff asserts that her case is unique because Defendant owed her "the highest degree of care." (See Doc. No. 11 at 17.) HN16[ ] Defendant's duty is irrelevant, however, if the underlying negligence action fails to satisfy any of the exceptions to sovereign immunity. Plaintiff further asserts that "the bus and the passenger were both special" since the bus was not "just a regular bus picking up ambulatory passengers." It appears from the evidence in the record that the bus was indeed "just a regular bus" that also picked up ambulatory passengers. (See, e.g., Pl.'s Dep. at 27-28, stating that Plaintiff was boarding a Route C bus; id. at 30, stating that other passengers "already got on" before Plaintiff boarded; Hickerson Dep. at 22, stating that other passengers were "getting off the bus to assist [Plaintiff]"; id. at 7, acknowledging that "all SEPTA buses come handicapped equipped.") In any event, Plaintiff's argument is unavailing since Plaintiff admits that her injury occurred [*20] when the bus and wheelchair ramp were motionless. In an attempt to show some evidence of motion or a moving part, Plaintiff asserts that the bus driver testified that "the kneeler and ramp were actively running at the time of the accident." (See Doc. No. 11 at 18; Hickerson Dep. at 16-18, 27.) Plaintiff misstates the testimony. The bus driver testified to taking several discrete actions involving operation of the kneeler and ramp before Plaintiff boarded the bus: Q: What's the next step that you take after you go through where the ramp will be positioned? A: Bringing -- aligning the bus up to where the wheelchair person is, putting the vehicle in neutral, parking brake, hitting the kneeler button first, and then hitting the ramp button. The kneeler is lowering the bus. And then the ramp button is lowering the bus even further, if possible. And then deploying the ramp. . . . Q: The ramp th[e]n lowers itself onto either the street or the pavement? 2009 U.S. Dist. LEXIS 4803, *16 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 135 of 175 Page 11 of 16 A: Yes. Q: And then what happens after that? A: Then it's time for the wheelchair person to come on up. Q: In theory, the person would come up the ramp on the wheelchair? A: Yes. Q: Where does that leave the person? . . . A: They are right there facing [*21] me by the fare box. Q: And then what would you do at that particular point in time, in theory? . . . A: Well, I would get out of the seat and go out and lift the two seats up where they're going to be positioned, and then strap the person in, come back to my seat, and then hit the kneeler button, and then hit the ramp button for it to deploy back inside the bus. Q: Do you have to help position the person in the wheelchair into the seat before you hit the kneeler button and the ramp button again? . . . A: Yes, I position them into their little space, and then I strap them in. Q: Before you raise the bus and bring the ramp up? A: Yes. (Hickerson Dep. at 16-18.) Thus, the bus driver testified to three basic steps: first, the driver engages the kneeler and the ramp; second, the passenger in the wheelchair ascends the ramp to board the bus, at which point the driver positions the person in the designated seating area and "strap[s] them in"; and third, the driver returns the kneeler and ramp to position. (See id.) Plaintiff's injury occurred during step two, after the kneeler and ramp performed their operations but before Plaintiff entered the bus. The kneeler and ramp were "actively running" only [*22] in the sense that the bus driver had lowered the bus and deployed the ramp to a resting, motionless position, not unlike a set of steps. Plaintiff points to the SEPTA Operator's Guide for the proposition that the ramp is within "the operation" cycle when the ramp is deployed. (See Doc. No. 11, Ex. F, at 142.) Regardless of the nomenclature, it is undisputed that the ramp of the stationary bus was not moving any more than the steps of the stationary buses were moving in Love, Bottoms, and Bazemore. The only difference is that the passengers in those cases were using stairs while Plaintiff here was using a ramp. The vehicle liability exception does not apply to these facts. Moreover, the actions of which Plaintiff complains appear to be more associated with the bus driver's actions in assisting or failing to assist Plaintiff than with the physical operation of the bus. See Regester, 797 A.2d at 903. In Regester, the plaintiff telephoned the township's emergency medical services after the decedent suffered a heart attack. Id. at 899. Dispatchers provided the responding paramedics with accurate driving directions, but the paramedics got lost due to their unfamiliarity with the geographic [*23] area. Id. at 900. Consequently, the paramedics arrived too late to revive the decedent. Id. The decedent's estate brought a negligence action against the county and township under the vehicle liability exception alleging that the paramedics negligently failed to familiarize themselves with the geographic area. Id. The trial court granted summary judgment in favor of the defendants, holding, inter alia, that the vehicle liability exception did not apply since the ambulance was not driven in a negligent manner and no causal relationship existed between its physical operation and the plaintiff's injury. Id. at 901. On appeal, the Commonwealth Court affirmed the grant of summary judgment with respect to the vehicle liability exception. Id. The Pennsylvania Supreme Court allowed an appeal "on a limited basis to address the application of the vehicle liability exception to governmental immunity." Id. at 902. The Court then affirmed the grant of summary judgment, stating: the Commonwealth Court correctly concluded that the form of negligence alleged by [the plaintiff] does not qualify [under the vehicle liability exception]. To the contrary, such allegations of negligence on the part of [the [*24] paramedics] in failing to maintain adequate familiarity with the emergency service area and follow provided directions is more closely associated with the public service involved (ambulance service) than it is with the physical operation of the vehicle as such. Id. at 904. HN17[ ] The court rejected a "general rule to the effect that all negligent decision making of government actors occurring within the course of the operation of a vehicle" falls under the vehicle liability exception. Id. at 903. Such conduct is "more closely associated with the panoply of public functions served by government vehicles than with the physical operation of the vehicle itself." Id. at 904. Here, Plaintiff alleges negligent decision-making by Defendant's bus driver. Plaintiff asserts that she suffered injuries as a result of the bus driver's decision not to leave his seat or provide Plaintiff with other assistance in boarding the bus. The bus driver's failure to assist Plaintiff "is more closely associated with the 2009 U.S. Dist. LEXIS 4803, *20 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 136 of 175 Page 12 of 16 public service involved" -- in this case, public transportation -- "than it is with the physical operation of the vehicle as such." Regester, 797 A.2d at 904. There is no evidence that the bus was driven [*25] or otherwise operated in a negligent manner, and, as in Regester, there is no evidence of a causal relationship between the vehicle's physical operation and Plaintiff's injury. See id. at 901. We are satisfied that the vehicle liability exception does not apply in this case. We will therefore grant Defendant's Motion for Summary Judgment as to Plaintiff's negligence claims. 6 B. Plaintiff's Federal Claim under the ADA Defendant moves for summary judgment on Plaintiff's [*26] ADA claim on two related grounds. 1. Failure to Allege Intentional Discrimination in the Complaint First, Defendant argues that summary judgment is appropriate on Plaintiff's ADA claim because the Complaint fails to allege intentional discrimination. Plaintiff maintains that she filed her Complaint as a state court action and that "obviously, her Complaint [was] not written to contain any averments concerning the ADA," but that because "[D]efendant has removed [P]laintiff to the federal forum" she should be granted leave to amend the Complaint "in order to conform with the pleading requirements of the ADA." (Doc. No. 11 at 14.) We are presented here with a motion for summary judgment, not a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). We must therefore determine whether Plaintiff's ADA claim is ripe for summary adjudication when the parties have litigated and briefed the ADA claim at the summary judgment stage of the case, but when the Complaint does not technically plead 6 Plaintiff's other negligence claims, such as HN18[ ] failure to train and failure to properly maintain equipment, similarly do not fall within the vehicle liability exception or any other exception to sovereign immunity. See, e.g., Clark v. SEPTA, 691 A.2d 988, 992 (Pa. Commw. Ct. 1997), appeal denied, 550 Pa. 686, 704 A.2d 640 (Pa. 1997) (failure to train or properly supervise subordinate not within any of the enumerated exceptions to sovereign immunity); Simpkins, 648 A.2d at 593 (failure to maintain steps and remedy defective conditions on steps of SEPTA bus did not fall within vehicle liability exception, since plaintiff did not allege that "injuries were caused by the movement of the vehicle or by the movement of any part of the vehicle"). such a claim. HN19[ ] The function of a complaint "is to give defendants fair notice of plaintiffs' claims and the grounds on which they rest and to show why the plaintiff is entitled to relief." United States v. City of Phila., 644 F.2d 187, 206 (3d Cir. 1980); [*27] see also Hull v. Fleetwood Enters., Inc., No. 06-1669, 2007 U.S. Dist. LEXIS 20984, 2007 WL 917088, at *2 (W.D. Pa. Mar. 21, 2007) (citing Continental Collieries v. Shober, 130 F.2d 631, 635 (3d. Cir. 1942) (holding same)); Rueda v. Amerifirst Bank, No. 90-3986, 1991 U.S. Dist. LEXIS 2268, 1991 WL 25565, at *3 (E.D. Pa. Feb. 25, 1991) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957) (noting same)). HN20[ ] During and after trial, "[w]hen an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings." Fed. R. Civ. P. 15(b)(2). 7 Thus, courts may treat an issue that is tried by consent, "squarely presented and foisting no surprise on any party," as included in a constructively amended complaint "even though no technical amendment was ever made." Nanavati v. Burdette Tomlin Mem. Hosp., 857 F.2d 96, 104 (3d Cir. 1988) (citations omitted); see also Douglas v. Owens, 50 F.3d 1226, 1236 (3d Cir. 1995) (holding amendment permitted under Rule 15(b) if tried by express or implied consent of parties). HN22[ ] The Court of Appeals for the Third Circuit has not addressed the issue of whether Rule 15(b) allows for the constructive amendment of a complaint at the summary judgment stage of a case. District courts within the Third Circuit appear to have split on the issue. Compare McGovern v. City of Jersey City, No. 98-5186, 2008 U.S. Dist. LEXIS 293, 2008 WL 58820, at *3 n.1 (D.N.J. Jan. 2, 2008) (noting under Rule 15(b) that "the fact that the parties addressed both sets of allegations on summary judgment evidences the parties' implied consent to adjudicate the allegations as if they had been 7 HN21[ ] Federal Rule of Civil Procedure 15(b) provides, in full, that during and after trial: When an issue not raised by the pleadings is tried by the parties' express or implied [*28] consent, it must be treated in all respects as if raised in the pleadings. A party may move -- at any time, even after judgment -- to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue. Fed. R. Civ. P. 15(b). 2009 U.S. Dist. LEXIS 4803, *24 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 137 of 175 Page 13 of 16 specifically alleged in the . . . Complaint") and Parker v. Phila. Newspapers, Inc., 322 F. Supp. 2d 624, 629 (E.D. Pa. 2004) ("There is no reason why the logic of Rule 15(b) should not apply with equal force to issues raised in the summary judgment context.") with Vosgerichian v. Commodore Int'l, Ltd., No. 92-4867, 1998 U.S. Dist. LEXIS 17681, 1998 WL 966026, at *3 (E.D. Pa. Nov. 6, 1998), [*29] aff'd, 191 F.3d 446 (3d Cir. 1999) (citing Albanese v. Bergen County, 991 F. Supp. 410, 421 (D.N.J. 1997) ("Rule 15(b) . . . is limited to situations where the issue has been tried. [Where] no trial has occurred, [the plaintiff] can find no solace in Rule 15(b)."); United States v. 2001 Honda Accord, 245 F. Supp. 2d 602, 612 (M.D. Pa. 2003) (same); Wilson v. Dep't of Corr. of Del., No. 99-0614, 2001 U.S. Dist. LEXIS 10598, 2001 WL 845652, at *3 (D. Del. Jul. 24, 2001) (same). The Circuit Courts are also split on the issue, though the majority of Circuit Courts have concluded that Rule 15(b) applies at the summary judgment stage. Compare Cruz v. Coach Stores, Inc., 202 F.3d 560, 569 (2d Cir. 2000) (applying Rule 15(b) at the summary judgment stage); Canion v. Randall & Blake, 817 F.2d 1188, 1193 (5th Cir. 1987) (same); Smith v. Transworld Sys., Inc., 953 F.2d 1025, 1030 (6th Cir. 1992) (same); Walton v. Jennings Cmty. Hosp. Inc., 875 F.2d 1317, 1320 n.3 (7th Cir. 1989) (same); Jackson v. Hayakawa, 605 F.2d 1121, 1129 (9th Cir. 1979) (same); Suiter v. Mitchell Motor Coach Sales, Inc., 151 F.3d 1275, 1279-80 (10th Cir. 1998) (applying Rule 15(b) to a defense raised in a motion for summary judgment) and Kulkarni v. Alexander, 213 U.S. App. D.C. 243, 662 F.2d 758, 762 (D.C. Cir. 1978) [*30] (noting that Rule 15(b)'s "general principle" has been applied at summary judgment stage), with Crawford v. Gould, 56 F.3d 1162, 1168-69 (9th Cir. 1995) ("The present case did not go to trial; it was decided on motions for summary judgment. Therefore, the situation which Rule 15(b) addresses simply did not arise in the present case."); Blue Cross Blue Shield v. Weitz, 913 F.2d 1544, 1550 (11th Cir. 1990) (Rule 15(b) is "inapposite" when a case is decided on summary judgment); Harris v. Dep't of Veterans' Affairs, 326 U.S. App. D.C. 362, 126 F.3d 339, 344 n.3 (D.C. Cir. 1997) (noting that Rule 15(b) does not apply when case does not reach trial); and Indep. Petroleum Ass'n. of Am. v. Babbitt, 344 U.S. App. D.C. 216, 235 F.3d 588, 596 (D.C. Cir. 2001) ("It is an open question whether the Federal Rules permit parties to impliedly consent to 'try' issues not raised in their pleadings through summary judgment motions."). We are persuaded that under the circumstances here, Rule 15(b) provides for constructive amendment of the Complaint to include Plaintiff's ADA claim since the parties were on notice of the claim for over a year, litigated the claim after Plaintiff asserted it, and addressed the merits of the claim in their summary judgment [*31] briefing. 8 See HN23[ ] Fed. R. Civ. P. 1 (2008) (stating that rules of procedure "should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding"); Whitaker v. T.J. Snow Co., 151 F.3d 661, 663 (7th Cir. 1998) ("Because both parties squarely addressed the strict liability theory in their summary judgment briefs, the complaint was constructively amended to include that claim."); Miles Hickman v. David Powers Homes, Inc., No. 07-0754, 589 F. Supp. 2d 849, 2008 U.S. Dist. LEXIS 84281, 2008 WL 5188726, at *12 (S.D. Tex. Oct. 21, 2008) (citation omitted) (HN24[ ] "[Rule 15(b)] applies at the summary judgment stage, as well as at trial."); Minix v. Canarecci, No. 05-0144, 2007 U.S. Dist. LEXIS 48655, 2007 WL 1970936, at *4 (N.D. Ind. July 3, 2007) (citation omitted) ("One way parties impliedly agree to an issue not included in the complaint is by addressing the issue at summary judgment."); Esmont v. City of New York, 371 F. Supp. 2d 202, 217 (E.D.N.Y. 2005) (citations omitted) ("When both parties squarely address a claim in their summary judgment briefs, it may be argued that the complaint was constructively amended pursuant to [Rule]15(b)."); In re Lott, 363 B.R. 835, 837 (Bankr. N.D. Ohio 2006) (noting that although Rule 15(b) [*32] "is not specifically made applicable to the summary judgment phase of litigation, it has been held when 'both parties squarely address a claim in their summary judgment briefs, . . . the complaint was constructively amended"); see also Handzlik v. United States, 93 Fed. App'x 15, 17 (5th Cir. 2004) (unpublished opinion) (noting same). It 8 Judge Posner writes that courts should avoid using the word "constructive" under Rule 15(b), because HN25[ ] when "the issue that wasn't in the complaint [is] pretried [at a motion for summary judgment], without objection by either party, it doesn't matter that it wasn't mentioned in the complaint." Torry v. Northrop Grumman Corp., 399 F.3d 876, 877-78 (7th Cir. 2005) (Posner, J.). Judge Posner further writes that, "[w]hen issues not mentioned in the complaint . . . are nevertheless litigated with the consent of the parties, the complaint is not 'constructively amended'; it is simply an irrelevance so far as those issues are concerned." Id. at 878. Though we use the word "constructive" in this Opinion for the sake of comity with other jurisdictions, we agree that the absence of Plaintiff's ADA claim in the Complaint is irrelevant, as we explain more fully above, since the claim has been litigated and presented for summary adjudication without objection by either party. 2009 U.S. Dist. LEXIS 4803, *28 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 138 of 175 Page 14 of 16 was Plaintiff's voluntary act of pursuing the ADA claim that triggered Defendant's removal and this Court's federal question jurisdiction. Over a year ago, Plaintiff's counsel handed Defense counsel a copy of a federal regulation promulgated under the ADA and told Defense counsel that Plaintiff intended to rely on the federal regulation in pursuing her case. The parties do not dispute these facts. (See Doc. No. 10 P 8; Doc. No. 11 P 8.) Plaintiff's counsel even questioned Defendant's bus driver during a deposition about his knowledge of "federal codes" as they relate to wheelchair ramps. (Hickerson Dep. at 24.) After Defendant had removed the case to this Court, Plaintiff moved to remand on grounds that the ADA claim was so obvious in the Complaint that Defendant was "on notice" of it seven months earlier, making the removal untimely. (Doc. No. 2 P [*33] 7.) The parties addressed Plaintiff's ADA claim again in their summary judgment briefing, in which Plaintiff argues that evidence of discriminatory intent "is of no consequence" to the validity of the federal claim. (Doc. No. 11 at 15.) Thus, this is not a case where either party had doubts about the existence of a federal claim. See Schultz v. Cally, 528 F.2d 470, 474-75 (3d Cir. 1975) (refusing to apply Rule 15(b) to constructively amend pleadings where doubt existed as to whether defendants would have agreed to the existence of federal question jurisdiction). Moreover, this is not a case where the plaintiff is seeking to amend the Complaint to add claims that the parties did not consent to litigating. Under the facts presented, we find that Plaintiff's ADA claim is ripe for summary adjudication. We join the vast majority of the Circuit Courts of Appeals and several courts from this District in applying Rule 15(b) at the summary judgment stage of the case. See, e.g., Cruz, 202 F.3d at 569; Canion, 817 F.2d at 1193; Smith, 953 F.2d at 1030; Walton, 875 F.2d at 1320 n.3; Jackson, 605 F.2d at 1129; Suiter, 151 F.3d at 1279-80; Kulkarni, 662 F.2d at 762; McGovern, 2008 U.S. Dist. LEXIS 293, 2008 WL 58820, at *3 n.1; [*34] Parker, 322 F. Supp. 2d at 629. Plaintiff's request for leave to amend the Complaint will be denied as moot. 2. Sufficiency of the Evidence of Intentional Discrimination Defendant asserts that summary judgment is appropriate [*35] on Plaintiff's ADA claim since claims for compensatory damages under Title II of the ADA require a showing of intentional discrimination, and there is no such evidence in the record. Under Title II, HN26[ ] "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity." 9 42 U.S.C. § 12132. HN27[ ] To prevail on a claim for a violation of Title II of the ADA, Plaintiff must show that: (1) she is a qualified individual with a disability; (2) she was either excluded from or otherwise denied the benefits of some public entity's services, programs or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits or discrimination was by reason of the plaintiff's disability. See Turner v. Hershey Chocolate U.S., 440 F.3d 604, 611 (3d Cir. 2006) (reciting elements); Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 253 (3d Cir. 1999) (same); Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671-72 (5th Cir. 2004) (same). Plaintiff specifically relies on a federal regulation [*36] promulgated under the ADA. The federal regulation on which Plaintiff relies provides that HN28[ ] "[w]here necessary or upon request, [a public or private entity's transportation vehicle] personnel shall assist individuals with disabilities with the use of . . . ramps[.] If it is necessary for the personnel to leave their seats to provide this assistance, they shall do so." 49 C.F.R. § 37.165. Plaintiff proffers evidence that Defendant's bus driver told her it was "okay" to proceed back down the ramp when he saw that one of her wheels was "in the air," and that Defendant's bus driver never left his seat to assist Plaintiff, as the regulation requires. (Pl.'s Dep. at 33; Hickerson Dep. at 21; Pl.'s Interrog. P 7(e)). The Third Circuit has not yet spoken on the issue of compensatory damages under Title II, "but all other Circuit Courts of Appeals addressing the issue have held that HN29[ ] compensatory damages are unavailable absent a showing of intentional discrimination." Meadows v. Hudson Cty. Bd. of Elections, No. 04-3979, 2006 U.S. Dist. LEXIS 64050, 2006 WL 2482956, at *10 (D.N.J. Aug. 24, 2006) (citing Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998); Wood v. President and Trs. of Spring Hill Coll., 978 F.2d 1214, 1220 (11th Cir. 1992); Carter v. Orleans 9 It is not clear whether Plaintiff is "a qualified individual with a disability" since Plaintiff was confined to a wheelchair for only a matter of months while recovering from foot surgery. See Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 380 (3d Cir. 2002) (noting that "a temporary, non-chronic impairment of short duration is not a disability" under the ADA); McDonald v. Pennsylvania, 62 F.3d 92, 96 (3d Cir. 1995) ("Intermittent, episodic impairments are not disabilities, the standard [*37] example being a broken leg."). Counsel did not discuss this issue. 2009 U.S. Dist. LEXIS 4803, *32 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 139 of 175 Page 15 of 16 Parish Pub. Schs., 725 F.2d 261, 264 (5th Cir. 1984) (per curiam)). District courts within the Third Circuit have reached the same conclusion. See, e.g., Meadows, 2006 U.S. Dist. LEXIS 64050, 2006 WL 2482956 at *10; Bowers v. NCAA, No. 97-2600, 2001 U.S. Dist. LEXIS 26165, 2001 WL 1850089, at *2 (D.N.J. Feb. 6, 2001); Adelman v. Dunmire, No. 95-4039, 1996 U.S. Dist. LEXIS 2810, 1996 WL 107853, at *4 (E.D. Pa. Mar. 12, 1996) (citing Tafoya v. Bobroff, 865 F. Supp. 742, 748 (D.N.M. 1994)); Douris v. Bucks Cty. Off. of Dist. Atty., 2004 U.S. Dist. LEXIS 12769, 2004 WL 1529169, at *5 n.7 (E.D. Pa. 2004), aff'd, 150 Fed. App'x 113 (3d Cir. 2005). We agree that HN30[ ] Plaintiff must show intentional discrimination in order [*38] to recover money damages under Title II of the ADA. See Dorsett v. SEPTA, No. 04-5968, 2005 U.S. Dist. LEXIS 18351, 2005 WL 2077252, at *5 (E.D. Pa. 2005) ("In order to obtain compensatory damages for a Title II violation, a plaintiff must demonstrate intentional discrimination."). Defendant asserts that there is no evidence that Defendant intentionally discriminated against Plaintiff and, thus, Plaintiff may not maintain this ADA claim for compensatory damages. (Doc. No. 10 at unnumbered 22.) Defendant is correct. Plaintiff proffers no evidence to support an inference that the bus driver acted intentionally, that the bus driver acted by reason of Plaintiff's disability, or that the bus driver's conduct was not confined to this single occasion. Dorsett is instructive in this regard. See 2005 U.S. Dist. LEXIS 18351, 2005 WL 2077252, at *5. In Dorsett, the plaintiff was confined to a wheelchair and regularly used SEPTA for transportation. 2005 U.S. Dist. LEXIS 18351, [WL]at *1. The plaintiff "took approximately 760 rides on SEPTA buses, and received good service from SEPTA in a majority of cases." Id. However, the plaintiff also experienced over a dozen "incidents of poor service" in which the plaintiff received less assistance than that to which he was entitled. Id. For [*39] example, there were three incidents where the plaintiff was unable to access the bus using the wheelchair lift, three incidents where the plaintiff received no assistance securing the wheelchair, four incidents where the assistance was insufficient, and two incidents where bus drivers were discourteous. 2005 U.S. Dist. LEXIS 18351, [WL] at *2- *3. The plaintiff asserted that federal regulations promulgated under the ADA required SEPTA to train drivers "to treat individuals with disabilities . . . in a respectful and courteous way" and "to operate vehicles and equipment safely." 2005 U.S. Dist. LEXIS 18351, [WL] at *5. The court found no evidence of intentional discrimination, since the plaintiff never experienced a repeat incident with the same SEPTA driver, SEPTA investigated the plaintiff's complaints, and SEPTA reminded drivers of their responsibilities to assist the disabled. 2005 U.S. Dist. LEXIS 18351, [WL] at *6. Summary judgment was granted in favor of SEPTA. 2005 U.S. Dist. LEXIS 18351, [WL] at *7. Here, the record shows that Plaintiff "asked for help" from the bus driver on a single occasion and "he never got out of his seat to assist [her]." (Pl.'s Interrog. P 7(e)). However, as in Dorsett, there is no evidence of intentional discrimination. See 2005 U.S. Dist. LEXIS 18351, 2005 WL 2077252, at *5. On the contrary, the [*40] record shows that Defendant's bus driver instructed Plaintiff on how to board the bus using the ramp -- either by notifying Plaintiff that her wheel was not on the ramp, as the bus driver testified (Hickerson Dep. at 20); or by instructing Plaintiff to drive over a "hump" in the ramp at a faster speed, as Plaintiff testified, since she was moving "slow" (Pl.'s Dep. at 28- 29, 32.) 10 The record also shows that all of Defendant's buses are handicapped-equipped, and Defendant has in place policies and procedures designed to ensure proper accommodation of passengers like Plaintiff who use mobility devices. (Hickerson Dep. at 7; Doc. No. 11, Ex. E.) In fact, before the incident, Defendant provided the bus driver with a "whole day" of instruction on how to operate the wheelchair ramp that Plaintiff used. (Hickerson Dep. at 10-11.) Moreover, as in Dorsett, there is no evidence of any repeat incident with the SEPTA driver. See 2005 U.S. Dist. LEXIS 18351, 2005 WL 2077252, at *5. There is also no evidence to show that Plaintiff made complaints from which it could be determined that SEPTA was deliberately indifferent to Plaintiff's needs. HN31[ ] The ADA regulations "do not [*41] contemplate perfect service for wheelchair-using bus commuters." Id. (citing Midgett v. Tri-Cty. Metro. Transp. Dist. of Or., 254 F.3d 846, 849 (9th Cir. 2001)). "Occasional problems, without more, do not constitute a violation of the ADA." Id. At most, the evidence demonstrated that Defendant acted negligently on a single occasion. There is no evidence in the record that Defendant acted with discriminatory animus or in deliberate indifference. 11 10 Accepting either version of events as true, there is no evidence that the bus driver declined to help Plaintiff with a discriminatory intent. 11 Even if Defendant violated the ADA regulation, such a violation does not subject Defendant to liability under Pennsylvania law. For the reasons discussed above, the vehicle liability exception does not apply to subject Defendant to a negligence claim. In addition, HN32[ ] violation of an 2009 U.S. Dist. LEXIS 4803, *37 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 140 of 175 Page 16 of 16 Finally, we reject Plaintiff contention that Defendant "has removed the element of 'intent' when it comes to violations of the ADA" merely because the SEPTA Bus Operations Rules and Regulations Manual states that "any refusal by an employee to assist a disabled person is a violation of the ADA, whether intentional or not." (Doc. No. 11 at 15.) HN33[ ] What constitutes a compensable violation of the ADA is determined by Congress and the courts. SEPTA's characterization of what the ADA requires is not determinative. Plaintiff's ADA claim for compensatory damages is therefore without merit. Plaintiff has not requested any other form of relief. 12 V. CONCLUSION For the foregoing reasons, Defendant's Motion for Summary Judgment will be granted. An appropriate Order follows. ORDER AND NOW, this 22nd day of January, 2009, upon consideration of Defendant's Motion for Summary Judgment (Doc. No. 10), and Plaintiff's Cross Motion to Amend Complaint (Doc. No. 11), it is ORDERED as follows: 1. Defendant's Motion for Summary Judgment is GRANTED and Plaintiff's Complaint is DISMISSED. 2. Plaintiff's Cross Motion to Amend Complaint is ADA regulation may not be used as evidence of negligence per se in a personal injury action like this one. See Levin v. Dollar Tree Stores, Inc., No. 06-0605, 2006 U.S. Dist. LEXIS 88595, 2006 WL 3538964, at *2 (E.D. Pa. Dec. 6, 2006) (holding that the plaintiff may not "borrow" ADA regulations for use as evidence of the standard of care to prove negligence [*42] per se in a personal injury action, since to do so would "allow for recovery of damages for personal injuries for violations of the ADA, which are specifically not permitted under the ADA itself"). 12 Although equitable remedies for violations of the ADA are available regardless of Defendant's intent, Plaintiff's ADA claim fails even if Plaintiff had requested equitable relief. Plaintiff was confined to the motorized scooter for several months in 2005, but Plaintiff no longer uses a motorized scooter and there is no evidence that Plaintiff encountered [*43] any similar instances with Defendant's buses. (Pl.'s Dep. at 18-19, 40-41.) Thus, Plaintiff proffers no evidence of an immediate threat of future harm. See Dorsett, 2005 U.S. Dist. LEXIS 18351, 2005 WL 2077252, at *6 ("With respect to an injunction, Plaintiffs must demonstrate that they face an immediate threat of continued future violations of the ADA in the absence of injunctive relief."). DENIED as moot. IT IS SO ORDERED. THE COURT: BY /s/ R. Barclay Surrick R. Barclay Surrick, J. End of Document 2009 U.S. Dist. LEXIS 4803, *41 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 141 of 175 Neutral As of: April 3, 2017 4:51 PM Z Sheeran v. Blyth Shipholding S.A. United States District Court for the District of New Jersey December 16, 2015, Decided; December 16, 2015, Filed Civil No. 14-5482 (JBS/AMD) Reporter 2015 U.S. Dist. LEXIS 168019 * STEVEN SHEERAN and KELLY SHEERAN, Plaintiffs, v. BLYTH SHIPHOLDING S.A., et al., Defendants. Subsequent History: Summary judgment granted by, Motion granted by Sheeran v. Blyth Shipholdings S.A., 2017 U.S. Dist. LEXIS 44208 (D.N.J., Mar. 27, 2017) Core Terms Ship, sanctions, vessel, entity, allegations, stevedoring, vice, managed, duties, hac, operations, notice, longshoring, lump, factual allegations, misconduct, requires, hiring, navigable, asserts, Harbor, fails Counsel: [*1] For Plaintiffs: Brian D. Kent, Esq., LAFFEY BUCCI & KENT LLP, Philadelphia, PA; Bruce David Zeidman, Esq., COSKY & ZEIDMAN, Attorneys at Law, Haddonfield, NJ. For Holt Logistics Corp., Defendant: Patrick M. Northen, Esq., Francis P. Maneri, Esq., Jordan M. Rand, Esq., DILWORTH PAXSON, LLP, Cherry Hill, NJ. Judges: HONORABLE JEROME B. SIMANDLE, Chief United States District Judge. Opinion by: JEROME B. SIMANDLE Opinion SIMANDLE, Chief Judge: I. INTRODUCTION Plaintiff Steven Sheeran filed this action under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b), after he was injured while working aboard the M/V Swan Chacabucco in the Port of Gloucester, New Jersey. His Complaint names a number of different defendants and alleges that all defendants were negligent by collectively breaching two dozen different duties. Presently before the Court is a motion to dismiss under Fed. R. Civ. P. 12(b)(6) and a motion for sanctions under Fed. R. Civ. P. 11(c) by Holt Logistics Corp. [Docket Items 36 & 53.] Defendant argues that the Complaint must be dismissed because it fails to place Defendant on notice of the particular claims against it, and that sanctions are warranted because the claims against Holt Logistics are entirely groundless. For the reasons set forth below, the Court [*2] will grant Defendant's motion to dismiss but will deny Defendant's motion for sanctions. II. FACTUAL AND PROCEDURAL BACKGROUND Plaintiffs' Complaint (Second Amended Complaint ("SAC") [Docket Item 15]) is short and straightforward.1 On January 13, 2012, Steven Sheeran was working in the hold of the vessel M/V Swan Chacabucco ("the Swan Chacabucco" or "the Ship"), which was berthed in the Port of Gloucester, when his leg was crushed underneath a crane-controlled tray, causing permanent and severe injuries. (SAC ¶¶ 18-19; 22.) He subsequently brought this action,2 which named eight business entities as defendants in the Second Amended Complaint, including Holt Logistics Corp. ("Holt Logistics").3 1 The facts are taken from Plaintiffs' Second Amended Complaint ("SAC"). For purposes of this motion, the Court must accept Plaintiffs' allegations as true. 2 Plaintiffs filed a separate identical complaint under Sheeran v. Blyth Shipholding S.A., Civ. No. 15-272 (Jan. 14, 2015), but both cases have since been consolidated under this action. (Stip. [Docket Item 30] ¶ 1.) 3 The Complaint named the following entities: NYK Container Line, Ltd; NYK Line (North America), Inc.; NYK Cool, a/k/a/ Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 142 of 175 Page 2 of 7 Before Holt Logistics Corp. filed the instant motions, the parties had agreed to dismiss three of the entities from the case. (See Mar. 11, 2015 Stip. [Docket Item 30] ¶ 4). A fourth has since been dismissed (see June 29, 2015 Stip. [Docket Item 46]), leaving only Blyth Shipholding S.A. ("Blyth Shipholding"), Inchape Shipping Services ("Inchape Shipping"), NYK Cool a/k/a Cool Carriers AB ("NYK Cool"), and Holt Logistics as the named defendants. The Complaint does not allege the specific roles and duties of each Defendant in the action. Rather, it pleads generally that all Defendants "owned, leased, operated, managed, possessed and/or controlled" the Swan Chacabucco. (SAC ¶ 9.) It also alleges that "all Defendants owned, leased, operated, occupied, maintained, managed and/or otherwise controlled the Ship and/or the Port and specifically maintained, [*4] managed, oversaw, directed, controlled, contracted for and/or participated in the operation of stevedoring and/or longshoring services on the Ship and/or at the Port." (Id. ¶ 11.) Holt Logistics is identified as a "business entity with a registered place of business" in Gloucester City, New Jersey. The Complaint alleges that Holt Logistics and Inchape Shipping "were responsible for training, screening, certifying, hiring and/or providing crane operators and/or other persons involved in stevedoring and/or longshoring operations at the Port." (SAC ¶ 10.) The Complaint contains three causes of action. Count One alleges negligence. Without identifying each individual defendant's negligent conduct, Count One enumerates 24 duties allegedly violated by all Defendants, including but not limited to: violating OSHA regulations; failing to properly train employees; failing to warn of dangerous and unsafe conditions; failing to "comply with federal and state statutes, local ordinances, and all other rules, enactments, or regulations applicable"; failing to properly supervise; failing to provide adequate safety protection; failing to evaluate the work performed for potential hazards; and negligently [*5] controlling the work performed on premises. (Id. ¶ 20.) Cool Carriers AB; [*3] Cool Carriers Chile SA; Cool Carriers USA Inc.; Chartworld Shipping Corp.; Inchape Shipping Services; and Holt Logistics Corp. (SAC ¶¶ 1-8), along with unnamed entities ABC Companies 1-10 and Def. Companies 1-20. Blyth Shipholding S.A. was later substituted as a named defendant for Chartworld Shipping Corp. (Mar. 11, 2015 Stip. [Docket Item 30] ¶ 2.) Count Two is a personal injury claim brought against all Defendants "in their capacity as 'owner' or 'owner pro hac vice' of the aforementioned Ship" under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 905(b). (Id. ¶¶ 18-24.) Section 905(b) provides an injured longshoreman with a cause of action against a ship owner for negligence, and Plaintiffs allege that Defendants "owned, operated, managed, possessed and/or controlled the Ship which it operated in the navigable waters of the United States." (Id. ¶ 24.) Finally, Count Three is an action by Sheeran's spouse, Kelly Sheeran, for loss of consortium. (Id. ¶¶ 29-31.)4 III. DEFENDANT'S MOTION TO DISMISS [*6] WILL BE GRANTED Holt Logistics filed this motion to dismiss, arguing that in lumping all of the defendants together and accusing them all of the same general negligent conduct, the Complaint fails to put Holt Logistics on notice of the claims against them, as required by Fed. R. Civ. P. Rule 8(a). (Mot. to Dismiss [Docket Item 36-1] at 8-10.) Defendant also contends that Count Two must be dismissed because the Complaint does not contain any factual basis for its allegations that Holt Logistics is the "ship owner" or "owner pro hac vice" of the Swan Chacabuco for purposes of an LHWCA claim. (Id. at 10- 11.) The Court agrees with Defendant that Plaintiffs' Complaint fails to plead the liability of Holt Logistics with the requisite specificity and must be dismissed. Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." A to dismiss under Fed. R. Civ. P. 12(b)(6) may be granted if a court concludes that the plaintiff has failed to set forth fair notice of what the claim is and the grounds upon which it rests that make such a claim plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). 4 Because Plaintiffs allege that the Swan Chacabucco was berthed in the Port of Gloucester, New Jersey when the injuries occurred (SAC ¶ 22), the Court exercises subject matter jurisdiction over Plaintiffs' claims under the maritime jurisdiction statute, 28 U.S.C. § 1333. The Court also has diversity jurisdiction under 28 U.S.C. § 1332, because Plaintiffs are citizens of Pennsylvania and all Defendants have principal places of business outside of Pennsylvania, and the matter in controversy exceeds $75,000. (SAC ¶¶ 1-9; 15.) 2015 U.S. Dist. LEXIS 168019, *2 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 143 of 175 Page 3 of 7 Although a complaint does not require detailed factual allegations, it must contain enough well-pleaded facts to show that the claim is facially plausible. This "allows [*7] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). The plaintiff must plead enough facts to "raise a reasonable expectation that discovery will reveal evidence of the necessary element," Twombly, 550 U.S. at 556. Although all well-pleaded factual allegations must be accepted as true, the court may disregard any legal conclusions couched as factual allegations. Id.; Iqbal, 556 U.S. at 678; Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). If the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not "show[n]" - "that the pleader is entitled to relief." Iqbal, 556 U.S. at 679. Plaintiffs' Complaint fails to separate out the liability for each defendant. Instead, it lumps Defendants together as a group and asserts general common factual allegations against all of them. Count One, for example, contains 24 different allegations of negligence that vary widely, from violation of OSHA regulations to failure to provide a safe work place to failure to properly train employees to failure to supervise to negligent hiring. Rather than specify which Defendants were responsible for which duties, the Complaint merely states that all Defendants were negligent in the enumerated ways. Without [*8] any additional guidance as to the Defendants themselves and what functions they performed, it is impossible to untangle Plaintiffs' specific theory of liability against each individual Defendant. Courts in this district generally agree that this type of "group pleading" does not satisfy Rule 8, because it does not place Defendants on notice of the claims against each of them. See, e.g., Ingris v. Borough of Caldwell, No. 14-855, 2015 U.S. Dist. LEXIS 74255, 2015 WL 3613499, at *5 (D.N.J. June 9, 2015) ("[T]o the extent Plaintiff seeks to lump several defendants together without setting forth what each particular defendant is alleged to have done, he has engaged in impermissibly vague group pleading."); Shaw v. Housing Auth. of Camden, No. 11-4291, 2012 U.S. Dist. LEXIS 112655, 2012 WL 3283402, at *2 (D.N.J. Aug. 10, 2012) (dismissing complaint because it failed to contain allegations showing how each defendant was liable and noting that "[e]ven under the most liberal notice pleading requirements of Rule 8(a), a plaintiff must differentiate between defendants." (citing Pietrangelo v. NUI Corp., No. 04-3223, 2005 U.S. Dist. LEXIS 40832, 2005 WL 1703200 (D.N.J. July 20, 2005))); see also H2O Plus, LLC v. Arch Personal Care Prods., L.P., 2011 U.S. Dist. LEXIS 54767, 2011 WL 2038775, at *2 (D.N.J. May 22, 2011) (holding that complaint did not violate Rule 8 because while plaintiff "did lump the Arch Defendants together in the description of facts, looking to the Complaint and the attached exhibits as a whole clearly shows which claims are made against Arch PCP and which against Arch Chemicals.") Had the Complaint described the nature of each entity Defendant and precisely what [*9] they were responsible for on the Ship, the Court might have been able to infer the theory of liability for each Defendant by comparing the specific role each played on the Swan Chacabucco with the list of duties allegedly breached.5 But the Complaint does not do even that. Holt Logistics, like the other named Defendants in the case, is identified only as a "business entity" with a registered place of business; the Complaint describes neither its line of work nor its function on the ship. Instead, eight named Defendants are collectively alleged to have "owned, leased, operated, occupied, maintained, managed and/or otherwise controlled the Ship and/or the Port" and to have "maintained, managed, oversaw, directed, controlled, contracted for and/or participated in the operation of stevedoring and/or longshoring services on the Ship and/or at the Port." (SAC ¶ 11.) The "and/or" conjunction appears no less than five times in this single sentence, making it impossible to determine Plaintiffs' theory of liability for each Defendant - and for Holt Logistics in particular. Contrary to Plaintiffs' contention (see Opp'n to Mot. to Dismiss [Docket Item 38] at 3), the mere fact that the 5 For example, had Plaintiffs identified Holt Logistics as the entity responsible for hiring and providing stevedores for work [*10] on the Ship, and another Defendant as the entity responsible for the day-to-day supervision of their work, it may have been possible to partially deduce, based on the list of alleged negligent conduct, some of the duties each defendant is alleged to have breached. The only thing that comes close is Plaintiffs' allegation that Holt Logistics and Inchape Shipping "were responsible for training, screening, certifying, hiring and/or providing crane operators and/or other persons involved in stevedoring and/or longshoring operations at the Port." (SAC ¶ 10.) But even this assertion continues to lump Holt Logistics together with an unconnected entity, Inchape Shipping, and asserts seven different duties that either Defendant or Inchape Shipping could have been responsible for. The allegation can hardly be said to narrow down Defendants' liability in this case. 2015 U.S. Dist. LEXIS 168019, *6 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 144 of 175 Page 4 of 7 Complaint recites the type of negligent conduct at issue does not place the parties sufficiently on notice of the claims against them. Even though the misconduct is alleged with some specificity, Rule 8 is not satisfied because the allegations do not inform each Defendant of [*11] the particular claims against it. Moreover, lumping all defendants together for different misconduct fails to demonstrate each defendant's individual liability. Without pleading how, if at all, Holt Logistics was involved with the alleged conduct at issue, the Complaint lacks sufficient facts to draw a reasonable inference that Holt Logistics is actually responsible for any the negligence alleged. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) ("We caution that without some factual allegation in the complaint, a claimant cannot satisfy the requirement [under Rule 8(a)(2)] that he or she provide not only 'fair notice,' but also the 'grounds' on which the claim rests." (quoting Twombly, 550 U.S. at 555)). Nor is the Court persuaded by Plaintiffs' citations to In re Riddell Concussion Reduction Litig., 77 F. Supp. 3d 422 (D.N.J. 2015) (Simandle, J.), and the two unpublished district court opinions, Capitol Records LLC v. ReDigi Inc., No. 12-95, 2014 U.S. Dist. LEXIS 122711, 2014 WL 4354675 (S.D.N.Y. Sept. 2, 2014), and Toback v. GNC Holdings, Inc., No. 13-80526, 2013 U.S. Dist. LEXIS 131135, 2013 WL 5206103 (S.D. Fla. Sept. 13, 2013), which have little weight in this Circuit. In Riddell, this Court rejected an argument that the complaint violated Rule 8 by lumping all defendants together without specifying the alleged misconduct of each defendant, because it was "apparent" that the claims were asserted against all defendants "for their concerted conduct under the 'Riddell' brand." 77 F. Supp. 3d at 431. The Court emphasized that group pleading was permissible in that particular case because [*12] the defendants did not dispute their collective role in the manufacture, sale, and marketing of the product in question, and they were related entities operating under a single brand, accepting service as a single entity, and represented by the same counsel. Id. at 432. Capitol Records and Toback similarly involve closely related Defendants. See Capitol Records, 2014 U.S. Dist. LEXIS 122711, 2014 WL 4354675, at *3 (noting that the defendants were a small start-up and two corporate officers "who directed and controlled essentially all of its activities"); Toback, 2013 U.S. Dist. LEXIS 131135, 2013 WL 5206103 (holding that complaint satisfied Rule 8 despite referring to defendants - GNC Holdings, Inc., GNC Corp, General Nutrition Corporation, and General Nutrition Centers, Inc. - collectively as "GNC" because defendants were interrelated corporate defendants and demonstrated their understanding of the allegations against them). Riddell, Capitol Records, and Toback provide no support that collective-style pleading is permissible in this case, since there are no allegations that Defendants acted jointly or in concert or are closely related corporate entities, such that conduct by one may be ascribed to the others.6 See T.J. McDermott Transp. Co., Inc. v. Cummins, Inc., 2015 U.S. Dist. LEXIS 29678, 2015 WL 1119475, at *7 (D.N.J. Mar. 11, 2015) (holding Rule 8 was satisfied even though complaint failed to distinguish defendants' respective conduct because [*13] complaint specifically alleged that defendants formed a partnership). Because Counts One, Two, and Three all suffer from the same infirmity by asserting that the injuries sustained by Plaintiff "were caused by the carelessness and negligence of all Defendants," (SAC ¶ 23), and failing to allege any specific act of misconduct by Holt Logistics, the Complaint as a whole must be dismissed for failing to place Holt Logistics on notice of the claims against it. Count Two of the Complaint must additionally be dismissed because Plaintiffs have not pleaded sufficient facts to establish a plausible cause of action against Holt Logistics under the Longshore and Harbor Workers' Compensation Act. Specifically, the Complaint does not plead that Holt Logistics qualifies as a "vessel" for purposes of the LHWCA. (Mot. to Dismiss at 10-11; Reply in Supp. of Mot. to Dismiss [Docket Item 40] at 6- 7.) Section 905(b) of the LHWCA codifies the exclusive remedy for longshoremen and permits an "action against [a] vessel as a third party" for injuries "caused by the [*14] negligence of [such] vessel." 33 U.S.C. § 905(b). The LHWCA, in turn, defines a "vessel" within the meaning of section 905(b) to include the "vessel's owner, owner pro hac vice, agent, operator, charter or bare boat charterer, master, officer, or crew member." 33 U.S.C. § 902(21). A "vessel owner pro hac vice" is "one who assumes by charter or otherwise exclusive possession, control, command and navigation of the vessel for a specified period of time." DeArmond v. Southwire Co., 109 Fed. App'x 722, 724 (6th Cir. 2004) (internal quotations and 6 The fact that Defendants are all represented by different counsel and that no other defendant has joined Holt Logistics' motion to dismiss is an additional indication that Defendants are independent and concerted action is lacking. 2015 U.S. Dist. LEXIS 168019, *10 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 145 of 175 Page 5 of 7 citation omitted); see also Bossard v. Port Allen Marine Serv., Inc., 624 F. 2d 671, 672-73 (5th Cir. 1980) ("[T]he charterer takes over the ship, lock, stock and barrel, and mans her with his own people. He becomes . . . the owner pro hac vice." (internal quotations and citation omitted)); Irby v. Tokai Lines, No. 88-6890, 1990 U.S. Dist. LEXIS 2116, 1990 WL 18880, at *3 (E.D. Pa. Feb. 23, 1990) (noting requirement of "exclusive possession, control, command, and navigation"). The term "vessel," in other words, encompasses "the ship's owner and the owner's agents." Browning v. Safmarine, Inc., No. 11- 2436, 2012 U.S. Dist. LEXIS 173099, 2012 WL 6089481, at *3 n.1 (D.N.J. Dec. 5, 2012). This Court recently had occasion to explicate the duties of the "vessel" and the "pro hac vice owner" to an offloading stevedore under the LHWCA in Jones v. Sanko Steamship Co., F. Supp. 3d , 2015 U.S. Dist. LEXIS 164121, 2015 WL 8361745 (D.N.J. Dec. 8, 2015). The LHWCA requires that the liability of defendants be separately determined in light of their respective functions relating to the ship and its cargo. Id. at 7-8. Such an assessment of LHWCA duties for a particular defendant is not viable where the [*15] plaintiff engages in group pleading against unrelated, disparate parties. Count Two alleges only that all Defendants, including Holt Logistics, "owned, operated, managed, possessed and/or controlled the Ship which it operated in the navigable waters of the United States." (Id. ¶ 24) (emphasis added). This assertion, however, does not rule out the possibility that Holt Logistics merely "controlled" the Ship. Generally speaking, "those who exercise control over a vessel for a particular purpose such as repairing, cleaning or unloading are not considered to be owners pro hac vice." DeArmond, 109 Fed. App'x at 725. In DeArmond, the Sixth Circuit gave the example of a stevedore hired to unload a barge and who exercises control and dominion over the barge in order to do so, and noted that the stevedore was clearly not an owner pro hac vice. The Court explained that this was because even though a party may "control command and navigate the vessel while it is in their possession to accomplish the designated task, the owner of the vessel has not relinquished complete dominion and control of the vessel tantamount to a demise of the vessel." Id. Because the Complaint fails to contain a well-pleaded factual allegation that Holt [*16] Logistics was the owner or owner pro hac vice of the Swan Chacabucco, Plaintiffs have not stated a plausible claim for relief under Count Two. For all the reasons above, Defendant's motion to dismiss will be granted in its entirety. The Court will, however, dismiss Plaintiffs' claims against Holt Logistics without prejudice and permit Plaintiffs to file a motion to amend, along with a Proposed Amended Complaint which corrects the multiple deficiencies discussed herein. In so doing, the Court again emphasizes that it is not sufficient to fail to identify each defendant's role and function or say that each of the defendants is responsible for everything. Plaintiffs must be careful to specify the basis (i.e., the factual grounds) for Defendant's liability under each Count. IV. THE COURT WILL DENY DEFENDANT'S MOTION FOR SANCTIONS Defendant argues that sanctions are warranted because there are no facts to support Plaintiffs' claim that Holt Logistics was in any way liable for Sheeran's injury. (Mot. for Sanctions [Docket Item 49-1], at 9-12; Reply in Support of Mot. for Sanctions [Docket Item 53], at 4-9.) Federal Rule of Civil Procedure 11 requires an attorney to conduct a "reasonable inquiry" into the law and facts before filing a pleading with the court, and to certify that the legal arguments contained therein are not being presented [*17] for any improper purpose and are not frivolous, and the factual contentions have or "will likely have evidentiary support after a reasonable opportunity for further investigation or discovery." Fed. R. Civ. P. 11(b)(1)-(3). By discouraging the filing of frivolous, unsupported, or unreasonable claims, and permitting sanctions to be imposed for violations, Rule 11 "seeks to strike a balance between the need to curtail abuse of the legal system and the need to encourage creativity and vitality in the law." Fed. R. Civ. P. 11(c); Gaiardo v. Ethyl Corp., 835 F.2d 479, 483-84 (3d Cir. 1987); see also Lieb v. Topstone Indus. Inc., 788 F.2d 151, 157 (3d Cir. 1986); Leuallen v. Borough of Paulsboro, 180 F. Supp. 2d 615, 618 (D.N.J. 2002). When evaluating whether conduct violates Rule 11, the Third Circuit applies a "reasonableness under the circumstances" standard, which is defined as "an objective knowledge or belief at the time of the filing of a challenged paper that the claim was well grounded in law and fact." Ford Motor Co. v. Summit Motor Prod., Inc., 930 F.2d 277, 289 (3d Cir. 1991). The wisdom of hindsight should be avoided, and the attorney's conduct must be judged by "what was reasonable to believe at the time the pleading, motion, or other paper was submitted." Fed. R. Civ. P. 11 advisory committee note; Mary Ann Pensiero, Inc. v. Lingle, 847 F. 2d 90, 94 (3d 2015 U.S. Dist. LEXIS 168019, *14 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 146 of 175 Page 6 of 7 Cir. 1988).7 The Court does not find that the circumstances of this case meets the "high standard for imposing sanctions under Rule 11," Oswell v. Morgan Stanley Dean Witter & Co., Inc., 507 F. Supp.2d 484, 492 (D.N.J. 2007) (Simandle, J.). Counsel for Plaintiffs had a good-faith basis to believe that Defendant had a hand in controlling stevedoring activities at the site where Steven Sheeran was injured. In particular, it was reasonable for counsel to believe that the operations of Sheeran's employer, Gloucester Terminals, LLC, at the Port of Gloucester, were being overseen by Holt Logistics. The N.L.R.B. decision, upon which counsel asserts he relied, describes the involvement of the Holt brothers and their various companies (including Holt Logistics) in operations in and around the Port of Gloucester, where the Swan Chacabucco was berthed. (Ex. 1 to Opp'n to Mot. for Sanctions [Docket Item 52-2].) The decision identifies Holt as the CEO of Gloucester Terminals, LLC, and also identifies [*19] an individual named Walter Curran who was hired by Holt and who "actively managed" the work of Gloucester Terminals, LLC. (Id. at 9.) Thus, Defendant's argument that Sheeran, who has already settled a claim with Gloucester Terminals, LLC, is barred from asserting a claim against Holt Logistics,8 holds no water. Counsel for Plaintiffs had a good-faith basis to believe that Holt Logistics was not Sheeran's employer "via common ownership" with Gloucester Terminals, LLC, but rather an entity that owned and supervised Sheeran's employer and its stevedoring 7 The Court notes that Defendant has complied with the "safe harbor" provision of Rule 11, which requires a moving party to notify the party against which it seeks sanctions of its intention to move for sanctions, and allows the non-moving [*18] party 21 days to take remedial action before the court imposes sanctions. Fed. R. Civ. P. 11(c)(2); see Hockley by Hockley v. Shan Enterp. Ltd., 19 F. Supp. 2d 235, 240 (D.N.J. 1998). Defendant sent a "safe harbor" letter together with a copy of the motion on September 18, 2015, 25 days before filing the instant motion with the Court. (See Sept. 18, 2015 Letter, Ex. 1 to Mot. for Sanctions [Docket Item 49-2].) 8 Specifically, Defendant argues that because a plaintiff who recovers against an employer under LHWCA worker's compensation scheme is barred from suing that employer under the LHWCA for further damages, see 33 U.S.C. §§ 904(b), 905(a), counsel lacked a good-faith basis to file suit against Holt Logistics because Sheeran had already settled a claim with Gloucester Terminals, LLC, and Holt Logistics was his co-employer. (Opp'n to Mot. for Sanctions, at 11-12.) operations. Counsel thus had a reasonable basis to believe that Sheeran's settlement with his direct employer did not extinguish his rights under the LHWCA to file suit against Holt Logistics. Counsel's belief that Holt [*20] Logistics should remain in the action is also not unreasonable under the high Rule 11 standard. Counsel notes that depositions taken after the Complaint continue to raise the possibility that Gloucester Terminals, LLC was managed by Holt Logistics, because certain higher-level employees seemed to be affiliated with both entities. While depositions from individuals employed by Gloucester Terminals, LLC, identified John Florkiewicz and P.J. Inskeep as the stevedore manager and Vice President of Gloucester Terminals, LLC, respectively, both had Holt Logistics-affiliated email addresses. (Quigley Dep., Ex. 3 to Opp'n to Mot. for Sanctions [Docket Item 52-4], at 39:8-41:9; Mountney Dep., Id. Ex. 4 [Docket Item 52- 5], at 20:8-21:2.) Moreover, an operations representative for Defendant Inchape Shipping identified Florkiewicz and Inskeep as being from Holt Logistics, and additionally testified that he copied several people from Holt Logistics on every email that he sent regarding vessel movements and berthing details. (Hubbard Dep., Id. Ex. 2 [Docket Item 52-3], at 53:20- 56:7.) Given the evidence indicating a close relationship between Defendant and Sheeran's employer, it was not palpably unreasonable for Plaintiffs' counsel to believe that Holt Logistics [*21] maintained some supervisory role over the stevedoring work of Gloucester Terminals, LLC. Although counsel may not have had a precise understanding of Holt Logistics' responsibilities, it was not unreasonable for counsel to infer that Defendant had a separate duty to ensure the safety of the premises, and that the duty was breached. "Rule 11 is intended for only exceptional circumstances," Gaiardo, 835 F.2d at 483, and a "district court must exercise discretion and sound judgment in dealing with the myriad methods with which lawyers may abuse the judicial process." Eavenson, Auchmuty & Greenwald v. Holtzman, 775 F.2d 535, 540 (3d Cir. 1985). While it remains to be seen whether Plaintiffs can plead sufficient facts to plausibly establish Holt Logistics' liability in this case, the Court is satisfied that counsel did not drag Holt Logistics into this case based solely upon unsupported, unreasonable, and frivolous allegations. Defendant's motion for sanctions is denied. IV. CONCLUSION 2015 U.S. Dist. LEXIS 168019, *17 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 147 of 175 Page 7 of 7 For the foregoing reasons, the Court will grant Defendant's motion to dismiss. The dismissal is without prejudice to Plaintiffs' right to file a motion for leave to file an Amended Complaint within fourteen (14) days of the date of entry of this Order, accompanied by a Proposed Amended Complaint which remedies the [*22] deficiencies discussed herein. The Court will deny Defendant's motion for sanctions, but takes this opportunity to remind counsel that any attempt to replead against Holt or any other defendant is governed by the requirements of Rule 11(b), including that the legal claims are warranted by existing law and that the factual contentions have evidentiary support or (if specifically identified) will likely have evidentiary support after a reasonable opportunity for further investigation or discovery, see Rule 11(b)(2) & (3), Fed. R. Civ. P. An accompanying Order will be entered. December 16, 2015 Date /s/ Jerome B. Simandle JEROME B. SIMANDLE Chief U.S. District Judge ORDER This matter having come before the Court on Defendant Holt Logistics Corp.'s Motion to Dismiss [Docket Item 36] and Motion for Sanctions [Docket Item 53]; the Court having considered the submissions of the parties in support thereof and opposition thereto; for the reasons stated in the Opinion of today's date; and for good cause shown; IT IS this day of December, 2015 hereby ORDERED that Defendant's Motion to Dismiss be and hereby is GRANTED without prejudice to Plaintiffs' right to file a motion for leave to file an Amended Complaint within fourteen (14) days of [*23] the date of entry of this Order, along with a Proposed Amended Complaint which addresses the deficiencies discussed herein; and it is further ORDERED that the Defendant's Motion for Sanctions be and hereby is DENIED. /s/ Jerome B. Simandle JEROME B. SIMANDLE Chief U.S. District Judge End of Document 2015 U.S. Dist. LEXIS 168019, *21 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 148 of 175 Caution As of: April 3, 2017 4:51 PM Z Shemtov Michtavi v. United States United States District Court for the Middle District of Pennsylvania March 4, 2009, Decided; March 4, 2009, Filed No. 4:07-CV-0628 Reporter 2009 U.S. Dist. LEXIS 18926 *; 2009 WL 578535 SHEMTOV MICHTAVI, Plaintiff v. UNITED STATES OF AMERICA, Defendant Subsequent History: Affirmed by, Motion denied by, As moot Michtavi v. United States, 2009 U.S. App. LEXIS 20872 (3d Cir., Sept. 21, 2009) Prior History: Michtavi v. United States, 2008 U.S. Dist. LEXIS 107897 (M.D. Pa., Oct. 14, 2008) Core Terms allegations, inmates, prison official, physical injury, intentional infliction of emotional distress, inflicted, magistrate judge, cause of action, Recommendation, medication, negligent infliction of emotional distress, prison, discretionary function, emotional distress, motion to dismiss, emotional injury, legal papers, depression, requires, waiver of sovereign immunity, second amended complaint, conspiracy claim, punitive damages, asserts, subject matter jurisdiction, fail to prevent, set forth, employees, concedes, sentence Case Summary Procedural Posture Plaintiff inmate filed a second amended complaint against defendant United States under the Federal Tort Claims Act, alleging that the prison failed to prevent the loss of property and depression, and requested an order prohibiting the retaliation against him, compensatory damages, and punitive damages. The United States moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(1) and (6). A magistrate recommended dismissal of the complaint. Overview Essentially, the inmate alleged that the prison officials were negligent in allowing two fellow inmates to conspire to steal his legal papers so that they could formulate a false crime allegedly to be committed by the inmate, and then offer to testify against him in exchange for a reduction in their sentences. The court dismissed the complaint holding that the inmate failed to state a claim under the Federal Tort Claims Act. The inmate did not allege any prior physical injury that would have allowed him to recover damages for his alleged mental or emotional injuries, as required by 28 U.S.C.S. § 1346(b)(1). The inmate did not assert that either the inmates who allegedly plotted against him or the prison officials who allegedly failed to prevent such schemes physically harmed him in any way. Also, medication did not turn emotional problems into physical injury. Further, he did not establish intentional infliction of emotional distress as he did not allege any intentional conduct by the prison officials or extreme and outrageous conduct. He also failed to establish negligence. Finally, the claim was barred by the discretionary function exception to the waiver of sovereign immunity. Outcome The magistrate’s recommendation was adopted and the inmate’s complaint was dismissed. LexisNexis® Headnotes Civil Procedure > Judicial Officers > Magistrates > Pretrial Referrals HN1[ ] When objections are filed to the report of a magistrate judge, the district court makes a de novo determination of those portions of the report or the proposed findings or recommendations to which objections are made. 28 U.S.C.S. § 636(b)(1). Under this standard, a court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Although the standard of review is de Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 149 of 175 Page 2 of 13 novo, 28 U.S.C.S. § 636(b)(1) permits whatever reliance the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. Civil Procedure > ... > Responses > Defenses, Demurrers & Objections > Motions to Dismiss HN2[ ] When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(1), a court must distinguish between facial and factual challenges to its subject matter jurisdiction. A facial attack challenges whether the plaintiff has properly pled jurisdiction. In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff. A factual attack, in contrast, challenges jurisdiction based on facts apart from the pleadings. When a defendant attacks subject matter jurisdiction in fact, the court is free to weigh the evidence and satisfy itself whether it has power to hear the case. In such a situation, no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Civil Procedure > ... > Defenses, Demurrers & Objections > Motions to Dismiss > Failure to State Claim HN3[ ] In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief. Civil Procedure > ... > Defenses, Demurrers & Objections > Motions to Dismiss > Failure to State Claim Civil Procedure > Pleading & Practice > Motion Practice > Content & Form HN4[ ] A Fed. R. Civ. P. 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Fed. R. Civ. P. 8(a). Fed. R. Civ. P. 8(a)(2) requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. A plaintiff must make a "showing" rather than a blanket assertion of an entitlement to relief, and without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only "fair notice," but also the "grounds" on which the claim rests. A complaint must allege facts suggestive of the proscribed conduct, and the factual allegations must be enough to raise a right to relief above the speculative level. Therefore, stating a claim requires a complaint with enough factual matter, taken as true, to suggest the required element. Civil Procedure > ... > Defenses, Demurrers & Objections > Motions to Dismiss > Failure to State Claim Civil Procedure > Pleading & Practice > Motion Practice > Content & Form HN5[ ] A complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits. Fed. R. Civ. P. 8 does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element. Torts > ... > Federal Tort Claims Act > Exclusions From Liability > Detained Goods & Taxes HN6[ ] 28 U.S.C.S. § 2680(c) which exempts from Federal Tort Claims Act liability any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer. Civil Procedure > Judgments > Preclusion of Judgments > Law of the Case HN7[ ] Under the law-of-the-case doctrine, when a court decides upon a rule of law, that decision should 2009 U.S. Dist. LEXIS 18926, *18926 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 150 of 175 Page 3 of 13 continue to govern the same issues in subsequent stages in the same case. Torts > Public Entity Liability > Immunities > Sovereign Immunity Torts > ... > Liability > Claim Presentation > Content & Form Torts > ... > Liability > Federal Tort Claims Act > Elements HN8[ ] The United States’ waiver of sovereign immunity under 28 U.S.C.S. § 1346(b)(1) of the Federal Tort Claims Act allows plaintiffs to bring claims based on the action of Government employees when private persons engaging in analogous behavior would be liable under state law. However, this waiver of sovereign immunity is subject to several requirements and limitations. One of these limitations is found in 28 U.S.C.S. § 1346(b)(2), which provides that no person convicted of a felony who is incarcerated while awaiting sentencing or while serving a sentence may bring a civil action against the United States or an agency, officer, or employee of the Government, for mental or emotional injury suffered while in custody without a prior showing of physical injury. This section requires a showing of less-than-significant-but-more-than-de minimis physical injury as a predicate to allowing the successful pleading of an emotional injury. Torts > ... > Liability > Claim Presentation > Content & Form HN9[ ] Section 803(d) of the Prison Litigation Reform Act, codified at 42 U.S.C.S. § 1997e(e), predicates a prisoner's claim for mental or emotional injury suffered while in custody on a showing of accompanying physical injury. 42 U.S.C.S. § 1997e(e). Torts > ... > Liability > Federal Tort Claims Act > Elements HN10[ ] The physical injury requirement 28 U.S.C.S. § 1346(b)(1), for a mental or emotional injury suffered while in custody, is not unconstitutional. Torts > ... > Liability > Federal Tort Claims Act > General Overview HN11[ ] Although the Federal Tort Claims Act (FTCA) provides a means for plaintiffs to sue the United States in federal court, the cause of action in an FTCA claim must come from state tort law. Torts > Intentional Torts > Intentional Infliction of Emotional Distress > General Overview Torts > ... > Federal Tort Claims Act > Exclusions From Liability > Intentional Torts HN12[ ] Claims stemming from intentional torts generally are excluded from the Government's waiver of sovereign immunity under 28 U.S.C.S. § 2680(h). Specifically, that section provides that the Federal Tort Claims Act's waiver of sovereign immunity does not apply to any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. 28 U.S.C.S. § 2680(h). Intentional infliction of emotional distress is not listed in § 2680(h), but courts have found such a claim barred by § 2680(h), where the claim "arises out of" or is based on conduct enumerated in that section. Torts > ... > Federal Tort Claims Act > Exclusions From Liability > General Overview HN13[ ] A cause of action which is distinct from one of those excepted under 28 U.S.C.S. § 2680(h) will nevertheless be deemed to "arise out of" an excepted cause of action when the underlying governmental conduct which constitutes an excepted cause of action is "essential" to the plaintiff's claim. Torts > Intentional Torts > Intentional Infliction of Emotional Distress > Elements HN14[ ] Under Pennsylvania law, one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress. The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. Described another way, it has not been enough that the defendant has acted with intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that this 2009 U.S. Dist. LEXIS 18926, *18926 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 151 of 175 Page 4 of 13 conduct has been characterized by malice, or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort. It is for the court to determine in the first instance whether the defendant's conduct may reasonably be regarded as so extreme and outrageous to permit recovery. Torts > ... > Types of Negligence Actions > Negligent Infliction of Emotional Distress > Elements HN15[ ] Under Pennsylvania law, a cause of action for negligent infliction of emotional distress is restricted to four factual scenarios: (1) situations where the defendant had a contractual or fiduciary duty toward the plaintiff; (2) the plaintiff was subjected to a physical impact; (3) the plaintiff was in a zone of danger, thereby reasonably experiencing a fear of impending physical injury; or (4) the plaintiff observed a tortious injury to a close relative. Torts > ... > Types of Negligence Actions > Negligent Infliction of Emotional Distress > Elements HN16[ ] In all cases, a plaintiff who alleges negligent infliction of emotional distress must suffer immediate and substantial physical harm. Torts > Negligence > Elements HN17[ ] To establish a cause of action in negligence, a plaintiff must demonstrate that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, the breach resulted in injury to the plaintiff, and the plaintiff suffered an actual loss or damage. Criminal Law & Procedure > Postconviction Proceedings > Imprisonment Torts > ... > Affirmative Duty to Act > Types of Special Relationships > Government Officials HN18[ ] 18 U.S.C.S. § 4042 provides that the Bureau of Prisons (BOP) will provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States. This language establishes that the BOP has a duty to those in its care. That duty of care is one of ordinary diligence to keep prisoners safe from harm. The United States, however, is not an insurer of the safety of a prisoner. Torts > ... > Affirmative Duty to Act > Types of Special Relationships > Government Officials HN19[ ] In Federal Tort Claims Act suits brought by inmates alleging assaults by other inmates, a breach of the duty of ordinary care usually requires a showing that correctional officials knew of a potential problem between the two inmates prior to the assault. In other words, there must be knowledge on the part of such officers in charge that such injuries will be inflicted, or good reason to anticipate such, and following that, there must be a showing of negligence on the part of these officials in failing to prevent the injury. Torts > ... > Elements > Causation > Causation in Fact Torts > ... > Causation > Proximate Cause > General Overview HN20[ ] The mere existence of negligence and the occurrence of injury are insufficient to impose liability upon anyone as there remains to be proved the link of causation. Even when it is established that the defendant breached some duty of care owed the plaintiff, it is incumbent on a plaintiff to establish a causal connection between defendant's conduct, and it must be shown to have been the proximate cause of plaintiff's injury. Mere "but-for" causation is not enough. Rather, a plaintiff must demonstrate that the defendant's wrongful act was a substantial factor in bringing about the plaintiff's harm. The court must determine whether the injury would have been foreseen by an ordinary person as the natural and probable outcome of the act complained of. Factors for the court to consider in determining whether an actor's conduct is a substantial factor in bringing about harm to another are: (a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it; (b) whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; and (c) lapse of time. 2009 U.S. Dist. LEXIS 18926, *18926 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 152 of 175 Page 5 of 13 Torts > ... > Federal Tort Claims Act > Exclusions From Liability > Discretionary Functions HN21[ ] Under the discretionary function exception exception, the waiver of sovereign immunity under the Federal Tort Claims Act does not apply to any claim based upon an act or omission of an employee of the Government based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government. 28 U.S.C.S. § 2680(a). A two-part inquiry guides the application of the discretionary function exception. First, a court must determine whether the act involves an element of judgment or choice. The requirement of judgment or choice is not satisfied if a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. Second, even if the challenged conduct involves an element of judgment, the court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield. The focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by the statute, but on the nature of the actions taken and on whether they are susceptible to policy analysis. Criminal Law & Procedure > Postconviction Proceedings > Imprisonment Torts > ... > Federal Tort Claims Act > Exclusions From Liability > Discretionary Functions HN22[ ] Federal prisoners’ claims under the Federal Tort Claims Act for injuries by fellow inmates are barred by the discretionary function exception. While prison officials have a statutory duty to provide for the "safekeeping" of inmates, 18 U.S.C.S. § 4042, this statute leaves the implementation of these duties to the discretion of prison officials, and how best to protect one inmate from the threat of attack by another is of the kind that the discretionary function exception was designed to shield. Counsel: [*1] Shemtov Michtavi, Plaintiff, Pro se, White Deer, PA. For United States Of America, Defendant: Melissa Swauger, U.S. Attorney's Office - Prisoner Litigation, Harrisburg, PA. Judges: Judge Jones. Magistrate Judge Blewitt. Opinion MEMORANDUM This matter is before the Court on the Report and Recommendation of Magistrate Judge Thomas M. Blewitt (Doc. 62) which recommends that the Motion to Dismiss (Doc. 54) of the defendant United States be granted and plaintiff Shemtov Michtavi's Second Amended Complaint be dismissed. Michtavi has filed objections to the Report and Recommendation (Doc. 65), to which the United States filed an opposition (Doc. 66). For the reasons set forth below, the Court will adopt the Magistrate Judge's recommendation, and, although for slightly different reasons, will dismiss Michtavi's complaint. I. STANDARDS OF REVIEW A. Objections to Magistrate Judge's Report HN1[ ] When, as here, objections are filed to the report of a magistrate judge, the district court makes a de novo determination of those portions of the report or the proposed findings or recommendations to which objections are made. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980). Under this standard, a court [*2] may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id. Although the standard of review is de novo, 28 U.S.C. § 636(b)(1) permits whatever reliance the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423 U.S. 261, 275, 96 S. Ct. 549, 46 L. Ed. 2d 483 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984). B. Motion to Dismiss The United States moves to dismiss the complaint under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). HN2[ ] When considering a motion to dismiss under Rule 12(b)(1), a court must distinguish between facial and factual challenges to its subject matter jurisdiction. See Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A facial attack challenges whether the plaintiff has properly pled jurisdiction. Id. "In reviewing a facial attack, the court must only consider 2009 U.S. Dist. LEXIS 18926, *18926 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 153 of 175 Page 6 of 13 the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen, 549 F.2d at 891). [*3] A factual attack, in contrast, challenges jurisdiction based on facts apart from the pleadings. Mortensen, 549 F.2d at 891. "When a defendant attacks subject matter jurisdiction 'in fact,' … the Court is free to weigh the evidence and satisfy itself whether it has power to hear the case. In such a situation, 'no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.'" Carpet Group Int'l v. Oriental Rug Importers Ass'n, 227 F.3d 62, 69 (3d Cir. 2000) (quoting Mortensen, 549 F.2d at 891). In this case, the United States' assertion that the Court lacks subject matter jurisdiction over certain of Michtavi's claims raises a factual challenge. HN3[ ] In considering a motion to dismiss pursuant to Rule 12(b)(6), courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). HN4[ ] A [*4] Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief, "in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1964, 167 L. Ed. 2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1965. A plaintiff must make "a 'showing' rather than a blanket assertion of an entitlement to relief", and "without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only 'fair notice,' but also the 'grounds' on which the claim rests." Phillips, 515 F.3d at 232 (citing Twombly, 127 S. Ct. at 1965 n. 3). "[A] complaint must allege facts suggestive of [the [*5] proscribed] conduct, and the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 127 S. Ct. at 1965, 1969 n.8. Therefore, "stating a claim requires a complaint with enough factual matter (taken as true) to suggest the required element." Phillips, 515 F.3d at 234 (quoting Twombly, 127 S. Ct. at 1965 n. 3). On the other hand, HN5[ ] "a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Id. at 231 (citing Twombly, 127 S. Ct. at 1964-65, 1969 n.8). Rule 8 "does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 234. II. BACKGROUND The factual background and procedural history of this action are comprehensively set forth in the Report and Recommendation and the Court's earlier opinions in this case, and because the Court writes only for the parties, we set forth below, in accordance with the above standards of review, only the background necessary to the disposition of the present motion to dismiss. The [*6] sole claim asserted in this action is Michtavi's claim against the United States under the Federal Tort Claims Act ("FTCA") as stated in his Second Amended Complaint. The essential allegations of Michtavi's complaint are that the United States, through its employees in the BOP, failed to prevent the loss of property and depression sustained as a result of fellow inmates' attempts to con him. Specifically, Michtavi, an inmate at the Allenwood Low Security Correctional Institution, alleges that two inmates conspired to steal his legal papers "so they could formulate a false crime allegedly to be committed by " Michtavi, and then offer to testify against Michtavi in exchange for a reduction in their sentences. (Doc. 52 at P 12.) However, one of the inmates "had a change of heart" and revealed the plan to Michtavi, who informed prison officials of the scheme. (Id.) The inmate who stole Michtavi's legal papers was placed in the SHU, and a few months later, the other inmate who had informed Michtavi of the scheme was transferred to another facility. (Id. at P 13.) Michtavi asserts, however, that he quickly fell prey to another scheme. He alleges yet another inmate informed him that the inmate's [*7] mother could help Michtavi fight his criminal conviction if Michtavi sent her 2009 U.S. Dist. LEXIS 18926, *2 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 154 of 175 Page 7 of 13 money to pay for an inexpensive attorney. (Id. at P 14.) Michtavi states that he "fell for this scam" and had his family send money to the inmate's mother. (Id. at P 15.) He also alleges that this inmate too planned to steal his legal papers "in order to fabricate false criminal activity, and then 'play hero' by exposing the same to the U.S. Attorney's office and to the Federal Bureau of Investigation (FBI) in exchange for a reduction in this inmate's own sentence." 1 (Id.) Michtavi learned of this inmate's schemes through another prisoner, and informed prison officials. (Id. at PP 16-18.) Michtavi alleges that in response prison officials did not institute an investigation but rather accused him of wrongdoing. (Id. at P 18.) Nevertheless, Michtavi concedes that prison officials conducted a search of the inmate's cell, confiscated Michtavi's legal papers from the inmate, and returned them to Michtavi. (Id. at P 19.) Michtavi asserts, however, that the mere fact that his papers made it into the inmate's cell demonstrates "some kind of either funny business or just plain incompetence" on the part of prison [*8] officials, and alleges that certain officials were conspiring to violate his constitutional rights. (Id. at PP 19-20.) Separately, Michtavi alleges without elaboration that certain prison officials violated his Eighth Amendment right against the infliction of cruel and unusual punishment. (Id. at P 21.) Michtavi alleges that "[t]he employees of Defendant United States intentionally inflicted and negligently inflicted emotional distress upon [him] to such a degree that [he] has been required to take the prescription medication 'Prozac' on a daily basis to treat these harms inflicted by Defendant United States' employees." (Id. at P 22.) Similarly, Michtavi alleges that "the employees of Defendant United States inflicted actual harm, inflicted pain and suffering and inflicted mental and emotional distress to such a degree that [he] still must to this very day take dosages of the prescription medication 'Prozac.'" (Id. at P 23.) As relief, Michtavi requests an order prohibiting the retaliation against him, compensatory damages, and punitive damages. (See id. at PP 24-26.) III. [*9] DISCUSSION A. Property Claims The Magistrate Judge found that, to the extent 1 Michtavi never identifies the criminal offense so many other inmates thought they could frame him for using his "legal papers." Michtavi's FTCA claim is based on the loss of property, the Court lacks jurisdiction over such a claim under HN6[ ] 28 U.S.C. § 2680(c) which exempts from FTCA liability "[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer." (Doc. 62 at 16-19.) See Gibson v. Sadowski, 308 Fed. Appx. 580, 2009 U.S. App. LEXIS 1813, 2009 WL 205632, at *1 (3d Cir. Jan. 29, 2009). Michtavi concedes that the United States has not waived sovereign immunity for his property claims. (Doc. 65 at 6.) Therefore, any such claims will be dismissed for lack of subject matter jurisdiction. B. Punitive Damages The Magistrate Judge found (Doc. 62 at 12), and Michtavi concedes (Doc. 59 at 7), that punitive damages are not recoverable under the FTCA. See 28 U.S.C. § 2674 ("The United States … shall not be liable … for punitive damages."). Therefore, Michtavi's request for punitive damages will be stricken. C. Eighth Amendment and Conspiracy Claims As noted above, in his second amended complaint, Michtavi states that prison officials [*10] conspired to violate his constitutional rights and violated his Eighth Amendment rights, but does not assert separate Eighth Amendment or constitutional conspiracy claims. (See Doc. 52 PP 8, 21-23.) The Magistrate Judge construed the second amended complaint as asserting Eighth Amendment and conspiracy claims, and correctly noted that such claims were previously dismissed by the Court. (Doc. 62 at 11, 12-15.) In his objections to the report and recommendation, Michtavi argues that he is not re-asserting his constitutional claims but includes these assertions as factual background to his FTCA claim. (Doc. 65 at 6.) To this extent, their inclusion in the second amended complaint is entirely proper. However, Michtavi also professes some confusion about the status of his Eighth Amendment and conspiracy claim, argues that the dismissal of such claims was error, and further argues that he should be allowed to re-assert such claims in a "parallel" amended complaint. To the extent Michtavi means to seek reconsideration of the Court's dismissal of his constitutional claims, he has not set forth any sufficient basis for reconsideration. See Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) [*11] (holding reconsideration may granted only upon 2009 U.S. Dist. LEXIS 18926, *7 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 155 of 175 Page 8 of 13 showing of an intervening change in the controlling law; the availability of new evidence that was not previously available; or the need to correct a clear error of law or fact or to prevent manifest injustice). To the extent Michtavi is confused as to the status of his Eighth Amendment and conspiracy claims, the Court will clarify: these claims were dismissed because, even assuming that his factual allegations were true, those facts were not sufficient to establish a violation of the Eighth Amendment prohibition against cruel and unusual punishment or a conspiracy to violate his constitutional rights. (See Doc. 20 at 11-15, 20-22.) Because the facts asserted by Mitchavi do not establish an Eighth Amendment or conspiracy claim, he is precluded from re-asserting the same claims based on those facts. See ACLU v. Mukasey, 534 F.3d 181, 187 (3d Cir. 2008) (HN7[ ] "Under the law-of-the-case doctrine, when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case."). [*12] To the extent Michtavi wishes to argue that the Court's dismissal of his claims was in error, he may do so on appeal. D. FTCA Claim 1. Physical Injury HN8[ ] The United States' waiver of sovereign immunity under 28 U.S.C. § 1346(b)(1) of the FTCA "allows plaintiffs to bring claims based on the action of Government employees when private persons engaging in analogous behavior would be liable under state law." CNA v. United States, 535 F.3d 132, 138 (3d Cir. 2008). However, this waiver of sovereign immunity is subject to several requirements and limitations. See id. One of these limitations is found in § 1346(b)(2), which provides: No person convicted of a felony who is incarcerated while awaiting sentencing or while serving a sentence may bring a civil action against the United States or an agency, officer, or employee of the Government, for mental or emotional injury suffered while in custody without a prior showing of physical injury. 28 U.S.C. § 1346(b)(2). 2 This section requires a 2 Similarly, HN9[ ] Section 803(d) [*13] of the Prison Litigation Reform Act, codified at 42 U.S.C. § 1997e(e), also predicates a prisoner's claim for mental or emotional injury suffered while in custody on a showing of accompanying showing of less-than-significant-but-more-than-de minimis physical injury as a predicate to allowing the successful pleading of an emotional injury. Mitchell v. Horn, 318 F.3d 523, 536 (3d Cir. 2003). The Magistrate Judge found that Michtavi had made a sufficient showing of prior physical injury based on his allegation of "some unstated severe mental impairment requiring Prozac. " (Doc. 62 at 20.) The Court disagrees with this conclusion and holds that Michtavi has not alleged any prior physical injury that would allow him to recover damages for his alleged mental or emotional injuries. Michtavi does not assert that either the inmates who allegedly plotted against him or the prison officials who [*14] allegedly failed to prevent such schemes physically harmed him in any way. He alleges that the inmates stole his legal papers, attempted to frame him, and conned him out of money. He alleges that the prison officials were complicit or negligent in allowing these wrongdoings to occur and failed to adequately investigate. As a result these non-physical acts, Michtavi alleges only mental or emotional injury. He asserts that prison officials "inflicted emotional distress" upon him, "inflicted pain and suffering and inflicted mental and emotional distress" such that he must take Prozac. (Doc. 52 at PP 22-23.) These are explicitly allegations of non-physical injury. In fact, in his brief in opposition to the United States' motion to dismiss, Michtavi implicitly concedes that he cannot meet the requirement of § 1346(b)(2) by arguing, not that he has sustained any physical injury, but that § 1346(b)(2) is unconstitutional. 3 (Doc. 59 at 5.) The fact that Michtavi's mental condition is treated with medication does not mean these emotional problems are physical injury. Prozac, the medication which physical injury. See 42 U.S.C. § 1997e(e) ("No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury."). Given the similarities between § 1346(b)(2) and § 1997e(e), and given that the PLRA also applies to Michtavi's claims, the Court will rely upon cases interpreting either statute. See Perez v. United States, 271 Fed. Appx. 240, 242 (3d Cir. 2008). 3 The Third Circuit has suggested, and other courts have found, that HN10[ ] the physical injury requirement is not unconstitutional. See Allah v. Al-Hafeez, 226 F.3d 247, 252 n.5 (3d Cir. 2000); see also Thompson v. Carter, 284 F.3d 411, 418-19 (2d Cir. 2002) (collecting [*15] cases). 2009 U.S. Dist. LEXIS 18926, *11 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 156 of 175 Page 9 of 13 Michtavi complains he is required to take, is a psychotropic drug used to treat mental conditions such as depression, obsessive compulsive disorder, bulimia nervosa, panic disorder, and premenstrual dysphoric disorder by selectively preventing serotonin reuptake. 4 But the fact that Michtavi physically takes medication, or that the medication works on his physical body, does not mean that the medication is treating physical injury. The depression and stress of which Michtavi complains are precisely the types of mental and emotional injuries which § 1346(b)(2) precludes as the basis for an FTCA claim without a showing of prior physical injury. See, e.g. Brooks v. Smith, C.A. 3:04-CV-2680, 2007 U.S. Dist. LEXIS 82371, 2007 WL 3275266, at *2 (M.D. Pa. Nov. 6, 2007) (holding that prisoner suffered headaches from the stress of his confinement did not meet physical injury requirement; collecting cases); Smith v. Carroll, C.A. No. 05-139, 2006 U.S. Dist. LEXIS 30316, 2006 WL 1338825, at *2 (D. Del. May 16, 2006) (holding prisoner's claims seeking damages for stress, depression and mental [*16] illness and compensation for pain and suffering barred by physical injury requirement); Cloud v. Goldberg, C.A. No. 98-4250, 2000 U.S. Dist. LEXIS 1295, 2000 WL 157159, at *5 (E.D. Pa. Feb. 14, 2000) (holding that prisoner's allegation that failure to treat his medical condition resulted in "depression, insomnia, and just being in a scary frame of mind" did not satisfy physical injury requirement). Michtavi has made no allegation whatsoever of physical injury, and therefore, his FTCA claim must be dismissed. 2. Intentional Infliction of Emotional Distress Even assuming that Michtavi met the physical injury requirement of § 1346(b)(2), he has not stated an FTCA claim. HN11[ ] Although the FTCA provides a means for plaintiffs to sue the United States [*17] in federal court, "[t]he cause of action in an FTCA claim … must come from state tort law." CNA, 535 F.3d at 141 (citing FDIC v. Meyer, 510 U.S. 471, 478, 114 S. Ct. 996, 127 4 See Prescribing Information, Prozac Label, 2006, available at U.S. Food & Drug Admin., http://www.fda.gov/cder/foi/label/2006/018936s076lbl.pdf; National Institute of Mental Health, "Medications", at 16, 20, available at http://www.nimh.nih.gov/health/publications/medications/medic ations.pdf; Stedmans Medical Dictionary, "fluoxetine hydrochloride" (27th ed. 2000); Mayo Clinic, "Fluoxetine (Oral Route)", available at http://www.mayoclinic.com/health/drug- information/DR600689. L. Ed. 2d 308 (1994)). Michtavi asserts two potential state-law causes of action: intentional infliction of emotional distress and negligent infliction of emotional distress. Michtavi has failed to state a claim under either theory. First, as to Michtavi's intentional infliction of emotional distress claim, the Magistrate Judge found that this claim is barred by the intentional tort exception to the FTCA found in 28 U.S.C. § 2680(h). (Doc. 62 at 11.) The Court disagrees. 5 HN12[ ] "Claims stemming from intentional torts generally are excluded from the Government's waiver of sovereign immunity under 28 U.S.C. § 2680(h)." Id. at 148. Specifically, that section provides that the FTCA's waiver of sovereign immunity does not apply to "[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." 28 U.S.C. § 2680(h). Intentional infliction of emotional distress is not listed in § 2680(h), but courts have found such a claim [*18] barred by § 2680(h), where the claim "arises out of" or is based on conduct enumerated in that section. See, e.g., Gay v. Garvey, C.A. No. 03-CV-01485, 2004 U.S. Dist. LEXIS 20058, 2004 WL 2203730, at *1 n.3 (E.D. Pa. Sept. 30, 2004); Borawski v. Henderson, 265 F. Supp. 2d 475, 484 (D.N.J. 2003); Prybyszewski v. City of Philadelphia, C.A. No. 89-7024, 1990 U.S. Dist. LEXIS 354, 1990 WL 2800, at *3 (E.D. Pa. Jan. 16, 1990); see also Gonzalez- Jiminez De Ruiz v. United States, 378 F.3d 1229, 1231 n.3 (11th Cir. 2004) (stating "if the plaintiffs' allegations of deceit are essential to their intentional infliction of emotional distress claim, we lack jurisdiction under the FTCA to entertain that claim"); Aversa v. United States, 99 F.3d 1200, 1207 (1st Cir. 1996) ("We agree with the district court … that the claim[] for intentional infliction of emotional distress … through 'verbal abuse and slander' also 'arose out of' slander within the meaning of 28 U.S.C. § 2680(h)."); Metz v. United States, 788 F.2d 1528, 1534 (11th Cir.), cert. denied, 479 U.S. 930, 107 S. Ct. 400, 93 L. Ed. 2d 353 (1986) (holding HN13[ ] "a cause of action which is distinct from one of those 5 The Court does agree that if Michtavi's claim falls within the scope of § 2680(h), it is not saved by the exception for intentional torts committed by an "investigative or law enforcement officer." As the Magistrate Judge correctly notes, this exception applies only to the torts of such officers committed during searches, seizures, and arrests. See Pooler v. United States, 787 F.2d 868, 872 (3d Cir. 1986). No such conduct is at issue in this case. 2009 U.S. Dist. LEXIS 18926, *15 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 157 of 175 Page 10 of 13 excepted under § 2680(h) will nevertheless be deemed to 'arise out of' an excepted cause of action when the underlying [*19] governmental conduct which constitutes an excepted cause of action is 'essential' to plaintiff's claim"). Michtavi attempts to characterize his claim as a battery, but this analogy is plainly inapt. See C.C.H. v. Philadelphia Phillies, Inc., 596 Pa. 23, 940 A.2d 336, 340 n.4 (Pa. 2008) ("A battery is defined as a harmful or offensive contact with the person of another."). Although the actions of the inmates who allegedly took advantage of Michtavi constitute misrepresentation or deceit, the actions of the prison officials are not analogous to any of the tort theories enumerated in § 2680(h). Michtavi alleges that officials failed to prevent harm to him and failed to properly investigate afterwards. These are allegations of negligence, and therefore, Michtavi's [*20] intentional infliction of emotional distress claim is not barred by § 2680(h). 6 Michtavi, however, has failed to establish the required elements of an intentional infliction of emotional distress claim. HN14[ ] Under Pennsylvania law, "[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress." 7 Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745, 753 (Pa. 1998) (quoting Restatement (Second) of Torts §46(1) (1965)). 6 It is, of course, somewhat paradoxical to find that a plaintiff's intentional tort claim is not barred because it is based on negligent conduct, but the government employee's lack of intent goes to whether the plaintiff has made out the elements of the claim, as defined by state law, not whether the claim is barred by § 2680(h). 7 The Pennsylvania Supreme Court has not expressly recognized a cause of action for intentional infliction of emotional distress, but has consistently held that, if this cause of action were recognized, the Restatement would set forth the minimum elements necessary to state such a claim. See Taylor v. Albert Einstein Med. Ctr., 562 Pa. 176, 754 A.2d 650, 652 (Pa. 2000); Hoy, 720 A.2d at 753 n.10; Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988, 989 (Pa. 1987); but see Kazatsky, 527 A.2d at 995 (Larsen, J. concurring) ("To paraphrase Shakespeare -- the majority doth protest too much, methinks. To measure appellants' cause of action according to the standards set forth in section 46 of the Restatement (Second) of Torts and to purport to establish what evidence is required [*22] to prove an injury pursuant to section 46 is to adopt section 46 in this jurisdiction, in spite of what the majority states to the contrary."). "The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. Described another way, it has not been enough that the defendant has acted with intent which is tortious or even criminal, or that he has intended to inflict emotional [*21] distress, or even that this conduct has been characterized by malice, or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort." Id. at 754 (citations omitted). "[I]t is for the court to determine in the first instance whether the defendant's conduct may reasonably be regarded as so extreme and outrageous to permit recovery." Johnson v. Caparelli, 425 Pa. Super. 404, 625 A.2d 668, 671-72 (Pa. Super. Ct. 1993). In this case, Michtavi has not stated these required elements. First, Michtavi does not allege that any government employee acted intentionally. The closest he comes to doing so is the allegation, based solely on the fact that another inmate was able to steal his legal papers, that prison officials were engaged in "some kind of funny business." As discussed above, Michtavi's claims sound only in negligence. Moreover, Michtavi has not alleged anything close to the extreme and outrageous conduct that would give rise to a claim for intentional infliction of emotional distress. Michtavi's allegations that prison officials made him depressed by failing to prevent other inmates from attempting, unsuccessfully, to frame him and from conning him out of money do not rise to the level of the few types of conduct Pennsylvania courts have found to provide the basis for a claim for intentional infliction of emotional distress. See, e.g., Hoy, 720 A.2d at 754 (collecting cases); Johnson, 625 A.2d at 672 (priest's sexual abuse of alter boy); Field v. Philadelphia Elec. Co., 388 Pa. Super. 400, 565 A.2d 1170, 1183-84 (Pa. Super. Ct. 1989) [*23] (defendant deliberately vented highly radioactive steam on plaintiff and attempted to conceal overexposure to radiation). Michtavi has not stated a claim for intentional infliction of emotional distress. 3. Negligent Infliction of Emotional Distress Michtavi has also failed to state a claim for negligent infliction of emotional distress. HN15[ ] Under Pennsylvania law, "the cause of action for negligent infliction of emotional distress is restricted to four factual scenarios: (1) situations where the defendant had a contractual or fiduciary duty toward the plaintiff; (2) the plaintiff was subjected to a physical impact; (3) the plaintiff was in a zone of danger, thereby reasonably 2009 U.S. Dist. LEXIS 18926, *18 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 158 of 175 Page 11 of 13 experiencing a fear of impending physical injury; or (4) the plaintiff observed a tortious injury to a close relative." Toney v. Chester County Hosp., 2008 PA Super 268, 961 A.2d 192, 197-98 (Pa. Super. Ct. 2008) (citing Doe v. Philadelphia Cmty. Health Alternatives AIDS Task Force, 2000 PA Super 6, 745 A.2d 25, 26 (Pa. Super. Ct. 2000), aff'd, 564 Pa. 264, 767 A.2d 548 (Pa. 2001). Michtavi's allegations in this case do not fit into of any these scenarios, and therefore, he has failed to state a negligent infliction of emotional distress claim. Moreover, regardless [*24] of the factual scenario under which such a claim proceeds, HN16[ ] "[i]n all cases, a Plaintiff who alleges negligent infliction of emotional distress must suffer immediate and substantial physical harm." Doe, 745 A.2d at 28 (emphasis in original); see also Redland Soccer Club, Inc. v. Dep't of the Army, 55 F.3d 827, 848 (3d Cir. 1995). As discussed above, Michtavi does not allege that he suffered any physical injury, let alone an immediate and substantial one. For this additional reason, his negligent infliction of emotional distress claim must be dismissed. 4. Negligence As noted above, Michtavi's claims proceed essentially on a negligence theory. Therefore, although the parties and the Magistrate Judge did not address a separate negligence claim, the Court will liberally construe Michtavi's complaint as containing such a cause of action. Michtavi has also failed to state a negligence claim, however. 8 HN17[ ] "To establish a cause of action in negligence, the plaintiff must demonstrate that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, the breach resulted in injury to the plaintiff, and the plaintiff suffered an actual loss or damage." Martin v. Evans, 551 Pa. 496, 711 A.2d 458, 461 (Pa. 1998). As to the first element, HN18[ ] 18 U.S.C. § 4042 provides that the Bureau of Prisons will "provide suitable 8 The parties and the Magistrate Judge did address the elements of negligence in conjunction with Michtavi's negligent infliction of emotional distress claim, and the Court agrees with the Magistrate Judge's conclusion that that claim must be dismissed because Michtavi's allegations do not establish [*25] the elements of negligence. (Doc. 62 at 22-29.) See Brezenski v. World Truck Transfer, Inc., 2000 PA Super 175, 755 A.2d 36, 45 (Pa. Super. Ct. 2000) (holding that "absent a finding of negligence, the negligent infliction of emotional distress claim cannot survive"). quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States." As the United States concedes, this language establishes that the BOP has a duty to those in its care. See Garcia v. McArdle, C.A. No. 4:06-CV-1533, 2008 U.S. Dist. LEXIS 73755, 2008 WL 4415590, at * 13 (M.D. Pa. Sept. 25, 2008). That duty of care is one of ordinary diligence to keep prisoners safe from harm. Banks v. Roberts, C.A. No. 1:06-CV-1232, 2007 U.S. Dist. LEXIS 39658, 2007 WL 1574771, at *9 (M.D. Pa. May 31, 2007) (citing Turner v. Miller, 679 F. Supp. 441, 443 (M.D. Pa. 1987)). [*26] "The United States, however, is 'not an insurer of the safety of a prisoner.'" Belcher v. United States, C.A. No. 4:03-CV-1252, 2007 U.S. Dist. LEXIS 53850, 2007 WL 2155696, at *3 (M.D. Pa. July 25, 2007) (quoting Hossic v. United States, 682 F. Supp. 23, 25 (M.D. Pa. 1987)); see also Miller, 679 F. Supp. at 443 ("It is unreasonable to expect that the authorities can make a penitentiary a risk-free institution."). As to the second element, Michtavi makes no allegations upon which it could be found that prison officials "deviated from the general standard of care expected under the circumstances." Martin, 711 A.2d at 461. HN19[ ] "In FTCA suits brought by inmates alleging assaults by other inmates, a breach of the duty of ordinary care usually requires a showing that correctional officials knew of a potential problem between the two inmates prior to the assault. In other words, there must be knowledge on the part of such officers in charge that such injuries will be inflicted, or good reason to anticipate such, and following that, there must be a showing of negligence on the part of these officials in failing to prevent the injury." Macias v. United States, C.A. No. 05-1445, 2006 U.S. Dist. LEXIS 46652, 2006 WL 1843111, at *2 (D.N.J. June 30, 2006) [*27] (citations omitted); see also Miller, 679 F. Supp. at 443 (stating "the duty imposed upon a jailer vis a vis his prisoner is 'to exercise reasonable care and diligence to protect the prisoner from danger, known to or which might reasonably be apprehended by him"); Hossic, 682 F. Supp. at 25 (same). Michtavi does not allege that prison officials had any knowledge or reason to anticipate the actions of the other inmates at issue or that prison authorities had any reasonable opportunity to prevent such harm. Michtavi simply makes the conclusory allegation that "it is inconceivable" that other inmates took advantage of him without the complicity or incompetence of prison staff. In addition, despite his equally unsupported and conclusory allegation of a "cover-up", the complaint itself makes clear that prison officials responded to these incidents by investigating, 2009 U.S. Dist. LEXIS 18926, *23 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 159 of 175 Page 12 of 13 disciplining the offending inmates, and retrieving Michtavi's property. The allegations of the complaint do not demonstrate any breach of duty by prison officials. As to the third element, even assuming a breach of duty by prison officials, Michtavi has failed to sufficiently allege that such a breach "proximately caused actual [*28] harm." Martin, 711 A.2d at 461. "It is beyond question that HN20[ ] the mere existence of negligence and the occurrence of injury are insufficient to impose liability upon anyone as there remains to be proved the link of causation…. [E]ven when it is established that the defendant breached some duty of care owed the plaintiff, it is incumbent on a plaintiff to establish a causal connection between defendant's conduct, and it must be shown to have been the proximate cause of plaintiff's injury." Lux v. Gerald E. Ort Trucking, Inc., 2005 PA Super 400, 887 A.2d 1281, 1286 (Pa. Super. Ct. 2005) (citation omitted). Mere "but- for" causation is not enough. See Mahon v. W.C.A.B. (Expert Window Cleaning & State Workers' Ins. Fund), 835 A.2d 420, 428 (Pa. Commw. Ct. 2003). Rather, a plaintiff must demonstrate that the defendant's wrongful act "was a substantial factor in bringing about the plaintiff's harm." Lux, 887 A.2d at 1286. "[T]he court must determine whether the injury would have been foreseen by an ordinary person as the natural and probable outcome of the act complained of." Id. at 1287. Factors for the court to consider in determining whether an actor's conduct is a substantial factor in bringing about harm [*29] to another are: "(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it; (b) whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; and (c) lapse of time." Id. at 1287. The allegations of the complaint do not demonstrate that the actions or inactions of prison officials were a substantial factor in bringing about Michtavi's depression. Rather, it is clear that the most significant factors in bringing about Michtavi's purported emotional distress were the actions of the other inmates. Undoubtedly, another significant factor in producing such harm is the 240-month federal sentence Michtavi is currently serving. See United States v. Michtavi, 225 Fed. Appx. 857 (11th Cir.), cert. denied., 128 S. Ct. 340, 169 L. Ed. 2d 239 (2007). The wrongful acts of prison officials, if any, are much less significant than these factors, and Michtavi's purported injuries could not have been foreseen as the natural and probable outcome of such actions. Because [*30] the allegations of the complaint do not establish breach or causation, Michtavi has failed to state a negligence claim. 5. Discretionary Function Exception Although the issue was unaddressed by the parties or the Magistrate Judge, the Court finds that Michtavi's FTCA claim must be dismissed for the additional reason that it is barred by the discretionary function exception, another of the limitations on the United States' waiver of sovereign immunity. HN21[ ] Under that exception, the FTCA's waiver of sovereign immunity does not apply to "[a]ny claim based upon an act or omission of an employee of the Government … based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government." 28 U.S.C. § 2680(a). A two-part inquiry guides the application of the discretionary function exception: First, a court must determine whether the act involves an element of judgment or choice. The requirement of judgment or choice is not satisfied if a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. Second, even if the challenged conduct involves an [*31] element of judgment, the court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield. The focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by the statute, but on the nature of the actions taken and on whether they are susceptible to policy analysis. Mitchell v. United States, 225 F.3d 361, 363-64 (3d Cir. 2000) (citations and internal punctuation omitted). Courts within this circuit and others have uniformly held that HN22[ ] federal prisoners' FTCA claims for injuries by fellow inmates are barred by the discretionary function exception. See, e.g., Donaldson v. United States, 281 Fed. Appx. 75, 76-78 (3d Cir. 2008); Castillo v. United States, 166 Fed. Appx. 587, 589 (3d Cir. 2006); Baker v. United States, C.A. No. 05-147, 2006 U.S. Dist. LEXIS 90390, 2006 WL 3717382, at *6 (W.D. Pa. Dec. 14, 2006); Macias, 2006 WL 1843111, at *3-4; Redmond v. United States, C.A. No. 4:04-CV-231, 2006 U.S. Dist. LEXIS 16096, 2006 WL 709347, at *3-4 (M.D. 2009 U.S. Dist. LEXIS 18926, *27 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 160 of 175 Page 13 of 13 Pa. Mar. 20, 2006); Graham v. United States, C.A. No. 97-1590, 2002 U.S. Dist. LEXIS 1765, 2002 WL 188573, at *4 (E.D. Pa. Feb. 5, 2002). While prison officials have a statutory duty to provide for the "safekeeping" of inmates, 18 U.S.C. § 4042, [*32] this statute leaves the implementation of these duties to the discretion of prison officials, and "how best to protect one inmate from the threat of attack by another is of the kind that the discretionary function exception was designed to shield." Donaldson, 281 Fed. Appx. at 77. Because it is barred by the discretionary function exception, Michtavi's FTCA claim must be dismissed for lack of subject matter jurisdiction IV. CONCLUSION For the foregoing reasons, the Court will adopt the Magistrate Judge's recommendation that Michtavi's second amended complaint be dismissed. Because the essential allegations of the complaint fail to state a claim upon which relief can be granted, and because Michtavi has already been given multiple opportunities at amendment, further amendment would be futile, and therefore, dismissal will be with prejudice. An appropriate order will be entered. End of Document 2009 U.S. Dist. LEXIS 18926, *31 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 161 of 175 Positive As of: April 3, 2017 4:51 PM Z Wilson v. Parisi United States District Court for the Middle District of Pennsylvania February 7, 2006, Decided ; February 7, 2006, Filed 3:CV-04-1737 Reporter 2006 U.S. Dist. LEXIS 95952 * ALMUS WILSON, MARILYN WILSON, CHARMAINE COOPER, MARCO YAGUAL, MARIA YAGUAL, NATALIE WILSON, and RAYON MCLEAN, Plaintiffs v. STEVE PARISI, et al., Defendants Subsequent History: Motions ruled upon by, Claim dismissed by Wilson v. Parisi, 2007 U.S. Dist. LEXIS 21109 (M.D. Pa., Mar. 26, 2007) Core Terms claim for relief, Mortgage, lender, motion to dismiss, services, set forth, purchasers, advertisement, financing, Defendants', practices, conspiracy, Appraisal, damages, unfair, settlement, consumers, provisions, entities, notice, pattern of racketeering activity, mortgage broker, deceptive acts, homeowner, particularity, residential, Developers, fraudulent, lending, plaintiff's claim Counsel: [*1] For Almus Wilson, Marilyn Wilson, Charmaine Cooper, Marco Yagual, Maria Yagual, Natalie Wilson, Rayon McLean, Plaintiffs: John P. O'Boyle, LEAD ATTORNEY, Scranton, PA; Stewart I. Rosenblum, LEAD ATTORNEY, East Stroudsburg, PA. For Steve Parisi, Donald Kishbaugh, P & K Developers, LLC, Eagle Valley Homes, Inc., Eagle Valley Homes North Incorporated, Mobile Developing Company, Nations First Mortgage Company, Eagle Mountain Mortgage Company, Kishbaugh and Parisi, d/b/a P & K Developers, P & K Developers, Inc., Nations 1st Mortgage Co., LLC, Nations 1st Mortgage Company, Incorporated, Nations 1st Mortgage Brokers Corp., Defendants: Marshall E Anders, LEAD ATTORNEY, ANDERS & MASINGTON, L.L.C., Stroudsburg, PA; Jeffrey G. Velander, The Velander Law Office, Stroudsburg, PA. For Lisa Marie's Appraisal Service, Inc., Lisa Marie Gibson, Defendants: David Walter Skutnik, Stroudsburg, PA. For New Century Mortgage Corporation, Defendant: Andrew J. Soven, Elizabeth C. F. Abrams, LEAD ATTORNEYS, Reed Smith LLP, Philadelphia, PA; Harold J. Engel, LEAD ATTORNEY, Reed Smith LLP, Washington, DC; Louis W. Schack, LEAD ATTORNEY, Reed Smith Shaw & McClay, Philadelphia, PA. For Ocwen Federal [*2] Bank, Defendant: Andrew J. Soven, Elizabeth C. F. Abrams, LEAD ATTORNEYS, Reed Smith LLP, Philadelphia, PA; Harold J. Engel, LEAD ATTORNEY, Reed Smith LLP, Washington, DC; Louis W. Schack, LEAD ATTORNEY, Reed Smith Shaw & McClay, Philadelphia, PA; Martin L. Legg, Richard E. Bennett, LEAD ATTORNEYS, Michienzie & Sawin LLC, Boston, Ma; Paul Michienzie, LEAD ATTORNEY, Michienzie & Lawin LLC, Boston, Ma. For Firststar Bank, N.A., Successor-In-Intrest to Firststar Bank Milwaukee, N.A., As Trustee for Salomon Brothers Mortgage, Defendant: Andrew J. Soven, Elizabeth C. F. Abrams, LEAD ATTORNEYS, Reed Smith LLP, Philadelphia, PA; Louis W. Schack, LEAD ATTORNEY, Reed Smith Shaw & McClay, Philadelphia, PA; Martin L. Legg, LEAD ATTORNEY, Michienzie & Sawin LLC, Boston, Ma; Paul Michienzie, LEAD ATTORNEY, Michienzie & Lawin LLC, Boston, Ma. For Bankers First Mortgage, Inc., Defendant: James J. Kutz, LEAD ATTORNEY, Barbara A. Zemlock, Post & Schell, P.C., Harrisburg, PA. For Jenny Centrella, Defendant: John J. Hatzell, Jr., LEAD ATTORNEY, Law Offices of Lawrence P. Engrissel, Philadelphia, PA. For Keystone Financial Mortgage, Defendant: Paul D. Weiner, Buchanan Ingersoll PC, [*3] Philadelphia, PA; Stephen Moniak, Buchanan Ingersoll & Rooney PC, Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 162 of 175 Page 2 of 14 Harrisburg, PA. For Bank of America Mortgage, Defendant: Paul J. Giordano, Paul J. Giordano, P.C., Philadelphia, PA. For Irwin Mortgage Corporation, d/b/a IFC Mortgage Corp., Defendant: Sal Cognetti, Jr., Foley, Cognetti & Comerford, Scranton, PA. For Indymac Bank, F.S.B., Defendant: Andrew J. Soven, Elizabeth C. F. Abrams, LEAD ATTORNEYS, Reed Smith LLP, Philadelphia, PA; Conrad O. Kattner, Frederick A. Tecce, LEAD ATTORNEYS, McShea Tecce, P.C., Philadelphia, PA. For Bank One, N.A., Defendant: Daniel T. Brier, Lori R. Gramley, Myers Brier & Kelly, LLP, Scranton, PA. For Steve Parisi, Donald Kishbaugh, P & K Developers, LLC, Eagle Valley Homes, Inc., Eagle Valley Homes North Incorporated, Mobile Developing Company, Nations First Mortgage Company, Eagle Mountain Mortgage Company, Kishbaugh and Parisi, d/b/a P & K Developers, P & K Developers, Inc., Nations 1st Mortgage Co., LLC, Nations 1st Mortgage Company, Incorporated, Nations 1st Mortgage Brokers Corp., Cross Defendants: Marshall E Anders, LEAD ATTORNEY, ANDERS & MASINGTON, L.L.C., Stroudsburg, PA. For Ocwen Federal Bank, Cross Defendant: [*4] Elizabeth C. F. Abrams, LEAD ATTORNEY, Reed Smith LLP, Philadelphia, PA; Paul Michienzie, LEAD ATTORNEY, Michienzie & Lawin LLC, Boston, Ma. For Firststar Bank, N.A., Successor-In-Intrest to Firststar Bank Milwaukee, N.A., As Trustee for Salomon Brothers Mortgage, Cross Defendant: Elizabeth C. F. Abrams, LEAD ATTORNEY, Reed Smith LLP, Philadelphia, PA; Martin L. Legg, LEAD ATTORNEY, Michienzie & Sawin LLC, Boston, Ma; Paul Michienzie, LEAD ATTORNEY, Michienzie & Lawin LLC, Boston, Ma. For Indymac Bank, F.S.B., Cross Defendant: Andrew J. Soven, Elizabeth C. F. Abrams, LEAD ATTORNEYS, Reed Smith LLP, Philadelphia, PA. For Bank One, N.A., Cross Defendant: Lori R. Gramley, Myers Brier & Kelly, LLP, Scranton, PA. For Indymac Bank, F.S.B., Counterclaim Plaintiff: Andrew J. Soven, Elizabeth C. F. Abrams, LEAD ATTORNEYS, Reed Smith LLP, Philadelphia, PA. For Natalie Wilson, Counterclaim Defendant: Stewart I. Rosenblum, LEAD ATTORNEY, East Stroudsburg, PA. For Steve Parisi, Donald Kishbaugh, P & K Developers, LLC, Eagle Valley Homes, Inc., Eagle Valley Homes North Incorporated, Mobile Developing Company, Nations First Mortgage Company, Eagle Mountain Mortgage Company, [*5] Kishbaugh and Parisi, d/b/a P & K Developers, P & K Developers, Inc., Nations 1st Mortgage Co., LLC, Nations 1st Mortgage Company, Incorporated, Nations 1st Mortgage Brokers Corp., Cross Claimants: Marshall E Anders, LEAD ATTORNEY, ANDERS & MASINGTON, L.L.C., Stroudsburg, PA. For Steve Parisi, Donald Kishbaugh, P & K Developers, LLC, Eagle Valley Homes, Inc., Eagle Valley Homes North Incorporated, Mobile Developing Company, Nations First Mortgage Company, Eagle Mountain Mortgage Company, Kishbaugh and Parisi, d/b/a P & K Developers, P & K Developers, Inc., Nations 1st Mortgage Co., LLC, Nations 1st Mortgage Company, Incorporated, Nations 1st Mortgage Brokers Corp., Counterclaim Plaintiffs: Marshall E Anders, LEAD ATTORNEY, ANDERS & MASINGTON, L.L.C., Stroudsburg, PA. For Ocwen Federal Bank, Counterclaim Defendant: Elizabeth C. F. Abrams, LEAD ATTORNEY, Reed Smith LLP, Philadelphia, PA; Paul Michienzie, LEAD ATTORNEY, Michienzie & Lawin LLC, Boston, Ma. For Firststar Bank, N.A., Successor-In-Intrest to Firststar Bank Milwaukee, N.A., As Trustee for Salomon Brothers Mortgage, Counterclaim Defendant: Elizabeth C. F. Abrams, LEAD ATTORNEY, Reed Smith LLP, Philadelphia, PA; [*6] Martin L. Legg, LEAD ATTORNEY, Michienzie & Sawin LLC, Boston, Ma; Paul Michienzie, LEAD ATTORNEY, Michienzie & Lawin LLC, Boston, Ma. For Indymac Bank, F.S.B., Counterclaim Defendant: Andrew J. Soven, Elizabeth C. F. Abrams, LEAD ATTORNEYS, Reed Smith LLP, Philadelphia, PA. Judges: Thomas I. Vanaskie, Chief Judge. Opinion by: Thomas I. Vanaskie Opinion MEMORANDUM 2006 U.S. Dist. LEXIS 95952, *3 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 163 of 175 Page 3 of 14 This predatory lending practices action arising out of the sale of residential properties to new home buyers in the Pocono Mountain region of Pennsylvania is before this Court on motions to dismiss. Defendants -- consisting of real estate developers, mortgage brokers, appraisers, and mortgage lenders -- essentially challenge the viability of each of the claims asserted by the plaintiff purchasers under federal and state law. For the reasons that follow, the motions to dismiss will be granted in part and denied in part. This case will be allowed to proceed on the claims asserted under the Racketeering Influenced and Corrupt Organizations Act ("Racketeering Act" or "RICO"), 18 U.S.C. § 1961, et seq., against all Defendants, as well as the claims asserted against the real estate developer, mortgage [*7] broker and appraiser Defendants under the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 P.S. §§ 201-1, et seq. Those claims asserted under the Home Ownership and Equity Protection Act, 15 U.S.C. § 1602, and under the Pennsylvania common law of negligent misrepresentation, however, will be dismissed with prejudice. Finally, claims asserted under the Real Estate Settlement and Procedures Act ("RESPA"), 12 U.S.C. §§ 2601, et seq., will be dismissed without prejudice, affording Plaintiffs leave to amend the deficiently presented causes of action. BACKGROUND Plaintiffs are purchasers of new homes in Monroe County, Pennsylvania. As described in the first paragraph of the 540-paragraph complaint: This is an action on behalf of the Plaintiffs who purchased a new construction home, either by purchasing a lot and then entering into a construction loan, or by purchasing the house and lot as a unit, through real estate sales and new residential construction performed by Steve Parisi and Donald Kishbaugh and their affiliated companies, [*8] P&K Developers, P&K Developers, Inc., P&K Developers LLC, Eagle Valley Homes, Inc., Mobile Developing Company, Eagle Mountain Mortgage Company, Nations 1st Mortgage Co. LLC, Nations 1st Mortgage Company, Incorporated, and Nations 1st Mortgage Brokers Corp., and placed through the activities of Nations 1st Mortgage Co. and Bankers First Mortgage as mortgage brokers with New Century Corporation, Keystone Financial Mortgage, Irwin Mortgage Corporation DBA IFC Mortgage Corp., IndyMac Bank, F.S.B., Bank One, N.A., through the use of appraisers selected by the defendants Parisi and Kishbaugh and Nations First Mortgage and Bankers First Mortgage, namely, Lisa Marie's Appraisal Service, Inc., Lisa Marie Gibson, and Jenny Centrella with the agreed stated consent that the appraiser would provide sufficient appraisal value for the consummation of the land sales . . . by the Defendant Builders and Financiers and which mortgages were later purchased by Ocwen Federal Bank, Firstar Bank, N.A., Successor-in-interest to Firstar Bank Milwaukee, N.A.,. . . Bank of America Mortgage, Irwin Mortgage Corporation, and West Coast Realty Services, Inc., wherein predatory lending activities were undertaken by [*9] the defendants in the procurement of the mortgages and in the placement of the mortgages with the various mortgage lenders and in the inflated analysis by which the Plaintiffs were qualified to procure mortgages in excess of the value that they would have been capable of procuring had a proper and diligent examination [been] made of their financial situation. Plaintiffs aver that defendants Parisi, Kishbaugh and their affiliated companies 1 (the "PK Defendants"), engaged in false advertising directed toward unsophisticated, lower income, first time home buyers living in the New York City Metropolitan Area. (Complaint, P 47.) Plaintiffs charge that they were induced to purchase residential properties by misleading representations that failed to disclose the true costs of home ownership, including the costs of real estate taxes and maintenance. They further assert that the PK Defendants conspired with appraisal companies to inflate the value of the purchased properties above true market value. The defendant lending institutions, according to Plaintiffs, "knew or should have known that the Pocono Region was rampant with instances of predatory lending and had excessive rates of [*10] foreclosure on sub-prime loans and that the mortgages placed by the Bank Defendants in this situation were of the same ilk as the prior mortgages which resulted in the foreclosure and review by public authorities of the lending and sales practices in the Pocono Region." (Complaint, P 73.) Plaintiffs claim that there were 1 P&K Developers, LLC; Eagle Valley Homes, Inc.; Eagle Valley Homes North, Inc.; Mobile Developing Company; Nations First Mortgage Company; Eagle Mountain Mortgage Company; Kishbaugh & Parisi, d/b/a P&K Developers; P & K Developers, Inc.; Nations 1st Mortgage Company, LLC; Nations 1st Mortgage Co., Inc.; and Nations 1st Mortgage Brokers Corp. 2006 U.S. Dist. LEXIS 95952, *6 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 164 of 175 Page 4 of 14 material misrepresentations as to such matters as the amount of real estate taxes that would be required; pre- payment penalties; the necessity for and cost of private mortgage insurance; and the value of separate legal representation in connection with the transaction. (Complaint, PP 78-92.) Plaintiffs claim that the originating lenders in their transactions failed to follow usual and customary underwriting guidelines and due diligence procedures, ignoring the creditworthiness of the purchasers. (Complaint, P 117.) Nor did the initial lenders follow customary under writing guidelines to determine whether the prospective mortgagors could afford the requisite monthly payments. (Complaint, P 121.) Indeed, plaintiffs charge that the lending institutions deliberately ignored the fact that good faith estimates of monthly payments were premised upon tax assessments based [*11] upon the unimproved value of the property, thereby misleading the purchasers with respect to the amount necessary to satisfy real estate tax obligations. Plaintiffs allege that the initial lenders knew or should have known that they were procuring sub-prime loans for amounts in excess of the true value of the properties from persons who should not have been able to procure financing. (Complaint, P 150.) The Complaint suggests that the originating lenders engaged in the transactions because they assumed little risk in light of the requirement that the borrowers obtain private mortgage insurance and the ability to re-sell the loans. In this regard, Plaintiffs allege that, [*12] following the closings, the initial lenders purportedly sold the obligations "to Freddy Mac or Fanny Mae or some other pooled mortgage funds as part of a larger pool of loans, thereby receiving: (a) the original principal amount of the loan . . .; an additional approximate 3% to 4% of the gross amount of the loan as a premium; and (c) [a percentage] of each monthly mortgage payment over the life of the loan as a result of their servicing agreement with the secondary mortgage holder." (Complaint, P 134.) Plaintiffs further charge that the lenders knew they would transfer the loan prior to the obligation becoming non-performing. Plaintiffs claim that as evidence of the initial lending institutions' participation in a conspiracy to defraud purchasers, the lender Defendants failed to follow normal underwriting procedures; failed to confirm the source of deposit money; adopted HUD-1 settlement sheets that contained materially false information with respect to tax obligations; made improper payments to the mortgage broker controlled by the PK Defendants; failed to provide purchasers with a settlement sheet at the time of closing; and transferred or sold a mortgage after a purchaser complained [*13] of predatory lending practices without disclosing to the transferee the existence of the complaint. (Complaint, PP 157-63.) Plaintiffs have also named as Defendants the financial institutions to which the original loans were transferred, including Ocwen Federal Bank, Firstar Bank, N.A., Irwin Mortgage Company, Bank of America, and West Coast Realty Services, Inc. Essentially the same allegations pertaining to knowing participation in the scheme to defraud that Plaintiffs advanced with respect to the originating lending institutions are made with respect to the secondary lenders. The Complaint alleges in detail facts specific to each of the four sets of purchasers named as Plaintiffs in this action: Almus and Marilyn Wilson; Charmaine Cooper; Marco and Maria Yagual; and Natalie Wilson and Rayon McLean. (Complaint, PP 178-358.) Each purchaser was purportedly induced to enter into transactions for new homes based upon misrepresentations that inflated the property's value and underestimated the costs of home ownership. Each Plaintiff alleges post-closing disclosures that revealed the allegedly over-valued appraisals and understated home ownership costs. The purchasers aver that they [*14] were victims "of the Defendant's scheme to defraud and . . . pattern of racketeering activity and . . . conspiracy as contemplated and operated by the Defendants in the sale of homes to unsophisticated first time home owners who are members of minority groups, who are being solicited and sold from the targeted lower income territories within the New York metropolitan region through advertisements placed in the marketplace, and purchasers who were totally unfamiliar with the cost of purchase of a home, the cost of maintenance of a mortgage, or the costs associated with the maintenance of a home in a suburban environment. . . ." (Complaint, PP 219, 265, 301, and 358.) The First Claim for relief asserted in the Complaint is against the PK Defendants. Plaintiffs allege that several of the PK Defendants -- P&K Developers, Eagle Home, Mobile Developing Company, Nations 1st Mortgage, 2 and Eagle Mortgage, with the creation of Eagle North, constituted an association-in-fact enterprise within the meaning of the Racketeering Act. (Complaint, P 360.) Plaintiffs further aver that Parisi and Kishbaugh 2 Nations First Mortgage includes Nations 1st Mortgage Co., LLC, Nations 1st Mortgage Company, Inc., and Nations 1st Mortgage Brokers Corp. Plaintiffs aver that Nations 1st Mortgage was controlled by Parisi and Kishbaugh. 2006 U.S. Dist. LEXIS 95952, *10 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 165 of 175 Page 5 of 14 conducted the affairs of this enterprise through a pattern of racketeering activity, consisting [*15] of mail and wire fraud. (Complaint, PP 390-400.) Finally, plaintiffs aver that they have sustained injury as a result of the pattern of racketeering activity. (Complaint, P 401.) The Second Claim for relief is premised upon an alleged conspiracy by the lending institutions with the PK Defendants. Specifically, plaintiffs charge that the lender Defendants conspired with the PK Defendants to conduct the affairs of the alleged enterprise through a pattern of racketeering activity. Plaintiffs aver that the lending institutions had actual knowledge of and knowingly participated in the conspiracy. (Complaint, P 413.) The Third Claim for relief is asserted against the appraiser defendants. Like the Second Claim for Relief, the Third Claim is based upon an alleged conspiracy, in this instance being [*16] a conspiracy between the appraisers and the PK Defendants to violate 18 U.S.C. § 1962(c). The Fifth Claim is asserted against all defendants for alleged violations of the UTPCPL. 3 Specifically, plaintiffs assert that defendants engaged in conduct covered by this anti-fraud statute. Although the paragraphs set within the Fifth Claim do not differentiate among Defendants, earlier averments do, and they are incorporated by reference in the Fifth Claim. The Sixth Claim is apparently brought against all defendants for violations of the Truth in Lending Act and Regulation Z, 12 C.F.R. § 226.24(c). Essentially, plaintiffs assert that violations of these federal laws constitute per se violations of the UTPCPL. The Seventh Claim for Relief is asserted against only the PK Defendants. Plaintiffs assert a "bait and switch" scheme. Specifically, plaintiffs claim that they were [*17] induced to visit the Pocono Mountain region by advertisements depicting a house along with representations of the necessary monthly payment to acquire the house, but then were switched to different home construction and/or financing packages that were significantly more costly. (Complaint, P 502.) Plaintiffs claim that this conduct is actionable under the UTPCPL. The Eighth Claim is asserted against all Defendants for alleged violations of the Home Ownership and Equity 3 It should be noted that the prolix Complaint does not included a Fourth Claim for relief. Protection Act. This legislation generally deals with consumer credit transactions secured by a principal dwelling other than a residential mortgage transaction. See 15 U.S.C. § 1602(aa)(1). The Ninth Claim, asserted against all Defendants pursuant to the Real Estate Settlement and Procedures Act ("RESPA"), 12 U.S.C. § 2601, is based upon alleged unlawful payment of kickbacks to mortgage brokers. The Tenth Claim is also based upon RESPA, and is asserted against all Defendants. This claim is based upon the failure of initial lenders to notify Plaintiffs of the transfer of the mortgages to secondary lenders. The Eleventh Claim seeks recovery for negligent misrepresentation. [*18] The Twelfth, and final, Claim for Relief is asserted against the PK Defendants under the UTPCPL for failure to disclose a second mortgage in favor of the PK Defendants on Plaintiffs' properties. The Complaint asserts one prayer for relief, asking for an award of compensatory damages in excess of $ 1.5 billion dollars against all Defendants, jointly and severally; treble damages for sums paid by initial lenders to brokers as purported violations of RESPA, as set forth in the Ninth Claim for Relief; and damages against all Defendants, in an amount not to exceed $ 1,000 per Plaintiff, for the alleged violations of RESPA set forth in the Tenth Claim for relief. In addition, Plaintiffs seek counsel fees and costs of this litigation, injunctive relief, and punitive damages. Ten separate motions to dismiss have been filed. With the exception of the appraiser Defendants, all moving parties have submitted memoranda of law in support of their positions. 4 Plaintiff has filed appropriate opposition briefs. Oral argument was held on August 2, 2005, and the motions for dismissal are ripe for decision. [*19] DISCUSSION A. Standard of Review The Court's task on a motion to dismiss is to "determine whether, under any reasonable reading of the 4 Local Rule of Court 7.5 provides that a supporting memorandum of law must be filed within ten days of the filing of any pre-trial motion. If a supporting brief is not filed within ten days, the motion is to be deemed withdrawn. Accordingly, the Motion to Dismiss filed on behalf of Defendants Lisa Marie's Appraisal Service, Inc. and Lisa Marie Gibson (Dkt. Entry 92) will be denied based upon the application of Local Rule of Court 7.5. 2006 U.S. Dist. LEXIS 95952, *14 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 166 of 175 Page 6 of 14 pleadings, the plaintiffs may be entitled to relief . . . ." Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000). In making this determination, all averments of fact, as well as all reasonable inferences to be drawn from the averments, are assumed to be true. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). "The complaint will be deemed to have alleged sufficient facts if it adequately puts the defendants on notice of the essential elements of the plaintiffs' cause of action." Langford, 235 F.3d at 847. A cause of action asserted in a complaint may be dismissed only if it is clear that the plaintiffs could prove no set of facts entitling them to relief. Id. The inquiry is not whether plaintiffs will or are even likely to prevail ultimately, but "only whether they are entitled to offer evidence to support their claims." Id. Finally, leave to amend must be granted if a complaint is merely deficient in its allegations and there remains a possibility that the [*20] deficiencies can be cured. See, e.g., Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). Each of the claims asserted in the Complaint will be assessed in the context of this narrow standard of review. B. First Claim for Relief - The Racketeering Act Claim Against the PK Defendants The First Claim for Relief is asserted against the PK Defendants, and charges a violation of 18 U.S.C. § 1962(c), which provides: It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprises's affairs through a pattern of racketeering activity. As explained in Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S. Ct. 3275, 87 L. Ed. 2d 346 (1985), a § 1962(c) claim involves "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Racketeering activity includes conduct proscribed by a number of specifically identified provisions of the federal crimes code, including mail and wire fraud under 18 U.S.C. §§ 1341, 1343 [*21] . See 18 U.S.C. § 1961(1). A "pattern of racketeering activity" means "at least two acts of racketeering activity,. . . the last of which occurred within ten years . . . after the commission of a prior act of racketeering activity." 18 U.S.C. § 1961(5). An enterprise "includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). That is, "[a]n enterprise is a 'group of persons associated together for a common purpose of engaging in a course of conduct.'" Beard v. World Wide Mortgage Corp., 354 F. Supp. 2d 789, 803 (W.D. Tenn. 2005) (quoting United States v. Turkette, 452 U.S. 576, 583, 101 S. Ct. 2524, 69 L. Ed. 2d 246 (1981)). The PK Defendants argue that the First Claim for Relief is fatally deficient because the same persons and entities named as Defendants are also claimed to comprise the "enterprise." Citing B.F. Hirsch v. Enright Refining Co., Inc., 751 F.2d 628 (3d Cir. 1984), and Metcalf v. PaineWebber, Inc., 886 F.Supp. 503 (W.D. Pa. 1995), [*22] aff'd, 79 F.3d 1138 (3d Cir. 1996) (table), the PK Defendants argue that the inclusion of named Defendants as constituent members of the alleged enterprise warrant dismissal of the First Claim for Relief. Plaintiffs aver that the Racketeering Act enterprise is an association-in-fact consisting of Defendants Eagle Homes, Eagle Mortgage, Mobile Developing Co., Nations 1st, and Eagle North. (Complaint, P 386.) Plaintiffs further aver that Parisi and Kishbaugh are associated with this enterprise, and conducted the affairs of this enterprise through a pattern of racketeering activity. "To establish liability under § 1962(c), one must allege and prove the existence of two distinct entities: (1) a 'person'; and (2) an 'enterprise' that is not simply the same 'person' referred to by a different name." State Farm Mut. Auto. Ins. Co. v. Midtown Med. Ctr., Inc., No. Civ. A. 02-7389, 2005 U.S. Dist. LEXIS 4077, 2005 WL 627969, at *6 (E.D. Pa. March 14, 2005). However, as a "vehicle through which the unlawful pattern of racketeering activity is committed, rather than the victim of that activity," National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 259, 114 S. Ct. 798, 127 L. Ed. 2d 99 (1994), [*23] an association-in-fact enterprise can include those individuals and entities that also are alleged to comprise the enterprise. See Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258, 268-69 (3d Cir. 1995). In this regard, a corporate owner or employee "is distinct from the corporation itself, a legally different entity with different rights and responsibilities due to its different legal status." Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163, 121 S. Ct. 2087, 150 L. Ed. 2d 198 (2001). In this case, Plaintiffs have alleged an association-in- fact enterprise. The organizations comprising that enterprise do not encompass all PK Defendants. For example, individual Defendants Parisi and Kishbaugh 2006 U.S. Dist. LEXIS 95952, *19 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 167 of 175 Page 7 of 14 are identified as persons conducting the affairs of this association-in-fact enterprise through a pattern of racketeering activity. These averments are sufficient to establish distinct persons and an enterprise for purposes of stating a claim under § 1962(c). See Charles v. Chase Manhattan Bank, N.A., 308 F. Supp. 2d 545, 575-76, 45 V.I. 495 (D. V.I. 2004). The fact that some entities are named as Defendants and also as components of the enterprise does not defeat the claim. [*24] "The element of an 'enterprise' may be satisfied by alleging an 'association-in-fact' enterprise comprised of various defendants." Id. at 576. Indeed, it has been held that "[a] complete overlap between the defendant persons and the members of an association-in-fact enterprise does not defeat the distinctiveness requirement." State Farm Mut. Auto Ins. Co. v. Midtown Med. Ctr., Inc., 2005 U.S. Dist. LEXIS 4077, 2005 WL 627969, at *7. The cases upon which the PK Defendants principally rely are plainly distinguishable. Hirsch was brought against a single defendant, the corporation that was alleged to be both the enterprise and the responsible party. That situation is not presented here. Metcalf did not concern averments of an association-in-fact enterprise that served to function as an ongoing organization. In this case, by way of contrast, Plaintiffs have alleged that the affairs of separate corporate entities were integrated in such a manner as to facilitate the alleged scheme to defraud. 5 [*25] The issue at this stage of the litigation is simply whether Plaintiffs could present no set of facts that would support a claim under 18 U.S.C. § 1962(c). Notably, Racketeering Act claims in the context of predatory lending practice schemes similar to that presented here have withstood motions to dismiss. See e.g., Beard, 354 F. Supp. 2d at 803-08; Lester v. Percudani, Civ. A. No. 3:01-CV-1182, Memorandum Opinion at 4-6 (M.D. Pa. Feb. 21, 2003). Under these circumstances, dismissal of the § 1962(c) is not warranted. The PK Defendants also seek dismissal on the ground that Plaintiffs have failed to comply with the requirement of pleading fraud with particularity, as required by FED. R. CIV. P. 9(b). "The principal purpose of the FED. R. 5 It also bears observation that the court in Metcalf allowed for a period of six months of discovery before determining that a viable RICO claim could not be presented. 886 F. Supp. at 506. CIV. P. 9(b) particularity requirement, when considered in context with FED. R. CIV. P. 8, is to ensure that the defendant receives fair notice of the alleged misconduct or fraudulent acts of which the plaintiff complains in order to prepare a responsive pleading." Beard, 354 F.Supp. 2d at 799. [*26] Although it may have been possible for Plaintiffs to better delineate the alleged actionable conduct of each particular Defendant, the Complaint contains sufficient requisite detail to achieve the purpose of Rule 9(b). Accordingly, the Racketeering Act claim presented in the First Claim for Relief will not be dismissed on the ground that fraud has not been plead with requisite particularity. C. Second Claim for Relief, the Conspiracy to Violate Section 1962(c) Asserted Against the Lender Defendants The second claim for relief is asserted against Defendants New Century Mortgage Corp., M & T Bank, as successor by merger to Keystone Financial Bank, Indymac Bank, Bank One, Ocwen Federal Bank, Firstar Bank, Irwin Mortgage Corp., Bank of America, and West Coast Realty Services, Inc. 6 Plaintiffs claim that these financial institutions, which were involved in financing the acquisition of their properties or otherwise became involved in the transactions by acquiring the initial mortgages, conspired with the PK Defendants to violate 18 U.S.C. § 1962(c). Specifically, Plaintiffs aver that these lending institutions "had actual knowledge and knowing participation [*27] in or facilitation of the conspiracy [beginning] no later than June of 1999 continuing through and including December 12, 2001 . . . ." (Complaint, P 413.) Plaintiffs further allege that "[t]he object of the conspiracy was to bring each of the Plaintiffs to the point of settlement for which the [PK] Defendants and the Bank Defendants would receive substantial remuneration in the form of sale proceeds, settlement fees, debt service, and the ability on the part of the Bank Defendants to resell the loans and receive new funds and continue to service the loan after transfer or assignment so as to receive servicing fees from the loan." (Id. at P 414.) Plaintiffs incorporate by reference alleged overt acts of both the originating lenders, as set forth in paragraphs 148 through 163 of the Complaint, 6 It does not appear that West Coast Realty Services was served with process in this matter. In addition, it does not appear that Bank of America, for which an entry of appearance has been made on the record, responded to the Complaint. It should also be noted that Bankers First Mortgage, Inc., although named as a Defendant to this action, is not named as a defendant in the Second Claim for Relief. 2006 U.S. Dist. LEXIS 95952, *23 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 168 of 175 Page 8 of 14 and the secondary lenders, as set forth in paragraphs 164 through 177 of the Complaint. [*28] The lender Defendants challenge the justiciability of the Racketeering Act conspiracy claim presented in this matter. Specifically, they decry the failure of Plaintiffs to differentiate among the lending institutions and the failure to specify intra-conspiracy communications among Defendants. As recently explained by our Court of Appeals, "conspiracy liability under § 1962(d) . . . is governed by the 'general principles of criminal conspiracy law' which require only that the defendant 'share[s] a common purpose' with his co-conspirators and 'knowingly agrees to facilitate a scheme, which includes the operation or management of a RICO enterprise.'" Dongelewicz v. PNC Bank Nat'l Ass'n, 104 Fed. Appx. 811, 818 (3d Cir. 2004). To be liable for a Racketeering Act conspiracy, "a defendant need not personally agree to commit or commit any particular predicate act; instead, a defendant must agree and intend to further an endeavor which, if completed, would satisfy each element of the substantive offense." United States v. Ali, No. CRIM. 04- CR-611-2, 2005 U.S. Dist. LEXIS 17426, 2005 WL 2989728, at *2 (E.D. Pa. Aug. 19, 2005). The question of whether Plaintiffs can prove the lender [*29] Defendants' knowing involvement in the overall Racketeering Act enterprise is not a matter for consideration at this stage; the only issue before the Court at the present time is the adequacy of the Complaint's allegations. Accepting as true the averments of the Complaint and the reasonable inferences to be drawn from those averments, Plaintiffs have adequately stated a § 1962(d) claim. In this regard, the condition of mind elements of a conspiracy claim, such as knowledge of the conspiracy and knowing facilitation of its objectives, need only be averred generally. FED. R. CIV. P. 9(b). To the extent that the lender Defendants challenge the sufficiency of the allegations with respect to the existence of a Racketeering Act enterprise, the rejection of the PK Defendants' argument on that issue is equally applicable to the lender Defendants' contention. Also unavailing is the contention that Plaintiffs have not plead injury directly attributable to a violation of § 1962(c). The averments set forth in P 401 of the Complaint are plainly adequate. To be sure, the lender Defendants have articulated some substantial shortcomings with respect to the [*30] Complaint. In particular, its failure to differentiate among Defendants and to specify which lender institutions may have some responsibility with respect to particular Plaintiffs is a matter of concern. But the narrow standard of review that governs this stage of the case militates in favor of a determination that a viable Racketeering Act conspiracy claim has been presented against each of the lender Defendants identified in the Second Claim for Relief. In this regard, Dongelewicz, on which the lender Defendants rely heavily, is not dispositive as it was decided in the context of a summary judgment motion. Although the Racketeering Act conspiracy claim against the lender Defendants survives a motion to dismiss, the interests of the lender Defendants in avoiding unnecessary litigation expenses may be addressed in a case management order structuring the discovery and submission of further dispositive motions in this litigation. For example, limiting discovery to the conduct of the lender Defendants in financing new home acquisitions in the Pocono Mountain region through the PK Defendants may facilitate a determination as to whether their involvement was sufficiently limited so [*31] as not to support any inference of a knowing agreement to commit predicate acts or that the predicate acts had been committed as part of racketeering activity, thus making the Dongelewicz precedent applicable here. Structuring discovery may also provide a factual predicate for the severance of claims and/or parties. At this stage of the case, however, the lender Defendants' motion to dismiss the Second Claim for Relief must be denied. D. The Third Claim for Relief -- a Racketeering Act Conspiracy Claim Against the Appraiser Defendants The Third Claim for Relief is brought against Lisa Marie's Appraisal, Inc. and Jenny Centrella, appraisers who purportedly conspired with the PK Defendants to violate 18 U.S.C. § 1962(c). As noted above, a motion to dismiss was filed on behalf of Lisa Marie's Appraisal, Inc. as well as Lisa Marie Gibson, but a supporting brief was not submitted. 7 Thus, the motion to dismiss is properly deemed to have been withdrawn in accordance with Local Rule of Court 7.5. In any event, the analysis set forth above applies with equal force to the challenge to the Third Claim for relief asserted against the Appraiser Defendants. [*32] Accordingly, the motion to dismiss the Third Claim for Relief must be denied. E. The Fifth Claim for Relief -- Violation of the 7 Defendant Centrella answered the Complaint, and did not move for dismissal. 2006 U.S. Dist. LEXIS 95952, *27 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 169 of 175 Page 9 of 14 UTPCPL by All Defendants 8 Plaintiffs generally aver that "Defendants' acts, misrepresentations, omissions of material facts, practices, and non-disclosures alleged [in the complaint] constituted unlawful, unfair, deceptive, and fraudulent business practices and acts within the meaning of the Pennsylvania Unfair Trade Practices and Consumer Protection Law." (Complaint, P 435.) Plaintiffs then identify some specific conduct alleged to violate particular provisions of the UTPCPL. For example, they allege that "Defendants represented that the houses being sold had [*33] characteristics, in the form of value and monthly payments, they did not have in violation of 73 P.S. Section 201-2(4)(v)." 9 [*35] (Id. at P 437.) Plaintiffs further aver that "Defendants made misleading and deceptive statements and omissions concerning the value and the financing of the houses being purchased by consumers with the intent that consumers rely on their statements concerning the value of the house and the financing therefor," in violation of 73 P.S. § 201- 2(4)(ix). 10 (Complaint, P 444.) Plaintiffs further charge all Defendants with conduct falling within the following subparts of the statutory definition of unfair or deceptive acts or practices set forth in § 201-2(4): (i) Passing off goods or services as those of another; (ii) Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services; (iii) Causing likelihood of confusion or of misunderstanding as to affiliation, connection or association with, or certification by, another; (v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, [*34] uses, benefits or qualities that they do not 8 As noted above, the Complaint omits a Fourth Claim for Relief. 9 Section 201-2(4)(v) unfair or deceptive acts or practices as "[r]epresenting that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that he does not have." 10 Section 201-2(4)(ix) makes it an unfair or deceptive act or practice to advertise goods or services with the intent not to sell them as advertised. have or that a person has a sponsorship, approval, status, affiliation, or connection that he does not have; (vii) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another; (xi) Making false or misleading statements of fact concerning the reasons for, existence of, or amounts of price reductions; (xxi) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding. (Complaint, PP 461 and 481.) Plaintiffs claim to be persons who have been injured as a result of these specific unfair or deceptive acts or practices, and therefore entitled to seek redress as authorized by 73 P.S. § 201-9.2. 11 The UTPCPL, although generally addressing goods and services, also extends to the marketing and sale of residential real estate. See e.g., In re Zisholtz, 226 B.R. 824, 831 (Bankr. E.D. Pa. 1998); Kramer v. Dunn. 2000 PA Super 101, 749 A.2d 984 (Pa. Super. 2000). In particular, the catch-all provision set forth in § 201- 2(4)(xxi) has been recognized as applying to residential real estate transactions. See, e.g. [*36] , Lester v. Percudani, Civil Action No. 3:01-CV-1182, Memorandum Opinion at 13-15 (M.D. Pa. Feb. 21, 2003); In re Barker, 251 B.R. 250, 261-62 (Bankr. E.D. Pa. 2000). The PK Defendants challenge the Fifth Claim for Relief on the ground that unfair or deceptive acts or practices have not been alleged with requisite particularity. 12 For 11 Section 201-9.2(a) provides: Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by Section 3 of this act, may bring a private action to recover actual damages. . . . Section 3 declares unlawful the unfair or deceptive acts or practices identified in § 201-2(4). 12 The PK Defendants also argued that this Court should decline to exercise supplemental jurisdiction over this state law claim. That argument was premised upon an assumption that Plaintiffs could not present a viable federal law claim. 2006 U.S. Dist. LEXIS 95952, *32 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 170 of 175 Page 10 of 14 the reasons set forth above, I find that the pleading requirement of Rule 9(b) is met as to the PK Defendants. They have generally been apprised of the approximate time frame, responsible party, and general nature of the alleged actionable conduct. They know, for example, that plaintiffs claim that misrepresentations were made in advertising directed to the New York metropolitan region, in appraisals secured for purposes of supporting financing, and in estimates of monthly obligations that home ownership would entail. The averments specific to the purchases made by each of the plaintiffs identify entities responsible for engaging in alleged deceptive acts or practices. (Complaint, PP 178- 358.) Accordingly, the PK Defendants' challenge to the sufficiency of the Fifth Claim for Relief must be denied. [*37] A contrary conclusion, however, is compelled with respect to the lender Defendants' challenges to the Fifth Claim for Relief. Each set of Plaintiffs dealt with different lender Defendants. The averments as to each particular transaction indicate that the degree of participation of each lender Defendant varied from transaction to transaction. For example, in the Almus and Marilyn Wilson transaction, the initial lender Defendant, New Century Mortgage Corp., is alleged to have never contacted the plaintiffs. (Complaint, P 196.) Plaintiffs nowhere indicate what specific fraudulent conduct is chargeable to New Century. Apparently, Ocwen Federal Bank serviced this loan, but again there is no specific averment as to any particular deceptive act or practice undertaken by this Defendant that caused any Plaintiff any particular harm. The same point may be made with respect to Firstar Bank, which ultimately acquired the loan. Defendant Bankers First Mortgage, by way of contrast, is alleged to have played a more active role in the Cooper transaction. For example, it allegedly selected the appraiser who over-valued the property. (Complaint, P 233.) No specific unfair or deceptive practice, however, [*38] is attributed to Bankers First. The same observation may be made with respect to all other lender Defendants. They have been lumped together with the PK and appraiser Defendants, without any delineation of responsibility. Because each lender Defendant's participation in the transaction varied, it is imperative that notice of particular unfair or deceptive acts or practices be Because the Racketeering Act claim has withstood the motion to dismiss, this Court may properly exercise supplemental jurisdiction over the related state law claims. provided as to each lender Defendant. See In re Johnson, 292 B.R. 821, 827-28 (E.D. Pa. Bankr. 2003). The Complaint clearly fails to meet this basic pleading obligation. Accordingly, the lender Defendants motions to dismiss the Fifth Claim for Relief will be granted. 13 [*39] F. The Sixth Claim for Relief - Violation of the UTPCPL by All Defendants Based upon Violations of the Federal Truth in Lending Act and Regulation Z The Sixth Claim for Relief asserts violations of 15 U.S.C. § 1664(d) and 12 C.F.R. § 226.24(c)(1). 14 Plaintiffs assert that alleged violations of these federal law provisions constitute per se violations of the UTPCPL. [*40] The lender Defendants have moved for dismissal 13 Plaintiffs, of course, will be granted leave to amend to attempt to cure this patent pleading defect. See Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). Plaintiffs are cautioned that they must allege with particularity the elements necessary to support a violation of the UTPCPL as to a particular Defendant. Moreover, Plaintiffs are admonished to abide by FED. R. CIV. P. 11 in presenting such a claim against an individual lender Defendant. 14 Section 1664(d) of Title 15 U.S.C. provides: Requisite disclosures in advertisement If any advertisement to which this section applies states the amount of the down payment, if any, the amount of any installment payment, the dollar amount of any finance charge, or the number of installments of the period of repayment, then the advertisement shall state all of the following items: (1) The down payment, if any. (2) The terms of repayment. (3) The rate of the finance charge expressed as annual percentage rate. Section 226.24 of 12 C.F.R.., known as Regulation Z, provides: If any of the following terms is set forth in an advertisement, the advertisement shall meet the requirements of paragraph (c)(2) of this section: (i) The amount or percentage of any down payment. (ii) The number of payments or period of repayment. (iii) The amount of any payment. (iv) The amount of any finance charge. Paragraph (c)(2) of Regulation Z provides that an advertisement stating any of the terms set forth in paragraph (c)(1) must include the following: (i) the amount or percentage of the down payment; (ii) the terms of repayment; (iii) the annual percentage rate, using that term, and, if the rate may be increased after consummation, that fact. 2006 U.S. Dist. LEXIS 95952, *36 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 171 of 175 Page 11 of 14 of this Claim for Relief as there is no averment in the Complaint that any lender Defendant engaged in any advertising pertinent to this case. Plaintiffs have not identified any paragraph in the Complaint to contradict this assertion. Accordingly, the lender Defendants challenge to the Sixth Claim for Relief is meritorious, and they will be dismissed as Defendants to the Sixth Claim for Relief. 15 G. Seventh Claim for Relief - Violations of the UTPCPL by PK Defendants Based Upon an Alleged Bait and Switch Unfair Trade Practice Plaintiffs base the Seventh Claim for Relief on averments that advertisements placed by the PK Defendants in newspapers and on the radio in the New York City metropolitan area [*41] concerned home and financing packages different than those ultimately presented to the Plaintiffs. Specifically, plaintiffs aver: Defendants designed their advertising and solicitation programs to entice customers, including the instant Plaintiffs, with low down payment and monthly payment amounts. Defendants intended to primarily offer home and finance programs more costly to consumers and more profitable to the Defendants. Defendants deliberately planned to offer a home and financing program that initially appeared attractive to consumers while knowing, through marketing research and their own experience, that the consumers could easily be switched to more elaborate homes and more costly financing. (Complaint, PP 503-05.) The PK Defendants do not directly challenge the viability of this claim at the pleadings stage, other than to assert a lack of particularity. Given the fact that the nature of the alleged deceptive practice is set forth with clarity and that the PK Defendants are in the best position at the present time to determine which of the entities controlled by Parisi and/or Kishbaugh were involved in the advertising, dismissal of this claim for [*42] relief is not warranted. In this regard, our Court of Appeals has admonished the district courts to be "'sensitive' to the fact that application of [Rule 9(b)] prior to discovery 'may permit sophisticated defrauders to successfully conceal the details of their fraud.'" Shapiro 15 Again, the dismissal will be without prejudice to the filing of an amended complaint against any lender Defendant a particular Plaintiff may claim in good faith participated in a violation of 15 U.S.C. § 1664(d) or Regulation Z. v. UJB Fin. Corp., 964 F.2d 272, 284 (3d Cir. 1992). H. The Eighth Claim for Relief - Violation of the Home Ownership and Equity Protection Act by All Defendants The Complaint alleges that all Defendants violated the disclosure requirements of the Home Ownership and Equity Protection Act ("HOEPA"), 15 U.S.C. §§ 1639, et seq. Acknowledging the force of Defendants' arguments that HOEPA only applies to "a consumer credit transaction that is secured by the consumer's principal dwelling, other than a residential mortgage transaction," 15 U.S.C. § 1602(aa)(1), Plaintiffs have withdrawn the HOEPA claim as to all Defendants other than Defendant Bank One. As to Bank One, plaintiffs argue that the claim is not subject to dismissal because it was "a second mortgage on the McLean/Wilson transaction." (Brief in Opp. to Bank Defendants' motions to [*43] dismiss (Dkt. Entry 66) at 21.) Bank One is alleged to have provided a "secondary mortgage loan" in the amount of $ 47,000 in connection with the McLean/Wilson transaction. (Complaint, PP 334-335.) Plaintiffs aver that this transaction closed at the same time as the closing on the principal transaction, and required execution of a second mortgage. As noted above, "a residential mortgage transaction" is not subject to HOEPA. A "residential mortgage transaction" is defined to mean "a transaction in which a mortgage, or equivalent consensual security interest is created or retained against the consumer's dwelling to finance the acquisition or initial construction of such dwelling." 15 U.S.C. § 1602(w)(emphasis added). The mortgage in favor of Capital One was created in order to enable McLean/Wilson to finance the acquisition of the dwelling in question. Accordingly, HOEPA does not apply to this transaction. As HOEPA does not apply at all to this litigation, the Eighth Claim for Relief will be dismissed with prejudice. I. Ninth Claim for Relief -- Violation of Anti-Kickback Provisions of the Real Estate Settlement and Procedures Act by all Defendants [*44] The Ninth Claim for Relief alleges that all Defendants violated the anti-kickback and unearned fee prohibitions of the Real Estate Settlement and Procedures Act (RESPA), expressed in 12 U.S.C. § 2006 U.S. Dist. LEXIS 95952, *40 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 172 of 175 Page 12 of 14 2601(b) and § 2701(a). 16 Plaintiffs articulate this claim in the following paragraphs: 518. Upon information and belief, a lender kickback to a mortgage broker for the placement of the loan is forbidden. 519. Upon information and belief, the instant Plaintiffs HUD-1 Settlement Statement include references to fees being paid by the Lender to the mortgage broker. 520. Violation of this provision of federal law is treble damages. 521. As a result of the violation of these provisions, the Plaintiffs seek to recover the sums representing treble damages of the sums paid by the Lender to the Defendant Broker in each instance. [*45] All Defendants, with the exception of Defendant Bank One, have moved to dismiss this claim for relief as legally insufficient and as barred by the one-year statute of limitations set forth in 12 U.S.C. § 2614. 17 Defendants, noting that RESPA, expressly permits payment of different types of fees for services and facilities, see 12 U.S.C. § 2607(c); Schuetz v. Banc One Mortgage Corp., 292 F.3d 1004, 1005-06 (9th Cir. 2002), assert that the utter failure of Plaintiffs to identify (a) any particular fee or payment proscribed by RESPA; (b) who paid the fee; and (c) who received the alleged improper fee render the Ninth Claim for Relief fatally deficient. Plaintiffs have not countered defendants' showing. [*46] Significantly, a particular plaintiff may have a RESPA anti-kickback claim against a particular defendant or defendants, but no plaintiff would have a RESPA claim against every defendant. It is imperative that a particular plaintiff identify a particular defendant or 16 Section 2601(b)(2) states that it is the intent of Congress to eliminate "kickbacks or referral fees that tend to increase unnecessarily the costs of certain [real estate] settlement services." Section 2607(a) provides: No person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person. 17 In pertinent part, § 2614 provides that "[a]ny action pursuant to the provisions of Section . . . 2607 . . . of this title may be brought in . . . any . . . court of competent jurisdiction . . . within one year . . . from the date of the occurrence of the violation . . . ." defendants implicated in an alleged illegal payment in order to afford adequate notice of the basis for such a claim. Plaintiffs acknowledge that this action has been brought more than one year after the real estate closings in question, but claim that this claim is saved from dismissal on grounds of equitable tolling. In order to invoke this doctrine, however, each plaintiff must aver the facts and circumstances particular to that plaintiff and purportedly responsible defendant. See Mullinax v. Radin Guaranty, Inc., 199 F. Supp. 2d 311, 330-31 (M.D. N.C. 2002) (to avoid dismissal of otherwise time- barred RESPA claim plaintiff must allege with particularity "'how, when, and in what manner' [defendant] and the lenders entered into any agreement to conceal their alleged kickback scheme."). Plaintiffs' generic assertion of fraudulent concealment in paragraphs 381 and 382 of their Complaint is woefully [*47] inadequate for this purpose. 18 Indeed, there are no averments specific to any alleged fraudulent concealment of purportedly proscribed payments. Accordingly, the Ninth Claim for Relief must be dismissed. Plaintiffs, however, will be [*48] given leave to file an amended complaint with respect to the matter of allegedly prohibited payments. Plaintiffs are admonished that each set of purchasing plaintiffs must identify the fees they claim to have been improper, who paid the fees, who received the fees, the amount of the fees, and why the fees were improper. Such a claim may be asserted only against the generator and recipient of the purportedly improper payment. Plaintiffs and Defendants may not be lumped together. 18 Paragraphs 381 and 382 aver as follows: The running of any statute of limitation has been tolled by reason of the defendants' fraudulent concealment. Defendants, through their affirmative misrepresentations and omissions, actively concealed from the plaintiffs that they were purchasing homes at fraudulently inflated prices. As a result of the Defendants' actions, Plaintiffs were unaware, and could not have reasonably known or have learned through reasonable diligence, that they had been defrauded as the direct and proximate result of Defendants' actions, until such time as the true value of their homes was discovered, either through an attempt to refinance, or foreclosure proceeding, or when the Defendants' fraud was first exposed by the Pocono Record. 2006 U.S. Dist. LEXIS 95952, *44 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 173 of 175 Page 13 of 14 Furthermore, each plaintiff must allege with particularity the facts and circumstances supporting equitable tolling of the limitations period on the basis of fraudulent concealment. If plaintiffs fail to so amend their Complaint, the Ninth Claim for Relief will be dismissed with prejudice. See Mullinax, 199 F. Supp. 2d at 336. J. Tenth Claim for Relief -- Violation of RESPA Notice Provisions by All Defendants The Tenth Claim for Relief charges all Defendants with failing to provide notice of the transfer of the servicing of a mortgage loan or notice of the assignment, sale or transfer of the servicing of the mortgage loan as required by 12 U.S.C. § 2605. This [*49] claim suffers from the same fatal deficiencies that required dismissal of the Ninth Claim for Relief. First, Plaintiffs fail to identify which particular Defendants purportedly breached the notice provisions set forth in 12 U.S.C. § 2605. Indeed, most of the named Defendants would have no potential culpability on such a claim. For example, the Indymac mortgage is not alleged to have been transferred. Second, no Plaintiff has alleged a basis for tolling the three-year limitations period that applies to a claim based upon an alleged violation of § 2605. Accordingly, the Tenth Claim for Relief will be dismissed with leave to amend. Plaintiffs are again cautioned that a particular Plaintiff must identify a particular defendant or defendants allegedly responsible for breach of the notice provisions of § 2605, indicating how the notice provisions were purportedly violated. In addition, each Plaintiff must plead with particularity the facts and circumstances claimed to warrant tolling of the limitations period. K. Eleventh Claim for Relief -- Negligent Misrepresentations by All Defendants Plaintiffs have acknowledged that the economic loss doctrine bars this [*50] particular common law tort claim. Accordingly, the Eleventh Claim for Relief will be dismissed, with prejudice. L. Twelfth Claim for Relief -- Violation of the UTPCPL by the PK Defendants The Twelfth Claim for Relief asserts a claim against only the PK Defendants for violation of the UTPCPL in connection with the alleged non-disclosure that the PK Defendants "had taken sums at the time of the closing for a second mortgage." (Complaint, P 534.) The PK Defendants have moved for dismissal of this claim for failure to plead fraud with particularity. They have not, however, pressed any other challenge to the viability of this claim for relief. Because the Complaint does satisfy the particularity requirements of FED. R. CIV. P. 9(b) with respect to averments of fraud, and the precise nature of the alleged deceptive conduct at issue in the Twelfth Claim for Relief has been asserted, the motion to dismiss the Twelfth Claim for Relief will be denied. M. Motions for More Definite Pleading and to Strike Impertinent Matter Defendants have also moved to require Plaintiffs to re- plead, asserting that much of the lengthy pleading is too vague [*51] or ambiguous to allow for a meaningful responsive pleading. Defendants also rail against the indefinite nature of many of the Complaint's averments, which fail to distinguish among either Plaintiffs or Defendants. These issues have been addressed to a large degree in determining whether viable claims for relief have been presented against particular defendants in this matter. For example, the UTPCPL claims against the lender Defendants and the RESPA claims against all Defendants must be amended by specifying conduct attributable to a particular party and for which a particular plaintiff may seek recovery. The Racketeering Act claims have been found to be adequate, and Plaintiffs will not be required to file a more definite pleading as to those particular claims. Defendants have also moved to strike the demand for damages of $ 1.5 billion. This demand for relief is plainly improper, and will be stricken from the Complaint. In any amended complaint, Plaintiffs must comply with Local Rule of Court 8.1, which states that a party "may set forth generally that the party claiming damages is entitled to monetary relief but shall not claim any specific sum where unliquidated damages are involved. [*52] " CONCLUSION For the reasons set forth in the foregoing Memorandum, Defendants' motions to dismiss will be granted in part. Specifically, the Eighth and Eleventh Claims for Relief will be dismissed with prejudice. The Fifth and Sixth Claims for Relief against the Lender Defendants, and the Ninth and Tenth Claims for Relief against all Defendants will be dismissed with leave to amend. The amount of damages claimed in the Complaint will be stricken. In all other respects, the motions to dismiss will be denied. An appropriate Order follows. 2006 U.S. Dist. LEXIS 95952, *48 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 174 of 175 Page 14 of 14 s/ Thomas I. Vanaskie, Chief Judge Middle District of Pennsylvania ORDER NOW, THIS 7th DAY OF FEBRUARY, 2006, for the reasons set forth in the foregoing Memorandum, IT IS HEREBY ORDERED THAT: 1. The Motion to Dismiss filed on behalf of defendants Lisa Marie's Appraisal Service, Inc. and Lisa Marie Gibson (Dkt. Entry 92) is, in light of the failure to file a supporting memorandum of law, DENIED. 2. The motions to dismiss of the remaining defendants (Dkt. Entries 17, 19, 22, 24, 41, 43, 50, 56 and 82) are GRANTED IN PART as follows: a. The Eighth and Eleventh Claims for Relief set forth [*53] in the Complaint are DISMISSED, WITH PREJUDICE, as to all Defendants. b. The Fifth and Sixth Claims for Relief are DISMISSED, WITHOUT PREJUDICE, as to Defendants M & T Bank, successor by merger to Keystone Financial Bank d/b/a Keystone Financial Mortgage; Bank One, N.A.; Indymac Bank, F.S.B.; Firstar Bank, N.A.; Ocwen Federal Bank, F.S.B.; New Century Mortgage Corporation; Irwin Mortgage Corp., d/b/a IFC Mortgage Corp.; and Bankers First Mortgage, Inc. c. The Ninth and Tenth Claims for Relief are DISMISSED, WITHOUT PREJUDICE, as to all Defendants. d. Plaintiffs' claim for damages is STRICKEN. 3. Plaintiffs shall file an amended complaint within twenty (20) days from the date of this Order. Failure to file an amended complaint will result in the dismissal, with prejudice, of the Fifth and Sixth Claims for relief against the defendants identified in paragraph 2(b) of this Order and the dismissal with prejudice of the Ninth and Tenth Claims for Relief against all Defendants. 4. A case management conference shall be conducted on Monday, April 24, 2006 at 10:30 a.m. in Room 401 of the William J. Nealon Federal Building & U.S. Courthouse, 235 N. Washington [*54] Avenue, Scranton, PA. s/ Thomas I. Vanaskie, Chief Judge Middle District of Pennsylvania End of Document 2006 U.S. Dist. LEXIS 95952, *52 Case 1:16-cv-02557-CCC Document 12-1 Filed 04/03/17 Page 175 of 175
