Partain v. PS Technology, Inc.

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Improper Service of Process

E.D. Pa.January 17, 2017

1 FPDOCS 32525934.1 FPDOCS 32526787.1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CATHERINE PAGE PARTAIN, : : CIVIL ACTION Plaintiff, : v. : : NO. 16-06460-MAK PS TECHNOLOGY, INC. : : Defendant. : DEFENDANT PS TECHNOLOGY, INC.’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT Defendant PS Technology, Inc. (“Defendant”), by and through its undersigned counsel, Fisher & Phillips LLP, respectfully moves the Court, pursuant to Rule 12(b)(5) and Rule 12(b)(6) of the Federal Rules of Civil Procedure, for entry of an Order dismissing all counts of Plaintiff Catherine Page Partain’s (“Plaintiff”) Complaint (the “Motion”). In support of the Motion, Defendant relies on the supporting Memorandum of Law, filed herewith. A proposed Order accompanies the Motion. Respectfully submitted, FISHER & PHILLIPS LLP Date: January 17, 2017 By: /s/ Susan M. Guerette Susan M. Guerette, Esquire Chad A. Flores, Esquire 150 N. Radnor Chester Road Suite C300 Radnor, Pennsylvania 19087 (610) 230-2150 Telephone (610) 230-2151 Facsimile sguerette@fisherphillips.com cflores@fisherphillips.com Counsel for PS Technology, Inc. Case 2:16-cv-06460-MAK Document 2 Filed 01/17/17 Page 1 of 2 2 FPDOCS 32525934.1 FPDOCS 32526787.1 CERTIFICATE OF SERVICE I, Susan M. Guerette, Esquire, hereby certify that on this 17th day of January, 2017, a true and correct copy of the foregoing Defendant PS Technology, Inc.’s Motion to Dismiss Plaintiff’s Complaint, and accompanying Memorandum of Law and Proposed Order, were filed electronically and are available for viewing and downloading from the Court’s ECF system, and were served upon the following through the Court’s ECF system: Christi Wallace, Esquire Kraemer, Manes and Associates, LLC U.S. Steel Tower 600 Grant Street, Suite 660 Pittsburgh, PA 15219 Attorneys for Plaintiff Catherine Page Partain /s Susan M. Guerette Susan M. Guerette Case 2:16-cv-06460-MAK Document 2 Filed 01/17/17 Page 2 of 2 1 FPDOCS 32525932.1 FPDOCS 32526745.1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CATHERINE PAGE PARTAIN, : : CIVIL ACTION Plaintiff, : v. : : NO. 16-06460-MAK PS TECHNOLOGY, INC. : : Defendant. : MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT PS TECHNOLOGY, INC.’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT Defendant PS Technology, Inc. (“PST”) submits this Memorandum of Law in support of its Motion to Dismiss the Complaint filed by Plaintiff Catherine Page Partain (“Plaintiff”) alleging violations arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) (“Title VII”), the Pennsylvania Human Relations Act, 43 P.S § 951-963 (“PHRA”), and the Equal Pay Act of 1963, 29 U.S.C. § 206, et seq. (“EPA”) (the “Complaint”). I. INTRODUCTION Plaintiff’s Complaint, in its entirety, should be dismissed for improper service. First, Plaintiff, who is still employed by PST, purported to accept service of her own Complaint on behalf of PST, which is explicitly prohibited. Second, Plaintiff is not, nor ever was, an authorized agent of PST. Therefore, service of the summons and Complaint was improper. Accordingly, PST moves this Court to dismiss Plaintiff’s claims. Additionally, Plaintiff fails to plead facts sufficient to sustain her Title VII and PHRA claims against PST. Specifically, Plaintiff does not allege that she filed administrative charges against PST with the Equal Employment Opportunity Commission (“EEOC”) or with the Pennsylvania Human Relations Commission (“PHRC”) regarding the discriminatory conduct alleged in her Complaint. She has not alleged compliance with these administrative prerequisites Case 2:16-cv-06460-MAK Document 2-1 Filed 01/17/17 Page 1 of 8 2 FPDOCS 32525932.1 FPDOCS 32526745.1 nor has she alleged that she has exhausted her administrative remedies and her claims arising under Title VII and the PHRA accordingly must be dismissed. II. STATEMENT OF RELEVANT FACTS For purposes of its Motion to Dismiss, PST must accept as true the facts alleged in Plaintiff’s Complaint. Plaintiff has been employed by PST Since April 2013. See Complaint at ¶ 7. At the time the Complaint was filed, Plaintiff’s role with PST was as a project manager. See Complaint at ¶ 28. Plaintiff alleges that Carlos Rivera (male) is also a project manager, performing the same duties and carrying out the same responsibilities as Plaintiff. See Complaint at ¶ 21. Yet, Plaintiff’s alleges, Mr. Rivera receives $30,000 - $40,000 more in salary than Plaintiff. See Complaint at ¶ 29. Plaintiff, however, does not allege that she received a Right to Sue Letter from either the EEOC or the PHRC. Nor has Plaintiff alleged in her Complaint that she ever even filed a charge of discrimination with either agency. Further, PST has never received any notice that such charges were ever filed. Nonetheless, Plaintiff filed her unfounded Complaint for sex and gender discrimination on or about December 15, 2016. Then, on or about December 28, 2016, an unidentified individual attempted service at the offices of PST. Plaintiff, who still works for PST, was present and allegedly signed for service.1 No officer or authorized agent of PST signed or accepted service of the summons and Complaint. Under Pennsylvania law, this is improper service. PST now moves the Court to dismiss each of Plaintiff’s claims for improper service, and to dismiss Plaintiff’s claims arising under Title VII and the PHRA, with prejudice, for failure to state a claim. 1 At the time the time Defendant’s Motion to Dismiss was filed, Plaintiff had yet to file the Return of Summons. Case 2:16-cv-06460-MAK Document 2-1 Filed 01/17/17 Page 2 of 8 3 FPDOCS 32525932.1 FPDOCS 32526745.1 III. LEGAL ANALYSIS A. Legal Standard for Motion to Dismiss Pursuant to Rule 12(b)(5) District Courts are empowered under Fed. R. Civ. P. 12(b)(5) to dismiss civil actions for insufficiency of service of process. A motion authorized under Rule 12(b)(5) permits a defendant to challenge any departure from the procedure for serving it with the summons and complaint for purposes of giving notice of the action’s commencement. 5A CHARLES ALAN WRITE & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE CIVIL 2D, § 1353 (2d ed. 1990). Under this provision, a defendant may object to the plaintiff’s failure to comply with the procedural requirements for proper service set forth in or incorporated by Fed. R. Civ. P. 4. Id. In resolving a motion under Rule 12(b)(5), plaintiff has the burden of demonstrating the validity of service when an objection is made. Grand Entertainment Group, Ltd. V. Star Media Sales, Inc., 988 F.2d 476, 488-489 (3d Cir. 1993); Addanki v. Defense Logistics Agency Defense Personnel Support Center, 1996 WL 635590 at *1 (E.D. Pa. 1996). Fed. R. Civ. P. 4(h) governs the service of process upon corporations, and states, in relevant part, that: Unless federal law provides otherwise or the defendant’s waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated associated that is subject to suit under a common name, must be served: (1) In a judicial district of the United States: (A) In the manner prescribed by Rule 4(e)(1) for serving an individual; or (B) By delivering a copy of the summons and of the Complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and-if the agent is one authorized by statute and the statute so requires-by also mailing a copy of each to the defendant; … Case 2:16-cv-06460-MAK Document 2-1 Filed 01/17/17 Page 3 of 8 4 FPDOCS 32525932.1 FPDOCS 32526745.1 Rule 4(e)(1), in turn, states in relevant part that: Unless federal law provides otherwise, an individual-other than a minor, an incompetent person, or a person whose waiver has been filed-may be served in a judicial district of the United States by: (1) Following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made;… Under the Pennsylvania Rules of Civil Procedure, original process for corporations is governed by Rule Pa. R. Civ. P. 424 (Rule 424). Rule 424 states: Service of original process upon a corporation or similar entity shall be made by handing a copy to any of the following persons provided the person served is not a plaintiff in the action: (1) An executive officer, partner or trustee of the corporation or similar entity, or (2) The manager, clerk or other person for the time being in charge of any regular place of business or activity of the corporation or similar entity, or (3) An agent authorized by the corporation or similar entity in writing to receive service of process for it. B. Service of the Summons and Complaint was Improper As an initial matter, Plaintiff purported to accept service of her own Complaint on behalf of PST. This is improper under black letter law. Rule 424 could not be clearer: the rules governing service of process apply “provided the person served is not a plaintiff in the action.” On this fact alone the Complaint should be dismissed for improper service. Assuming, arguendo, that it is not legally sufficient for a dismissal of the action that Plaintiff accepted service of her own Complaint, the Complaint must still be dismissed because Plaintiff was not an officer of PST or otherwise an authorized agent. Indeed, Plaintiff’s Complaint admits she is only a project manager. See Complaint at ¶ 28. The Complaint even attaches an organizational chart Case 2:16-cv-06460-MAK Document 2-1 Filed 01/17/17 Page 4 of 8 5 FPDOCS 32525932.1 FPDOCS 32526745.1 as an exhibit that shows Plaintiff would not be considered an officer, executive, managing or general agent, or in charge of the regular place of business; nor was Plaintiff ever an agent authorized by PST, in writing, to receive service of process on its behalf. See Complaint at Exhibit A. Therefore, the Complaint must be dismissed for improper service of process. C. Legal Standard for Motion to Dismiss Pursuant to Rule 12(b)(6) Under Rule 12(b)(6), the Court should grant a motion to dismiss if the Complaint fails to plead “enough facts to state a claim to relief that is plausible on its face.” Fed. R. Civ. P. 12(b)(6); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); accord Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] 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 555. “Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 129 S. Ct. at 1950. In the aftermath of Twombly and Iqbal, courts reviewing motions to dismiss follow a two-step approach. Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009). First, a court should disregard legal conclusions in the complaint: “‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.’” Iqbal, 129 S.Ct. at 1949; see also Vamsidhar Reddy Vurimindi v. Fuqua Sch. Of Bus., No 10-234, 2010 U.S. Dist. LEXIS 88094, at *17 (E.D. Pa. Aug. 19, 2010) (noting that the Court need not accept as true a plaintiff’s “unsupported conclusions and unwarranted inferences,” “bald assertions,” or “legal conclusions”). Second, the court must draw on its “judicial experience and common sense” to analyze the actual facts pled in the complaint to determine whether a claim for relief is plausible. Iqbal, 129 S.Ct. at 1949. “Where a complaint pleads facts that are merely consistent with a defendant’s Case 2:16-cv-06460-MAK Document 2-1 Filed 01/17/17 Page 5 of 8 6 FPDOCS 32525932.1 FPDOCS 32526745.1 liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Iqbal, 129 S.Ct. at 1949-50. Thus, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but not shown an entitlement to relief,” as is necessary under Rule 8(a)(2), and thus must be dismissed. Briggs v. Godby, No. 08-5239, 2009 U.S. Dist. LEXIS 115697, at **7-8 (E.D. Pa. Dec. 10, 2009); Fed. R. Civ. P. 8(a)(2). D. Plaintiff Failed to Exhaust Her Administrative Remedies It is well-established that a Title VII plaintiff is required to exhaust all administrative remedies before bringing a claim for judicial relief. 42 U.S.C. § 2000e-5(e); Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996); DeLa Cruz v. Piccari Press, 521 F. Supp. 2d 424, 431 (E.D. Pa. 2007). Here, there is no question that Plaintiff failed to exhaust her administrative remedies. Therefore Plaintiff’s Title VII and PHRA claims should be dismissed with prejudice. “Prior to bringing a claim for judicial relief under Title VII or the PHRA, a plaintiff must exhaust all administrative remedies.” Garcia v. Newtown Twp., No. Civ. A. 09-3809, 2010 WL 785808, at *11 (E.D. Pa. Mar. 5, 2010). A considerable body of case law addresses the process for filing administrative charges in Pennsylvania, where both the EEOC and the PHRC provide administrative procedures that must be exhausted prior to bringing respective federal or state claims for employment discrimination. See Yeager v. UPMC Horizon, 698 F. Supp. 2d 523, 535-536 (W.D. Pa. 2010). To properly exhaust administrative remedies against a private employer, like PST, an aggrieved employee must “fil[e] a timely discrimination charge with the EEOC.” DeLa Cruz, 521 F. Supp. 2d at 431 (citing Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984)). The charge with the EEOC must be filed within 180 days after occurrence of the alleged act of unlawful employment discrimination or within 300 days where the aggrieved party Case 2:16-cv-06460-MAK Document 2-1 Filed 01/17/17 Page 6 of 8 7 FPDOCS 32525932.1 FPDOCS 32526745.1 elected to file charges initially with a state or local fair employment agency. 42 U.S.C. §2000e- 5(e)(1); 29 U.S.C. 626(d)(1). The timely filing of a verified administrative complaint is a prerequisite for suing for damages under Title VII and the PHRA: “A discriminatory act which is not made the basis for a timely charge is. . .merely an unfortunate event in history which has no present legal consequences.” United Air Lines v. Evans, 431 U.S. 553, 558 (1977). The purpose of this requirement is “(1) to ensure ‘that an employer is made aware of the complaint lodged against him and is given the opportunity to take remedial action,’ and (2) to give ‘the EEOC the opportunity to fulfill its statutory duties of eliminating unlawful practices through the administrative process.’” O’Donnell v. Michael’s Family Rest., Inc., No. Civ.A.07-5386, 2008 U.S. Dist. LEXIS 52018, at *2 (E.D. Pa. July 1, 2008) (quoting Jackson v. J. Legis Crozer Library, No. Civ.A.07-481, 2007 U.S. Dist. LEXIS 61582, at *5 (E.D. Pa. Aug. 22, 2007)). Plaintiff’s Complaint contains no allegations stating that she filed an administrative complaint with the EEOC or the PHRC alleging discriminatory conduct by PST. Indeed, there is no indication in the documents filed that Plaintiff has filed, nevermind exhausted, her administrative claims as required. (See Complaint, generally). Plaintiff’s failure to exhaust her administrative remedies is fatal to her action. Joyner v. School Dist. of Phila., 313 F. Supp. 2d 495, 500 (E.D. Pa. 2004) (dismissing Title VII claim for failure to exhaust administrative remedies by not filing charges with EEOC or PHRC); see also 42 U.S.C. § 2000e-5(e); Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir. 1997) (“the causes of action created by Title VII do not arise simply by virtue of the events of discrimination which that title prohibits. A complaint does not state a claim upon which relief may be granted unless it asserts the satisfaction of the precondition to suit specified by Title VII: prior submission of the claim to the EEOC for conciliation or resolution.”) (quoting Hornsby v. United States Postal Serv., 787 F.2d 87, 90 (3d Case 2:16-cv-06460-MAK Document 2-1 Filed 01/17/17 Page 7 of 8 8 FPDOCS 32525932.1 FPDOCS 32526745.1 Cir. 1986)). Plaintiff’s sex and gender discrimination arising under Title VII and the PHRA should therefore be dismissed with prejudice. IV. CONCLUSION For the foregoing reasons, PS Technology, Inc. respectfully requests that this Court dismiss Plaintiff’s Complaint. Respectfully submitted, FISHER & PHILLIPS LLP Date: January 17, 2017 By: /s/ Susan M. Guerette Susan M. Guerette, Esquire Chad A. Flores, Esquire 150 N. Radnor Chester Road Suite C300 Radnor, Pennsylvania 19087 (610) 230-2150 Telephone (610) 230-2151 Facsimile sguerette@fisherphillips.com cflores@fisherphillips.com Counsel for PS Technology, Inc. Case 2:16-cv-06460-MAK Document 2-1 Filed 01/17/17 Page 8 of 8 1 FPDOCS 32525935.1 FPDOCS 32526805.1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CATHERINE PAGE PARTAIN, : : CIVIL ACTION Plaintiff, : v. : : NO. 16-06460-MAK PS TECHNOLOGY, INC., : : Defendant. : ORDER AND NOW, this ______ day of ____________, 2017, upon consideration of Defendant PS Technology, Inc.’s Motion to Dismiss Plaintiff’s Complaint, it is hereby ORDERED AND DECREED that: 1. Defendant’s Motion to Dismiss is GRANTED; and 2. Plaintiff’s Complaint is hereby DISMISSED. ________________________________ The Honorable Mark. A. Kearney Case 2:16-cv-06460-MAK Document 2-2 Filed 01/17/17 Page 1 of 1