Sullivan et al v. Rankin et alBRIEF IN SUPPORT re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIMM.D. Pa.March 30, 20171 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA GENERAL (RET.) FRANK J. SULLIVAN; HAROLD BLEWITT, JR., and ULASH DAMODAR, Plaintiffs, v. RUSSELL RANKIN; EV VENTURES, INC.; MID ATLANTIC GEM, LLC; and POLARIS INDUSTRIES, INC., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 1:16-cv-2546-JEJ Hon. John E. Jones, III POLARIS INDUSTRIES’ REPLY IN SUPPORT OF MOTION TO DISMISS AND NOW comes Defendant Polaris Industries Inc. (hereafter, “Polaris Industries”)-by and through its counsel, Clem C. Trischler of Pietragallo Gordon Alfano Bosick & Raspanti, LLP-and files this reply to Plaintiffs’ response (see Dkt. No. 18-5 [hereafter, the “Response”]) in opposition to Polaris Industries’ motion to dismiss (see Dkt. No. 8 [hereafter, the “Motion”]). I. BACKGROUND Over the course of its 20-page Motion, Polaris Industries detailed the many ways in which Plaintiffs’ claims against it are factually and legally deficient and, therefore, should be dismissed with prejudice. In their three-page Response, Plaintiffs do not quarrel with Polaris Industries’ reading of the law. Quite the Case 1:16-cv-02546-JEJ Document 20 Filed 03/30/17 Page 1 of 9 2 contrary, they tacitly concede that the “extensive recitations” set forth in the Motion fairly and accurately articulate the applicable federal pleading standards and state substantive law. (See Resp., at 1.) Nevertheless, Plaintiffs try to stave off dismissal in two ways-neither of which is persuasive. First, they argue that this is “almost entirely a fact driven case” and, based on their Complaint and an eleventh-hour affidavit attached to their Response, suggest that Federal Rule of Civil Procedure (“Rule”) 8 is satisfied because “a prima facie claim could be maintained to go to a jury.” (Id. at 2.) Alternatively, Plaintiffs seek leave to file an amended complaint. (Id. at 3.) II. ARGUMENT A. The Motion Should Be Granted Irrespective of Rule 8 At the outset, Polaris Industries notes that Plaintiffs’ failure to satisfy federal pleading standards represented just one element of its multifaceted Motion, yet it constitutes the only issue addressed in Plaintiffs’ Response. For reasons explained by Polaris Industries, each of the five “counts” set forth in the Complaint can and should be dismissed as a matter of law irrespective of whether the Complaint is found to satisfy Rule 8. “[W]hen a plaintiff files a response to a motion to dismiss but fails to address certain arguments made by the defendant, the court may treat those arguments as conceded.” Hanoverian, Inc. v. Pa. Dep’t of Envtl. Prot., No. Case 1:16-cv-02546-JEJ Document 20 Filed 03/30/17 Page 2 of 9 3 1:07-cv-00658, 2008 WL 906545, at *16 (M.D. Pa. Mar. 31, 2008) (quoting Williams v. Savage, 538 F. Supp. 2d 34, 41 (D.D.C. 2008)) (Ex. A). In this case, it is not merely a matter of Plaintiffs failing to respond to Polaris Industries’ arguments; they also accede to Polaris Industries’ interpretation of the law. (See Resp., at 1 [“For the most part the Plaintiffs do not dispute the extensive recitations of the law set forth in Defendant Polaris’ Brief and Exhibits.”].) Accordingly, the Motion should be granted regardless of whether the Complaint is found to satisfy Rule 8. B. Plaintiffs’ Complaint Does Not Satisfy Rule 8 That being said, the fact remains that Plaintiffs’ Complaint falls short of federal pleading standards. Perhaps recognizing this reality, Plaintiffs attempt to supplement their pleading by attaching an affidavit to their Response. (See generally Dkt. No. 18-3, Sullivan Aff.) The affidavit, however, cannot be considered in ruling on Polaris Industries’ Motion. To satisfy Rule 8, “[t]he pleading must contain sufficient factual allegations so as to state a facially plausible claim for relief.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (emphasis supplied). “[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.” Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984). Indeed, “[i]t is one thing to set forth theories in a brief; it is quite another to make proper Case 1:16-cv-02546-JEJ Document 20 Filed 03/30/17 Page 3 of 9 4 allegations in a complaint.” Com. of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988). As such, “[p]ursuant to Rule 12(b)(6), affidavits or other peripheral documents are generally not permissible for a district court’s consideration because a motion to dismiss attacks claims contained by the four corners of the complaint.” Snyder v. Baxter Healthcare, Inc., 393 F. App’x 905, 907 (3d Cir. 2010) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997)); see also Mayer, 605 F.3d at 230 (“In deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant’s claims are based upon these documents.”). Plaintiffs insinuate that, if Polaris Industries would like to understand the basis of their claims, it should just file answer and engage in discovery. (See Resp., at 2 [“This is what discovery, depositions and interrogatories are for.”], and id. at 3 [“Defendants always want more facts, but again that is what discovery is for.”].) But this argument puts the cart before the horse. See Capers v. FedEx Ground, No. 2:02-cv-5352, 2012 WL 2050247, at *3 (D.N.J. June 6, 2012) (“[I]t is Plaintiffs who ask the Court to put the cart before the horse-they seek discovery before they meet the notice requirements of Rule 8.”) (Ex. B). “The Supreme Court has stated . . . that plaintiffs must satisfy the pleading requirements of Rule 8 before the discovery stage, not after it.” Mujica v. AirScan Case 1:16-cv-02546-JEJ Document 20 Filed 03/30/17 Page 4 of 9 5 Inc., 771 F.3d 580, 593 (9th Cir. 2014) (emphasis in original); see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (explaining that Rule 8 “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions”); id. at 686 (“Because [the plaintiff’s] complaint is deficient under Rule 8, he is not entitled to discovery, cabined or otherwise.”); Carter v. DeKalb Cty., Ga., 521 F. App’x 725, 728 (11th Cir. 2013) (“[D]iscovery follows the filing of a well-pleaded complaint. It is not a device to enable the plaintiff to make a case when his complaint has failed to state a claim.” [emphasis in original]). Finally, Plaintiffs’ description of this case as a “fact driven . . . mosaic” does nothing to salvage their claims. (Resp., at 1.) The Supreme Court’s “decision in Twombly expounded the pleading standard for ‘all civil actions.’” Iqbal, 556 U.S. at 684 (quoting FED. R. CIV. P. 1). That a case may be considered complex or fact- intensive does not excuse a plaintiff’s failure to satisfy Rule 8. Indeed, “the Iqbal/Twombly standard originated in a complex antitrust litigation.” Wilson v. Kootenai Health, No. 2:11-cv-288, 2012 WL 1301173, at *1 (D. Idaho Apr. 16, 2012) (Ex. C). C. Leave to Amend Should Be Denied As a fallback position, Plaintiffs request leave to file an amended complaint. (Resp., at 3.) In doing so, however, they have failed to comply with LR 15.1, which “requires that the plaintiff file a properly supported motion to amend his Case 1:16-cv-02546-JEJ Document 20 Filed 03/30/17 Page 5 of 9 6 pleading together with an attached copy of the proposed pleading.” Douglas v. Nesbit, No. 1:16-cv-01836, 2017 WL 1021680, at *8 (M.D. Pa. Mar. 16, 2017) (Ex. D); see also LR 15.1(b) (requiring a party seeking to amend a pleading to attach a red-lined copy of the proposed amendment showing what material has been stricken and what material has been inserted). “This failure to comply with Local Rule 15.1, standing alone, justifies denial of leave to amend.” Turner v. Wetzel, No. 3:13-cv-2680, 2015 WL 5695305, at *3 (M.D. Pa. Sept. 28, 2015) (citing Brooks-McCollum v. Emerald Ridge Serv. Corp., 563 F. App’x 144, 147 (3d Cir. 2014)) (Ex. E). By the same token, having failed to attach a copy of the proposed complaint, Plaintiffs have not met their burden under Rule 15(a)(2) to demonstrate that “justice so requires” that they be permitted to amend their pleading. See Lake v. Arnold, 232 F.3d 360, 374 (3d Cir. 2000) (noting that, without a copy of the amended pleading, a district court has “nothing upon which to exercise its discretion”). Even putting aside these procedural shortcomings, Plaintiffs’ informal request to amend should be denied for the simple fact that amendment would be futile. See In re Burlington, 114 F.3d at 1434 (“Among the grounds that could justify a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice, and futility.”). “‘Futility’ means that the complaint, as amended, would Case 1:16-cv-02546-JEJ Document 20 Filed 03/30/17 Page 6 of 9 7 fail to state a claim upon which relief could be granted.” Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). Although Sullivan’s disjointed affidavit cannot be considered for purposes of evaluating Polaris Industries’ Rule 12(b)(6) Motion, it does shed light on the nature of the allegations Plaintiffs would likely include in an amended complaint. In that regard, it is noteworthy only to the extent that it does absolutely nothing to remedy the numerous factual and legal shortcomings already identified by Polaris Industries. For example, it reconfirms the fact that Plaintiffs did not rely on any representations by Polaris Industries in deciding to invest in Rankin’s companies. (Dkt. No. 18-3, Sullivan Aff. ¶ 1 [“Sullivan only put up the money because he was told [his friend, Mel] Chiodo[,] was to be a 50% owner.”].) The affidavit also supports the proposition that non-party Polaris Acceptance Corp. was a victim of- not a participant in-Rankin’s fraud. (Id. ¶¶ 9-18 [describing how Polaris Acceptance Corp.’s audit revealed Rankin was “fraudulently reporting sales with [line of credit] inventory” and “fail[ed] to pay [Polaris Acceptance] $26,178” for vehicles sold].) Boiled down, Plaintiffs’ claims are founded upon a belief that Polaris Industries should have “t[aken] action to assist” Plaintiffs after Rankin’s fraud was exposed. (Id. ¶ 57.) But, as already explained in the Motion, Polaris Industries had no duty to supervise Rankin and, for that and several other reasons, Plaintiffs’ Case 1:16-cv-02546-JEJ Document 20 Filed 03/30/17 Page 7 of 9 8 failure-to-supervise claim fails as a matter of law. (See Mot., at 15-17.) Notably, Plaintiffs do not dispute Polaris Industries’ interpretation of the law. (Resp., at 1.) Thus, even considering the averments set forth in Sullivan’s affidavit, Plaintiffs have not stated a claim upon which relief can be granted. Further amendment, therefore, would be futile. Shane, 213 F.3d at 115. III. CONCLUSION WHEREFORE Polaris Industries Inc. respectfully requests the entry of an order granting the Motion and dismissing, with prejudice, all claims brought against it by Plaintiffs in this action. Dated: March 30, 2017 Respectfully submitted, s/ Clem C. Trischler Clem C. Trischler (PA ID 52957) PIETRAGALLO GORDON ALFANO BOSICK & RASPANTI, LLP One Oxford Centre, 38th Floor Pittsburgh, PA 15219 412-263-1816 Telephone 412-263-2001 Facsimile cct@pietragallo.com Counsel for Polaris Industries Inc. Case 1:16-cv-02546-JEJ Document 20 Filed 03/30/17 Page 8 of 9 9 CERTIFICATE OF SERVICE I hereby certify that on March 30, 2017, I filed the foregoing document using the Court’s electronic filing system, which will send notification of such filing to all counsel of record via electronic mail. Jeffrey Servin 1800 JFK Blvd., Suite 300 Philadelphia, PA 19103 Counsel for Plaintiffs Evan C. Pappas Kenneth J. McDermott TUCKER ARENSBERG, P.C. 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Counsel for Russell Rankin, EV Ventures, Inc., and Mid Atlantic GEM, LLC s/ Clem C. Trischler Clem C. Trischler Case 1:16-cv-02546-JEJ Document 20 Filed 03/30/17 Page 9 of 9 Exhibit A Case 1:16-cv-02546-JEJ Document 20-1 Filed 03/30/17 Page 1 of 14 Hanoverian, Inc. v. Pennsylvania Dept. of Environmental..., Not Reported in... © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2008 WL 906545 Only the Westlaw citation is currently available. United States District Court, M.D. Pennsylvania. HANOVERIAN, INC. et al., Plaintiffs v. PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendant. Civil Action No. 1:07-CV-00658. | March 31, 2008. Attorneys and Law Firms Donald Litman, Edwards & Litman, Quakertown, PA, for Plaintiffs. James F. Bohan, Office of Chief Counsel, Pennsylvania Dept., Harrisburg, PA, for Defendant. MEMORANDUM KANE, Chief Judge. *1 Before the court are the Pennsylvania Department of Environmental Protection's motion to remand the above- captioned action to the Pennsylvania Environmental Hearing Board (Doc. No. 6) and its motion for sanctions, including attorney's fees incurred in connection with the removal of the action, against Hanoverian, Inc., Donald Metzger, the 200 Cascade Drive Ordinary Trust, plaintiffs' counsel Donald Litman, and the law firm of Edwards and Litman with which Donald Litman is affiliated (Doc. No. 20). For the reasons that follow, the Court will grant the motion to remand, deny the motion for sanctions with respect to Hanoverian, Inc., Donald Metzger, and the 200 Cascade Drive Ordinary Trust, and grant the motion for sanctions with respect to Donald Litman and the law firm of Litman and Edwards. I. BACKGROUND In 1981, the Pennsylvania Department of Environmental Protection (“Department”) issued a solid waste permit (“Permit”) to Quaker Alloy Casting Company (“Quaker Casting”) for a landfill at 200 East Richland Avenue in Myerstown, Pennsylvania (“Landfill”). (Doc. No. 9-3, at 5.) The Department modified the permit on several occasions thereafter, most notably on September 29, 1986, to authorize the transfer of the Landfill's ownership from Quaker Casting to Quaker Alloy, Inc., (Id., at 12) (“Quaker Alloy”) and on July 5, 2000, to allow captive processing of residual waste (Id., at 24; see also id., at 26). The application (id., at 30, 37) for the latter modification identifies the applicant as “Quaker Alloy, Inc.” and includes Quaker Alloy's employer and taxpayer identification numbers (id., at 31, 37). A. The Bankruptcy Proceedings On August 4, 2003, Atchison Casting Corporation (“Atchison”) and twelve of its domestic subsidiaries, including Quaker Alloy, (“Debtors”) filed voluntary petitions for Chapter 11 bankruptcy relief in the United States Bankruptcy Court for the Western District of Missouri (“Bankruptcy Court”). (Doc. No. 9-5; see also Doc. No. 9-7, at 3.) Quaker Alloy's petition identifies the debtor as “Quaker Alloy, Inc.” and, like the application for the July 2000 modification, includes Quaker Alloy's taxpayer identification number. (Id., at 2.) That same day, the Bankruptcy Court issued an order authorizing the joint administration of the Debtors' cases, and directing that all pleadings be filed at the docket number for the Atchison case. (Doc. No. 9-6, at 2.) On January 15, 2004, the Bankruptcy Court entered an order authorizing the sale of Quaker Alloy's assets (“Sale Order”) (Doc. No. 9-10), and, one week later, appointed Erlene Krigel (“Krigel”) as the trustee in bankruptcy for the Debtors (id.). The Sale Order authorized the sale of Quaker Alloy's remaining assets subject to, inter alia, the following terms and conditions: C. The sale of the Assets shall be free and clear of liens and all other claims whatsoever pursuant to section 363(f) of the Bankruptcy Code, whether known or unknown, including, but not limited to, any existing right(s) of first refusal or similar protective right alleged by any party, except as specifically referenced herein, any liens and claims of any of the Debtors' creditors, vendors, supplies, employees or lessors, and the buyers shall not be liable in any way for any claims that any of the foregoing or any other third party may have against the Debtors or the Assets. Any and all alleged liens and claims on such Assets shall be transferred, affixed, and attached to the proceeds of the sale, with the same Case 1:16-cv-02546-J J Document 20-1 Filed 03/30/17 Page 2 of 14 Hanoverian, Inc. v. Pennsylvania Dept. of Environmental..., Not Reported in... © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 validity, priority, force, and effect as such liens had been upon the Assets immediately prior to the sale. *2 E. Subject to the payment by the buyer(s) to Debtors of the purchase price for the Assets, the sale of the Assets by the Debtors to the buyer(s) shall constitute a legal, valid and effective transfer of the Assets and shall vest buyer(s) with all right, title, and interest of the Debtors in and to the Assets, free and clear of all liens pursuant to section 353(g) of the Bankruptcy Code. (Doc. No. 1-7, at 27-28.) At a public auction held March 23, 2004, Hanoverian, Inc. (“Hanoverian”) submitted the winning bid of $540,000 for the Landfill. (Doc. No. 27, at 8; Doc. No. 27-2, at 2; Doc. No. 1-4, at 9.) On April 8, 2004, Linda Houseal, the solid waste supervisor at the Department's Southcentral Regional Office, informed Thomas Marks, an environmental consultant in the employ of Hanoverian, that, pursuant to Pennsylvania law, the Department would require any purchaser of the Landfill to obtain a permit reissuance and bond the Landfill. (Doc. No. 9-3, at 4.) Krigel sold the Landfill to Hanoverian by a quitclaim deed dated April 9, 2004. (Doc. No. 1-7; Doc. No. 1-4, at 11.) Sometime after purchasing the Landfill, Hanoverian contacted Krigel and expressed an interest in purchasing the corporate name of “Quaker Alloy, Inc.” (“Corporate Name”). See In re Atchison Casting Corp., No. 03- 50965, Trustee's Motion for Order Authorizing Sale of Corporate Name, at 2 (Bank. W.D. Mo. June 30, 2004). On June 30, 2004, Krigel moved the Bankruptcy Court for authorization to sell the Corporate Name to Hanoverian for $1,500. Id. The Bankruptcy Court subsequently issued an order authorizing the sale (Doc. No. 1-4, at 21), and, by a bill of sale dated August 3, 2004, Krigel transferred “unto Hanoverian, Inc., Trustee for the 200 Cascade Drive Ordinary Trust ... all of Seller's right, title and interest in and to the corporate name of Quaker Alloy, Inc.” (Id., at 25). As the Department observes in its brief, neither the order nor the bill of sale contemplate “the sale of the corporation known up until that time as ‘Quaker Alloy, Inc.’ or the sale of any rights that corporation had under the Permit.” (Doc. No. 9, at 10.) On August 9, 2004, the Debtor previously known as “Quaker Alloy, Inc.” filed a notice with the Bankruptcy Court indicating that “it ha[d] changed its corporate name to Quaker Administration, Inc., such name change being occasioned as a result of the sale of the Debtor's corporate name to Hanoverian, Inc., Trustee for the 200 Cascade Drive Ordinary Trust....” (Doc. No. 1-4, at 23.) B. The Environmental Hearing Board Appeals On April 24, 2006, Hanoverian's general counsel Craig Edwards (“Edwards”) sent a letter to the Department's assistant counsel James Bohan (“Bohan”) in which he stated: “With regard to the ownership of [the Landfill], the deeded owner is Hanoverian, Inc. as trustee. The landfill parcel is being transferred to Quaker Alloy, Inc. (which was a name obtained from the bankruptcy trustee).... To my knowledge, as [t]rustee for the 200 Cascade Drive Ordinary Trust, Hanoverian, Inc. is not required to be registered to do business in Pennsylvania.” (Doc. No. 1- 10, at 17.) Fifteen days later, the Department sent a letter to Krigel, notifying her that the Permit had been revoked “[b]y virtue of Quaker Alloy, Inc.'s ... dissolution, and Quaker Alloy abandoning the permitted facility without providing for final closure.” (Doc. No. 9-4, at 5 .) The Department sent a copy of the letter to Quaker Alloy at its address of record in Myerstown, Pennsylvania, that same day. (Id., at 3, 8.) Two days later, the letter to Quaker Alloy came back to the Department marked “not deliverable as addressed; unable to forward.” (Id.) In addition to the letters, the Department published notice of the revocation in the July 29, 2006, issue of the Pennsylvania Bulletin. (Doc. No. 9-20, at 2.) 1. The Permit Revocation and Bond Forfeiture Appeals *3 On August 28, 2006, Hanoverian filed a notice of appeal with the Pennsylvania Environmental Hearing Board (“EHB”) challenging the Department's decision to revoke the Permit (“Permit Appeal”). (Doc. No. 1- 5, at 6.) In early September, the Department declared the bond for the Landfill, submitted by “Quaker Alloy, Inc.” in 1986, forfeited and proceeded to collect thereon. (Doc. No. 9-3, at 15; see also id., at 22; Doc. No. 1- 5, at 17.) On October 4, 2006, the Department served Hanoverian with its first set of interrogatories and first request for production of documents in connection with the Permit Appeal. (Doc. No. 9-16.) A good number of the interrogatories questioned Hanoverian's authority to do business in Pennsylvania, either under the name “Hanoverian” or under fictitious names with the words “Quaker” or “Alloy.” In particular, the Department requested that Hanoverian: Case 1:16-cv-02546-J J Document 20-1 Filed 03/30/17 Page 3 of 14 Hanoverian, Inc. v. Pennsylvania Dept. of Environmental..., Not Reported in... © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 1. Please list each state: (a) In which Hanoverian has been incorporated as well as the date of incorporation in each state. (b) In which Hanoverian is legally qualified to conduct business .... 2. Please list all trade or other names under which Hanoverian has done business from the date of [Hanoverian's] incorporation to the present; and the state(s) in which Hanoverian has done business under each name. ... 8. In what state(s) does Hanoverian contend that it is doing business as “Quaker Alloy”? ... If Hanoverian contends that it is doing business as “Quaker Alloy” in Pennsylvania, please: (i) State the factual basis for this contention. (ii) Identify all persons with knowledge or information supporting this contention. (iii) Identify any and all documents containing information relevant to this contention. (Doc. No. 9-16, at 5, 6, 8.) On November 15, 2006- forty-two days after serving Hanoverian with its first interrogatories-the Department filed a motion to compel discovery with the EHB. (Doc. No. 9-17, at 2.) Five days later, Hanoverian filed a notice of appeal with the EHB, contesting the forfeiture of the bond (“Bond Appeal”). (Doc. No. 1-5, at 12.) On November 22, 2006, Hanoverian filed an application for a certificate of authority (Doc. No. 9-21) and an application for registration of the fictitious name “Quaker Alloy” (Doc. No. 9-22) with the Corporations Bureau of the Pennsylvania Department of State. Edwards executed both applications in his capacity as Hanoverian's general counsel. (Doc. No. 9-21, at 3; Doc. No. 9-22, at 3.) 2. The Administrative Order and the Articles of Amendment On December 7, 2006, the EHB issued two orders, one granting the Department's motion to compel discovery (Doc. No. 1-8) and another consolidating Hanoverian's appeals under the docket number for the Permit Appeal (Doc. No. 9-17, at 3). That same day, the Department issued an administrative order (“Administrative Order”) to Hanoverian and its president Donald Metzger (“Metzger”) (Doc. No. 9, at 15), for past and ongoing violations at the Landfill, namely, owning and operating the Landfill without first obtaining a permit reissuance or submitting a bond, and failing to implement an approved closure plan or a provide adequate sampling and analysis (Doc. No. 9-24, at 10-12). Litman responded to the order in a letter sent to Bohan the following week, wherein he asserted, among other things, that “Quaker Alloy, Inc. is no longer the [sic] bankrupt entity, as Quaker Alloy, Inc. (along with all right title [sic] and interest of the name- including the permit) belongs to my client, Hanoverian, Inc.” and “Quaker Alloy is alive and well....” (Doc. No. 1-8, at 22.) *4 On December 26, 2006, Edwards filed articles of amendment to Quaker Alloy's articles of incorporation -more precisely, the articles of incorporation filed by a Missouri attorney in 1994-with the Pennsylvania Corporation Bureau. (Doc. No. 9-23, at 2, 10.) In the filing form that accompanied the articles, Edwards indicated that Quaker Alloy's registered office was “c/ o Hanoverian, Inc.” in Coopersburg, Pennsylvania, (id.) and attested that “[t]he amendment was adopted by the board of directors pursuant to 15 Pa. C[ons]. S[tat]. § 1914(c)” (id.). The first two articles provide as follows: QUAKER ALLOY, INC. (formerly known as the Atchison Casting Corp.) As amended pursuant to the sale from the United States Trustee Erlene W. Krigel to conform with the provisions of the Order of the U.S. Bankruptcy Court in the matter of IN RE ATCHISON CASTING CORP., No. 03-50965-jwv7 U.S. Bankruptcy Ct., WD Missouri (Copy attached) These Articles of Amendment were approved by majority vote of the Board of Directors and sole shareholder Donald C. Metzger on April 29, 2005; a quorum was present at such meeting; the amendment received at least two-thirds of the votes entitled to be cast at such meeting. The undersigned, the president and secretary of the corporation known as the [sic] “Quaker Alloy, Inc.” and each being a natural person of the age of 21 years or more, does hereby verify and file these Articles of Case 1:16-cv-02546-J J Document 20-1 Filed 03/30/17 Page 4 of 14 Hanoverian, Inc. v. Pennsylvania Dept. of Environmental..., Not Reported in... © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 Amendment pursuant to the Pennsylvania Business Corporation Law of 1988. ARTICLE OF AMENDMENT I The name of the corporation shall be “Quaker Alloy, Inc.” and Article I is hereby amended to delete all prior names, and the new name includes the usage of “Quaker Alloy” as the name of the corporation. ARTICLE OF AMENDMENT II The following provisions shall be substituted to Article V of the Articles of Incorporation and inserted in its stead: The Corporation shall have the following officers: Donald C. Metzger PRESIDENT, SECRETARY & TREASURER 1930 Rt. 309 Coopersburg, PA 18036 Bucks County (Id., at 12.) A third article of amendment restructured the capitalization of the corporation from “1,500,000 shares of Common Stock consisting of 1,000,000 shares of Class A Common Stock, $1.00 par value per share, and 500,000 shares of Class B Non-voting Common Stock, $1.00 par value per share” (id., at 7) to “one class of stock: 100,000 shares [at] $0.10 Par Value” (id., at 12). Edwards executed the filing form (id., at 11) and Metzger executed the articles of amendment (id., at 12). 3. The Order Appeal On January 8, 2007, Hanoverian, Metzger, and the 200 Cascade Drive Ordinary Trust (“Trust”), of which Hanoverian is the sole trustee (Doc. No. 1-9, at 19), filed a third notice of appeal with the EHB (“Order Appeal”), charging that the Department “has been engaged in unlawful conduct under federal bankruptcy law by taking adverse actions contrary to the automatic stay pursuant to federal law against the bankruptcy entity Quaker Alloy, Inc., without first obtaining the allowance of court in the matter of IN RE ATCHISON CASTING CORP .... in accordance with 11 [U.S.C.] § 362(d),” (Doc. No. 1-5, at 21-22). The unlawful conduct, appellants allege, includes “unlawfully, willfully and deliberately commenc[ing] to revoke [the Permit] and forfeit the bond without affording any direct notice to Appellee, but [sic] ch[oosing] instead to forward the same to the bankruptcy trustee” and “ch[oosing] instead to engage in a slanderous public press release that improperly impugned the reputation, name and character of the Appellants and the bankrupt entity.” (Id., at 22-23.) Appellants further charge that “Donald Metzger as a beneficiary is not a proper party to this matter, and preliminarily objects pursuant to the Pennsylvania Rules of Civil Procedure to being named in [the Administrative] Order, and moves herein to be dismissed with prejudice pursuant to [Pa. R. Civ. P.] 1028.” (Id., at 23.) Lastly, Hanoverian individually objects, without further explanation, “to the Administrative Order of the Department, because said action deprives said Appellant of their [sic] due process rights as equitable owner of the permit.” (Doc. No. 1- 5, at 25.) On January 12, 2007, the EHB issued an order consolidating all three appeals under the docket number for the Permit Appeal. (Doc. No. 9-19, at 2-3.) C. Plaintiffs' Notice of Removal *5 On April 9, 2007-ninety-one days after the Order Appeal had commenced-Litman filed a “Notice of Removal of State Court Action to U.S. District Court” and civil cover sheet with the Middle District Clerk of Court. (Doc. Nos.1, 1-2.) Both documents name the same four plaintiffs, here listed in full for the sake of accuracy, but hereafter referred to as “Plaintiffs” for the sake of convenience: Hanoverian, Inc. dba Quaker Alloy, Quaker Alloy, Inc ., 200 Cascade Drive Ordinary Trust, and Donald Metzger. (Doc. No. 1, at 1; Doc. No. 1-2, at 2.) The disclosure statement appended to the notice of removal avers that the “Petitioner, Hanoverian, Inc., a Delaware Corporation, is a nongovernmental corporate party herein that is not publicly traded, and is the parent corporation of Quaker Alloy, Inc., a Pennsylvania Corporation, which is not publicly traded.” (Doc. No. 1, at 6.) The business entity filing history for Quaker Alloy, Inc., provided by the Corporations Bureau and filed as an exhibit to the notice of removal, gives an entity creation date of April 11, 1994, and lists Dinny Kinloch of 200 Richland Avenue, Myerstown, Pennsylvania, as president and Kevin McDermed of the same address as secretary and treasurer. (Doc. No. 1-11, at 18.) In the cause-of-action section of the civil cover sheet, Plaintiffs cite § 363 of the Bankruptcy Code, 11 U.S.C. § 363, as the basis for bringing suit and, by way of further Case 1:16-cv-02546-J J Document 20-1 Filed 03/30/17 Page 5 of 14 Hanoverian, Inc. v. Pennsylvania Dept. of Environmental..., Not Reported in... © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 explanation, state that the “PA DEP has violated U.S. Bankruptcy law by asserting claims against sold [sic] under Order of the Bankruptcy Court (WD Missouri) that were not asserted by claim or adversary proceeding in the Bankruptcy Court.” (Doc. No. 1-2, at 1.) The notice of removal, however, states otherwise: [P]laintiffs (“collectively referred to as Quaker Alloy”), through its undersigned counsel, hereby files [sic] this Notice of Removal pursuant to 28 U.S.C. § 1452(a) and Federal Rule of Bankruptcy Procedure 9027(a). Quaker Alloy hereby removes to the Middle District Court of Pennsylvania all claims and causes of action in the state action styled Hanoverian, Inc. Et Al [sic] v. Pennsylvania Department of Environmental Protection EHB Docket Nos. 2007028, 2006256, and 2006192, now pending in the Pennsylvania Environmental Hearing Board (the “State Court Action”). (Doc. No. 1, at 1-2.) Plaintiffs' principle claim upon removal is that the Department “engaged in unlawful actions in violation of the U.S. Bankruptcy Court Orders and federal law by taking actions against the Petitioner concerning [the Permit] that were required to be raised before the Bankruptcy Court before the authorized sales to Petitioner” and, “[a]lthough [the Department] failed to object or otherwise file an adversary proceeding against Quaker Alloy, Inc., for the intended sale of the landfill and permit, ... in April 2006 [the Department] notified incorrectly the U.S. Trustee only of their [sic] intention to forfeit the bond on [the Permit], and failed to notify the Plaintiffs.” (Id., at 3-4.) Fundamental to Plaintiffs' claim are the allegations that “[w]ithout objection or condition of the [Department], in 2004 the United States Trustee for Quaker Alloy, Inc. obtained approval from the U.S. Bankruptcy Court to liquidate the assets of Quaker Alloy, Inc., including scheduled bank deposits constituting a collateral bond of $27,125 relating to [the Permit]” and that “[i]n July 27, 2004 pursuant to U.S. Bankruptcy Court order, the U.S. Trustee sold all the right, title and interest to the corporate entity Quaker Alloy, Inc. to the Plaintiffs/Petitioner, including the right to any and all personalty belonging to Quaker Alloy, Inc. such as [the Permit].” (Id., at 3.) Plaintiffs claim unspecified damages in excess of $1,000,000 and pray that the Department will “reinstate the bond and permit to Quaker Alloy, Inc. and be enjoined from further acts in violation of federal law with regard to [the Permit].” (Id., at 5-6.) II. DISCUSSION A. The Department's Motion to Remand (Doc. No. 6) *6 The Department advances four distinct grounds in support of its motion to remand the action to the EHB: (1) The notice of removal was untimely filed; (2) “Quaker Alloy, Inc.” is improperly named as a party to the action; (3) Plaintiffs filed the notice of removal in bad faith; and (4) the EHB is not a “state court” and an appeal to the EHB is not a “civil action” for the purposes of removal under 28 U.S.C. § 1452(a). (Doc. No. 6, at 2-3.) The Department adds a fifth ground to the list via its brief in reply, namely, that Plaintiffs failed to timely file their brief in opposition and, pursuant to Local Rule 7.6, the Court should grant its motion as unopposed. (Doc. No. 17, at 7-11.) See M.D. Pa. L.R. 7.6 (“Any respondent who fails to [timely file a responsive brief] shall be deemed not to oppose such motion.”). Plaintiffs' brief in opposition-which was, in fact, untimely filed-is in large part unresponsive, arguing from the premise that “[t]he only issue before this Court is the matter of a governmental agency asserting claims against a good faith purchaser of property that were required to be raised before a federal court of which they [sic] had notice should the agency object or otherwise require such sale with conditions.” (Doc. No. 16, at 1.) Following this obliquity is a page-long quotation from Pennsylvania's Solid Waste Management Act (id., at 2-3); a string of incredible factual contentions, such as “the Respondent admits that they enjoyed a biased administrative judge” in the EHB (id., at 3) and “Respondent argues in their memorandum that the [EHB] is not a tribunal but an administrative governmental unit enforcing police powers in this matter that are criminal rather than civil in nature” (id., at 4); vague intimations of federal questions lurking in the shadows-stating, for instance, that the Department's actions “appear to violate the commerce clause” or “appear to violate due process protections” (id., at 4-5); and numerous impenetrable conclusions of law, of which the following is typical: Supremacy clause mandates that policy decision by Congress to subject all creditors including states to general presumption against postpetition [sic] additions, pursuant to its bankruptcy power, displace normal operation of state's Case 1:16-cv-02546-J J Document 20-1 Filed 03/30/17 Page 6 of 14 Hanoverian, Inc. v. Pennsylvania Dept. of Environmental..., Not Reported in... © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6 statutory provision for additions to local property taxes for penalties accruing on delinquent property taxes after filing bankruptcy petition to extent latter command result contrary to federal statute; bankruptcy court's lack of power to address state tax liens would seriously impair its power to administer estate and promulgate reorganization plan. (Id., at 7.) Finally, in three short paragraphs at the close of their brief, under the heading “The Notice Was Timely Filed,” Plaintiffs confront the issue of timeliness: It is the fault of Respondent that a Petition for Removal was not filed within sixty days of the first appeal to the EHB, as the Respondent never afforded direct notice of the permit being revoked to Petitioner and refused to comply with discovery until April 2007. As to the second appeal to the EHB, the DEP sent the notice to a trustee in Missouri rather than to the real party in interest, and this clearly evidences a lack of good faith which forbids DEP to raise a timeliness argument now on equitable grounds.... [I]t was the delay by DEP to submit their discovery replies until April 2007 that hindered counsel to seek removal in good faith. DEP should not now benefit by their bad faith actions and inequitable conduct. *7 (Id., at 7-8.) Notwithstanding the gravity of these claims, Plaintiffs cite no legal authority in their support. More remarkable still, there is not a single citation to the record-a 377-page jumble of filings, letters, and instruments, some of which appear in duplicate and triplicate-anywhere in their brief. (See generally id.) What is more, by omitting a counter statement of the facts, Plaintiffs have effectively conceded the Department's version of the events preceding removal. M.D. Pa. L.R. 7.8 (“If a counter statement of facts or questions involved are not filed, the statements of the moving party will be deemed adopted.”). While these failings alone are cause enough to grant the Department's motion, the Court will nevertheless examine the merits of Plaintiffs' arguments. See D'Angio v. Borough of Nescopeck, 56 F.Supp.2d 502, 504 (M.D.Pa.1999) (“A litigant who fails to press a point by supporting it with authority or by showing why it is a good point despite a lack of authority ... forfeits the point.” (citations omitted)); see also M.D. Pa. L.R. 7.8 (“Briefs shall contain complete citations of all authorities relied upon ....”). According to the notice of removal, Plaintiffs relied upon 28 U.S .C. § 1452(a) and Federal Rule of Bankruptcy Procedure 9027(a) in removing the appeals. (Doc. No. 1, at 1-2.) Section 1452(a) provides that a “party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental unit's police or regulatory power, to the district court for the district where such civil action is pending, if such district court has jurisdiction ....” 28 U.S.C. § 1452(a). Subsection 3 of Federal Rule of Bankruptcy Procedure 9027(a) prescribes the time for filing a notice of removal: If a claim or cause of action is asserted in another court after the commencement of a case under the [Bankruptcy] Code, a notice of removal may be filed with the clerk [of court] only within the shorter of (A) 30 days after receipt, through service or otherwise, of a copy of the initial pleading setting forth the claim or cause of action sought to be removed, or (B) 30 days after receipt of the summons if the initial pleading has been filed with the court but not served with the summons.” Fed. R. Bankr.P. 9027(a)(3). Under § 1452(b), a “court to which [a] claim or cause of action is removed may remand such claim or cause of action on any equitable ground.” 28 U.S.C. § 1452(b). Forgetting for a moment that Rule 9027(a)(3) speaks of courts, cases, pleadings, and defendants, and not boards, appeals, notices, or appellants, Plaintiffs in this case were required to file a notice of removal within thirty days of commencing their most recent appeal. See Fed. R. Case 1:16-cv-02546-J J Document 20-1 Filed 03/30/17 Page 7 of 14 Hanoverian, Inc. v. Pennsylvania Dept. of Environmental..., Not Reported in... © 2017 Thomson Reuters. No claim to original U.S. Government Works. 7 Bankr.P. 9072(a)(3). In fact, Plaintiffs filed the notice of removal on April 9, 2007, or, using the appeals as points of reference, 224, 140, and 91 days after commencing the Permit, Bond, and Order Appeals, respectively. (See Doc. No. 1-5, at 6 (Permit Appeal commenced Aug. 28, 2006); id., at 12 (Bond Appeal commenced Nov. 20, 2006); id., at 21-22 (Order Appeal commenced Jan. 8, 2007).) Thus, under the best of circumstances, the Clerk of Court received the notice two months too late. Plaintiffs, however, as previously mentioned, fault the Department for the delay: first, for providing “direct notice” of the permit revocation and bond forfeiture to the Trustee instead of “the real party in interest,” i.e., the Plaintiffs, and, second, for “refus[ing] to comply with discovery until April 2007.” (Doc. No. 16, at 7-8.) More particularly, Plaintiffs contend that “it was the delay by DEP to submit their discovery replies until April 2007 that hindered counsel to seek removal in good faith.” (Id., at 8.) *8 Whether or not the Department provided the Plaintiffs with actual notice of the permit revocation or bond forfeiture is completely inapposite to any equitable arguments Plaintiffs might now make. Plaintiffs commenced their most recent appeal on January 8, 2007. Under Rule 9072(3)(a), the parties had until February 7, 2007, to file notice of removing the appeal, actual notice or not. Moreover, even if actual notice had some bearing upon the matter, which it does not, there is ample evidence that the Plaintiffs had constructive notice of the permit revocation well before the February 7, 2007, filing deadline. (See, e.g., Doc. No. 1-8, at 22 (Letter dated December 13, 2006, from Edwards to Bohan addressing, inter alia, permit revocation).) Indeed, Hanoverian unequivocally states in its notice of appeal filed August 28, 2006, that it “became aware of the revocation action from publication in the Pennsylvania Bulletin.” (Doc. No. 1-5, at 7; see also Doc. No. 1-8, at 5 (Bond Appeal filed November 20, 2006) (“Appellant ... was indirectly advised of the bond forfeiture action within thirty days of the date of this appeal.”); Doc. No. 1-5, at 22 (Order Appeal filed January 8, 2007) (“[T]he Appellee unlawfully, willfully, and deliberately commenced to revoke [the Permit] and forfeit the bond ....”).) As a matter of law, the Permit was not appurtenant to the Landfill or freely transferable. See 25 Pa.Code § 287.221(a) (2008) (“A transfer, assignment or sale of rights granted under a permit may not be made without obtaining permit reissuance.”); 35 Pa. Cons.Stat. Ann. § 6018.610(9) (2007) (“It shall be unlawful for any person or municipality to ... [c]ause or assist in the violation of ... any order of the department or any term or condition of any permit.”). Sending notice by letter to the court- appointed Trustee in Missouri and the permittee Quaker Alloy, Inc. in Myerstown, Pennsylvania-its address of record-instead of Hanoverian, the Trust, Metzger, or the fictitious name “Quaker Alloy, Inc.” does not therefore “clearly evidence a lack of good faith,” but rather an abundance of common sense and strict adherence to the state's environmental regulations. (Doc. No. 16, at 8.) See 25 Pa.Code § 287.422(b) (2008) (providing, exclusively, that “[t]he Department will publish in the Pennsylvania Bulletin notice of the revocation or suspension of a permit”); cf. id. § 287.414(a) (2008) (providing that service of civil penalty assessments “will be by registered or certified mail, or by personal service .... tendered at the address of that person set forth in the application for a permit”). Perhaps unsurprisingly, Plaintiffs' assertion that the Department “refused to comply with discovery until April 2007” finds not a shred of support in the record. (Doc. No. 16, at 7-8.) On the contrary, the record unambiguously shows that it was Plaintiffs, not the Department, that failed to comply with discovery. To begin with, the Department, not Hanoverian, filed a motion to compel discovery with the EHB on November 11, 2006. (Doc. No. 1-5; see also Doc. No. 1-4, at 36 (Docket for consolidated appeals).) The following month, the EHB issued an order granting the Department's motion and directing Hanoverian “to serve full and complete answers to [the Department's] discovery requests on or before January 12, 2007.” (Doc. No. 1-8, at 16.) On January 22, 2007, ten days after the discovery deadline had come and gone, the Department filed a motion for sanctions, exhaustively cataloguing Plaintiffs' numerous “discovery abuses.” (Doc. No. 1-5, at 44.) The EHB eventually dismissed the motion as moot, having brokered a revised discovery schedule. (Id., at 3.) To conclude, nowhere in the record is there the slightest indication that the Department in any way delayed or refused to comply with discovery. Having found that the notice of removal was untimely filed, the Court need not consider the Department's other grounds for remand. The Court will grant the motion to remand. B. Motion for Sanctions Case 1:16-cv-02546-J J Document 20-1 Filed 03/30/17 Page 8 of 14 Hanoverian, Inc. v. Pennsylvania Dept. of Environmental..., Not Reported in... © 2017 Thomson Reuters. No claim to original U.S. Government Works. 8 *9 In its motion for sanctions, the Department seeks an order directing Litman, the law firm of Edwards and Litman, and Plaintiffs to reimburse the Department for its reasonable expenses, including attorney's fees, and imposing any other sanctions that the Court might deem appropriate under Federal Rule of Civil Procedure 11 and Federal Rule of Bankruptcy Procedure 9011(b). (Doc. No. 20, at 1-2.) Rule 11 provides in relevant part that: By presenting to the court a pleading, written motion, or other paper-whether by signing, filing, submitting, or later advocating it-an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.... Fed.R.Civ.P. 11(b)(1)-(3). Rule 11 further provides that “[i]f, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.” Id. 11(c)(1). The rule therefore not only protects against a party presenting a paper for an improper purpose, but “imposes on any party who signs a document submitted to the court an affirmative duty to conduct a reasonable inquiry into the facts and law before filing.” Bradgate Assocs., Inc. v. Fellows, Read & Assocs., Inc., 999 F.2d 745, 751 (3d Cir.1993). In short, the rule cautions litigants “to look before leaping.” Lieb v. Topstone Indus., Inc., 788 F.2d 151, 157 (3d Cir.1986); see also Thornton v. Wahl, 787 F.2d 1151, 1154 (7th Cir.1986) (“The point ... is that every lawyer must do the necessary work to find the law before filing the brief.”). Because the Federal Rules of Bankruptcy Procedure govern procedure in courts of bankruptcy exclusively, the Court will disregard Defendant's arguments predicated thereupon, Rule 9011(b) included. See generally Fed. R. Bankr.P. 1001. The Third Circuit has consistently held that, in scrutinizing a paper against the requirements of Rule 11, “courts must apply an objective standard of reasonableness under the circumstances.” Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 94 (3d Cir.1988); see also Bradgate Assocs., Inc., 999 F.2d at 752; Lieb, 788 F.2d at 157. Thus, when examining the sufficiency of an attorney's investigation of facts and law, courts are “expected to avoid the wisdom of hindsight and ... test the signer's conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted.” CTC Imports and Exps. v. Nigerian Petroleum Corp., 951 F.2d 573, 578 (3d Cir.1991) (citation omitted). “Notwithstanding the emphasis on the time of initial submission, however, parties will not be entitled to continuing immunity if they acquire or should acquire knowledge under the Rule's standard before a later filing.” Gaiardo v. Ethyl Corp., 835 F.2d 479, 484 (3d Cir.1987). And neither may the parties “escape liability because [they] did not intend to bring about additional delay or expense.” Lieb, 788 F.2d at 157. *10 According to the Third Circuit, what constitutes a reasonable inquiry may depend on such factors as: (1) the amount of time available to the signer for conducting a factual and legal investigation; (2) the necessity of relying on a client for the underlying factual information; (3) the plausibility of the legal position advocated; (4) the complexity of the legal and factual issues implicated; (5) whether the signer depended on forwarding counsel or another member of the bar; and (6) whether the signer was in a position to know or acquire the relevant factual details. See CTC Imports and Exps., 951 F.2d at 578; Lingle, 847 F.2d at 95; Colburn v. Upper Darby Twp., 838 F.2d 663, 667 (3d Cir.), cert. denied 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1988). Above all else, “a district court must ensure that there is an adequate factual predicate for flexing its substantial muscle under its inherent powers, and must also ensure that the sanction is tailored to address the harm identified.” Republic of Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 74 (3d Cir.1994). In its brief in support, the Department argues that, “[h]ad Litman conducted a reasonable inquiry into the legal contentions and evidentiary support in the Notice Case 1:16-cv-02546-J J Document 20-1 Filed 03/30/17 Page 9 of 14 Hanoverian, Inc. v. Pennsylvania Dept. of Environmental..., Not Reported in... © 2017 Thomson Reuters. No claim to original U.S. Government Works. 9 of Removal, he would have known that removal was improper.” (Doc. No. 21, at 4.) “Furthermore,” it contends, “the totality of the circumstances surrounding the Notice of Removal show that it was filed for an improper purpose.” (Id., at 5.) What follows is a lengthy but non-exhaustive list of Litman's transgressions, meticulously supported by citations to existing law and the record. Regarding Litman's legal contentions, the Department claims that a reasonable inquiry would have revealed, first, that the appeals were not “civil actions” for the purpose of 28 U.S.C. § 1452(a) and therefore not removable under § 1441 and, second, that, even if they were, the opportunity for removal under Rule 9027(a)(3) had long since evaporated by the time Litman filed the notice. (Id., at 14-19.) Regarding Litman's factual contentions, the Department likewise asserts that a reasonable inquiry would have revealed a lack of evidentiary support for his contentions that: (1) Quaker Alloy, Inc. is properly named as a party to the instant action; (2) the Bankruptcy Court authorized the sale of the “corporate entity” that owned and operated the Landfill under the Permit; (3) the “Trustee sold all right, title, and interest [in] the corporate entity Quaker Alloy, Inc. to the [Plaintiffs], including the rights to any and all personalty belonging to Quaker Alloy, Inc. such as [the Permit]”; (4) each of the Plaintiffs is incorporated in and has a principal place of business in a state other than Pennsylvania; and (5) that “Quaker Alloy Fire [sic][had] provided written notice of [the] Notice of Removal to counsel of record for all parties and [that] a true and complete copy of [the] Notice of removal [had] been filed in the State Court [sic] Action” prior to April 2, 2007. (Id., at 19-25 (citing Doc. Nos. 1, 1-2).) *11 Finally, the Department marshals considerable evidence in support of its contention that “the Notice of Removal was not merely ill-conceived, but was deliberately crafted to mislead the Court and harass the Department.” (Id., at 25.) Such evidence includes not only the foregoing legal and factual contentions, but record proof that: (1) of the named plaintiffs, only Hanoverian appealed the permit revocation or the bond forfeiture; (2) Litman used the phrase “Quaker Alloy” as a “shorthand” for Plaintiffs in the notice of removal whenever he wished to “imply[ ] that [the Landfill's] previous owner, a debtor in bankruptcy proceeding, is a party to the EHB proceedings,” but “where confusion between his clients and the previous owner might potentially hurt his clients, Litman was careful to refer to his clients as ‘Petitioner’ or ‘Plaintiffs,’ rather than ‘Quaker Alloy’ “; (3) the damages to Plaintiffs could not have been “in excess of $1,000,000,” as claimed in the notice of removal; and (4) Litman refused to withdraw or amend his papers even after the Department had belied his various “misrepresentations and obfuscations” and twice advised him by letter of its intention to file a motion for sanctions unless he withdrew the notice of removal. (Id., at 25-28 (citing Doc. Nos. 1, 1-2); see also Doc. No. 9, at 25-27; Doc. No. 9-25, at 7; id., at 10.) In a brief in opposition filed ten days late, Litman sidesteps the Department's arguments and accuses the movant of “corruption, mismanagement, and extortion,” alleging that, “[d]espite reasonable efforts to set a bond that would be appropriate under the circumstances, [the Department] surreptitiously tried to steal Petitioners' existing bond and extort money to allow the sale to proceed in a common scheme of government corruption.” (Doc. No. 27, at 1-2.) The Department, he contends, “now seeks to sanction a property owner, Hanoverian Inc. dba Quaker Alloy, Inc., and beneficial owners of the property, for buying a bankrupt company and all of its assets including its landfill and associated permits under a federal court Order, which saved DEP from a catastrophe arising from their incompetence and mismanagement of the solid residual waste rules governing a foundry sand captive landfill.” (Id., at 3.) On a related note, Litman vilifies the Department for “striving to destroy the Pennsylvania Foundry Industry” and “depress[ing] the industry while at the same time foreign industry was invading the United States.” (Id.) After a digressive account of Atchison's collapse, Litman trains his invective on the Department's employees: Clearly, rouge [sic] employees of [the Department] have set upon themselves the task to violate their obligation to serve the Commonwealth of Pennsylvania with fidelity and instead further their objective of a corrupt scheme to act contrary to federal court orders and agency policy, by extorting unreasonable sums of money through surreptitious notices designed to hide so-called lawful permit revocations, misdirected notices of bond forfeitures designed Case 1:16-cv-02546-JEJ Document 20-1 Filed 03/30/17 Page 10 of 14 Hanoverian, Inc. v. Pennsylvania Dept. of Environmental..., Not Reported in... © 2017 Thomson Reuters. No claim to original U.S. Government Works. 10 to avoid timely contest, and administrative orders to trust beneficiaries and other non-sensical entities designed to intimidate and coerse [sic] the payment of money into a [Department] fund used for other unlawful activities. The rouge [sic] employees of [the Department] have engaged in a corrupt enterprise with such magnitude that they have opened themselves up to personal liability. *12 (Id., at 8-9.) Litman casts aspersions upon the EHB as well, which he repeatedly refers to as a “state court”: “If this court should remand this case to a state court whose record in this case evidences bias in favor of the agency involved, then any state agency can disobey federal court orders and be not subject to federal court scrutiny for such blatant misconduct.” (Id., at 14.) In Litman's view, it is the Department “who are in contempt of court and should be sanctioned not only for filing such frivolous motions, but also to seek relief under Rule 11 to further disguise their real objective-corrupt and/or inept government agency cover-up of their misconduct and mismanagement.” (Id., at 15; see also Doc. No. 26, at 2 (“[P]etitioners [sic] allegations are not baseless ... it is Defendant's instant motion that is baseless ....”).) Support for this contention consists of a two-page quotation from the Pennsylvania General Assembly's findings of facts for the state's Corrupt Organizations Act and the argument that “[j]ust because the statutory crime of bribery, under former 18 P[a]. [Cons.] S[tat]. § 4303 ..., does not proscribe the same conduct as the common law offense of misfeasance, malfeasance, and nonfeasance in office, does not mean that [the Department] is not guilty of corruption and they [sic] who should be sanctioned.” (Doc. No. 27, at 12-13, 15 (citing Commonwealth v. Dolny, 235 Pa.Super. 241, 342 A.2d 399 (Pa.Super.Ct.1975)).) Plaintiffs sought removal, Litman explains, “to address the overwhelming atrocities being done by [the Department] to engage [sic] in a scheme to commit extortion from Petitioners.” (Id., at 11, 342 A.2d 399.) Consistent with his previous filings, Litman has not given his brief the benefit of even one citation to the record. However, rather than retreat from his previous positions, he persists in advancing factual contentions that are entirely lacking in evidentiary support and, more often than not, clearly contradicted by the record. Most egregious among these are the contentions that: (1) the “federal court was motioned [sic] to allow the sale, including the ‘permitted landfill,’ “; (2) the Department “did not require a pre-sale approval of the landfill permit, nor did they contest the sale of the permit and all of Quaker Alloy's assets to Atchison in 1991”; (3) “[i]n 2003-2004 [Bankruptcy] Judge Venters granted motions to sell the permitted landfill and sell the corporation's identity to Petitioners”; (4) the Department “allow[ed] the permit and landfill to be sold under federal court order without doing anything to place conditions upon its transfer”; and (5) the Department “chose to ignore all Court notices and after transfer to Hanoverian, Inc. improperly and untimely raised claims that were required to be asserted before the sale.” (Id., at 4, 5, 6, 7, 342 A.2d 399.) Likewise, Litman clings to legal contentions that are both frivolous and unwarranted, such as the contentions that: (1) “Atchison owned and operated the landfill under its tradename wholly owned subsidiary-Quaker Alloy, Inc.”; (2) “[s]ince 1991 Atchison was the owner and operator of the landfill, but it's [sic] permit remained in the tradename of Quaker Alloy, Inc.”; (3) Plaintiffs are “protected good faith purchasers free and clear of the claims of [the Department]”; (4) “[t]hroughout the entire process the permit has been in the name of Quaker Alloy, Inc., but the parent company over Quaker Alloy, Inc. has changed”; (5) “[o]nce the bankruptcy proceeding was begun [sic], [the Department] should have sought a secured claim against the landfill”; and (6) Quaker Alloy, Inc. is properly named as a party to the instant action. (Id., at 1, 4, 5, 342 A.2d 399.) *13 With regard to this last point, Litman's continued insistence that the fictitious name “Quaker Alloy, Inc.” was and is the permittee or that it can rightly count itself amongst the Plaintiffs is not only surreal, it is a gross misrepresentation of existing law. See Fed.R.Civ.P. 17(a) (1) (“An action must be prosecuted in the name of the real party in interest.”); 17 James Wm. Moore et al., Moore's Federal Practice § 10.02[2][c] (3d ed. 2007) (“A corporation or other entity will not be permitted to proceed under a pseudonym, but must sue under its own name as the real party in interest.”). Furthermore, the underlying contention that “Petitioners” somehow purchased Quaker Alloy's “corporate identity” hardly qualifies as the sort of “nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law” contemplated by Rule 11, novelty notwithstanding. (Doc. No. 16, at 4; Doc. No. 27, at 4, 5.) See Thornton v. Wahl, Case 1:16-cv-02546-JEJ Document 20-1 Filed 03/30/17 Page 11 of 14 Hanoverian, Inc. v. Pennsylvania Dept. of Environmental..., Not Reported in... © 2017 Thomson Reuters. No claim to original U.S. Government Works. 11 787 F.2d 1151, 1154 (7th Cir.1986) ( “It is not acceptable to make an assertion of law and hope that it will turn out to be true.”). As with his prior filings, Litman's failure to cite the record “has required the court to engage in the type of circuitous research and fact-finding that the United States Court of Appeals for the Third Circuit has repeatedly deemed unnecessary and taxing on judicial resources.” Ober v. Miller, No. 04-CV-1669, 2007 WL 4443256, at *1 n. 2 (M.D.Pa. Dec. 18, 2007) (citing Doeblers' Pa. Hybrids, Inc. v. Doebler, 442 F.3d 812, 820 n. 8 (3d Cir.2006)). In addition, while “[m]inor grammatical errors are inevitable,” id., even the most cursory examination of Plaintiffs' brief reveals a troubling disregard for both the basic rules of grammar and the needs of the average reader, as typified by the following sentence: “Coercion and extortion by [the Department] to post-federal court order seeking money from Petitioners in the guise of inordinate bonding requirements never before sought in order to address [the Department's] fraud upon the public perpetrated over years before of having set bonding for the landfill adequate for closure costs at the time it was initially built,” (Doc. No. 27, at 14.) See M.D. Pa. L.R. 83.23.2 (adopting the Pennsylvania Rules of Professional Conduct); Pa. R. Prof'l Conduct R. 1.1 (“Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”). In its brief in reply, the Department, after marveling at the “sheer volume of falsehoods and scandalous matter squeezed into Plaintiffs' [brief],” surmises that the “most striking aspect of Plaintiffs' filings-even in the short time that this matter has been before this Court-is the frequency, nonchalance, and sheer audacity with which they have misrepresented central facts to the Court ... and the depths to which Litman has dug in his heels when confronted with misrepresentations.” (Doc. No. 28, at 19, 23.) “What we have here,” the Department concludes, “are not mere ‘mistakes' but rather a pattern of deliberate misrepresentation used as a litigation tool.” (Id., at 23.) Suffice to say, the Court wholeheartedly agrees. *14 Like all litigants, Litman had “an affirmative duty to conduct a reasonable inquiry into the facts and law” before filing papers in this Court. Bradgate Assocs., Inc. v. Fellows, Read & Assocs., Inc. ., 999 F.2d 745, 751 (3d Cir.1993). Had he done so, he most certainly would have learned that the lion's share of his legal and factual contentions had no basis in either existing law or the evidence, respectively. There are no mitigating factors at play: Litman had ample time-224 days between commencing the Permit Appeal and filing the notice of removal-in which to conduct a factual and legal investigation; he relied upon his client for only a small fraction of the underlying factual information, all of it undisputed; the issues at bar are not especially complex; he was the sole signatory to all papers and, one may reasonably infer, did not depend upon another attorney in their preparation; and he, more than anyone else, was in an ideal position to know and acquire the relevant factual details. See CTC Imports and Exps. v. Nigerian Petroleum Corp., 951 F.2d 573, 578 (3d Cir.1991); Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 95 (3d Cir.1988); Colburn v. Upper Darby Twp., 838 F.2d 663, 667 (3d Cir.), cert. denied 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1988). Furthermore, Litman had ample opportunity to amend or withdraw his filings after the Department apprised him of his errors, something it did on repeated occasions. See Gaiardo v. Ethyl Corp., 835 F.2d 479, 484 (3d Cir.1987) (“[P]arties will not be entitled to continuing immunity if they acquire or should acquire knowledge under the Rule's standard before a later filing.”). Whether intentionally or not-and the Court has no reason to believe that Litman's conduct was anything but intentional-Litman has unnecessarily delayed and needlessly increased the cost of litigation for the Department and, by extension, the citizens of the Commonwealth. Lieb v. Topstone Indus., Inc., 788 F.2d 151, 157 (3d Cir.1986) (“The pleader may not escape liability because he did not intend to bring about additional delay or expense.”). He has practiced a fraud upon the Court, from his first filing to his last. Nowhere is that fraud more pronounced than in the notice of removal itself, which absent its falsehoods, half-truths, and distortions, would have given the Court ample cause to remand the action of its own accord pursuant 28 U.S.C. § 1447. See 28 U.S.C. § 1447 (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”). “In this regard, if a court finds ‘that fraud has been practiced upon it ...,’ it may assess attorney's fees against the responsible party, as it may when a party ‘shows bad faith by delaying or disrupting the litigation or by hampering enforcement of a court order.’ ” Chambers v. NASCO, Inc., 501 U.S. 32, 46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (citing Universal Case 1:16-cv-02546-JEJ Document 20-1 Filed 03/30/17 Page 12 of 14 Hanoverian, Inc. v. Pennsylvania Dept. of Environmental..., Not Reported in... © 2017 Thomson Reuters. No claim to original U.S. Government Works. 12 Oil Prods. Co. v. Root Ref. Co., 328 U.S. 575, 580, 66 S.Ct. 1176, 90 L.Ed. 1447 (1946); Hutto v. Finney, 437 U.S. 678, 689 n. 14, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978)). *15 Rule 11 authorizes district courts to sanction litigants by issuing “an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from [a] violation” of the rule. Fed.R.Civ.P. 11(c)(4); see also 28 U.S.C. § 1447 (“An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.”); M.D. Pa. L.R. 83.3.1 (“[A] judge may ... assess reasonable costs directly against counsel whose action has obstructed the effective administration of the court's business, or suspend counsel from practicing in this court for a specified period of time not exceeding six (6) months.”). Rule 11's “reasonableness requirement by its nature hinges on the particular facts and circumstances presented in a given case and looks not only to the hours and billing rate involved in responding to the other party's sanctionable conduct, but also to the appropriateness of the response taken.” Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988). In calculating an award, district courts must “consider various mitigating factors,” including the sanctioned party's ability to pay, the sanctioned party's “good reputation,” whether the violation was to some extent non-frivolous, and whether the violation was in any way unintentional. Doering v. Union County Bd. of Chosen Freeholders, 857 F.2d 191, 195-196, 197 and 197 n. 6 (3d Cir.1988). Speaking of sanctions generally, the Third Circuit has stated: “Obviously, a pattern of wrongdoing may require a stiffer sanction than an isolated incident; a grave wrongdoing may compel a more severe sanction than might a minor infraction; and wrongdoing that actually prejudices the wrongdoer's opponent or hinders the administration of justice may demand a stronger response than wrongdoing that, through good fortune or diligence of court or counsel, fails to achieve its untoward object.” Republic of Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 74 (3d Cir.1994). “The starting point for a determination of attorney's fees, the lodestar calculation, is the product of the number of hours reasonably expended in responding to the frivolous paper times an hourly fee based on the prevailing market rate.” Doering, 857 F.2d at 195. In this case, the Department has provided the Court with a detailed accounting of its attorney's fees directly resulting from Litman's violations. As of April 30, 2007, Bohan had expended 107.7 hours of his time in preparing the motion for remand, the motion for sanctions, and the various briefs and letters in support of those motions. (Doc. No. 9-25, at 2-4; Doc. No. 21-25, at 13; Doc. No. 28-8, at 3.) As a state attorney, Bohan's hourly rate of $51.58 is significantly lower than the prevailing market rate and manyfold lower than Litman's own rate of $200 to $350. (Doc. No. 9-25, at 5.) See Avvo Profile for Donald Litman, http:// www.avvo.com/attorneys/18951- pa-donald-litman-716667.html (last visited Mar. 25, 2008). 1 In the final analysis, Litman's conduct cost the Department $5,555.17 in attorney's fees, an amount that strikes the Court as eminently reasonable under the circumstances. This seems especially so given the Third Circuit's stated position that there is “no difference between the situation of an Assistant U.S. Attorney and that of a public interest lawyer whose services, the Supreme Court has held, are to be valued at a market rate, even though he or she, like Assistant U.S. Attorneys, had no regular billing rate.” Napier v. Thirty or More Unidentified Fed. Agents, 855 F.2d 1080, 1092 (3d Cir.1988) (citing Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) (holding “that the district court did not abuse its discretion by awarding the government's attorney $100 per hour” on the basis of then prevailing market rates); see also Hamer v. Lake County, 819 F.2d 1362, 1371 (7th Cir.1987) (affirming district court's decision to award state's attorney $85 per hour). Had Litman brought any mitigating factors to the Court's attention, it would certainly consider them; Litman, however, did not. *16 The Court is particularly mindful of the Supreme Court's admonition that “[l]ike other sanctions, attorney's fees certainly should not be assessed lightly or without fair notice and an opportunity for a hearing on the record.” Roadway Exp., Inc. v. Piper, 447 U.S. 752, 767, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). Here, Litman was given fair notice and an opportunity to respond, but elected to squander that opportunity by devoting his brief to scandalous and immaterial allegations rather than responsive arguments in his defense. Indeed, in so doing, Litman effectively conceded the Department's motion. Cf. Beazer East, Inc. v. Mead Corp., 412 F.3d 429, 437 n. 11 (3d Cir.2005) (An appellee “waives, as a practical matter anyway, any objections not obvious to the court to specific points urged by the [appellant].” (citation omitted)); see also Williams v. Savage, No. 07-0583, ---F.Supp.2d ----, Case 1:16-cv-02546-JEJ Document 20-1 Filed 03/30/17 Page 13 of 14 Hanoverian, Inc. v. Pennsylvania Dept. of Environmental..., Not Reported in... © 2017 Thomson Reuters. No claim to original U.S. Government Works. 13 2008 WL 628003, at *5 (D.D.C. Mar.10, 2008) (“[W]hen a plaintiff files a response to a motion to dismiss but fails to address certain arguments made by the defendant, the court may treat those arguments as conceded.” (citation omitted)). There is nothing in the record to indicate that Metzger, either individually or in his capacity as Hanoverian's president, bears any responsibility for Litman's conduct in these proceedings. Ordinarily, “if an attorney, rather than a client, is at fault, the sanction should ... target the culpable attorney.” Republic of Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 74 (3d Cir.1994). The Court will therefore deny the Department's motion for sanctions with respect to Metzger, Hanoverian, and the Trust. Rule 11, however, provides that “[a]bsent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.” Fed.R.Civ.P. 11(c)(1). Litman has not pled any such circumstances. Accordingly, the Court will grant the Department's motion with respect to Litman and the law firm of Litman and Edwards, imposing a monetary sanction of $5,555.17 payable to the Department not less than sixty (60) days from the date of the accompanying order. All Citations Not Reported in F.Supp.2d, 2008 WL 906545 Footnotes 1 Since Litman himself has claimed and verified his Avvo profile, the Court regards his profile as “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned” and, therefore, justly noticed. Fed.R.Evid. 201(b) (“A judicially noticed fact must be one not subject to reasonable dispute in that it is ... capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”). End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-02546-JEJ Document 20-1 Filed 03/30/17 Page 14 of 14 Exhibit B Case 1:16-cv-02546-JEJ Document 20-2 Filed 03/30/17 Page 1 of 7 Capers v. FedEx Ground, Not Reported in F.Supp.2d (2012) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2012 WL 2050247 Only the Westlaw citation is currently available. United States District Court, D. New Jersey. Jessie CAPERS, Patrick Ngei, Tariq Baskerville, and Gitonga Waiguchu, Plaintiffs, v. FEDEX GROUND, Tyrone Gaskins, Albert Rettinger, Jim Gelhausen, Joe Collins, and Tom Dimaio, Defendants. No. 2:02-CV-5352 (WJM). | June 6, 2012. Attorneys and Law Firms Dan S. Smith, Dan Solomon Smith, LLC, Orange, NJ, for Plaintiffs. Peter Michael Avery, Rosemary Joan Bruno, Buchanan, Ingersoll & Rooney, PC, Newark, NJ, for Defendants. OPINION WILLIAM J. MARTINI, District Judge. *1 THIS MATTER comes before the Court on Defendants' motion to dismiss the complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons provided below, the Court GRANTS the motion IN PART and DENIES it IN PART. I. Factual and Procedural Background This case has a long procedural and factual history that the Court need not recite at length to address the pending motion. Plaintiffs Jessie Capers, Patrick Ngei, Tariq Baskerville, and Gitonga Waiguchu are individual contractors who owned and operated trucks and performed delivery services on behalf of Defendant FedEx Ground Package Systems, Inc. (“FXG”). Defendants Tyrone Gaskins, Albeit Rettinger, Jim Gelhausen, Joe Collins, and Tom DiMaio (collectively, the “Individual Defendants”), are or were officers, principals, or other employees of FXG. Plaintiffs allege that from as far back as 1992 and continuing to as late as April of 2002, Defendants engaged in a series of illegal acts against Plaintiffs, including, among other conduct, frustrating Plaintiffs' attempts at advancement, breaching contractual obligations, and otherwise favoring white employees over Plaintiffs, who are black. Plaintiffs filed their original complaint in New Jersey state court in 2002, and Defendants removed the action to this Court on November 7, 2002. On December 13, 2002, Plaintiffs filed their Amended Complaint. On September 24, 2003, this Court granted in part Defendants' motion to dismiss. Thereafter, the case proceeded with pretrial preparations on the remaining claims. In early 2005, FXG moved to transfer the matter to the United States Judicial Panel on Multidistrict Litigation for pretrial management, and this Court stayed further proceedings. On September 15, 2005, the Judicial Panel ordered the case transferred to the United States District Court for the Northern District of Indiana. At some point after the transfer, Plaintiffs appear to have amended their complaint a second time. On March 7, 2011, after the Northern District of Indiana made its rulings, the Judicial Panel remanded the matter back to this Court. With the consent of the parties and in the wake of those rulings, the Court dismissed Plaintiffs' Second Amended Complaint and granted Plaintiffs leave to make further amendments. Plaintiffs filed the Third Amended Complaint (the “TAC”) on September 18, 2011, and Defendants filed this motion to dismiss thereafter. II. Legal Analysis A. Motion to Dismiss Standard In deciding a motion to dismiss under Rule 12(b)(6), a court must take all allegations in the complaint as true and view them in the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir.1998). This assumption of truth is inapplicable, however, to legal conclusions couched as factual allegations or to “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). *2 Although a complaint need not contain detailed factual allegations, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief’ requires more than Case 1:16-cv-02546-JEJ Document 20-2 Filed 03/30/17 Page 2 of 7 Capers v. FedEx Ground, Not Reported in F.Supp.2d (2012) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Thus, the factual allegations must be sufficient to raise a plaintiff's right to relief above a speculative level, such that it is “plausible on its face.” See id. at 570; see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (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 is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (2009) (citing Twombly, 550 U.S. at 556). While “[t]he plausibility standard is not akin to a ‘probability requirement’ ... it asks for more than a sheer possibility.” Iqbal, 129 S.Ct. at 1949 (2009). B. First Count: Promissory Estoppel Defendants argue that Plaintiffs' claim for promissory estoppel must fail because the factual allegations are insufficient to support the elements of the claim. Defendants are correct. In order to state a claim for promissory estoppel under New Jersey law, the plaintiff must plead: (1) that the defendant made a clear and definite promise; (2) with the expectation that the plaintiff would rely upon it; (3) that the plaintiff reasonably relied on the promise; and (4) that the reliance resulted in definite and substantial detriment. East Orange Bd. of Educ. v. New Jersey School Const. Corp., 405 N.J.Super. 132, 963 A.2d 865, 875 (N.J.Super.App.Div.2009). The allegations of the TAC are insufficient to state a claim for promissory estoppel in several ways. The TAC alleges that Defendants promised Plaintiffs that as individual contractors they would have exclusive control over their routes, vacation times, sick time, lunch breaks, and other details of their performance but that Defendants reneged on those promises and maintained control over all of these aspects of Plaintiffs' work. The TAC also baldly alleges that Defendants made these promises with the expectation that Plaintiffs would rely on them, that Defendants did rely on them, and that that reliance harmed Defendants. These allegations are little more than a recitation of the elements of a claim for promissory estoppel. Other than the allegations regarding the kinds of promises that Defendants made, the TAC does not allege any specific facts supporting the claim. The TAC does not even allege that Plaintiffs' reliance was reasonable-a necessary element of the claim. Plaintiffs' brief in opposition to Defendants' motion explains that Defendants used the promises to induce Plaintiffs to accept their positions with FXG and that Defendants' reliance on those promises injured them because they passed up other employment opportunities. But Plaintiffs' cannot use statements in a brief to fill holes in their pleadings. See Com. of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir.1988). 1 The Court will dismiss Plaintiffs' claim for promissory estoppel. C. Second through Fifth Counts: Negligent Hiring, Supervision, and Retention *3 Defendants argue that the Court should dismiss Plaintiffs' claims for negligent hiring, supervision, and retention in the Second through Fifth Counts because the TAC does not contain specific factual allegations sufficient to state a claim. Again, Defendants are correct. New Jersey law recognizes a tort action based on negligent hiring or supervision that is distinct from a claim based on the doctrine of respondeat superior. Hoag v. Brown, 397 N.J.Super. 34, 935 A.2d 1218, 1230 (N.J.Super.A.D.2007) (citing cases). A cause of action for negligent hiring or supervision imposes liability against an employer where the employee has committed an intentional tort even where that tort occurs outside the scope of employment. Id.; see also Di Cosala v. Kay, 91 N.J. 159, 450 A.2d 508, 515 (N.J.1982). In order to state a claim for negligent hiring or supervision, the plaintiff must plead that: (1) the employer knew or had reason to know that its employee was unfit, incompetent, or dangerous, and that those qualities created a risk of harm to other persons; and (2) because of the employer's negligent hiring or supervision, the employee's unfitness, incompetence, or dangerous characteristics proximately cause the plaintiff's injuries. Di Cosala, 450 A.2d at 516. The allegations of the TAC in the Second through Fifth Counts are a morass. The Second Count alleges that FXG hired the managers and supervisors and was therefore liable for the actions of those employees. The TAC also alleges that unspecified Defendants allowed unspecified employees to tamper with Plaintiffs' trucks and their contents. The Third Count alleges that Defendant DiMaio intended that those acts be taken against Plaintiffs and their vehicles. It further alleges that DiMaio inflicted injuries against Plaintiffs by refusing to discuss unspecified Case 1:16-cv-02546-JEJ Document 20-2 Filed 03/30/17 Page 3 of 7 Capers v. FedEx Ground, Not Reported in F.Supp.2d (2012) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 issues related to their business relationship with FXG. The Fourth Count alleges that FXG hired Defendant DiMaio despite knowing that he had been fired from a position with another company for racial discrimination. The Fifth Count alleges that unspecified Defendants negligently supervised unspecified supervisors and allowed those supervisors to abuse unspecified contractual agreements and professional relationships “in a manner that caused injury.” Finally, the TAC also alleges in that Count that unspecified Defendants negligently loaded hazardous materials onto Plaintiffs' trucks and otherwise allowed the creation of a hazardous working environment. None of the Counts, standing alone, is sufficient to state a claim against any of the Defendants for negligent hiring or supervision. Each Count contains some piece of the necessary allegations, but even taken in sum the Counts are pled in such a way that Defendants cannot possibly be on notice of the claims against them. Other than Defendant DiMaio, the TAC does not even allege which employees committed torts against which Plaintiffs. And the allegations regarding DiMaio are insufficient to explain how, exactly, the negligent hiring or supervision injured Plaintiffs. Plaintiffs' brief in opposition says only that dismissing these claims prior to discovery would be like “putting the cart before the horse.” Br. Opp. 7. On the contrary, it is Plaintiffs who ask the Court to put the cart before the horse-they seek discovery before they meet the notice requirements of Rule 8. As such, the Court will dismiss the Second through Fifth Counts of the TAC for failure to state a claim. D. Sixth Count: Negligence *4 Defendants ask the Court to dismiss Plaintiffs' Sixth Count, for negligence, claiming that Plaintiffs failed to allege any injuries resulting from the negligence. Here, Defendants are wrong. “To establish a prima facie case of negligence, a plaintiff must establish the following elements: (1) duty of care, (2) breach of that duty, (3) proximate cause, and (4) damages.” D'Alessandro v. Hartzel, 422 N.J.Super. 575, 29 A.3d 1112, 1114 (N.J.Super.App.Div.2011). A plaintiff may recover in damages for personal injury, property damages, or economic loss resulting from the negligence of another. See People Exp. Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 251-52, 495 A.2d 107 (N.J.1985). The TAC adequately alleges facts supporting the element of damages. The TAC alleges that Defendants had a duty to ensure that Plaintiffs' delivery trucks were safe and secure when not in use and further alleges that Defendants breached that duty by allowing individuals to tamper with the trucks and their contents. This tampering allegedly resulted in parts missing from the engines of Plaintiffs' trucks and other hazardous conditions. These allegations are sufficient to support the claim that Defendants' negligence resulted in damage to Plaintiffs' trucks, an injury for which Plaintiffs may recover under New Jersey law should they ultimately prove their claim. 2 E. Seventh Count: Civil RICO Claims 3 Defendants argue that Plaintiffs' civil RICO claims, embodied in the Seventh Count of the TAC, must fail because the factual allegations are inadequate to establish any of the necessary elements. Defendants are correct. The TAC attempts to allege both a claim for civil RICO under 18 U.S.C. § 1962(c) and a claim for civil RICO conspiracy under 18 U.S.C. § 1962(d). A claim alleging a pattern of racketeering under subsection 1962(c), requires proof of four elements: (1) the existence of an enterprise engaged in or affecting interstate commerce; (2) that the defendant was employed by or associated with the enterprise; (3) that the defendant participated, directly or indirectly, in the conduct or the affairs of the enterprise; and (4) that the defendant participated through a pattern of racketeering activity that included at least two racketeering acts. Annulli v. Panikkar, 200 F.3d 189, 198 (3d Cir.1999) overruled on other grounds by Rotella v. Wood, 528 U.S. 549, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000). In order to state a claim for civil RICO conspiracy under subsection 1962(d), a plaintiff must allege the existence of an agreement to commit the predicate RICO acts and knowledge that those acts were part of a pattern of racketeering activity conducted in violation of Section 1962(a), (b), or (c). Rose v. Bartle, 871 F.2d 331, 366 (3d Cir.1989). The civil RICO allegations in the TAC are woefully inadequate. Among other failures, the TAC does not adequately allege: that each alleged member committed at least two acts of racketeering activity within ten years of each other, Trs. of Plumbers and Pipefitters Nat'l Pension Fund v. Transworld Mechanical, Inc., 886 F.Supp. 1134, 1144 (S.D.N.Y.1995) (citing H.J. Inc. v. Nw. Bell Tel. Co., Case 1:16-cv-02546-JEJ Document 20-2 Filed 03/30/17 Page 4 of 7 Capers v. FedEx Ground, Not Reported in F.Supp.2d (2012) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 492 U.S. 229, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989)); which Defendants were members and which predicate acts they committed, Shover v. York County Prison, No. 11-CV-2248, 2012 WL 720858, at *6 (M.D.Pa. Mar.1, 2012); the relationship between the predicate acts and the continuity of the predicate acts as is necessary to establish a pattern of racketeering activity, H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 237-38, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989); facts sufficient to support a finding that an enterprise existed other than the mere conclusory statement that Defendants conspired with other persons, In re Insurance Brokerage Antitrust Litig., 618 F.3d 300, 370 (3d Cir.2010) (discussing requirements of pleading association-in-fact enterprise); and facts sufficient to suggest Plaintiffs could prove the elements of the predicate act crimes. See Kalomiris v. Monroe County Syndicate, 2009 WL 73785, at *5 (M.D.Pa. Jan.8, 2009) (citing Warden v. McKelland, 288 F.3d 105, 114 (3d Cir.2002)). And even assuming that Plaintiffs' RICO conspiracy claim could survive independent of Plaintiffs' substantive RICO claim, the allegations of the TAC regarding the conspiracy claim are even more threadbare. The TAC fails to allege facts showing that Defendants entered into an agreement to perform at least two predicate acts and also fails to allege facts showing the requisite knowledge. For all of these reasons, the Court will dismiss the Seventh Count of the TAC. F. Eighth Count: Invasion of Privacy *5 Defendants argue that Plaintiffs' claim for invasion of privacy must fail because Plaintiffs do not establish to whom the private information was disclosed. Defendants further argue that disclosure of the information to the Individual Defendants could not constitute an invasion of privacy because the Individual Defendants were Plaintiffs' managers and thus were already aware of the information. Defendants' arguments fail. New Jersey law recognizes four distinct kinds of invasion of privacy claims involving four different privacy interests: (1) intrusion on an individual's seclusion or solitude; (2) public disclosure of private facts; (3) placing an individual in a false light in the public eye; (4) and appropriate of an individual's likeness. Rumbauskas v. Cantor, 138 N.J. 173, 649 A.2d 853, 856 (N.J.1994). While Plaintiffs have not attempted to categorize their claim for invasion of privacy according to these four categories, it appears from the TAC that Plaintiffs' claim is for public disclosure of private facts. In order to state a claim for public disclosure of private facts, a plaintiff must establish that private matters were revealed, that dissemination of such facts would be highly offensive to a reasonable person, and that there is no legitimate public interest in the disclosure. Wilson v. Grant, 297 N.J.Super. 128, 687 A.2d 1009, 1015 (N.J.Super.App.Div.1996) (quotation omitted). Omitting both Defendants' and Plaintiffs' attempts to insert additional facts, the allegations of the Eighth Count of the TAC are sufficient to state a claim for invasion of privacy based on public disclosure of private facts. The TAC alleges that Plaintiffs' paychecks were not placed in secured envelopes and were instead posted in unspecified locations that allowed them to be viewed by unspecified third parties who also worked for FXG. While sparse, these allegations are sufficient at the motion to dismiss stage. The allegations satisfy the first element because, generally speaking, the law recognizes that information regarding a private employee's income is a private matter, see, e.g., Restatement (Second) Torts § 652D cmt. b (1977) (identifying income tax returns as example of private information), and the TAC clearly alleges public disclosure. The allegations satisfy the second element as well because in a working environment where income information is private, publication of that information for the purpose of creating a hostile work environment would be highly offensive to a reasonable person. And finally, the allegations satisfy the third element because they do not suggest that there was any public interest in the disclosure. 4 The Court will deny Defendants' motion on this Count. G. Ninth, Tenth, and Eleventh Counts: Contract Claims Defendants characterize the Ninth, Tenth, and Eleventh Counts as breach of contract claims or claims for breach of the implied covenant of good faith and fair dealing. And Defendants further argue that because the Individual Defendants are not alleged to be signatories to any agreements, these contract-based claims against them must be dismissed. Defendants are correct. *6 Generally, a party cannot be liable for breach of a contract to which it is not a party, see Frederico v. Home Depot, 507 F.3d 188, 203 (3d Cir.2007) (describing elements of cause of action for breach of contract under New Jersey law), nor can a party be liable for breach of the implied covenants of a contract of which it is not a party. Wade v. Kessler Institute, 172 N.J. 327, 798 Case 1:16-cv-02546-JEJ Document 20-2 Filed 03/30/17 Page 5 of 7 Capers v. FedEx Ground, Not Reported in F.Supp.2d (2012) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 A.2d 1251, 1262 (N.J.2002) (affirming dismissal of breach of implied covenant claim and holding “[t]o the extent plaintiff contends that a breach of the implied covenant may arise absent an express or implied contract, that contention finds no support in our case law.”). Not one of the Ninth, Tenth, or Eleventh Counts indicates the contracts that form the basis for these claims. The only contracts alleged at all in the TAC are those between Plaintiffs and FXG. Thus, to the extent these Counts attempt to state claims against the Individual Defendants for breach of contract or breach of the implied covenant of good faith and fair dealing, they necessarily fail as currently pled. But the exact nature of the claims in the Ninth and Tenth Counts are unclear. The TAC alleges in the Ninth Count that Defendants retaliated against Plaintiff Ngei for disclosing the Individual Defendants' conduct to FXG's corporate headquarters. The TAC further alleges in that same Count that an unspecified defendant breached express and implied contracts with Plaintiff Ngei. The TAC alleges in the Tenth Count that Defendants tampered with Plaintiff Caper's truck and further retaliated against him by tampering with his truck after he filed the original complaint in this action. Finally, the TAC alleges in the Tenth Count that Plaintiff Caper's contract was terminated by an unspecified individual in violation of the implied covenant of good faith and fair dealing. To the extent the Ninth and Tenth Counts seek to state claims for breach of contract or breach of implied covenant, they fail against the Individual Defendants for the above reasons. To the extent the Ninth and Tenth Counts seek to state claims for tortious interference or claims for retaliation, Defendants' argument is unavailing because the defendant need not be a party to a contract to state a claim in either case. But these claims must still fail because the TAC does not properly plead a prima facie case for either. See Victor v. State, 203 N.J. 383, 4 A.3d 126, 141 (N.J.2010) (describing elements of claim for retaliation under New Jersey law); Nostrame v. Santiago, 420 N.J.Super. 427, 22 A.3d 20, 24 (N.J.Super.App.Div.2011) (describing elements of claim for tortious interference). Thus, the Court will dismiss the Ninth and Tenth Counts against the Individual Defendants. The allegations of the Eleventh Count are much clearer. The TAC alleges in the Eleventh Count that Defendants breached the implied covenant of good faith and fair dealing as to all the Plaintiffs. Again, because the Individual Defendants are not allegedly part of any contract, the Court must dismiss the Eleventh Count against the Individual Defendants as well. II. Conclusion *7 The Court will dismiss the First, Second, Third, Fourth, Fifth, and Seventh Counts of the TAC in their entirety without prejudice. The Court will also dismiss the Ninth, Tenth, and Eleventh Counts against the Individual Defendants without prejudice. Finally, the Court will grant Plaintiffs' 30 days in which to amend the TAC to address the issues identified in this opinion. See Alston v. Parker, 363 F.3d 229, 236-37 (3d Cir.2004) (“[E]ven when a plaintiff does not seek leave to amend, if a complaint is vulnerable to 12(b)(6) dismissal, a District Court must permit a curative amendment, unless an amendment would be inequitable or futile.”). In making these amendments, Plaintiffs should bear in mind that in light of how old this case it, the Court is unlikely to grant any further amendment. An appropriate order follows. All Citations Not Reported in F.Supp.2d, 2012 WL 2050247 Footnotes 1 Even if the Court could consider such statements, these additional allegations alone would likely be insufficiently specific to state a claim. 2 But to the extent Plaintiffs' believe they were harmed in other ways by Defendants' negligence, the allegations are insufficient. Plaintiffs' opposition brief claims that the negligence also resulted in damage to Plaintiffs' reputations and employment because the tampering gave the appearance that the Plaintiffs' were incompetent. The Court does not see where these allegations are clearly made in the TAC or the Sixth Count, and thus, they are not actionable. Plaintiffs may address this deficiency if they amend their pleadings. Case 1:16-cv-02546-JEJ Document 20-2 Filed 03/30/17 Page 6 of 7 Capers v. FedEx Ground, Not Reported in F.Supp.2d (2012) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6 3 On May 30, 2012, Counsel for Defendants submitted an additional letter regarding Plaintiffs' civil RICO claim. The Court did not consider this letter or its contents in deciding the pending motion to dismiss. 4 As the facts are developed, this claim may fail as a matter of law. For example, while disclosure to a single individual or a small group of individuals might not qualify as public disclosure sufficient to state a claim, see Restatement (Second) Torts § 652D cmt. a, the allegations here do not suggest a small or limited disclosure. But accepting the allegations of the TAC as true and drawing all inferences in favor of Plaintiffs, the Court cannot dismiss these claims at this time. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-02546-JEJ Document 20-2 Filed 03/30/17 Page 7 of 7 Exhibit C Case 1:16-cv-02546-JEJ Document 20-3 Filed 03/30/17 Page 1 of 3 Wilson v. Kootenai Health, Not Reported in F.Supp.2d (2012) 2012 WL 1301173 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2012 WL 1301173 Only the Westlaw citation is currently available. United States District Court, D. Idaho. Joan W. WILSON, Plaintiff, v. KOOTENAI HEALTH, Defendant. No. 2:11-CV-288-BLW. | April 16, 2012. Attorneys and Law Firms Joan W. Wilson, Dalton Gardens, ID, pro se. Thomas W. McLane, Randall & Danskin, P.S., Spokane, WA, for Defendant. MEMORANDUM DECISION AND ORDER B. LYNN WINMILL, Chief Judge. *1 Before the Court is defendant Kootenai Health's motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion is fully briefed and at issue. For the reasons set forth below, the Court will grant the motion without leave to amend. BACKGROUND Pro se plaintiff Joan Wilson sues her employer, Kootenai Health (1) “to resolve a charge of discrimination based on Age and beliefs (i.e., Religion),” (2) “to recover damages for ongoing harassment,” and (3) for “punitive damages.” See Compl., Dkt. 1, at 1; Am. Compl., Dkt. 13, at 1. The Court dismissed Wilson's complaint but allowed Wilson the opportunity to file an amended complaint. Defendants contend that plaintiff's amended complaint still fails to state a claim upon which relief can be granted. THE FACTUAL ALLEGATIONS In her amended complaint, plaintiff continues to allege that a third party-now identified as Dr. Barbara Wilson 1 -is primarily responsible for the “ongoing harassment” she allegedly experiences in the workplace. Dr. Wilson is not affiliated with Kootenai Health in any way. She is plaintiff's former counselor. Plaintiff alleges that she ended the counselor/client relationship many years ago and that she has not “laid eyes on” Dr. Wilson since 1986. Am. Compl., Dkt. 13, at 4. Nonetheless, plaintiff is convinced that Dr. Wilson is harassing her both in and out of the workplace. As for the workplace harassment, plaintiff continues to rely on the same instances alleged in the first complaint. Specifically, she alleges that (1) Dr. Wilson called plaintiff's co-workers and hung up without talking; (2) plaintiff's manager made her work from 8:30 to 4:00 p.m ., rather than allowing a more flexible schedule; (3) plaintiff's co-worker sent a work request via an email address plaintiff did not often use, forcing plaintiff to rush to complete an assignment. See Am. Compl., Dkt. 13, ¶ 2-3. Plaintiff's amended complaint adds new examples of “harassment,” including these: (1) “the Library Technical Assistant can't bring herself to look up her from her work or acknowledge me.”; and (2) “she frequently only gives me a short curt answer....” Id. ¶ 1. LEGAL STANDARD Wilson argues that because her complaint is so unusual and complex, it should not be governed by the Iqbal/ Twombly standard explained in the Court's previous order. See Order, Dkt. 12, at 3-5 (citing inter alia, Bell Atlantic Corp. v. Twombly, 550 U.S. 554 (2007) and Ashcroft v. Iqbal, 566 U.S. 662 (2009)). The Court rejects this argument. Plaintiff's complaint is not complex and, more to the point, the Iqbal/Twombly standard originated in a complex antitrust litigation. See Twombly, 550 U.S. 554. ANALYSIS The Court will dismiss Wilson's amended complaint because it fails to cure the deficiencies of her prior complaint. As the Court previously explained, Wilson's age discrimination claim fails because she has not alleged any adverse employment action based on her age. 2 Further, to the extent plaintiff relies on a hostile Case 1:16-cv-02546-JEJ Document 20-3 Filed 03/30/17 Page 2 of 3 Wilson v. Kootenai Health, Not Reported in F.Supp.2d (2012) 2012 WL 1301173 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 work environment theory, she has not alleged conduct sufficiently severe or pervasive to meet the legal standard for such a claim. See Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (“offhand comments ... and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment”) (internal quotation marks and citation omitted); Vasquez v. County of Los Angeles, 349 F.3d 634, 652 (9th Cir.2003) (describing elements of hostile work environment). *2 The new examples of “harassment” in the amended complaint (a co-worker's alleged refusal to make eye contact and her alleged penchant for curt answers) do not come close to supporting a hostile work environment claim and plaintiff concedes this point in her opposition. See Plaintiff's Response, Dkt. 19, at 2 (“I concede that my allegations and evidence for age discrimination against the Library Technical Assistant is insufficient to bring before the Court, even though the information that I provided is true.”). Plaintiff then argues that some additional facts -which are not set forth in the amended complaint- support a hostile work environment claim. For example, plaintiff alleges that her former manager: (1) “wore all black to our One-on-One meeting”; (2) changed the time of a library staff lunch, thus requiring plaintiff to rush through what was supposed to be a “leisurely” lunch; and (3) increased plaintiff's workload and assigned additional performance goals; and (4) became intolerant of “normal, minor fluctuations” in plaintiff's daily work schedule. Id. at 6. These factual allegations do not support a claim that the workplace at Kootenai Health was “permeated with discriminatory intimidation, ridicule, and insult ... that is sufficiently severe or pervasive to alter the conditions of [her] employment.” Harris v. Forklift Sys., Inc., 510 U.S. at 17, 21 (1993). The Court will therefore dismiss plaintiff's amended complaint. Further, because plaintiff has had ample opportunity to cure the deficiencies in her complaint and has failed to do so, the Court will dismiss the complaint without leave to amend. ORDER IT IS ORDERED that defendant's motion to dismiss (Dkt.15) is GRANTED. Plaintiff's amended complaint is DISMISSED without leave to amend. All Citations Not Reported in F.Supp.2d, 2012 WL 1301173 Footnotes 1 In her first complaint, plaintiff did not identify Dr. Wilson. She alleged only that this third party “lived in Seattle” and was “empowered years ago by high ranking people in her church and in politics....” Compl., Dkt. 1, at 2. 2 In opposing this motion, plaintiff indicates that she does not intend to pursue a discrimination claim based on religious beliefs. See Plaintiff's Response, Dkt. 19, at 1. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-02546-JEJ Document 20-3 Filed 03/30/17 Page 3 of 3 Exhibit D Case 1:16-cv-02546-JEJ Document 20-4 Filed 03/30/17 Page 1 of 9 Douglas v. Nesbit, Slip Copy (2017) 2017 WL 1021680 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2017 WL 1021680 Only the Westlaw citation is currently available. United States District Court, M.D. Pennsylvania. Mark DOUGLAS, Plaintiff v. Major Wesley E. NESBIT, et al., Defendants No. 1:16-cv-01836 | Filed 03/16/2017 Attorneys and Law Firms William S. Arnoult, Amoult Law Office, LLC, Greencastle, PA, for Plaintiff. Karen Mascio Romano, Pennsylvania Office of Attorney General, Harrisburg, PA, for Defendants. MEMORANDUM Yvette Kane, District Judge *1 Before the Court is a motion to dismiss Plaintiff Mark Douglas' amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, filed by Defendants Brigadier General Anthony J. Carrelli and Deborah Nesbella. For the reasons provided herein, the Court will grant Defendants' motion to dismiss. I. BACKGROUND 1 Plaintiff Mark Douglas commenced this action on September 6, 2016 through the filing of a complaint against Defendants Major General Wesley E. Nesbit, Brigadier General Anthony J. Carrelli and Deborah Nesbella, alleging race and age discrimination in the context of his previous employment with the Pennsylvania Department of Military and Veterans Affairs as a unit clerk at the Hollidaysburg Veterans Home. 2 (Doc. No. 1.) On December 21, 2016, Plaintiff filed an amended two- count, six-page complaint. 3 (Doc. No. 6.) In his amended complaint, Plaintiff alleges that on or about March 17, 2012, he was hired by “Defendant or [the] person she was responsible for as a [u]nit [c]lerk....” (Id. at ¶ 6.) Plaintiff avers that on or about September 4, 2012, “Defendant's agents met with Plaintiff in a pre-disciplinary conference.” (Id. at ¶ 7.) According to the amended complaint, Plaintiff was provided with employee evaluations, which rated his work as “unsatisfactory.” (Id.) Plaintiff asserts that, following this “pre-disciplinary conference,” he was notified that he would be terminated from employment effective September 10, 2012 due to his “poor performance.” (Id. at ¶ 8.) Plaintiff appears to contest that Defendants failed to comply with certain disciplinary procedures prior to his termination. 4 (Id. at ¶ 9.) He further provides that “[o]ut of the five unit clerks in Plaintiff's department,” Plaintiff was the only African American unit clerk employed at the Hollidaysburg Veterans home over the age of 50. Plaintiff brings his claims of race discrimination and age discrimination “in the form of wrongful discharge in violation of 42 U.S.C. § 1981 governing employment actions brought against state actors and 42 U.S.C. § 1981 governing employment actions through 42 U.S.C. § 1983.” (Id. at ¶¶ 20, 28.) *2 Defendants Brigadier General Anthony J. Carrelli and Deborah Nesbella have filed a motion to dismiss Plaintiff's amended complaint. (Doc. No. 8.) Having been fully briefed, this matter is now ripe for disposition. II. LEGAL STANDARD Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The legal standards governing pleading practice in federal court have shifted to a “more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.” See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). To avoid dismissal, all civil complaints must set out “sufficient factual matter” to show that the claim is facially plausible. Id. The plausibility standard requires more than a mere possibility that the defendant is liable for the alleged misconduct. Indeed, “where 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.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (citing Fed. R. Civ. P. 8(a)(2)). Factual allegations must be enough to raise a right to relief above the Case 1:16-cv-02546-JEJ Document 20-4 Filed 03/30/17 Page 2 of 9 Douglas v. Nesbit, Slip Copy (2017) 2017 WL 1021680 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The United States Court of Appeals for the Third Circuit has identified the following steps a district court must take when evaluating the sufficiency of a complaint's allegations as tested against a Rule 12(b)(6) motion: (1) identify the elements a plaintiff must plead to state a claim; (2) discard any conclusory allegations contained in the complaint “not entitled” to the assumption of truth; and (3) determine whether any “well-pleaded factual allegations” contained in the complaint “plausibly give rise to an entitlement to relief.” See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (citation and quotation marks omitted). In evaluating whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all factual allegations in the complaint, and construe all reasonable inferences to be drawn therefrom in the light most favorable to the plaintiff. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). A court “need not credit a complaint's ‘bald assertions' or ‘legal conclusions' when deciding a motion to dismiss,” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997), and must disregard any “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Additionally, a court may not assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). In deciding a Rule 12(b)(6) motion, the court may consider, in addition to the facts alleged on the face of the complaint, any exhibits attached to the complaint, “any matters incorporated by reference or integral to the claim, items subject to judicial notice, [and] matters of public record.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (citation and quotation marks omitted). III. DISCUSSION A. SUA SPONTE DISMISSAL OF DEFENDANT MAJOR GENERAL WESLEY E. NESBIT *3 As an initial matter, the Court observes that Defendant Major General Wesley E. Nesbit is subject to dismissal from this action for failure to serve process within 90 days of filing the complaint as required by Rule 4(m) of the Federal Rules of Civil Procedure. The amended provision of Rule 4(m) governing the time limit for service of process following the filing of a complaint, effective December 1, 2015, provides as follows: (m) Time Limit for Service. If a defendant is not served within 90 days after the complaint is filed, the court- on motion or on its own after notice to the plaintiff -must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. Fed. R. Civ. P. 4(m). Rule 4(m) mandates that the district court dismiss a complaint after notice to the plaintiff if service of the complaint is not made upon a defendant within 90 days after initiating the action. Here, Plaintiff commenced the above-captioned action on September 6, 2016. (Doc. No. 1.) On December 9, 2016, the Court, observing that Plaintiff had not yet submitted proof of service of the summons and complaint upon Defendants within the 90-day period prescribed by Rule 4(m), entered an Order directing Plaintiff to show cause why the above-captioned action should not be dismissed for failure to prosecute. (Doc. No. 4.) That same day, Plaintiff responded to the Court's Show Cause Order by submitting proof of summons, which revealed that summons was returned unexecuted as to Defendant Nesbit, with the notation: “this person does not exist.” (Doc. No. 5 at 4.) The docket reflects that, to date, no further attempt has been made by Plaintiff to serve Defendant Nesbit pursuant to Rule 4. By the Court's calculation, more than 180 days have elapsed since the complaint in this action was filed. Despite having received notice of a possible sua sponte dismissal for failure to timely serve the complaint on all Defendants, including Defendant Nesbit, Plaintiff has failed to effectuate proper service of the complaint on Defendant Nesbit. Significantly, Plaintiff has made no request during this period for an extension of time to properly serve Defendant Nesbit, nor has he demonstrated good cause for the failure to effect timely service. 5 In the absence of a finding of good cause for the failure to serve Defendant Nesbit within the required 90- day timeframe, the Court declines to exercise its discretion to extend the time for service and consequently, will sua Case 1:16-cv-02546-JEJ Document 20-4 Filed 03/30/17 Page 3 of 9 Douglas v. Nesbit, Slip Copy (2017) 2017 WL 1021680 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 sponte dismiss this action as to Defendant Major General Wesley E. Nesbit. B. OFFICIAL CAPACITY CLAIMS AGAINST DEFENDANT BRIGADIER GENERAL ANTHONY J. CARRELLI It appears from Plaintiff's amended complaint that Plaintiff has asserted claims of age and race discrimination against Defendant Brigadier General Anthony J. Carrelli “in his capacity as Adjutant General of Pennsylvania and of the Department of Military and Veterans Affairs.” (Doc. No. 6 at 1.) Defendants move for dismissal of all claims brought against Defendant Carrelli in his official capacity on Eleventh Amendment sovereign immunity grounds. (Doc. No. 9 at 8.) *4 The Court agrees with Defendants that the Eleventh Amendment clearly precludes Plaintiff's official capacity claims against Defendant Carrelli. It is well settled that a suit brought against a state official in his official capacity is deemed a suit against the state. Kentucky v. Graham, 472 U.S. 159, 166 (1985). Indeed, where a state official is sued in an official capacity, the Supreme Court of the United States has held that the real party in interest is the government entity of which the official is an agent. Hafe v. Melo, 502 U.S. 21, 26 (1991). Here, Plaintiff's official capacity suit against Defendant Carrelli is, in effect, a suit against the Pennsylvania Department of Military and Veterans Affairs, an agency of the Commonwealth of Pennsylvania. See 51 Pa. C.S. § 703. A suit against an arm of the state, such as the Pennsylvania Department of Military and Veterans Affairs, is no different from a suit against the state itself. 6 Thus, the Eleventh Amendment forecloses Plaintiff's claim for damages against Defendant Carrelli in his official capacity, as the Eleventh Amendment operates as a bar to actions in federal court brought against states, state agencies, and state officials acting within the scope of his or her official capacities, absent waiver or abrogation of said immunity. 7 Graham, 473 U.S. at 165-67; Hans v. Louisiana, 134 U.S. 1, 10 (1890); see U.S. Const. amend. XI (precluding suits “in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State”). Accordingly, Plaintiff is barred from recovering against Defendant Carrelli in his official capacity, as the Commonwealth of Pennsylvania is immunized from suit under the Eleventh Amendment. Krause v. Pa. Dep't of Military & Veterans Affairs, No. 1:11-CV-1080, 2011 WL 6742519, at *3 (M.D. Pa. Dec. 22, 2011). Accordingly, the Court will grant Defendants' motion to dismiss Defendant Brigadier General Anthony J. Carrelli from the above-captioned action with prejudice. 8 C. COUNT I-RACIAL DISCRIMINATION 9 Count I of Plaintiff's amended complaint asserts a claim of unlawful race discrimination “in the form of wrongful discharge in violation of 42 U.S.C. § 1981 governing employment actions brought against state actors and 42 U.S.C. § 1981 governing employment actions through 42 U.S.C. § 1983.” (Doc. No. 6 at 4-5 ¶ 20.) Defendants urge the Court to dismiss Count I of the amended complaint on the basis that Plaintiff's race discrimination claim (1) is untimely (Doc. No. 9 at 4), and (2) does not sufficiently allege Defendant Deborah Nesbella's personal involvement in the alleged adverse employment action taken against Plaintiff (Id. at 6). The Court addresses these arguments in turn. 42 U.S.C. § 1981 proscribes intentional discrimination based upon race in the making and enforcement of contracts. Rivers v. Roadway Exp., Inc., 511 U.S. 298, 302 (1994); see 42 U.S.C. § 1981 (“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens....”). The statute, amended by the Civil Rights Act of 1991, embraces an expansive definition of “make and enforce contracts” to include the “making, performance, modification, and termination of contracts, and the employment of all benefits, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b). While Section 1981 confers a direct cause of action for claims brought against private individuals, “no implied private right of action exists against state actors under [Section] 1981.” McGovern v. City of Phila., 554 F.3d 114, 122 (3d Cir. 2009). Rather, 42 U.S.C. § 1983 provides the exclusive federal damages remedy for violations of rights guaranteed by Section 1981 with respect to alleged violations pressed against a state actor. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735 (1989); see also Ford v. Se. Pa. Trans. Auth., 374 Fed.Appx. 325, 326 (3d Cir. 2010) (“[T]he exclusive remedy for relief from Case 1:16-cv-02546-JEJ Document 20-4 Filed 03/30/17 Page 4 of 9 Douglas v. Nesbit, Slip Copy (2017) 2017 WL 1021680 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 a state agency for civil rights violations, including race discrimination, is [Section] 1983.”). *5 Here, Plaintiff asserts a Section 1981 race discrimination claim against Defendant Deborah Nesbella, Commandant of the Hollidaysburg Veterans Home (a state owned facility), through Section 1983. The parties do not dispute that Defendant Deborah Nesbella is a state actor. Rather, Defendants argue that Plaintiff's race discrimination claim is time-barred by Pennsylvania's two-year statute of limitations governing personal injury actions applied to violations of Section 1981 through Section 1983. Although the Third Circuit has yet to address whether Section 1981 employment actions brought against state actors through Section 1983 are subject to a two- or four- year statute of limitations, Walker v. City of Coatesville, No. CIV.A. 14-853, 2014 WL 6698304, at *1 (E.D. Pa. Nov. 26, 2014), district courts in this Circuit, relying on the United States Court of Appeals for the Eleventh Circuit's holding in Baker v. Birmingham, 531 F.3d 1336 (11th Cir. 2008), have consistently rejected invitations to import Pennsylvania's two-year statute of limitations governing personal injury actions under 42 Pa. C.S. § 5524, applied to Section 1983 claims, to those claims brought under Section 1981 through Section 1983. See, e.g., Walker, 2014 WL 6698304, at *4 (collecting cases); Hills v. Borough of Colwyn, 978 F. Supp. 2d 469, 477 (E.D. Pa. 2013) (collecting cases). Having considered this prevailing line of cases, the Court finds no reason to adopt a contrary position to that embraced by courts in this district and thus, applies the statute of limitations governing claims brought directly under Section 1981 to Plaintiff's race discrimination claim. This does not end the inquiry, however. Claims based on independent violations of Section 1981 are subject to either (1) Pennsylvania's two-year limitations period for personal injury actions under 42 Pa. C.S. § 5524, or (2) the federal catchall statute of limitations under 28 U.S.C. § 1658. Deciphering the controlling statute of limitations applicable to claims brought under Section 1981 requires the court to look to the nature of the underlying right asserted. Specifically, Section 1981 claims predicated on conduct that occurred post-contract formation are subject to 28 U.S.C. § 1658's four-year statute of limitations. 10 Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 381 (2004). Stated differently, Section 1968 supplies a four- year statute of limitations for claims that would not have been cognizable or available under Section 1981 prior to the enactment of the Civil Rights Act of 1991. Id. In contrast, Section 1981 claims that would have been actionable under the pre-1990 version of Section 1981 borrow from Pennsylvania's two-year statute of limitations applied to personal injury actions. Id. Applying this bright-line rule to the matter sub judice, the Court finds that Section 1658 controls Plaintiff's claim of race discrimination brought under Section 1981 through Section 1983. Indeed, Plaintiff's claim of race discrimination is grounded on allegations of wrongful termination. Such allegations of wrongful termination arise under the Civil Rights Act of 1991, which amended Section 1981 by expanding the definition of “make and enforce contracts” to include certain post-formation conduct; namely, the performance, modification, and termination of contracts. Thus, Plaintiff's claim is subject to a four-year statute of limitations. According to the allegations in the amended complaint, Plaintiff's cause of action began accruing on September 10, 2012-the date of Plaintiff's termination from his employment. (Doc. No. 6 at 3 ¶ 9.) As Plaintiff commenced this action on September 6, 2016, four days prior to the expiration of the four-year statute of limitations period, Plaintiff's Section 1981 claim is deemed timely. *6 In addition to their argument that the statute of limitations operates as a bar to Plaintiff's claim of race discrimination in termination brought under Section 1981 through Section 1983, Defendants have also raised in their motion to dismiss a secondary argument for dismissal of Count I of Plaintiff's amended complaint. Specifically, Defendants assert that dismissal of Defendant Nesbella is appropriate for lack of personal involvement in the alleged acts underlying Plaintiff's claimed violation of his rights under Section 1981. To state a prima facie case of race discrimination under Section 1981, a plaintiff must plead sufficient factual allegations to raise a reasonable expectation that discovery will reveal evidence as to each of the following elements: “(1) plaintiff is a member of a racial minority; (2) defendant intended to discriminate on the basis of race; and (3) defendant's discrimination concerned one or more of the activities enumerated in the statute, which includes the right to make and enforce contracts.” 11 Suero v. Motorworld Auto. Grp., Inc., No. 3:16-CV-00686, 2017 WL 413005, at *6 (M.D. Pa. Jan. 31, Case 1:16-cv-02546-JEJ Document 20-4 Filed 03/30/17 Page 5 of 9 Douglas v. Nesbit, Slip Copy (2017) 2017 WL 1021680 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 2017) (citing Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001)). As against an individual defendant, however, a plaintiff must also plead the defendant's personal involvement in the alleged discriminatory conduct at issue. The Third Circuit has instructed that individual liability under Section 1981 may lie where the employees were “personally involved in the discrimination ... and ... intentionally caused [an infringement of plaintiff's] Section 1981 rights, or if they authorized, directed, or participated in the alleged discriminatory conduct....” Al- Khazraji v. St. Francis Coll., 784 F.2d 505, 518 (3d Cir. 1986); see also Johnson v. Res. for Human Dev., Inc., 843 F. Supp. 974, 978 (E.D. Pa. 1994) (“[A] claim seeking to impose personal liability under Section 1981 must be predicated on the actor's personal involvement and there must therefore be some affirmative link to causally connect the actor with the discriminatory action.”). As liability under Section 1981 is personal in nature, and hinges on allegations of intentional discrimination, it cannot be imposed vicariously. Boykin v. Bloomsburg Univ. of Pa., 893 F. Supp. 378, 394 (M.D. Pa. 1995), aff'd, 91 F.3d 122 (3d Cir. 1996). However, allegations demonstrating a supervisor's “deliberate indifference to, or participation in, a subordinate's acts of racially- motivated conduct can ... give rise to individual liability under [Section] 1981.” Suero, 2017 WL 413005, at *7 (citing Cardenas v. Massey, 269 F.3d 251, 269 (3d Cir. 2001)). Accepting all allegations in the amended complaint as true, and viewing all reasonable inferences drawn therefrom in the light most favorable to Plaintiff, the Court finds dismissal of Count I to be appropriate, as the amended complaint is entirely devoid of factual allegations supporting Defendant Nesbella's personal involvement in the events or occurrences forming the basis of Plaintiff's Section 1981 race discrimination claim. Specifically, the amended complaint alleges the following with respect to Defendant Nesbella's personal involvement in Plaintiff's termination: 6. On or about March 12, 2012 Plaintiff was hired by Defendant or person she was responsible for as a[ ] Unit Clerk.... 7. On or about September 4, 2012 Defendant's agents met with Plaintiff in a pre-disciplinary conference in which Plaintiff was given employee evaluations in which his work was characterized as unsatisfactory. 8. After the pre-disciplinary conference, Plaintiff was notified that his employment would be terminated effective September 10, 2012 for “poor performance.” *7 ... 10. Out of the five unit clerks in Plaintiff's department Plaintiff was the only black unit clerk employed at the Hollidaysburg Veterans Home. ... 15. The reason Defendant cited for terminating Plaintiff, “poor performance [,]” was a pretext for discrimination. ... 19. Plaintiff believes and therefore avers that Defendant's actions were due to Plaintiff's protected class of his race of African American. (Doc. No. 6 at 2-4.) A review of these allegations reveals that Plaintiff has offered no plausible factual basis from which a reasonable inference could be drawn that Defendant Nesbella directly participated in, let alone was aware of and acquiesced in, the allegedly discriminatory termination decision forming the basis of Plaintiff's Section 1981 claim. Rather, as currently pled, it appears that Plaintiff has merely attempted to hold Defendant Nesbella personally culpable for her agents' alleged acts of misconduct, based solely on her supervisory status. In addition to this pleading defect, the Court is hard pressed to find any plausible factual allegations in the amended complaint “from which a discriminatory animus on the part of the defendant might be inferred.” Truong v. Dart Container Corp., CIV.A. 09-3348, 2010 WL 4237944, at *4 (E.D. Pa. Oct. 26, 2010). As enumerated above, one of the elements of a 1981 “cause of action in the employment context ... based on racial discrimination [requires that the plaintiff] set forth facts to establish that the allegedly disparate treatment was the result of ‘intentional’ or ‘purposeful’ discrimination.' ” Hicks v. Arthur, 843 F. Supp. 949, 954 (E.D. Pa. 1994) (citing Weldon v. Kraft, 896 F.2d 793, 796 (3rd Cir. 1990); Armstrong v. Sch. Dist. of Phila., 597 F. Supp. 1309, 1312 (E.D. Pa. 1984)). Section 1981's proscription against Case 1:16-cv-02546-JEJ Document 20-4 Filed 03/30/17 Page 6 of 9 Douglas v. Nesbit, Slip Copy (2017) 2017 WL 1021680 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6 purposeful discrimination thus requires the impact of the alleged adverse employment action to be traceable to a discriminatory purpose. Evans v. Chichester Sch. Dist., 533 F. Supp. 2d 523, 537 (E.D. Pa. 2008) (citing Gen. Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 390 (1982)). Here, the amended complaint does not contain any allegations sufficiently suggestive of intent on the part of Defendant Nesbella to discriminate against Plaintiff on the basis of race. Rather, the sum total of the allegations in the amended complaint concerning Plaintiff's race is his averment that “[o]ut of the five unit clerks in Plaintiff's department[,] Plaintiff was the only black unit clerk employed at the Hollidaysburg Veterans Home,” which does not give rise to a reasonable inference that Plaintiff's termination was racially motivated, and his asserted “belief” that he was fired due to his minority status, which is not entitled to the presumption of truth, especially in the absence of any fact-specific allegations of racial animus that would raise Plaintiff's right to relief above the speculative level. See, e.g., Clarke v. Eisenhower, 199 Fed.Appx. 174, 175 (3d Cir. 2006) (affirming district court's dismissal of plaintiff's Section 1981 claim for failure to “allege facts that would support an inference that defendants intended to discriminate on the basis of race”). *8 Accordingly, the Court will grant Defendants' motion to dismiss Count I of Plaintiff's complaint without prejudice. D. COUNT II-AGE DISCRIMINATION Count II of Plaintiff's amended complaint asserts a claim of unlawful age discrimination “in the form of wrongful discharge in violation of 42 U.S.C. § 1981 governing employment actions brought against state actors and 42 U.S.C. § 1981 governing employment actions through 42 U.S.C. § 1983.” (Doc. No. 6 at 6 ¶ 28.) As Defendants persuasively argue in their brief in support of their motion to dismiss, Plaintiff has failed to state a cognizable claim of age discrimination because the statute upon which he relies-Section 1981-does not support a cause of action premised upon discrimination on the basis of age. Rather, as this Court has previously noted, the Third Circuit has held that Section 1981, on its face, “is limited to issues of racial discrimination in the making and enforcing of contracts.” Anjelino v. N.Y. Times Co., 200 F.3d 73, 98 (3d Cir. 1999). In like fashion, Plaintiff is also foreclosed from pursuing an age discrimination claim under 42 U.S.C. § 1983, as the Third Circuit has explicitly held that the exclusive federal remedy for claims of age discrimination in employment is the Age Discrimination in Employment Act (“ADEA”). Hildebrand v. Allegheny Cty., 757 F.3d 99, 108 (3d Cir. 2014) (“[W]e join with the majority of Courts of Appeals in concluding that Congress intended the ADEA to be the exclusive remedy for claims of age discrimination in employment.”). Accordingly, the Court will grant Defendants' motion to dismiss Count II of Plaintiff's amended complaint without prejudice. E. LEAVE TO AMEND In his brief in opposition to Defendants' motion to dismiss, Plaintiff has requested leave to amend his pleading. (Doc. No. 12 at 5.) The Court observes that Plaintiff previously filed an amended complaint in this action as a matter of course. Thus, Federal Rule of Civil Procedure 15(a) instructs that he may amend his pleading “only with the opposing party's written consent or the court's leave.” Fed. R. Civ. P. 15(a). To obtain leave of court, Local Rule 15.1(a) requires that the plaintiff file a properly supported motion to amend his pleading together with an attached copy of the proposed pleading. L.R. 15.1(a). Although the Federal Rules of Civil Procedure counsel that “[t]he court should freely give leave when justice so requires,” Fed. R. Civ. P. 15(a)(2), leave may be denied where “(1) the moving party has demonstrated undue delay, bad faith or dilatory motives, (2) the amendment would be futile, or (3) the amendment would prejudice the other party.” Lake v. Arnold, 232 F.3d 360, 374 (3d Cir. 2000) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Significantly, the Third Circuit has held that the “failure to provide a draft amended complaint” is also “an adequate basis on which [a district] court [may] deny” leave to amend. Arnold, 232 F.3d at 374; see Ramsgate Court Townhome Ass'n v. W. Chester Borough, 313 F.3d 157, 161 (3d Cir. 2002) (holding that the district court did not abuse its discretion by refusing plaintiff's request for leave to amend its complaint in a single sentence in its oppositional brief to defendant's motion to dismiss where the plaintiff neither filed a motion to amend nor provided the district court with a proposed amended complaint). *9 Guided by these benchmark principles, and recognizing that this action reflects Plaintiff's third Case 1:16-cv-02546-JEJ Document 20-4 Filed 03/30/17 Page 7 of 9 Douglas v. Nesbit, Slip Copy (2017) 2017 WL 1021680 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 7 unsuccessful attempt at pursuing claims of race and age discrimination arising out of the same set of operative facts, the Court finds that the exercise of its discretion in this context calls for the denial of Plaintiff's request for leave to amend his pleading, without prejudice to the Plaintiff's filing of a motion for leave to file a curative amended pleading together with a proposed second amended complaint in accordance with Local Rule 15.1(a). Specifically, given the Court's disposition of Plaintiff's claims in this Memorandum, Plaintiff may move for leave to amend his pleading only with regard to asserting claims under the ADEA and Section 1981 through Section 1983 against Defendant Deborah Nesbella. IV. CONCLUSION Based upon the foregoing, the Court will grant Defendants' motion to dismiss Plaintiff's amended complaint. (Doc. No. 8.) An appropriate Order follows. All Citations Slip Copy, 2017 WL 1021680 Footnotes 1 The following factual allegations comprising this background section are taken directly from Plaintiff's complaint and are accepted as true for purposes of this motion to dismiss. See Schuylkill Energy Res., Inc. v. Pa. Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997) (explaining that “[w]hen reviewing a Rule 12(b)(6) dismissal, [the court] must accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn from them”). 2 Notably, this is Plaintiff's third attempt at litigating an action based on the underlying facts in this case. See Mark Douglas v. Dep't of Military & Veterans Affairs, et al., Doc. No. 1:14-cv-00297 (M.D. Pa. 2014); Mark Douglas v. Dep't of Military & Veterans Affairs, et al., Doc. No. 1:15-cv-01740 (M.D. Pa. 2015). 3 Plaintiff amended the caption of his complaint to name Deborah Nesbella as a Defendant in her individual capacity. 4 Specifically, Plaintiff alleges as follows: Prior to the pre-disciplinary conference, Plaintiff was not given notice of any performance evaluations despite the fact that he was given a report that was purportedly his 90 day evaluation. The purported 90-day evaluation was not given to Plaintiff or was he aware of the reports existence prior to a later grievance hearing held in January 2013. (Id. at ¶ 9.) 5 The Court, in the absence of “a finding of good cause, ... may in its discretion still dismiss the case, even after considering that the statute of limitations has run and the refiling of an action is barred.” Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1306 (3d Cir. 1995). 6 The Pennsylvania Department of Military and Veterans Affairs is “responsible for the administration and supply of the Pennsylvania military forces” and has “general supervisory function of all matters pertaining thereto.” 51 Pa. C.S. § 703. 7 The Commonwealth of Pennsylvania has not waived its Eleventh Amendment immunity, 42 Pa. C.S. § 8521, and Congress has not abrogated states' immunity for actions brought under Section 1981, Boykin v. Bloomsburg Univ. of Pa., 893 F. Supp. 378, 394 (M.D. Pa. 1995), aff'd, 91 F.3d 122 (3d Cir. 1996). 8 Plaintiff has also named Major General Wesley E. Nesbit as a Defendant in the caption of the amended complaint “in his capacity as Adjutant General of Pennsylvania and of the Department of Military and Veterans Affairs.” In addition to Plaintiff's failure to effect proper service of the amended complaint on Defendant Nesbit, the Court notes that Defendant Nesbit is entitled to sovereign immunity with respect to Plaintiff's official-capacity claims asserted against him. 9 Notably, the amended complaint does not specify what alleged acts of misconduct are attributable to whom. Indeed, Plaintiff does not identify any Defendant by name, but rather vaguely refers to the individuals named in the caption of the amended complaint as “Defendant” or collectively as “Defendants” throughout his pleading. However, in light of its dismissal of Defendants Major General Wesley E. Nesbit and Brigadier General Anthony J. Carrelli from this action, the Court construes Count I of the amended complaint as asserted against remaining Defendant Deborah Nesbella. 10 In 1990, Congress enacted Section 1658, which applies a “catchall” four-year statute of limitations period to any “civil action arising under an Act of Congress enacted after” December 1, 1990. While Section 1981 was originally enacted by the Civil Rights Act of 1866, it was subsequently amended by the Civil Rights Act of 1991. Thus, post-contract formation discrimination, made actionable under Section 1981 through the Civil Rights Act of 1991, is subject to Section 1658's four-year statute of limitations. 11 The substantive elements of a race discrimination claim brought under Section 1981 are nearly identical to the elements comprising an employment discrimination claim brought under Title VII, and are analyzed in accordance with the familiar Case 1:16-cv-02546-JEJ Document 20-4 Filed 03/30/17 Page 8 of 9 Douglas v. Nesbit, Slip Copy (2017) 2017 WL 1021680 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 8 three-step burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Brown v. J. Kaz, Inc., 581 F.3d 175, 181 (3d Cir. 2009). End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-02546-JEJ Document 20-4 Filed 03/30/17 Page 9 of 9 Exhibit E Case 1:16-cv-02546-JEJ Document 20-5 Filed 03/30/17 Page 1 of 7 Turner v. Wetzel, Not Reported in F.Supp.3d (2015) 2015 WL 5695305 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2015 WL 5695305 Only the Westlaw citation is currently available. United States District Court, M.D. Pennsylvania. Jeffrey Turner, Plaintiff, v. John Wetzel, et al., Defendants. CIVIL ACTION NO. 3:13-CV-2680 | Signed September 28, 2015 Attorneys and Law Firms Jeff Turner, Bellefonte, PA, pro se. Lucy E. Fritz, Office of Attorney General, Harrisburg, PA, for Defendants. ORDER Edwin M. Kosik, District Judge *1 AND NOW, THIS 28TH DAY OF SEPTEMBER, 2015, IT APPEARING TO THE COURT THAT: (1) On September 10, 2015, Magistrate Judge Martin C. Carlson filed a Report and Recommendation (Doc. 86) in this action, recommending that: Accordingly, for the foregoing reasons, the defendants' Motion for Extension of Time, (Doc. 85.), is GRANTED. IT IS FURTHER RECOMMENDED that the plaintiff's Motion to Amend, (Doc. 70.), for Extension of Time, (Doc. 76.), for Leave to Proceed In Forma Pauperis, (Doc. 80.) AND Motion to Lif(t) (sic) Stay, (Doc. 84.), all of which propose that additional plaintiffs be added in a piecemeal fashion to this litigation without providing any pleadings setting forth well- pleaded facts allowing the court to determine whether joinder is proper, be DENIED. Instead, IT IS FURTHER RECOMMENDED that the court first direct individual putative plaintiffs to file independent complaints detailing their claims, along with complete IFP paperwork which meets the requirements of the PLRA. Once individual plaintiffs have taken this step, the court and the parties will be able to make informed judgments concerning which claims can survive dispositive motions, and whether the requirements of Rule 20 for permissive joinder of claims are satisfied. (2) On September 21, 2015, Plaintiff filed a Motion for Enlargement of Time (Doc. 87), requesting an Extension of sixty (60) days in order “to make advised corrections specified within the Court's Report and recommendation dated 9/10/2015”; (3) No objections were filed to the Report and Recommendation; AND FURTHER APPEARING THAT: (4) If no objections are filed to a Magistrate Judge's Report and Recommendation, the plaintiff is not statutorily entitled to a de novo review of his claims. 28 U.S.C.A.§ 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985). Nonetheless, the usual practice of the district court is to give “reasoned consideration” to a magistrate judge's report prior to adopting it. Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987); (5) We have reviewed the Report and Recommendation of the Magistrate Judge and we concur with his recommendation; ACCORDINGLY, IT IS HEREBY ORDERED THAT: (1) The Report and Recommendation of Magistrate Judge Martin C. Carlson filed September 10, 2015 (Doc. 86) is ADOPTED; (2) The Plaintiff's Motion to Amend, (Doc. 70), for Extension of Time, (Doc. 76), for Leave to Proceed In Case 1:16-cv-02546-JEJ Document 20-5 Filed 03/30/17 Page 2 of 7 Turner v. Wetzel, Not Reported in F.Supp.3d (2015) 2015 WL 5695305 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 Forma Pauperis, (Doc. 80), and Motion to Lift Stay, (Doc. 84) are DENIED; (3) Individual putative plaintiffs are DIRECTED to file independent complaints detailing their claims, along with complete IFP paperwork which meets the requirements of the PLRA. Once individual plaintiffs have taken this step, the court and the parties will be able to make informed judgments concerning which claims can survive dispositive motions, and whether the requirements of Rule 20 for permissive joinder of claims are satisfied; and, (4) Plaintiff's Motion for Enlargement of Time (Doc. 87) to comply with this Order is GRANTED; and, Plaintiff is allowed sixty (60) days from the date of this Order in which to comply. REPORT AND RECOMMENDATION 1 Martin C. Carlson, United States Magistrate Judge I. Statement of Facts and of the Case *2 This case, which comes before us for further consideration of a welter of motions, which seek to add plaintiffs to this litigation in a haphazard fashion, presents a cautionary tale regarding the perils of multi-plaintiff pro se inmate litigation. Indeed, the current pending motions were inspired by just one example of the chaos that can ensue from such litigation, since the initial act which precipitated these motions was an allegation of a pro se inmate plaintiff, Jeffrey Turner, that his name had been added as a plaintiff in a lawsuit without his consent. Turner made this allegation in the instant case at the time that he filed what is styled as a third amended complaint in this lawsuit. (Doc. 60.) In this third amended complaint, Turner first alleged that he had been initially named as an inmate plaintiff in this pro se lawsuit without his knowledge. (Id., ¶ 1.) After complaining about his inclusion in this lawsuit without full knowledge of the case, Turner then alleged violations of his federal constitutional rights under the First and Fourteenth Amendments, as well as a violation of his religious rights under the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 3000cc et seq. Specifically, Turner claimed that the defendants placed substantial burdens on the exercise of his religious beliefs by denying him access to special halal meals. (Id.) Notably, many of Turner's allegations in this third amended complaint were unique and personal to him. Thus, Turner described his personal religious beliefs, detailed his efforts to obtain an accommodation of those religious beliefs through dietary accommodations, and outlined for the court his administrative exhaustion of these issues prior to proceeding into federal court. (Id.) Further, while Turner provided these careful factual recitals pertaining to his conduct, Turner's amended complaint did not make factual recitals of a similar nature with respect to any other inmates. (Id.) Given Turner's protests in this amended complaint that he was initially named as a plaintiff in this lawsuit, “without his knowledge, consent and requisite signature,” what followed has a sense of unintended irony. After submitting this third amended complaint Turner did precisely what he described as unfair and improper in that amended complaint. Specifically, Turner then filed a motion to amend his complaint to add a host of additional inmate-plaintiffs, none of whom had provided what Turner previously called the “requisite signature” to any amended complaint. Indeed, Turner's motion to amend this complaint violated this court's Local Rule 15.1 in that Turner did not tender any proposed amended complaint to the court for its consideration, far less an amended complaint which had actually been endorsed by any of the inmates Turner now claims wish to be plaintiffs in this lawsuit. Presented with this incomplete motion, Magistrate Judge Mehalchick recommended that the motion to amend be denied, in part because none of the putative plaintiffs identified by Turner had evinced any knowledge of this lawsuit, or stated a desire to participate in this litigation. (Doc. 73.) The district court adopted this Report and Recommendation, but did so without prejudice to Turner attempting to make a further showing in support of this motion. For his part Turner responded to this Report and Recommendation by filing a motion, captioned as objections to the Report and Recommendation, which included what purport to be signatures of other inmates who wish to join this lawsuit. (Doc. 76.) It is entirely unclear, however, what lawsuit these inmates believe that they are joining, since Turner has not provided the court with an amended complaint. Instead, he simply tendered a list of disembodied signatures which he claims are inmates who wish to join some litigation. Further, in the absence Case 1:16-cv-02546-JEJ Document 20-5 Filed 03/30/17 Page 3 of 7 Turner v. Wetzel, Not Reported in F.Supp.3d (2015) 2015 WL 5695305 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 of a coherent amended complaint outlining the claims of these additional putative plaintiffs it is impossible to determine whether “they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and [whether] any question of law or fact common to all plaintiffs will arise in the action,” as required by Rule 20 of the Federal Rules of Civil Procedure. Fed.R.Civ.P., Rule 20. *3 What then followed has been a series of sporadic and intermittent filings, filings which further highlighted the confusion that can ensue in cases of this type where multiple inmates are asserting, with differing degrees of clarity, a desire to jointly sue prison officials. These additional filings include an incomplete motion for leave to preached in forma pauperis from one inmate, a motion by Turner seeking leave to proceed forward with this multi-plaintiff lawsuit, and a motion by the defendants seeking leave to belatedly contest the amendment of this complaint proposed by Turner. (Docs. 80, 84, and 85.) We will GRANT the motion of the defendants' to oppose the amendment of this complaint that has been proposed by Turner, (Doc. 85.), and for the reasons set forth below, we recommend that the court deny Turner leave to amend at this time. Instead, we recommend that the court prescribe an orderly and rational process for other inmate- plaintiffs to bring claims if they choose to do so. II. Discussion A. Turner Should Be Denied Leave to Amend This Third Amended Complaint to Unilaterally Add Plaintiffs. Instead Those Putative Plaintiffs Should File Individual Complaints and Motions Seeking Joinder of Their Claims In our view, Turner's proposed piecemeal amendments to this third amended complaint invite procedural chaos in this litigation. This procedural chaos stems from several sources. First, Turner and the other putative plaintiffs that he wishes to add to this litigation have failed to comply with the requirements of Local Rule 15.1, since these motions to amend are unaccompanied by any proposed amended complaint, as required by Local Rule 15.1 which provides as follows: LR 15.1 Amended Pleadings. (a) Proposed amendment to accompany the motion. When a party files a motion requesting leave to file an amended pleading, the proposed amended pleading must be retyped or reprinted so that it will be complete in itself including exhibits and shall be filed on paper as a separate document or, in the Electronic Filing System, as an attachment to the motion. If the motion is granted, the clerk shall forthwith file the amended pleading. Unless otherwise ordered, an amended pleading that does not add a new defendant shall be deemed to have been served for the purpose of determining the time for response under Fed.R.Civ.P. 15(a), on the date the court grants leave for its filing. A party granted leave to amend its pleading, when the amended pleading would add a new defendant, shall file and effect service of the amended pleading within thirty (30) days after the date of the Order granting leave for its filing. (b) Highlighting of amendments. The party filing the motion requesting leave to file an amended pleading shall provide: (1) the proposed amended pleading as set forth in subsection (a) of this rule, and (2) a copy of the original pleading in which stricken material has been lined through and any new material has been inserted and underlined or set forth in bold-faced type. Local Rule 15.1. This failure to comply with Local Rule 15.1, standing alone, justifies denial of leave to amend in the exercise of this court's discretion. Brooks-McCollum v. Emerald Ridge Serv. Corp., 563 Fed.Appx. 144, 147 (3d Cir.) cert. denied, 135 S.Ct. 143, 190 L.Ed.2d 46 (2014); Glunk v. Pennsylvania State Bd. of Med., No. 1:14- CV-659, 2015 WL 999135, at *1 (M.D.Pa. Mar. 5, 2015). This case aptly illustrates the wisdom behind Rule 15.1's requirement that parties submit proposed amended complaints along with any motions to amend. Here, Turner is suggesting that numerous additional plaintiffs be added to this lawsuit. However, there is no proposed amended complaint reciting any well-pleaded facts regarding the involvement of these putative plaintiffs in this case. Thus, we have no representations from any of these putative parties regarding their religious beliefs, how prison dietary practices have burdened those Case 1:16-cv-02546-JEJ Document 20-5 Filed 03/30/17 Page 4 of 7 Turner v. Wetzel, Not Reported in F.Supp.3d (2015) 2015 WL 5695305 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 beliefs, whether the plaintiffs have sought religious meal accommodations, and whether these potential plaintiffs have exhausted their grievances with respect to these prison diet issues. We also have no coherent prayers for relief from any of the putative plaintiffs. Indeed, given the current and wholly incomplete state of the record, where there have been no factual averments made on behalf of any of these putative plaintiffs, all of their cases would be subject to summary dismissal if leave to amend was granted since there are no well-pleaded factual allegations in support of any of these specific plaintiffs' claims. It is well-settled that, “ ‘[a]mong the grounds that could justify a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice, and futility.’ In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) (‘Burlington’); Lorenz v. CSX Corp., 1 F.3d 1406, 1413-14 (3d Cir. 1993). ‘Futility’ means that the complaint, as amended, would fail to state a claim upon which relief could be granted. Burlington, 114 F.3d at 1434.” Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). Here without some well-pleaded facts outlining claims by each individual putative plaintiff, these claims are subject to dismissal, thus rendering the proposed amendment, in its current form, futile. *4 Furthermore, the murky procedural posture of this matter defeats any effort by the court to make informed assessments regarding whether any of these putative plaintiffs should be joined as parties in this litigation under Rule 20. This rule, which governs permissive joinder of parties, provides in part that the court may allow joinder of plaintiffs when “they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and ... any question of law or fact common to all plaintiffs will arise in the action.” Fed.R.Civ.P., Rule 20. “A district court's order [regarding] the joinder requirements of Rule 20 is reviewed for abuse of discretion. Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997). A district court abuses its discretion when 'its decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact. Danvers Motor Co., Inc. v. Ford Motor Co., 543 F.3d 141, 147 (3d Cir. 2008) (internal quotation marks omitted).” Hagan v. Rogers, 570 F.3d 146, 152 (3d Cir. 2009). However, where a plaintiff fails to show that joinder is proper under Rule 20, the proper exercise of the district court's discretion is to deny the motion to join parties. See Blood v. Fed. Bureau of Prisons, 351 Fed.Appx. 604, 607 (3d Cir. 2009). Here, there are substantial, and unanswered, questions regarding whether this diverse group of putative plaintiffs can demonstrate that permissive joinder is proper. Evaluation of these joinder claims entails an individualized assessment of a host of legal and factual issues including the plaintiff's professed religious beliefs, the plaintiff's efforts to obtain accommodation of those beliefs, and the plaintiff's compliance with grievance procedures in the prison after accommodations were allegedly denied. None of the putative plaintiffs have provided the slightest explanation in a proposed amended complaint or otherwise concerning how they satisfy these elements of proof in some common and coherent fashion. Furthermore, the relief sought by these plaintiffs may vary considerably, since Turner describes prison dietary practices at a single institution, and many of these inmates may no longer be housed at that prison. Indeed, it appears that some of these putative plaintiffs may no longer be inmates. Thus, an individualized consideration of the injunctive relief sought in this case strongly suggests that this aspect of the case would entail very different elements of pleading and proof for each of the potential plaintiffs, yet another factor which suggests that joinder may complicate, rather than simplify, this litigation. Aside from the problems presented by the plaintiffs' failure to comply with Local Rule 15.1 or satisfy the elements required for permissive joinder under Rule 20, there are at least two other procedurally chaotic aspects to the course of action proposed by Turner, each of which cautions against granting these requests at this time. First, the pleadings in this case strongly suggest that inmate Turner is the personal architect of this proposed lawsuit, and intends to serve as the de facto counsel for the plaintiffs. It is well-settled that: “a prisoner proceeding pro se may not seek relief on behalf of his fellow inmates. See Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (“[I]t is plain error to permit [an] imprisoned litigant who is unassisted by counsel to represent his fellow inmates in a class action.”); see also Wallace v. Smith, 145 Fed. Appx. 300, 302 (11th Cir. 2005).” Alexander v. New Jersey State Parole Bd., 160 F.App'x 249, 250 (3d Cir. 2005). Thus, “pro se litigants are generally not appropriate as class representatives. See Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975).” Hagan v. Rogers, 570 F.3d Case 1:16-cv-02546-JEJ Document 20-5 Filed 03/30/17 Page 5 of 7 Turner v. Wetzel, Not Reported in F.Supp.3d (2015) 2015 WL 5695305 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 146, 159 (3d Cir. 2009). Since Turner, a pro se inmate litigant, plainly intends to serve in this capacity, and is forbidden from doing so, this request should be denied. Finally, the haphazard way in which it is proposed that putative inmate plaintiffs be joined in this lawsuit ignores another important procedural requirement. As the United States Court of Appeals for the Third Circuit explained in Hagan v. Rogers, 570 F.3d 146 (3d Cir. 2009), the Prison Litigation Reform Act, 28 U.S.C. § 1915(b)(1), requires each plaintiff prisoner who joins in the above case to pay the full filing fee. The Hagan court, quoting Boriboune v. Berge, 391 F.3d 852, 856 (7th Cir. 2004), stated, “... taking ‘§ 1915(b)(1) at face value,’ the requirement for each prisoner to pay a full fee is simply one price that a prisoner must pay for IFP status under the PLRA.” Id. at 155 (citation omitted)(emphasis added). Therefore, before we can consider these individual joinder requests, it would be necessary for each individual plaintiff to fully comply with the IFP procedures prescribed by the PLRA, and agree to make payments of the filing fees through their inmate accounts. This has not occurred to date, and the failure to comply with the PLRA presents yet another bar to the amendment proposed by Turner. *5 Given these obstacles to orderly case administration, it is submitted that these motions to amend this lawsuit in the fashion proposed by Turner, through the amendment of a complaint to add numerous plaintiffs who are never mentioned in any proposed amended complaint, be denied. Instead, it is recommended that the court first direct individual putative plaintiffs to file independent complaints detailing their claims, along with complete IFP paperwork which meets the requirements of the PLRA. Once individual plaintiffs have taken this step, the court and the parties will be able to make informed judgments concerning which claims can survive dispositive motions, and whether the requirements of Rule 20 for permissive joinder of claims are satisfied. III. Recommendation Accordingly, for the foregoing reasons, the defendants' Motion for Extension of Time, (Doc. 85.), is GRANTED. IT IS FURTHER RECOMMENDED that the plaintiff's Motion to Amend, (Doc. 70.), for Extension of Time, (Doc. 76.), for Leave to Proceed In Forma Pauperis, (Doc. 80.) AND Motion to Life Stay, (Doc. 84.), all of which propose that additional plaintiffs be added in a piecemeal fashion to this litigation without providing any pleadings setting forth well-pleaded facts allowing the court to determine whether joinder is proper, be DENIED. Instead, IT IS FURTHER RECOMMENDED that the court first direct individual putative plaintiffs to file independent complaints detailing their claims, along with complete IFP paperwork which meets the requirements of the PLRA. Once individual plaintiffs have taken this step, the court and the parties will be able to make informed judgments concerning which claims can survive dispositive motions, and whether the requirements of Rule 20 for permissive joinder of claims are satisfied. The Parties are further placed on notice that pursuant to Local Rule 72.3: Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on Case 1:16-cv-02546-JEJ Document 20-5 Filed 03/30/17 Page 6 of 7 Turner v. Wetzel, Not Reported in F.Supp.3d (2015) 2015 WL 5695305 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6 the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions. Submitted this 10th day of September 2015. All Citations Not Reported in F.Supp.3d, 2015 WL 5695305 Footnotes 1 The parties are advised that, pursuant to 28 U.S.C. § 636, the district court has orally referred the above-captioned case to the undersigned for pre-trial management, resolution of non-dispositive motions, and preparation of reports and recommendations on potentially dispositive matters. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-02546-JEJ Document 20-5 Filed 03/30/17 Page 7 of 7
