TATE-LINTON v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC. (NJTRO) et al

Filing 46

OPINION. Signed by Judge Kevin McNulty on 7/13/16. (DD, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

WANDA TATE-LINTON,

No. 15—cv-2876 (KM)(MAH)

Plaintiff,
OPINION

V.

NEW JERSEY TRANSIT RAIL
OPERATIONS, INC. (NJTRO) and
JAMES HOLLINGER,
Defendants.
KEVIN MCNULTY, U.S.D.J.:

This matter comes before the Court on the motion (ECF No. 37) of
defendants New Jersey Transit Rail Operations, Inc. (“NJTRO”) and James
Hollinger to dismiss the third count of the second amended complaint (“2AC”)
(ECF No. 16) of the plaintiff, Wanda Tate-Linton, for failure to bring the claim
within the limitations period pursuant to Fed. R. Civ. P. 12(b)(6). I find that the
limitations question requires information outside the complaint for resolution.
Accordingly, the motion to dismiss the third count of the 2AC is DENIED,
albeit without prejudice to raising the statute of limitations issue at the
summary judgment stage.
I.

BACKGROUND

Plaintiff Wanda Tate-Linton is a Pennsylvania resident employed by the
NJTRO. (2AC

¶

3) Defendant NJTRO operates a passenger railroad between

Pennsylvania, New York, and New Jersey. (2AC

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5) Defendant James Hollinger

is an NJTRO employee and was Ms. Tate-Linton’s supervisor. (2AC

¶J

6, 17)

Ms. Tate-Linton alleges, inter alia, that Mr. Hollinger took photographs up her
skirt without her permission. (2AC

¶J

17, 23, 37)
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In the 2AC, Ms. Tate-Linton repeats her two claims from the earlier
complaints: Count 1 under the Federal Employers’ Liability Act, 45 U.S.C.

51

§

et seq., and Count 2 for sex discrimination under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. 2000e. (2AC ¶J14—35) She also adds a third claim of
“Intrusion upon seclusion under New Jersey Law.” (2AC ¶j 36—40; see also
Original Complaint (ECF No. 1); First Amended Complaint (ECF No. 11))
In alleging the third claim, Ms. Tate-Linton claims that “[b]etween June
2010 and July 2011 Defendant James Hollinger without authorization
intentionally invaded the private affairs of Plaintiff by taking photographs up
Plaintiff’s skirt, capturing images of her genitals, underwear, buttocks and
thighs and/or otherwise an invasion of her private affairs.” (2AC

¶J

37) In other

sections of the 2AC, she uses the dates “from June 2010 through October
2012” (2AC

¶

8), although these date ranges include claims of retaliatory

actions that are not the subject of count three.
Defendants have moved to dismiss count three as being outside the two
year limitations period for a tort claim of intrusion upon seclusion. (Def Br.

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III.B (ECF No. 37)) Ms. Tate-Linton filed her original complaint on July 3, 2014,
and her 2AC on November 14, 2014. (See ECF Nos. 1, 16) She argues in
opposition to the motion that the 2AC relates back to the date of the original
complaint, which contained enough information to put Mr. Hollinger on notice
of the new claim. (P1 Opp.

§

IV (ECF No. 38)) Ms. Tate-Linton also submits that

the 2AC contained a typo in paragraph 37, which alleged a date range between
June 2010 and July 2011, but should have used a date range between June
2011 andJuly 2012. (PlOpp. 3
II.

¶

11)

Procedural History

Ms. Tate-Linton filed the original complaint on July 3, 2014, in the
United States District Court for the Eastern District of Pennsylvania, and
amended it twice. Defendants filed a motion to dismiss the 2AC in that court
(ECF No. 17) District Judge Norma L. Shapiro granted the motion as to the

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Title VII count (count two) and dismissed it as untimely. Tate—Linton v. New
Jersey Transit Rail Operations, Inc., No. CIV 14—4084, 2015 WL 1822298 (E.D.
Pa. Apr. 21, 2015) (ECF Nos. 25, 26). Judge Shapiro filed a separate opinion on
the same day transferring the remainder of the case (i.e., counts one and three)
to this district under 28 U.S.C.

§ 1404(a). Tate-Linton v. New Jersey Transit Rail

Operations, Inc., No. CIV 14—4084, 2015 WL 1822494 (E.D. Pa. Apr. 21, 2015);
(ECF Nos. 27—28). Defendants then filed the motion to dismiss that is now
before this Court. Although serial motions to dismiss are somewhat irregular,
in light of the unusual procedural history I will consider the current motion.
III.

DISCUSSION

A. Standard of Review
Defendants move to dismiss the complaint for failure to state a claim
under Fed. R. Civ. P. 12(b)(6). To state a valid claim for relief under Rule
12(b)(6), the complaint must contain: (1) a short and plain statement of the
grounds for the court’s jurisdiction; (2) a short and plain statement of the claim
showing that the pleader is entitled to relief; and (3) a demand for the relief
sought. Fed R. Civ. P. 8(a).
For the purposes of a motion to dismiss, the facts alleged in the
complaint are accepted as true and all reasonable inferences are drawn in favor
of the plaintiff. N.J. Carpenters & the Trs. Thereof v. Tishman Const. Corp. of
N.J., 760 F.3d 297, 302 (3d Cir. 2014). Fed. R. Civ. P. 8(a) does not require that
a complaint contain detailed factual allegations. Nevertheless, “a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more
than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555, 127
S. Ct. 1955, 1964—65 (2007). Thus, the complaint’s factual allegations must be
sufficient to raise a plaintiff’s right to relief above a speculative level, so that a
claim is “plausible on its face.” Id. at 555, 570; see also W. Run Student Hous.
Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 169 (3d Cir. 2013).

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From the seminal modern cases of Bell Atl. Corp. v. Twombly, 550 U.s.
544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), the Third Circuit
has extracted a three-step process for reviewing a complaint:
To determine whether a complaint meets the pleading standard,
our analysis unfolds in three steps. First, we outline the elements
a plaintiff must plead to a state a claim for relief. See [Iqbal, 556
U.S.] at 675; Argueta, 643 F.3d at 73. Next, we peel away those
allegations that are no more than conclusions and thus not
entitled to the assumption of truth. See Iqbal, 556 U.S. at 679;
Argueta, 643 F.3d at 73. Finally, we look for well-pled factual
allegations, assume their veracity, and then “determine whether
they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S.
at 679; Argueta, 643 F.3d at 73. This last step is “a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679.
Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
A statute of limitations defense in many cases must await summary
judgment. “Under Fed. R. Civ. P. 8(c), the statute of limitations constitutes an
affirmative defense to an action. Under the law of this and other circuits,
however, the limitations defense may be raised on a motion under Rule
12(b) (6), but only if ‘the time alleged in the statement of a claim shows that the
cause of action has not been brought within the statute of limitations.”’ Bethel
v. Jendoco Corist. Corp., 570 F.2d 1168, 1174 (3d Cir. 1978) (quoting Hanna v.
U.S. Veterans’Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975)); Cito v.
Bridgewater Twp. Police Dep’t, 892 F.2d 23, 25 (3d Cir. 1989). “If the bar is not
apparent on the face of the complaint, then it may not afford the basis for a
dismissal of the complaint under Rule 12(b)(6).” Bethel, 570 F.2d at 1174.
B. Analysis
1. Amendment of the date range
Ms. Tate-Linton submits that the 2AC contains an inadvertent or
typographical error: at paragraph 37, the date range “[bjetween June 2010 and
July 2011” should read “[b]etween June 2011 and July 2012.” I will construe

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that as a motion to amend the complaint under Federal Rule of Civil Procedure
15(a). (P1 Opp. 3

¶

11)

In their reply brief, defendants challenge the veracity of Ms. Tate-Linton’s
claim that this was a scrivening error. They attach exhibits supporting the
original date range of June 201.0 through July 2011, and challenge exhibits
provided by Ms. Tate-Linton to support the corrected range. (Def Reply and
Exs. (ECF Nos 39 to 39—2); P1 Opp. and Exs. (ECF Nos. 38 to 38—1)) This
challenge requires an analysis of evidence from outside of complaint,
inappropriate on a motion to dismiss. See In re Asbestos Products Liab. Litig.
(No. VI), 822 F.3d 125, 133—34 & n.7 (3d Cir. May 16, 2016). Whether Ms. Tate
Linton can prove her assertion that the conduct extended into July 2012 is a
separate issue; I will permit her to allege it. I will grant the motion to amend
and analyze the statute of limitations claim using the corrected date range of
June 2011 to July 2012.

2. Relation back
The last allegation of intrusion upon seclusion dates from July 2012; the
2AC was filed more than two years later, on November 14, 2014. Count three
would therefore be untimely unless it is saved by relation back to the date of
filing of the original complaint on July 3, 2014.
Federal Rule of Civil Procedure 15(c) governs relation back:
(c) Relation Back of Amendments.
(1) When an Amendment Relates Back. An amendment to a
pleading relates back to the date of the original pleading when:
(B) the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out--or attempted to be set
out--in the original pleading
Fed. R. Civ. P. 15(c). “[A]pplication of Rule 15(c) involves a search for a common
core of operative facts in the two pleadings. As such, the court looks to whether
the opposing party has had fair notice of the general fact situation and legal
theory upon which the amending party proceeds.” Bensel v. Allied Pilots Ass’n,

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387 F.3d 298, 310 (3d Cir. 2004). “Put another way, the underlying question
for a Rule 15(c) analysis is whether the original complaint adequately notified
the defendants of the basis for liability the plaintiffs would later advance in the
amended complaint.” Glover v. F.D.I.C., 698 F.3d 139, 146 (3d Cir. 2012)
(internal quotation marks and citations omitted). “[A]n amendment that states
an entirely new claim for relief will relate back as long as it satisfies the test
embodied in Rule 15(c)(1)(B).” 6A Charles Alan Wright, Arthur R. Miller& Mary
Kay Kane, Federal Practice and Procedure

§

1497 (3d ed.) (citing, as an

example, Martin v. Virgin Islands Nat. Bank, 455 F.2d 985, 986 (3d Cir. 1972)).
The original complaint was filed on July 3, 2014. In it, Ms. Tate-Linton
alleged counts one and two, but not count three. The original complaint does
allege factually, however, that Mr. Hollinger took photographs up Ms. Tate
Linton’s skirt without her permission. (Original Compl.

¶J

12, 16) The

intrusion upon seclusion claim added in the 2AC is based on the same
allegations, and I find that the original complaint placed defendants on notice
of the relevant facts as required by Rule 15(c). Count three, the intrusion upon
seclusion claim, relates back to the date of the original complaint for the
purpose of the statute of limitations.
3. Statute of limitations
The Supreme Court of New Jersey held that an intrusion upon seclusion
action premised on an “injury to the person” (as opposed to an injury to
property) “is governed by the two-year statute of limitations set forth in
N.J.S.A. 2A:14-2.” Rumbauskas v. Cantor, 649 A.2d 853, 858 (N.J. 1994). Here,
Ms. Tate-Linton complains of an injury to her person, and the two year statute
applies.
The original complaint was filed on July 3, 2014; the limitations period
therefore stretches back two years, and covers acts on or after July 3, 2012.
The end of the date range alleged in count three (as amended) is July 2012. It
is true, of course, that this allegation technically straddles the limitations
period; acts on July 1 or July 2, 2012, might not be covered. That, however, is

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a factual matter that cannot be settled on a motion to dismiss. Because the
untimeliness of count three is not established by the allegations of the
complaint, I must deny the motion to dismiss. Bethel, supra, 570 F.2d at 1174.
That denial, however, is without prejudice to raising a statute of limitations
defense via summary judgment, after discovery.
IV.

CONCLUSION

The defendants’ motion to dismiss count three is DENIED without
prejudice to raising a limitations issue on summary judgment.

Dated: July 13, 2016
Hon. Kevüi McNulty
United States District Judge

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