ROBERTS et al v. CAESAR'S ENTERTAINMENT, INC. et al
MEMORANDUM AND OPINION. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 12/11/14. 12/11/14 ENTERED & E-MAILED.(fdc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CATHERINE ROBERTS and
CAESAR’S ENTERTAINMENT, INC. and
CPL. JOANNE DRAGOTTA
December 11, 2014
This action arises out of the arrest and the prosecution of two former employees,
union members, for theft at the instigation of the employer. In moving to dismiss the
amended complaint, the defendants raise two issues: (1) whether the plaintiffs have
sufficiently alleged a deprivation of liberty constituting a seizure under the Fourth
Amendment necessary to satisfy an essential element of a § 1983 cause of action
based on a malicious prosecution theory; and (2) whether the state law claims are
preempted by federal labor law.
Plaintiffs Catherine Roberts and Kristen Clements assert a federal claim under
42 U.S.C. § 1983 based on malicious prosecution against Joanne Dragotta, the
Pennsylvania State Trooper who arrested them and filed the criminal charges, 1 and
state law claims against Caesar’s Entertainment, 2 their employer, for malicious
Am. Compl. ¶¶ 120-28; 145-50 (Doc. No. 12)
Plaintiff has incorrectly identified the defendant-employer as Caesar’s Entertainment, Inc. The
correct name is Harrah’s Chester Downs Management Company, LLC d/b/a Harrah’s Philadelphia Casino
& Racetrack. For consistency purposes, we shall refer to the defendant as Caesar’s.
prosecution and wrongful use of civil process. 3
In their amended complaint, they
contend that Caesar’s management “had the[m] . . . arrested and prosecuted” and that
Cpl. Dragotta “participated in the arrest, detention and prosecution of the plaintiffs.”4
Both defendants have filed motions to dismiss plaintiffs’ first amended complaint.
Dragotta argues that plaintiffs fail to state a claim against her because they have not
adequately pled a deprivation of liberty, an essential element of a Section 1983
malicious prosecution cause of action. 5 Caesar’s seeks dismissal pursuant to Fed. R.
Civ. P. 12(b)(1) and 12(b)(6), contending that plaintiffs’ claims relate solely to protected
union activity, which are preempted by Section 301 of the Labor Management Relations
Act and are time-barred. 6 It also contends that plaintiffs’ claims must be dismissed
because Caesar’s had a legal obligation to report any theft or suspected theft to the
Pennsylvania State Police and Gaming Control Board. 7
We conclude that the plaintiffs have not pleaded facts which, if proven, would
establish a deprivation of liberty, an essential element of their § 1983 claim based on
malicious prosecution against Dragotta. We also hold that their state law claims for
malicious prosecution and abuse of process against Caesar’s are not preempted.
Id. ¶¶ 129-44. Plaintiffs’ amended complaint does not assert claims against Dragotta for false
arrest and false imprisonment that had been asserted in the original complaint. Pl.’s Compl. ¶¶ 143-48
(Doc. No.1). Additionally, in their response to Dragotta’s motion to dismiss, the plaintiffs withdrew their
state law claim for malicious prosecution. Pl.’s Opp’n to Dragotta’s Mot. to Dismiss at 3 (Doc. No. 18).
Therefore, the only remaining claim against Dragotta is plaintiffs’ Section 1983 claim for malicious
Am. Compl. ¶ 1 (Doc. No. 12).
Pl.’s Opp’n to Dragotta’s Mot. to Dismiss at 7; Dragotta’s Mot. to Dismiss at 3-5 (Doc. No. 14).
Caesar’s Mot. to Dismiss at 1-2 (Doc. No. 16).
Id. at 2.
Therefore, we shall grant Dragotta’s motion to dismiss and deny Caesar’s motion to
The facts alleged in the amended complaint, which we must accept as true,
recite the history of the events that the plaintiffs assert form the basis for their claims.
Roberts and Clements were employed as waitresses at Harrah’s Philadelphia Casino in
Chester, Pennsylvania, which is owned by Caesar’s Entertainment, a Delaware
corporation. They were union employees covered by a collective bargaining agreement
between Harrah’s and Unite Here Local 54. 8
Caesar’s issued free spending credits, known as “comps,” to favored customers
in the form of paper certificates. 9 The certificates were redeemed in payment for meals
Managers could issue comps orally without paper certificates.10
Management recorded and reviewed all comp-based transactions, including gratuities,
using Caesar's MICROS accounting software system. 11 Wait staff were required to
have an authorized manager validate payment of the bill, which included gratuities, into
the MICROS system. 12
After conducting a review of the March 2012 MICROS and comp records, Mary
Harper, Caesar’s Director of Surveillance, submitted a report to Caesar’s managers and
Am. Compl. ¶ 23.
Id. ¶ 30.
Id. ¶ 32.
Id. ¶ 39.
Id. ¶¶ 44-46.
administrators. 13 In her report, Harper claimed that six wait staff employees, including
plaintiffs, assigned unauthorized payment of gratuities from paper and verbal comps to
themselves. 14 Plaintiffs allege that “as a matter of custom and practice at the Cove,”
wait staff were permitted to assign gratuities to themselves against any portions of a
written or verbal comp without patron endorsement of the MICROS receipt as long as
the assignment of the gratuity was approved by a manager. 15
Harper also accused Clements of having committed theft by forging casino
documents. 16 Clements alleges that Caesar’s management designated her to redeem
all gratuities registered on the MICROS system for cash at the close of every business
day and to distribute the cash to members of the wait staff, which required her to get the
“pro forma approval of a Cove manager” on a “disbursement of funds” sheet. 17 Harper
accused Clements of forging the signature of Banquet Manager Joel Friedman on one
special events bill.
Clements contends that she had permission to write “per Joel
Friedman” on the bill. 18
Id. ¶¶ 50-52.
Id. ¶ 53. Absent the opportunity to review the Harper report, which was not appended to any
pleading, it appears that Harper’s theft allegations stem from plaintiffs’ appropriation of the remaining
value of patron comps left over after the comps were applied to their bills. When Cove patrons paid their
bills with vouchers, the wait staff applied the voucher to the cost of the bill and then took the remainder as
Am. Compl. ¶¶ 91-94.
Id. ¶ 54.
Id. ¶¶ 98-100.
Id. ¶ 113.
After interviewing all six Cove wait staff and the Cove bartender, Caesar’s
suspended the wait staff. 19 Plaintiffs contend that the report was based on Harper’s
theory that any gratuity in excess of 18 percent of the total bill was an excessive tip. 20
Harper presented her report to Dragotta, including her account of Cove employee
statements made during their interviews. 21 Dragotta drafted affidavits of probable cause
and obtained warrants for plaintiffs’ arrest based on the information provided by Harper,
“along with the falsehoods [Dragotta] added and omissions she withheld.”22
Roberts was charged with receiving stolen property in the amount of $627.77.
Clements was charged with theft in the amount of $2,551.74, receiving stolen property
and forgery. 23 Roberts and Clements surrendered to Dragotta on May 1, 2012. 24 They
were arrested, fingerprinted, photographed and handcuffed in the on-site State Police
office. They were then transported to the Chester City Police Station where they were
placed in a holding cell until later that afternoon when they were brought before a
magisterial district justice. 25
At their initial appearance, they were formally charged and released on their own
recognizance. As a condition of their release, plaintiffs were prohibited from leaving
Id. ¶ 56.
Id. ¶¶ 55, 86. Importantly, Caesar’s had no written policy limiting wait staff gratuities. Id. ¶ 87.
Id. ¶ 58.
Id. ¶ 60.
Id. ¶¶ 61-62 (Doc. No. 12).
Id. ¶ 63.
Id. ¶¶ 64-67.
Pennsylvania without permission. 26
After a preliminary hearing, the plaintiffs were held over for trial. 27 Pending trial,
plaintiffs were required to appear at “numerous” hearings. 28 Ultimately, the Court of
Common Pleas dismissed the criminal charges, finding a lack of probable cause. 29
When considering a motion to dismiss for failure to state a claim under Fed. R.
Civ. P. 12(b)(6), all well-pleaded allegations in the complaint are accepted as true and
viewed in the light most favorable to the plaintiff. Holk v. Snapple Beverage Corp., 575
F.3d 329, 334 (3d Cir. 2009) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231
(3d Cir. 2008)).
A “formulaic recitation of the elements of a cause of action” is not sufficient to
survive a motion to dismiss. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
The complaint must include “direct or inferential allegations
respecting all the material elements necessary to sustain recovery under some viable
legal theory.” Id. at 562 (quoting Car Carrier, Inc. v. Ford Motor Co., 745 F.2d 1101,
1106 (7th Cir. 1984)) (emphasis in original).
Section 1983 Malicious Prosecution Claim Against Dragotta
A Section 1983 claim must state facts demonstrating that the plaintiff was
deprived of a federal right by a person acting under color of state law.
Id. ¶¶ 67-68.
Id. ¶¶ 69-72.
Id. ¶ 73. Once charged, the plaintiffs were suspended from Caesar’s and ordered by the
Gaming Commission to surrender their non-gaming licenses pending the outcome of investigations into
Harper’s allegations. These licenses have not been restored. Am. Compl. ¶¶ 80-83.
Id. ¶¶ 84, 119.
Toledo, 446 U.S. 635, 640 (1980); Miller v. Mitchell, 598 F.3d 139, 141(3d Cir. 2010).
The parties do not dispute that Dragotta was acting under color of state law. The
question is whether plaintiffs have pleaded sufficient facts, which if proven, would
establish that they suffered a deprivation of liberty as a result of Dragotta’s actions.
More specifically, we ask whether they have sufficiently alleged that the restrictions
imposed upon them constituted a seizure within the meaning of the Fourth Amendment.
To state a claim for malicious prosecution under Section 1983, Roberts and
Clements must allege sufficient facts to demonstrate that: 1) Dragotta initiated a criminal
proceeding; 2) the criminal proceeding ended in their favor; 3) Dragotta initiated the
proceeding without probable cause; 4) Dragotta acted maliciously or for a purpose other
than bringing them to justice; and 5) as a consequence of the proceeding, they suffered
a deprivation of liberty consistent with the concept of a seizure. Johnson v. Knorr, 477
F.3d 75, 82 (3d Cir. 2007). Dragotta does not contest that the plaintiffs have alleged
sufficient facts to satisfy the first four elements. 30 Thus, our analysis is confined to the
fifth element – whether the alleged facts, if proven, would establish a constitutional
violation, a deprivation of liberty by a seizure.
A federal malicious prosecution claim is “intended to redress [the] deprivation of
liberty accompanying prosecution, not prosecution itself.”
DiBella v. Borough of
Beachwood, 407 F.3d 599, 603 (3d Cir. 2005) (citations omitted); Gallo v. City of
Philadelphia, 161 F.3d 217, 222-24 (3d Cir. 1998) (interpreting Albright v. Oliver, 510
U.S. 266 (1994)). The claim arises from the prosecution, not the arrest. The alleged
seizure must emanate from the prosecution, and “must occur chronologically after the
Dragotta’s Mot. to Dismiss at 3-4.
pressing of charges.” See Basile v. Twp. of Smith, 752 F. Supp. 2d 643, 659 (W. D. Pa.
2010) (citing Penberth v. Krajnak, No. 06-1023, 2008 WL 509174, at *17–18 (M. D. Pa.
Feb. 21, 2008)); see also Lopez v. Maczko, No. 07-1382, 2007 WL 2461709, at *3-4
(E.D. Pa. Aug. 16, 2007). What occurred prior to the prosecution, that is, the time
between arrest and the lodging of formal charges, is not a basis for a malicious
What matters are the conditions imposed after prosecution began. To rise to the
level of a Fourth Amendment violation, the seizure must result in either pretrial custody
or “some onerous types of pretrial, non-custodial restrictions.” DiBella, 407 F.3d at 603.
Merely having to appear in court to answer charges does not qualify as a Fourth
Amendment seizure. Basile, 752 F. Supp. 2d at 659-60 (citing DiBella, 407 F.3d at
In Gallo, the plaintiff’s post-indictment liberty was deemed sufficiently restricted
because “he had to post a $10,000 bond, he had to attend all court hearings including
his trial and arraignment, he was required to contact Pretrial Services on a weekly
basis, and he was prohibited from traveling outside New Jersey and Pennsylvania for
over eight months.” Gallo, 161 F.3d at 222. Acknowledging it was “a close question,”
the Third Circuit concluded that these restrictions amounted to a Fourth Amendment
In this case, after they were charged and arraigned, Roberts and Clements were
released on their own recognizance. Although their freedom to travel was subject to
approval, they were not required to report to pretrial services. 31 Subsequently, they
Am. Compl. ¶¶ 64-68. Additionally, at a hearing on the motions to dismiss, plaintiffs’ counsel
stated that they asked for and received permission from the court to travel out of state to attend a birthday
attended hearings, including a preliminary hearing. 32
The conditions imposed here were not as severe as those which the Gallo court
determined were just enough to constitute a seizure.
After the prosecution was
initiated, Roberts and Clements were not held in pre-trial custody.
Nor were any
onerous non-custodial restrictions imposed upon them. Although permission to travel
was needed, travel was not restricted.
There were no other limitations on their
freedom. 33 The pretrial release conditions, although inconvenient, were not so onerous
to constitute a deprivation of liberty consistent with a Fourth Amendment violation.
Therefore, the federal claim against Dragotta will be dismissed.
Pennsylvania State Law Claims Against Caesar’s
Having dismissed the federal claim against Dragotta, we turn to the state law
claims against Caesar’s for malicious prosecution and wrongful use of civil process.
To state a cause of action for malicious prosecution under Pennsylvania law,
plaintiffs must show that Caesar’s: (1) instituted criminal proceedings against them; (2)
without probable cause; (3) with malice; and (4) the proceedings were terminated in
their favor. See e.g. Turano v. Hunt, 631 A.2d 822, 824 (Pa. Commw. Ct. 1993).
To state a cause of action for wrongful abuse of civil process against Caesar’s,
Roberts and Clements must show that: (1) Caesar’s caused the proceedings to be
party. Unlike in Gallo, Roberts and Clements were permitted to leave the jurisdiction during the pendency
of the case. Hr’g. on Mot. to Dismiss, Nov. 5, 2014 at 4:21-25.
Id. ¶ 73.
Being required to attend court hearings does not amount to a detention or seizure. Skeens v.
Shetter, No. 04-4474, 2006 WL 827782, at *12 (D.N.J. Mar. 30, 2006). Therefore, we find that even if
attendance at hearings was coupled with a travel restriction, as is the case here, that combination is
insufficient to give rise to a Section 1983 malicious prosecution claim in light of the four circumstances in
Gallo being considered a “close question.”
initiated without probable cause; (2) the proceedings were instituted primarily for an
improper purpose; and (3) the proceedings terminated in their favor. See e.g., KellySpringfield Tire Co. v. D’Ambro, 596 A.2d 867, 869 (Pa. Super. 1991).
In its motion to dismiss, Caesar’s argues that the malicious prosecution and
abuse of process claims are preempted by Section 301 of the Labor Management
Relations Act (“LMRA”). Caesar’s preemption argument is two-fold. First, it argues that
resolving the plaintiffs’ claims requires an interpretation of the collective bargaining
agreement (“CBA”), a task that is within exclusive federal jurisdiction.
contends the claims arise out of a labor dispute involving protected labor rights and
prohibited labor practices that must be adjudicated by the National Labor Relations
As a general rule, disputes between parties to a collective bargaining agreement
are preempted by the National Labor Relations Act (“NLRA”) and are within the
exclusive jurisdiction of the NLRB. San Diego Bldg. Trades Council v. Garmon, 359
U.S. 236, 244 (1959).
Garmon preemption adheres where the conduct at issue is
actually or arguably protected by Section 7 of the NLRA, or prohibited as an unfair labor
practice under Section 8. Garmon, 359 U.S. at 244. Section 7 of the NLRA protects the
right of employees to “self-organization, to form, join or assist labor organizations, to
bargain collectively through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or other mutual aid or
protection.” 29 U.S.C. § 157. Section 8 of the NLRA prohibits labor practices that
“interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in
Section 7, or that discriminat[e] in regard to any term or condition of employment to
encourage or discourage membership in any labor organization.” 29 U.S.C. § 158. If a
cause of action implicates protected activity under Section 7 or conduct prohibited by
Section 8, the cause of action is preempted. See Voilas v. General Motors Corp., 170
F.3d 367, 378 (3d Cir. 1999).
There are exceptions to the Garmon rule. Garmon does not preempt state court
actions where the complained of conduct is only peripherally concerned with the NLRA
or where the state has an “overriding” interest in protecting its residents from malicious
conduct resulting in harm that cannot be remedied by the NLRB. Farmer v. United
Brotherhood. Of Carpenters and Joiners of America, 430 U.S. 290, 296, 298 (1977). In
other words, under the latter exception, application of the Garmon rule gives way
“where the State has a substantial interest in regulation of the conduct at issue and the
State’s interest is one that does not threaten undue interference with the federal
regulatory scheme.” Id. at 302.
Caesar’s alleged conduct cannot be considered of peripheral concern to the
NLRA. What it is accused of having done certainly falls within prohibited activities.
Nonetheless, it does fall within the local interest exception.
When conduct implicates a state concern, we use a balancing test, weighing the
State’s interest in protecting its citizens from the challenged conduct against the risk of
interference with the federal regulatory scheme.
See Farmer v. United Bros. of
Carpenters and Joiners of America, et al., 430 U.S. 290, 297, 302 (1977); Sears,
Roebuck & Co. v. San Diego Cnty Dist. Council of Carpenters, 436 U.S. 180, 188-89,
196-97 (2003) (determining that the question of whether conduct implicates local
interests “involves a sensitive balancing of any harm to the regulatory scheme
established by Congress”). Where there is little or no risk of interference with federal
labor policy, the state’s interest prevails.
Roberts and Clements reference the CBA. But, they do not base their causes of
action on it.
Although the amended complaint references the collective bargaining
agreement and union activity, it does not assert any violation of the NLRA. It does not
allege that Caesar’s wrongfully terminated Roberts and Clements in violation of the CBA
or the NLRA in retaliation for engaging in protected union activities.
Specifically, Roberts and Clements claim that Caesar’s “wrongfully retaliated
against them for asserting their contractual rights to fair pay and fair working conditions
under the terms of their union collective bargaining agreement” and that Caesar’s
maliciously prosecuted plaintiffs and wrongfully used civil proceedings against them “in
retribution for exercising their union collective bargaining rights.” 34
Clements claim that along with five other Cove wait staff, they notified the union that
management was violating the terms of the collective bargaining agreement. 35 They
attended meetings and participated in attempts to organize collective action to address
violations concerning pay, break-time and working conditions. 36 Roberts and Clements
also contend that in retaliation for their union activities, Caesar’s directed Harper to
investigate the Cove wait staff “for the purpose of establishing a basis for filing criminal
charges against Cove wait staff.” 37
Am. Compl. ¶¶ 1, 130, 140.
Id. ¶¶ 24-25.
Id. ¶¶ 24, 26.
Id. ¶¶ 27-29, 49-50.
Caesar’s relies on this language in the complaint to support its preemption
argument. Undoubtedly, the references to the union activity and Caesar’s response to it
do raise issues in the labor-management context that could form the basis for unfair
labor practices. However, Roberts and Clements assert this activity and conduct not as
a basis for unfair labor practice charges, but rather as supplying the essential elements
of malice for their malicious prosecution and improper purpose for abuse of process
causes of action. In short, these allegations, although they can also support charges
before the NLRB, are made to support the state law causes of action.
Roberts and Clements allege that Caesar’s falsely reported to Dragotta that they
had taken unearned gratuities.
The allegations that Caesar made false reports to
Dragotta and instigated the criminal and Gaming Commission proceedings are offered
to show the malice necessary to state a malicious prosecution claim, and the lack of
probable cause and improper purpose elements necessary to state a wrongful use of
process claim. 38 In other words, these allegations form the basis of the plaintiffs’ state
law claims against Caesar’s even though they also address Section 7 or Section 8
Resolving the state claims does not require a determination that Roberts and
Clements engaged in union activity protected by Section 7 or that Caesar’s committed
acts prohibited by Section 8. We need not make such a determination in order to find
that plaintiffs have pleaded sufficient facts to state causes of action for malicious
prosecution or wrongful use of civil proceedings under Pennsylvania law. Additionally,
In their opposition to Caesar’s motion to dismiss, plaintiffs contend that their claims fall within
the compelling state-interest exception to preemption, that the NLRB is not the exclusive forum, and that
Section 301 prevents preemption because the CBA does not explicitly reference or govern comps. Pls.’
Opp’n to Caesar’s Mot. to Dismiss at 8 (Doc. No. 19).
there is no provision in the NLRA that protects the “malicious conduct” that Roberts and
Clements allege in Count Two of their amended complaint or the “wrongful conduct”
they allege in Count Three.
Roberts and Clements allege that Caesar’s instigated an investigation into
conduct it knew did not violate any laws or policies, fabricated a report to support false
charges of theft, caused their arrest, prosecuted them without probable cause, and
initiated civil proceedings before the Pennsylvania Gaming Commission. 39 The causes
of action are intentional torts which require a showing that Caesar’s acted intentionally
and maliciously. Pennsylvania Nurses Ass’n v. Pennsylvania State Educ. Ass’n., 90
F.3d 797, 803 (3d Cir. 1996) (citations omitted).
In Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 61
(1966), the Supreme Court recognized an “overriding state interest” in protecting
citizens from malicious libels.
The same interest comes into play in the case of
malicious prosecution and abuse of process. Pennsylvania has a strong interest in
protecting its residents from the misuse of criminal and civil processes, and seeing that
its residents obtain redress for malicious torts. The NLRB, which does not consider
personal injury claims caused by malicious conduct, is without power to award damages
in such cases. Linn, 383 U.S. at 63-64. Additionally, Pennsylvania has its own interest
in discouraging the filing of malicious and baseless lawsuits which burden the justice
Adjudicating the plaintiffs’ state law claims here will not disrupt the federal
scheme of labor regulation or interfere with the NLRB’s ability to resolve controversies
reserved to it by the LMRA. As in Linn and Farmer, this action “can be adjudicated
Am. Compl. ¶¶ 49-58; 74-83 (Doc. No. 12)
without regard to the merits of the underlying labor controversy.” Farmer, 430 U.S. at
300. The plaintiffs need not prove that Caesar’s violated Section 8 in order to prove that
Caesar’s acted with malice, without probable cause and for an improper purpose.
Therefore, we conclude that the adjudication of plaintiffs’ intentional tort claims does not
disrupt the federal regulatory scheme because it does not require a decision on the
merits of an underlying labor dispute.
In Linn, the Supreme Court recognized that an injured party may seek relief in
state court and from the NLRB at the same time. Linn, 383 U.S. at 66. The same is
true here. If Roberts and Clements had made unfair labor practice claims, the NLRB
could have determined whether their union activity was protected by Section 7 and that
Caesar’s alleged retaliation violated Section 8. See Farmer, 430 U.S. at 298. However,
the availability of NLRB jurisdiction over possible unfair labor charges does not preclude
adjudication of the plaintiffs’ state law claims arising from the same conduct.
There is no real risk that proceeding with the state causes of action will interfere
with the administration of federal labor policy. Nor will it result in state regulation of
conduct exclusively within the jurisdiction of the NLRB. On the other hand, it will permit
the plaintiffs, if they prove their case, to recover damages the NLRB is powerless to
After balancing the nature of the federal and state interests in the conduct and
the available remedies on the one side, and the potential for interference with the
federal administration of labor policy on the other side, we conclude that the plaintiffs’
state causes of action are not preempted by the Garmon rule.
Section 301 of the Labor Management Relations Act (“LMRA”) Preemption
The LMRA grants federal jurisdiction over “[s]uits for violation of contracts
between an employer and a labor organization representing employees in an industry
affecting commerce . . .” 29 U.S.C. § 185(a). Federal courts have exclusive jurisdiction
over the resolution of disputes covered by a collective bargaining agreement.
Beidleman v. Stroh Brewery Co., 182 F.3d 225, 231-32 (3d Cir. 1999); Allis-Chalmers
Corp. v. Lueck, 471 U.S. 202, 210-11, 220 (1985); Teamsters v. Lucas Flour Co., 369
U.S. 95, 102 (1962).
Where the resolution of a state law claim depends on the
interpretation of a collective bargaining agreement, it is preempted by federal labor law.
Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06 (1988). On the other
hand, where the state law claims are independent of and do not require interpretation of
a collective-bargaining agreement, they are not preempted. Lingle, 486 U.S. at 408-10.
In this case, Caesar’s contends that the claims implicate the provisions of the
CBA governing “dishonesty” and “licensure.” 40 Specifically, Caesar’s argues that “proof
that [Caesar’s] acted with malice would require interpreting the CBA” because
“[Caesar’s] could not act with an improper motive if it was authorized by the CBA to
contact the [state police], discharge, or otherwise discipline [the] plaintiffs.” 41
Caesar’s misses the point.
The plaintiffs do not dispute that Caesar’s was
required under the CBA and state regulations to report employee theft. They allege
Caesar’s maliciously made a false report of theft for improper purposes. To prove these
allegations, the plaintiffs need not reference the CBA. Nor does resolving the disputed
Caesar’s Mot. To Dismiss at 10 (Doc. No. 16-1).
Id. at 10-11.
facts and the claims require an interpretation of the CBA. There is no need to evaluate
the CBA in order to determine if Caesar’s acted with malice, without probable cause and
for an improper purpose.
In their amended complaint, the plaintiffs contend that Harper fabricated and
omitted facts in her investigation report for the purpose of causing Dragotta to arrest
and prosecute them and to initiate proceedings to revoke their licenses before the
Pennsylvania Gaming Control Board. Accepting the plaintiffs’ allegations as true, as we
must at this stage, the amended complaint describes tortious conduct that has nothing
to do with how the CBA defines dishonesty or licensure procedures and requirements.
Again, the plaintiffs have not complained of improper discharge or discipline,
which would implicate the CBA.
Instead, they complain that Caesar’s maliciously
prosecuted them and wrongfully used civil proceedings against them, claims
independent of the terms of the CBA. Determining whether Caesar’s acted maliciously
and without probable cause and with an improper purpose does not rest on the
interpretation or violation of the CBA. See New Jersey Carpenters and the Trustees v.
Tishman Construction Corp. of New Jersey, 760 F.3d 297, 305-06 (3d Cir. 2014).
Therefore, we conclude that Roberts and Clements’ claims are not preempted by
Section 301 because they are not based on the CBA and do not require interpretation of
Caesar’s Obligation to Report Theft
Caesar’s also argues that it cannot be liable because it was legally required to
report theft to the Pennsylvania State Police and to the Pennsylvania Gaming Control
Board. 42 Caesar’s contends that, in light of this obligation, its conduct was neither
malicious nor grossly negligent, essential elements of the causes of action for malicious
prosecution and wrongful use of civil proceedings. 43
Caesar’s mischaracterizes the complaint.
It also ignores the Rule 12(b)(6)
standard that requires us to accept as true the plaintiff’s allegations. As we already
noted, the plaintiffs do not dispute that Caesar’s had an obligation to report employee
theft. They allege that Caesar’s fabricated the charges of theft, and knowingly and
intentionally omitted material facts in order to have them prosecuted criminally and
charged civilly by the Gaming Commission. In short, Roberts and Clements’ claims are
based on their allegations that Caesar’s knew there was no theft and orchestrated the
criminal and Gaming Commission proceedings for an improper purpose.
Caesar’s argument rests on the premise that Harper’s report was truthful and
accurate. At this stage, we cannot make a factual determination whether there was
theft. On the contrary, we must accept the allegations that the plaintiffs did not commit
any theft and Caesar’s fabricated the charge that they did.
The amended complaint does not plead sufficient facts, which if proven, would
establish that there was a Fourth Amendment seizure. 44 Roberts and Clements’ state
law claims are not preempted. Therefore, the motions to dismiss will be denied.
Id. at 13-15.
Id. at 15.
The plaintiffs cannot cure this deficiency by filing a second amended complaint. They have
described the pretrial conditions that were imposed upon them. They are insufficient to constitute a
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