CARSON v. WILLOW VALLEY COMMUNITIES et al

Filing 13

MEMORANDUM/OPINION THAT DEFENDANTS' MOTION TO DISMISS, ECF NO. 5, IS GRANTED; PLAINTIFF'S MOTION TO AMEND COMPLAINT, ECF NO. 9, IS DENIED; PLAINTIFF'S MOTION FOR MORE DEFINITE STATEMENT, ECF NO. 11, IS DENIED. AN APPROPRIATE ORDER FOLLOWS. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 2/7/18. 2/12/18 ENTERED AND COPIES E-MAILED AND MAILED TO PRO SE'. (ky, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
____________________________________
CHARLES W. CARSON,
Plaintiff,

:
:
:
v.
:
:
WILLOW VALLEY COMMUNITIES and :
WILLOW VALLEY LIVING,
:
Defendants.
:
____________________________________
OPINION

No. 5:17-cv-2840

Defendants’ Motion to Dismiss, ECF No. 5—Granted
Plaintiff’s Motion to Amend Complaint, ECF No. 9—Denied
Plaintiff’s Motion for More Definite Statement, ECF No. 11—Denied
Joseph F. Leeson, Jr.
United States District Judge
I.

February 7, 2018

BACKGROUND
In this pro se action, Plaintiff Charles W. Carson alleges that his former employer

terminated him because of his age and in retaliation for various forms of protected conduct,
chiefly, making complaints under the Occupational Safety and Health Act of 1970 (OSHA).
Defendants Willow Valley Communities and Willow Valley Living (collectively, “Willow
Valley”) have moved to dismiss the complaint for failure to state a claim upon which relief may
be granted. Carson opposes the motion and also moves to amend his complaint. This Court
grants the motion to dismiss because Carson’s Complaint does not state a claim that entitles him
to relief: he has failed to allege a prima facie case under the Age Discrimination in Employment
Act (ADEA), and seeks relief under other federal statutes that do not afford him a private right of
action. Because this Court dismisses Carson’s federal claims, it declines to exercise supplemental
jurisdiction over his Pennsylvania state law retaliatory discharge claims. Lastly, because

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Carson’s proposed Amended Complaint does not remedy the defects that require the original
Complaint to be dismissed, this Court denies leave to amend as futile.
A. Procedural History
Carson filed his pro se Complaint against Willow Valley alleging violations of (1) “the
Equal Employment Opportunity Commission (EEOC);” (2) the Age Discrimination in
Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634; (3) Section 11(c) of the Occupational
Safety and Health Act of 1970 (OSHA), 29 U.S.C. § 660(c); (4) the Vietnam Era Veterans’
Readjustment Assistance Act (VEVRAA), 38 U.S.C. §§ 4211-15; and (5) Pennsylvania common
law under a theory of retaliatory discharge. ECF No. 1. Willow Valley filed a motion to dismiss
the Complaint, ECF No. 5, to which Carson responded, ECF No. 6. Carson then filed a motion to
amend his Complaint, ECF No. 9, to which Willow Valley responded, ECF No. 10. Carson’s
motion for leave to amend included a proposed Amended Complaint which added an additional
count, alleging a violation of the Pennsylvania Whistleblower Law, 43 P.S. § 1421-28. In
response to Willow Valley’s opposition, Carson filed what he termed a motion for a more
definite statement, ECF No. 11, to which Willow Valley responded, ECF No. 12. 1
B. Factual Background
Although Carson’s Complaint is not entirely clear, it alleges the following facts. Plaintiff
Charles W. Carson, a Vietnam era veteran and former U.S. Air Force combat pilot, started
working for Willow Valley on October 24, 2014 as a security officer and concierge, tasked with
1

In his motion for a more definite statement, Carson contends that Willow Valley’s
opposition to his motion for leave to amend is a “vague and ambiguous pleading.” ECF No. 11.
However, Willow Valley correctly points out that their opposition is not a “pleading” under the
rules of civil procedure. ECF No. 12. In light of the liberal review accorded to pro se filings, this
Court will construe Carson’s motion for a more definite statement as a reply in support of his
motion for leave to amend.
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ensuring a safe environment around the Willow Valley clubhouse building and providing
concierge services to residents. Compl. ¶¶ 8-9, 53. Carson and two other concierge employees
reported to Roger Zerphey, Director of Security, Safety, and Transportation. Compl. ¶ 11.
Carson worked eight-hour shifts on Fridays and Saturdays and two-hour shifts on Mondays;
Carson did not receive any breaks during his eight-hour shifts. Compl. ¶¶ 13-15. Carson received
$10.50 per hour, which he alleges was a pay rate below that of the other Security Corporate
Officers, although his replacement received a similar rate. Compl. ¶ 16. Carson received no
security training “other than the Clubhouse Concierge duties,” and was not issued a security
uniform until immediately prior to his termination, although all other security officers wore
Willow Valley security uniforms. Compl. ¶¶ 17-18.
A Willow Valley resident, Frank Fox, expressed concerns to Carson about Zerphey’s
locking of emergency exit doors at the clubhouse during hours of operation. Compl. ¶ 72. Carson
alleges that he brought “several complaints and or proceedings against Willow Valley” alleging
violations of OSHA on January 17, 2015, March 27, 2015, April 13, 2015, and culminating in an
OSHA complaint on April 16, 2015. Compl. ¶¶ 24-25. On April 17, 2015, OSHA Area Director
Kevin Kilp called Zerphey to notify him of Carson’s OSHA complaint. Compl. ¶¶ 40, 48.
Zerphey requested that Carson attend a meeting in his office on Friday, April 17, 2015,
along with Jim Tracy, Director of Maintenance at Willow Valley and Zerphy’s supervisor.
Compl. ¶ 26. At the meeting, Zerphey discussed a series of emails Carson had sent to Zerphey,
Cindy Sawicki, the Director of the Clubhouse of Willow Valley Living, and various other
managers concerning issues with emergency equipment and emergency exits in the Clubhouse.
Compl. ¶¶ 26-28. Zerphey suggested that Carson should not have included multiple managers on
his emails in addition to Zerphey and Sawicki, and told Carson that Willow Valley required only

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shift reports from employees, and that any safety concerns should be reported to his direct
supervisor. Compl. ¶¶ 30-34.
During the meeting, Carson shared his concerns that the manager of the clubhouse
restaurant had told another team member that Carson hired one of the restaurant dishwashers
away from Willow Valley; Carson also described other “inappropriate comments and colloquy”
by the restaurant manager to Carson. Compl. ¶¶ 35-36. Zerphey presented Carson with a written
warning and performance evaluation, signed and dated April 16, 2015, a day before the meeting;
Carson contends that this warning violated Willow Valley policies, which required the employee,
not the supervisor, to fill out the performance document. Compl. ¶¶ 37-40, 49. Carson handwrote
a declaration stating that the Willow Valley Clubhouse did not display various labor law posters
or maintain an OSHA 300 recordkeeping log and read this declaration out loud to Zerphey.
Compl. ¶¶ 62-63, 65. Tracy became visibly angry and demanded, “Where are you going with all
of this?” Compl. ¶ 66. When Carson stated that he could not sign something that was not true, 2
Zerphey shouted “Charles, you are terminated.” Compl. ¶ 67.
Carson contends that Willow Valley terminated him in retaliation for his OSHA
complaints, “‘mandatory reporting’ of possible ‘elderly abuse’” and unspecified “help to
Clubhouse dishwasher Mr. Jonathan Balueger” in drafting and filing a complaint with the EEOC
and Pennsylvania Human Relations Commission. Compl. ¶¶ 72-74.
Carson’s proposed Amended Complaint includes the following additional facts. Carson
was sixty-six years old when Willow Valley terminated him. Amend. Compl. ¶ 4. Additionally,
he stated during the meeting with Zerphey and Tracy that he had become aware recently of an
incident of possible elder abuse involving two Willow Valley residents that may have occurred at
2

Although his allegations are unclear, Carson presumably refers to Zerphey’s request that
he sign the performance report.
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Lancaster General Hospital in Lancaster, Pennsylvania and at two buildings in the Willow Valley
community; Carson recommended an investigation of the incident. Amend. Compl. ¶¶ 39-40.
II.

STANDARD OF REVIEW

A. Motion to Dismiss for Failure to State a Claim
In rendering a decision on a motion to dismiss, this Court must “accept all factual
allegations as true [and] construe the complaint in the light most favorable to the plaintiff.”
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche
Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)) (internal quotation marks omitted). Only if
“the ‘[f]actual allegations . . . raise a right to relief above the speculative level’” has the plaintiff
stated a plausible claim. Id. at 234 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 540, 555
(2007)). However, “the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(explaining that determining whether a complaint states a plausible claim for relief . . . [is] a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense”). The defendant bears the burden of demonstrating that a plaintiff has failed to
state a claim upon which relief can be granted. Hedges v. United States, 404 F.3d 744, 750 (3d
Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
B. Motion for Leave to Amend
Federal Rule of Civil Procedure 15(a)(2) provides that a court should “freely” give leave
to amend a pleading “when justice so requires.” Fed. R. Civ. P. 15(a)(2). “In the absence of
substantial or undue prejudice, denial [of a motion to amend] must be grounded in bad faith or
dilatory motives, truly undue or unexplained delay, repeated failure to cure deficiency by
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amendments previously allowed or futility of amendment.” Heyl & Patterson Int’l, Inc. v. F.D.
Rich Housing of V.I., Inc., 663 F.2d 419, 425 (3d Cir. 1981) (citing Foman v. Davis, 371 U.S.
178, 182 (1962)). Given the liberal standard under Rule 15(a), “the burden is on the party
opposing the amendment to show prejudice, bad faith, undue delay, or futility.” Chancellor v.
Pottsgrove Sch. Dist., 501 F. Supp. 2d 695, 700 (E.D. Pa. 2007).
In assessing futility, a trial court applies the same standard of legal sufficiency used in
Rule 12(b)(6) motions. Cardone Indus., Inc. v. Honeywell Int’l, Inc., No. CIV.A. 13-4484, 2014
WL 3389112, at *5 (E.D. Pa. July 11, 2014). However, the party opposing amendment bears the
burden, and “if a proposed amendment is not clearly futile, then denial of leave to amend is
improper.” Synthes, Inc. v. Marotta, 281 F.R.D. 217, 229 (E.D. Pa. 2012) (quoting 6 Wright,
Miller & Kane, Federal Practice & Procedure § 1487 (2d ed.1990)) (internal quotations omitted).
III.

ANALYSIS

A. Count I—Violation of EEOC
Carson alleges retaliation and “violation of Equal Employment Opportunity
Commission.” However, as Willow Valley recognizes, violation of the Equal Employment
Opportunity Commission is not a cause of action and, to the extent that Carson seeks relief under
any of the antidiscrimination statutes the Commission oversees, his claims fail for lack of
causation, as discussed below. Carson’s Count I is dismissed. 3

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To the extent that Carson claims retaliation for assisting his coworker with his EEOC and
Pennsylvania Human Relations Commission charges, his claim also fails. Carson provides no
explanation of his coworker’s claim or the assistance he provided. Nor does he allege that
Willow Valley knew that he had helped prepare the complaints. Carson’s conclusory allegation
that his “retaliatory discharge…was motivated by Carson’s previous help to Clubhouse
dishwasher Mr. Jonathan Balueger” does not state a sufficient claim. See Compl. ¶ 74.
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Carson restates the same allegations in his proposed Amended Complaint; such
allegations fail to state a claim for the same reason. Therefore, amendment of Count I is futile
and leave to amend is denied.
B. Count II—Age Discrimination in Employment Act
Carson alleges that Willow Valley’s conduct toward him violated the ADEA. Where, as
here, a plaintiff brings an ADEA claim based on indirect evidence, the plaintiff must establish a
prima facie case of age discrimination by demonstrating that he (1) was over forty, (2) is
qualified for the position, (3) suffered an adverse employment decision, and (4) was ultimately
replaced by a person sufficiently younger to permit an inference of age discrimination. Duffy v.
Paper Magic Grp., Inc., 265 F.3d 163, 167 (3d Cir. 2001). If the plaintiff was not replaced, he
may plead the fourth element by alleging facts that “raise an inference of age discrimination.”
Furru v. Vanguard Grp., Inc., No. CV 14-05034, 2015 WL 5179407, at *4 (E.D. Pa. Sept. 4,
2015) (citing Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009)).
Carson cannot establish a prima facie case. He alleges that he received $10.50 per hour
and that this rate was below all of the other security officers, but he does not allege that they
were younger than him or provide any other allegations that connect his salary to his age. Compl.
¶ 86. Furthermore, Carson admits that his replacement received the same salary. Id.
Carson also complains that he was not issued a uniform until shortly before his
termination, even though all the other security officers wore Willow Valley security uniforms.
Compl. ¶ 18. However, an ADEA claim can only result from an adverse employment action
sufficiently severe to have altered the employee’s “compensation, terms, conditions, or privileges
of employment, or to have deprived or tended to deprive him of employment opportunities or
otherwise adversely affected his status as an employee.” Mayk v. Reading Eagle Co., No. CIV.A.
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08-4866, 2010 WL 1141266, at *5 (E.D. Pa. Mar. 24, 2010) (citing Robinson v. City of
Pittsburgh, 120 F.3d 1286, 1296–1297 (3d Cir. 1997), abrogated on other grounds by Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)). Not every “insult, slight, or
unpleasantness” gives rise to a valid claim. Id. In this case, not receiving a uniform does not rise
to the level of altering Carson’s terms of employment. See Bennett v. Dallas Indep. Sch. Dist.,
936 F. Supp. 2d 767, 784 (N.D. Tex. 2013) (holding that plaintiff not wearing a uniform even
though all other security officers did was not so severe as to affect a “term, condition, or
privilege” of employment, and thus did not give rise to hostile work environment claim). Nor
does Carson suggest that Willow Valley did not give him a uniform because of his age.
Even if Carson intends to ground his ADEA claim on his termination, his claim fails. He
suggests that he was fired in retaliation for the various complaints he made about potential
OSHA violations, as well as alleged elder abuse. Carson links his termination to his protected
activities, not to his age, stating: “Plaintiff has no way to identify which one of his protected
activities prompted the abrupt termination of Plaintiff’s employment or whether all of them in
concert was the reason for the abrupt retaliatory discharge.” Pl.’s Opp. Mot. Dismiss 5-6. Carson
has not alleged facts supporting an inference that Willow Valley took any action to discriminate
against Carson on the basis of his age; rather he only contends that he was over forty years of age
and was terminated. These allegations do not suffice to state an ADEA claim. Santiago v. Brooks
Range Contract Servs., Inc., No. CIV.A. 11-7269, 2012 WL 1019060, at *2 (E.D. Pa. Mar. 26,
2012) (“Merely pleading that plaintiff was seventy-three years old when not hired cannot survive
a motion to dismiss.”); Molisee v. Securitas Sec. Servs., USA, Inc., No. CIV.A. 11-1056, 2012
WL 13698, at *6 (W.D. Pa. Jan. 4, 2012) (dismissing ADEA claim where plaintiff alleged only

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that he was over the age of 40 and terminated due to his age without any non-conclusory facts
linking the plaintiff’s age to his termination). Accordingly, Carson’s ADEA claim is dismissed.
This Court denies Carson’s motion for leave to amend with respect to the ADEA claim,
because the amendments in the proposed Amended Complaint would be futile. Amendment is
futile when the proposed amended complaint would not survive a Rule 12(b)(6) motion to
dismiss. See Holst v. Oxman, 290 F. App’x 508, 510 (3d Cir. 2008) (holding that district court
did not abuse discretion in denying leave to amend because proposed amended complaint failed
to state a claim); Brown & Brown, Inc. v. Cola, No. CIV.A. 10-3898, 2011 WL 2745808, at *4
(E.D. Pa. July 13, 2011) (stating that because futility analysis on motion to amend is essentially
the same as a Rule 12(b)(6) motion, a trial court may deny leave to amend where the amendment
would not survive a motion to dismiss). Carson’s ADEA claim in his proposed Amended
Complaint does not remedy the deficiencies in the ADEA claim in the Complaint: it adds that he
is over the age of forty, but otherwise repeats the allegations of the Complaint, and thus still fails
to allege any facts that give rise to an inference of age discrimination.
Further amendment would be futile because Carson has had the opportunity to revise his
claims to add any missing factual averments, but has not done so. Willow Valley’s motion to
dismiss placed Carson on notice of the deficiencies in the Complaint: Willow Valley pointed out
that Carson’s ADEA claim in his original Complaint did not include his age, such that Carson
did not establish his membership in the protected class for purposes of his prima facie case, and
did not allege any facts that Carson was replaced by a younger person or that younger employees
were treated differently. Defs.’ Mot. Dismiss 6. In responding to this motion, though, Carson
added only his age, and otherwise rested on his arguments opposing the motion to dismiss the
original Complaint. Pl.’s Mot. More Def. Stat. 2. This Court can only conclude that Carson

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cannot cure the deficiencies in his ADEA claim. See Franks v. Food Ingredients Int’l, Inc., No.
CIV. A. 09-3649, 2010 WL 3046416, at *8 (E.D. Pa. July 30, 2010) (denying leave to amend
previously amended complaint where motion to dismiss original complaint put plaintiff on notice
of deficiencies, yet plaintiff failed to rectify them in his first amended complaint) (citing Krantz
v. Prudential Invs., 305 F.3d 140, 144 (3d Cir. 2002)); see also Benzon v. Morgan Stanley
Distributors, Inc., 420 F.3d 598, 613–14 (6th Cir. 2005) (denying leave to amend after first
dismissal was not an abuse of discretion where the plaintiff previously filed an amended
complaint and was on notice of defects from a previous motion to dismiss that was filed but not
decided); Pezzoli v. Allegheny Ludlum Corp., No. 10-CV-0427, 2010 WL 2852988, at *2 (W.D.
Pa. July 20, 2010) (concluding that, because plaintiff had the opportunity to amend his complaint
but presented the same inadequate conclusory statements, plaintiff was unable to cure the
deficiency in his complaint, and dismissing the amended complaint with prejudice). Therefore,
this Court will deny the motion to amend with respect to Carson’s ADEA claim and dismiss the
claim with prejudice.
C. Count III—OSHA Retaliation
Carson states that 29 U.S.C. § 660(c), Section 11(c) of OSHA, entitles him to relief
because Willow Valley fired him in retaliation for his OSHA complaint. Section 11(c) prohibits
retaliation against an employee who files an OSHA complaint:
No person shall discharge or in any manner discriminate against any employee
because such employee has filed any complaint or instituted or caused to be
instituted any proceeding under or related to this chapter or has testified or is
about to testify in any such proceeding or because of the exercise by such
employee on behalf of himself or others of any right afforded by this chapter.
29 U.S.C. § 660(c)(1). The statute allows an employee who feels he is the victim of retaliation to
file a complaint with the Secretary of Labor; if, after investigation, “the Secretary determines that
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the provisions of this subsection have been violated, he shall bring an action in any appropriate
United States district court.” Id.
However, this statutory procedure is the exclusive remedy for an aggrieved employee: the
statute does not allow a private right of action—that is, an individual may not bring a lawsuit on
his own behalf for an OSHA violation. Dille v. Day & Zimmermann NPS, No. CIV.A. 13-2668,
2015 WL 3884889, at *2 (E.D. Pa. June 24, 2015) (“The statute does not provide for a private
right of action—that is, it does not allow an individual to bring a lawsuit on his own behalf for a
violation of this section—and the courts have held the same.”); Haines v. Bethlehem Lukens
Plate Steel, No. CIV. A. 99-CV-4206, 1999 WL 718564, at *2 (E.D. Pa. Aug. 31, 1999)
(“Though section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c), prohibits
retaliatory actions against individuals who file complaints with OSHA, it does not create a
private right of action.”); Holmes v. Schneider Power Corp., 628 F. Supp. 937, 939 (W.D. Pa.)
(“[W]e know of no case which held that § 660(c) did afford a private remedy and we believe that
the Taylor court correctly decided that no such private right of action should be implied from the
OSHA statute.”), aff’d, 806 F.2d 252 (3d Cir. 1986). Carson cannot bring a private suit against
Willow Valley for OSHA violations, so he cannot prevail on Count III of his Complaint.
Accordingly, Count III is dismissed. Because Carson’s Amended Complaint presents the same
claim and seeks the same relief, amendment of Count III is futile, and leave to amend is denied
with respect to Count III.
D. Count IV—VEVRAA
Carson contends that Willow Valley violated VEVRAA by failing to post legally
required notices in the clubhouse and by the “spontaneous termination” of Carson, a Vietnam
veteran. However, Carson cannot prevail on this claim because, like OSHA, VEVRAA limits an
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aggrieved party’s remedy to filing a complaint with the Secretary of Labor, who must then
investigate and pursue litigation if warranted. See 38 U.S.C. § 4212(b); Jackson vs. Dana Corp.,
No. CIV. A. 98-5431, 1999 WL 1018241, at *10 (E.D. Pa. Nov. 9, 1999). VEVRAA does not
contain a private right of action. Jackson, 1999 WL 1018241, at *10; Antol v. Perry, 82 F.3d
1291, 1298 (3d Cir. 1996); Douris v. Bucks Cty. Office of Dist. Attorney, No. CIV.A.04-CV-232,
2005 WL 226151, at *12 n.17 (E.D. Pa. Jan. 31, 2005) (citing circuits that have found no private
right of action under VEVRAA). Therefore there is no legal basis for Carson’s VEVRAA claim.
It is dismissed. Because Carson’s Amended Complaint presents another VEVRAA claim,
amendment of Count IV is futile, and leave to amend is denied with respect to Count III.
E. State Law Claims
In Count V of his original Complaint, Carson requests that this Court exercise
supplemental jurisdiction under 28 U.S.C. § 1367(a) over a claim under Pennsylvania state law
for retaliatory discharge. Carson’s proposed Amended Complaint includes the retaliatory
discharge claim as Count VI and adds a claim under the Pennsylvania Whistleblower Law, 43
P.S. § 1421-28, as Count V. ECF No. 9-2 at 22.
Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental
jurisdiction over a state law claim when the court has dismissed all claims over which it has
original jurisdiction. 28 U.S.C. § 1367(c)(3). The Third Circuit has held that once a district court
has dismissed all claims with an “independent basis of federal jurisdiction,” “the case no longer
belongs in federal court.” Mun. Revenue Servs., Inc. v. McBlain, No. CIV.A.06-4749, 2008 WL
2973852, at *10 (E.D. Pa. Aug. 4, 2008), aff’d, 347 F. App’x 817 (3d Cir. 2009) (quoting
Markowitz v. Ne. Land Co., 906 F.2d 100, 106 (3d Cir. 1990)). In a situation like this case, where
a court has dismissed the federal claims, it may decline jurisdiction over state law claims as long
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as “considerations of judicial economy, convenience, and fairness to the parties” do not require
the court to hear the action. Tapp v. Brazill, No. CIV.A. 11-677, 2011 WL 6181215, at *6 (E.D.
Pa. Dec. 13, 2011), aff’d, 645 F. App’x 141 (3d Cir. 2016) (citing Boneberger v. Plymouth Tp.,
132 F.3d 20, 23 (3d Cir. 1997)).
No such considerations warrant retaining jurisdiction here. Because this Court grants the
motion to dismiss all of Carson’s federal claims, this Court declines to exercise supplemental
jurisdiction over Carson’s state law claims, and dismisses those claims without prejudice to
replead them in the appropriate state court should Carson so choose. 4 See Kahn v. Am. Heritage
Life Ins. Co., 324 F. Supp. 2d 652, 657 (E.D. Pa. 2004) (dismissing state law claims without
prejudice to replead in state court after dismissal of sole federal claim).

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The parties are reminded that the statute of limitations for these claims was tolled during
the pendency of this action and “for a period of 30 days after it is dismissed unless State law
provides for a longer tolling period.” 28 U.S.C. § 1367(d) (“The period of limitations for any
claim asserted under subsection (a) . . . shall be tolled while the claim is pending and for a period
of 30 days after it is dismissed unless State law provides for a longer tolling period.”)
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IV.

CONCLUSION
For the reasons discussed above, Willow Valley’s Motion to Dismiss is granted. Carson’s

Counts I through IV are dismissed with prejudice. Because the Court dismisses Carson’s federal
claims, it declines jurisdiction over Carson’s state law claims and dismisses Count V without
prejudice. Carson’s Motion to Amend Complaint and Motion for a More Definite Statement are
denied.
An appropriate Order follows.
BY THE COURT:

/s/ Joseph F. Leeson, Jr.________
JOSEPH F. LEESON, JR.
United States District Judge

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