Heverling et al v. McNeil Consumer Pharmaceuticals, Co. et al

Filing 15

MEMORANDUM (Order to follow as separate docket entry) re: 3 MOTION to Dismiss filed by McNeil Consumer Pharmaceuticals, Co. (See memo for complete details.)Signed by Chief Judge Christopher C. Conner on 3/12/18. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBBIE HEVERLING and
NATHAN HESS,

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Plaintiffs
v.
MCNEIL CONSUMER
PHARMACEUTICALS, CO.,
Defendant

CIVIL ACTION NO. 1:17-CV-1433
(Chief Judge Conner)

MEMORANDUM
Plaintiffs Robbie Heverling (“Heverling”) and Nathan Hess (“Hess”)
commenced this action against defendant McNeil Consumer Pharmaceuticals, Co.
(“McNeil”)1 asserting claims for retaliation in violation of the Pennsylvania Human
Relations Act (“PHRA”), 43 PA. STAT. AND CONS. STAT. ANN. § 951 et. seq., and
Pennsylvania common law wrongful termination. (Doc. 1-1). McNeil moves to
dismiss plaintiffs‟ complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
(Doc. 3). The court will grant the motion.
I.

Factual Background & Procedural History
McNeil is a New Jersey corporation that manufactures myriad

pharmaceutical drugs, including drugs designed to treat gastrointestinal illnesses.
1

McNeil asserts that plaintiffs erroneously designated each of its two
Pennsylvania locations—Fort Washington and Lancaster—as separate defendants.
McNeil clarifies that it is a single defendant incorporated in New Jersey, with two
Pennsylvania locations, operating as “McNeil Consumer Healthcare Division of
Johnson & Johnson Consumer Inc.” (See Doc. 1 ¶¶ 10-13; Doc. 4 at 1 n.1). Plaintiffs
do not dispute this. (See Doc. 10-1 at 1). For simplicity, the court will refer to “both
defendants” as McNeil.

(Doc. 1-1 ¶ 12). Plaintiffs are two former employees who worked as processing
associates in McNeil‟s Lancaster, Pennsylvania plant. (Id. ¶¶ 11-12). McNeil is
subject to a consent decree issued by the Food and Drug Administration (“FDA”)
which requires McNeil to achieve certain quality control standards and maintain
particular manufacturing processes. (Id. ¶ 13). McNeil hired Heverling on
December 5, 2005. (Id. ¶ 9). Hess began working at McNeil on September 22, 2014
through a temp agency and was converted to a “full status employee” on February
27, 2015. (Id. ¶ 10).
Beginning in January 2015, plaintiffs raised concerns about violations of FDA
quality control standards with their immediate supervisor, Dan Kitch (“Kitch”). (Id.
¶¶ 16, 23). Plaintiffs aver that McNeil‟s management allowed employees to use
equipment which was neither properly cleaned nor sterilized pursuant to the FDA
Good Manufacturing Practices. (Id. ¶ 16). In addition to reporting contaminated
equipment, plaintiffs informed Kitch that McNeil may not be in compliance with
record keeping requirements under the FDA Good Manufacturing Processes and
other regulations. (Id. ¶¶ 16-17, 23). According to the complaint, Kitch did not
address these issues, and he purportedly compelled plaintiffs to approve batch
integrity and quality control reports despite contamination concerns. (Id. ¶ 18).
Plaintiffs subsequently informed both the first shift supervisor and second shift
supervisor about the ongoing issues at the plant and Kitch‟s failure to address them.
(Id. ¶¶ 22, 24-25, 26-28, 29-30). In May 2015, plaintiffs reported to their supervisors
and the technician that a malfunction in one of the plant‟s machines had caused a
batch of contaminated product to leave the facility. (Id. ¶¶ 31-32). In response, the
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technician allegedly advised plaintiffs to “keep [their] mouths shut about this . . . .”
(Id. ¶ 32).
After plaintiffs reported the contamination, McNeil allegedly responded with
a plant-wide harassment investigation. (Id. ¶¶ 33-34). McNeil interviewed plaintiffs
and asked whether they had ever “participated in sexually tinged ridicule of
another male employee.” (Id. ¶ 35). Hess responded that he had never teased
another male employee. (Id. ¶ 36). Heverling answered that he had “engaged in
very mild humorous banter with other male employees,” but never targeted or
teased any single employee. (Id. ¶ 37). To put the banter in context, Heverling and
Hess reported that they too had been subjected to homophobic slurs and teasing.
(Id. ¶ 39). On June 25, 2015, McNeil terminated the employment of both Heverling
and Hess. (Id. ¶ 40). Plaintiffs allege that McNeil terminated them because they
reported contaminated batches—violations of the FDA consent decree and Good
Manufacturing Practices—as well as their prevalent use of sexual and homophobic
slurs. (Id. ¶¶ 40-41).
Plaintiffs commenced their first action against McNeil on April 11, 2016.
Heverling v. McNeil Consumer Pharm., Co. (“Heverling I”), No. 1:16-CV-600, 2017
WL 714047, at *2 (M.D. Pa. Feb. 23, 2017).2 Therein, plaintiffs asserted four claims,
to wit: (1) hostile work environment and retaliation in violation of Title VII
(Counts I, III), (2) retaliation in violation of the PHRA (Count II), and (3) wrongful
termination in violation of Pennsylvania common law (Count IV). Id. The court
2

When pertinent to our analysis, the court will cite to the complaint in
Heverling I as “Heverling I Compl.”
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dismissed the complaint on February 23, 2017 pursuant to Federal Rule of Civil
Procedure 12(b)(6). Id. at *5. The court granted plaintiffs leave to amend Title VII
and PHRA retaliation claims and the wrongful termination claim within twenty
days. Id. The court dismissed the Title VII hostile work environment claim with
prejudice. Id. Plaintiffs did not amend their complaint in Heverling I, (see Doc. 101 at 8-9), and the case was terminated, see Heverling I, No. 1:16-CV-600 (M.D. Pa.
Mar. 20, 2017).
On June 13, 2017, plaintiffs commenced the instant action against McNeil in
the Court of Common Pleas of Lancaster County, Pennsylvania. (Doc. 1-1). McNeil
removed the case to federal court on diversity grounds. (Doc. 1). McNeil moves to
dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). (Doc. 3). The
motion is fully briefed and ripe for disposition.3
II.

Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of

complaints that fail to state a claim upon which relief may be granted. FED. R. CIV.
P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must
“accept all factual allegations as true, construe the complaint in the light most

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On April 28, 2016, the Supreme Court adopted changes to the Federal Rules
of Civil Procedure. In pertinent part, the Court amended Rule 6(d) to remove
“electronic means” as a mode of service triggering an additional three days to act
when a responsive period commences upon service. See FED. R. CIV. P. 6, advisory
committee‟s note to 2016 amendment. The amendments took effect on December 1,
2016. Plaintiffs filed their brief in opposition on August 28, 2017, three days after
the responsive deadline under Rule 6(d) as amended. Because the recent
amendment altered a longstanding practice, the court will exercise its discretion to
consider plaintiffs‟ nunc pro tunc brief as timely filed.
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favorable to the plaintiff, and determine whether, under any reasonable reading of
the complaint, the plaintiff may be entitled to relief.” Phillips v. Cty. 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)). In addition to reviewing the facts contained in the
complaint, the court may also consider “matters of public record, orders, exhibits
attached to the complaint and items appearing in the record of the case.” Oshiver
v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); Pension
Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
Federal notice and pleading rules require the complaint to provide “the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint, the court
conducts a three-step inquiry. See Santiago v. Warminster Twp., 629 F.3d 121, 13031 (3d Cir. 2010). In the first step, “the court must „tak[e] note of the elements a
plaintiff must plead to state a claim.‟” Id. at 130 (alteration in original) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal elements of a
claim must be separated; well-pleaded facts are accepted as true, while mere legal
conclusions may be disregarded. Id. at 131-32; see Fowler v. UPMC Shadyside, 578
F.3d 203, 210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual
allegations, it must determine whether they are sufficient to show a “plausible claim
for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556); Twombly, 550
U.S. at 556. A claim is facially plausible when the plaintiff pleads facts “that allow[]

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the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
Courts should grant leave to amend before dismissing a curable pleading in
civil rights actions. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc.,
482 F.3d 247, 251 (3d Cir. 2007); Grayson v. Mayview State Hosp., 293 F.3d 103, 108
(3d Cir. 2002). Courts need not grant leave to amend sua sponte in dismissing noncivil rights claims pursuant to Rule 12(b)(6), Fletcher-Harlee Corp., 482 F.3d at 25253, but leave is broadly encouraged “when justice so requires.” FED. R. CIV. P.
15(a)(2).
III.

Discussion
McNeil argues that plaintiffs‟ claims sub judice are precluded because the

judgment in Heverling I was final and on the merits. Plaintiffs contend that
Heverling I was not adjudicated on the merits and that their instant complaint is
sufficiently different to avoid preclusion.
A district court exercising diversity jurisdiction applies the claim preclusion
law of the state in which it sits. Semtek In‟l Inc. v. Lockheed Martin Corp., 531 U.S.
497, 508-09 (2001). Claim preclusion, or res judicata, is an affirmative defense which
may form the basis of a dismissal if it is “apparent on the face of the complaint.”
Weinberg v. Kaplan, LLC, 699 F. App‟x. 118, 120 n.3 (3d Cir. 2017) (nonprecedential)
(citing Rycoline Prods. v. C & W Unlimited, 109 F.3d 883, 886 (3d Cir. 1997)); accord

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Jones v. Bock, 549 U.S. 199, 215 (2007).4 A court may consider matters of public
record when the defense of claim preclusion is raised in a motion to dismiss.
Toscano v. Conn. Gen. Life Ins. Co., 288 F. App‟x. 36, 38 (3d Cir. 2008)
(nonprecedential).
A party asserting the defense of res judicata must establish the following
elements: “(1) a final judgement on the merits in a prior suit involving, (2) the same
parties or their privies, and (3) a subsequent suit based on the same cause of
action.” Hoffman v. Nordic Naturals, Inc., 837 F.3d 272, 279 (3d Cir. 2016) (quoting
In re Mullarkey, 536 F.3d 215, 225 (3d Cir. 2008)); Weinberg, 699 F. App‟x. at 120.
Courts should not apply this test mechanically, but with the central purpose of the
doctrine in mind, “to require a plaintiff to present all claims arising out [of] the
same occurrence in a single suit.” Sheridan v. NGK Metals Corp., 609 F.3d 239, 260
(3d Cir. 2010) (quoting Churchill v. Star Enters., 183 F.3d 184, 194 (3d Cir. 1999)).
For a claim to be precluded, litigation does not have to occur; the party must have
had full and fair opportunity to litigate the claim. See Whole Woman‟s Health v.
Hellerstedt, 136 S. Ct. 2292, 2331 (2016) (citing Montana v. United States, 440 U.S.
147, 153-54 (1979); see also Shah v. United States, 540 F. App‟x. 91, 93 (3d Cir. 2013)
(nonprecedential).
There is no dispute that the parties in Heverling I and herein are identical.
The court will address the remaining claim preclusion elements seriatim.

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The court acknowledges its citations to several nonprecedential opinions of
the Court of Appeals for the Third Circuit, but adopts the ratio decidendi of these
opinions as persuasive on the legal principles which are the subjects of citations.
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A.

Judgment on the Merits

An involuntary dismissal is an adjudication on the merits unless the court
states otherwise or the dismissal is one for lack of jurisdiction, improper venue, or
failure to join a party. FED. R. CIV. P. 41(b). A plaintiff converts a dismissal without
prejudice into a final order on the merits by “declar[ing] his intention to stand on
his complaint.” Hoffman, 837 F.3d at 279 (alteration in original) (quoting Borelli v.
City of Reading, 532 F.2d 950, 951-52 (3d Cir. 1976)). Failure to amend a complaint
within the time frame allotted by a district court indicates such an intention and
renders the district court‟s order final. Huertas v. Galaxy Asset Mgmt., 641 F.3d 28,
31 n.3 (3d Cir. 2011); see also Hoffman, 837 F.3d at 279-80.
The court dismissed plaintiffs‟ Title VII and PHRA retaliation and state law
wrongful termination claims without prejudice and granted leave to amend those
claims within twenty days. Heverling I, 2017 WL 714047, at *5. Plaintiffs elected
not to file an amended complaint within the prescribed time period.5 (Doc. 10-1 at
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Plaintiffs assert that amendment of the Heverling I complaint would have
been “futile” because they could not cure the deficiencies in their Title VII claim.
(Doc. 10-1 at 8-9). With only state law claims remaining, plaintiffs argue that the
court would have lacked jurisdiction and would have been compelled to dismiss
their state law claims. Id. at 9. We disagree. Section 1367 of the United States
Code provides that a federal court “may decline to exercise supplemental
jurisdiction,” over a claim after all claims over which the court has original
jurisdiction are dismissed. 28 U.S.C. § 1367(c)(3) (emphasis added). If all federal
claims are dismissed before trial, a court may dismiss the state law claims without
prejudice. Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)
(quoting United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966)).
However, this is a “doctrine of discretion,” and dismissal of federal claims does not
automatically deprive the court of power to adjudicate remaining state law claims.
Gibbs, 383 U.S. at 726; New Rock Asset Partners, L.P. v. Preferred Entity
Advancements, Inc., 101 F.3d 1492, 1505 (3d Cir. 1996); see also Carlsbad Tech., Inc.
v. HIF Bio, Inc., 556 U.S. 635, 639 (2009).
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8-9). By failing to amend in Heverling I, plaintiffs elected to stand on their
complaint. See Hoffman, 837 F.3d at 279. Accordingly, the court‟s February 23,
2017 order dismissing plaintiffs‟ PHRA and wrongful termination claims in
Heverling I is converted to a final judgment on the merits. See id.; Huertas, 641
F.3d at 31 n.3.
B.

Same Cause of Action

Whether a subsequent suit is based on the same cause of action “turn[s] on
the essential similarity of the underlying events giving rise to the various legal
claims.” Hoffman, 837 F.3d at 279 (quoting Blunt v. Lower Merion Sch. Dist., 767
F.3d 247, 277 (3d Cir. 2014)). The following factors guide the court‟s review: “(1)
whether the acts complained of and the demand for relief are the same [], (2)
whether the theory of recovery is the same, (3) whether the witnesses and
documents necessary at trial are the same [], and (4) whether the material facts
alleged are the same.” Sheridan v. NGK Metals Corp., 609 F.3d 239, 261 (3d Cir.
2010) (quoting United States v. Athlone Indus., Inc., 746 F.2d 977, 984 (3d Cir. 1984)).
The defense of res judicata should not be cast aside “by minor differences of
form, parties, or allegations,” when such differences exist only to obscure the
party‟s intention to circumvent dismissal. Schuldiner v. Kmart Corp., 450 F. Supp.
2d 605, 609 (E.D. Pa. 2006) (quoting Mintz v. Carlton House Partners, Ltd., 595 A.2d
1240, 1247 (Pa. Super. Ct. 1991)). Asserting a different theory of recovery or
requesting different relief is not dispositive. Sheridan, 609 F.3d at 261. The
purpose of res judicata is “to require a plaintiff to present all claims arising out [of]
the same occurrence in a single suit” in order to “avoid piecemeal litigation and
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conserve judicial resources.” Id. at 260 (alteration in original) (quoting Churchill,
183 F.3d at 194 (citation omitted)).
Plaintiffs contend that their complaint has been “revised and changed
entirely.” (Doc. 10-1 at 9-10). The record demonstrates no such distinction. The
complaints in Heverling I and the above-captioned matter are nearly identical.
(Compare Doc. 1-1 with Heverling I Compl.). Plaintiffs allege in both complaints
that their former employer, McNeil, terminated their employment on June 25, 2015
because plaintiffs reported FDA violations to their supervisors which resulted in a
retaliatory sexual harassment investigation. Plaintiffs assert in both complaints
that McNeil‟s actions constituted wrongful termination and clear violations of the
PHRA. The only substantive change to the instant complaint is the addition of one
paragraph under the wrongful termination claim which cites a Pennsylvania
statute. (Doc. 1-1 ¶ 58). This paragraph merely provides public policy justification
for plaintiffs‟ wrongful termination claim.6 Plaintiffs advance the same factual
narrative herein as they did in Heverling I. In sum, the acts complained of and
liability theories in Heverling I are the same as those set forth in the present action.
Analysis of the remaining factors leads inexorably to the same conclusion.
Plaintiffs seek relief identical to Heverling I. Plaintiffs provide no indication that
the witnesses and documents required here differ in any way from those necessary

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The addition of Pennsylvania public policy under the wrongful termination
claim does not distinguish the theory of recovery sub judice from that in Heverling I.
Assuming arguendo that plaintiffs asserted a different theory of recovery, this alone
would not be dispositive because the same parties and the same underlying facts
are present in this litigation. See Sheridan, 609 F.3d at 261.
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in Heverling I. (See Docs. 4, 10-1, 12). We find that both cases arise from the same
cause of action. And the material facts alleged sub judice are indistinguishable from
those alleged in Heverling I.
IV.

Conclusion
For the foregoing reasons, the court will grant McNeil‟s motion (Doc. 3) to

dismiss plaintiffs‟ complaint. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Dated:

March 12, 2018