McGuire v. Palmerton Hospital et al
Filing
42
MEMORANDUM III. ConclusionFor the reasons discussed above, Defendants Palmerton Hospital and Lois Richards Motion to Dismiss (Doc. 22) is GRANTED; Defendants Palmerton Hospital and Lois Richards Rule 11 Motion for Sanctions (Doc. 29) is DENIED; and P laintiffs Motion for Leave to File a Fourth Amended Complaint (Doc. 32) is DENIED. All claims contained in the operative complaint, Plaintiffs Third Amended Complaint (Doc. 21), are dismissed with prejudice. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 2/15/13. (cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
EILEEN McGUIRE,
:
:CIVIL ACTION NO. 3:12-CV-1762
Plaintiff,
:
:(JUDGE RICHARD P. CONABOY)
v.
:
:
PALMERTON HOSPITAL and
:
LOIS RICHARDS,
:
:
Defendants.
:
:
___________________________________________________________________
MEMORANDUM
With this Memorandum, we address the three motions pending in
this case: 1) Defendants Palmerton Hospital and Lois Richards’
Motion to Dismiss (Doc. 22); 2) Defendants Palmerton Hospital and
Lois Richards’ Rule 11 Motion for Sanctions (Doc. 29); and 3)
Plaintiff’s Motion for Leave to File a Fourth Amended Complaint
(Doc. 32).
All motions are ripe for disposition.
I. Relevant Background
The background of this case is set out in the Court’s
Memorandum addressing Defendant Palmerton Hospital and Lois
Richards’ Motion to Dismiss filed on October 1, 2012, which sought
dismissal of Plaintiff’s Second Amended Complaint.
5.)
(Doc. 19 at 1-
With that Memorandum and accompanying Order (Doc. 20), the
Court dismissed all claims.
The Compliant was dismissed without
prejudice in three respects: 1) Count I for Breach of Contract was
dismissed without prejudice as to Defendant Palmerton; 2) Count II
for Wrongful Termination was dismissed without prejudice as to
Defendant Palmerton; and 3) Count III for Age Discrimination under
the ADEA was dismissed without prejudice as to Defendant Palmerton.
(Doc. 20 ¶¶ 2-4.)
Plaintiff timely filed a Third Amended Complaint on November
23, 2012.
(Doc. 21.)
On December 3, 2012, Defendants filed
Defendants Palmerton Hospital and Lois Richards’ Motion to Dismiss
(Doc. 22) and supporting brief (Doc. 23) seeking dismissal of
Plaintiff’s Third Amended Complaint.
Defendant did not file an
opposition brief but filed a Fourth Amended Complaint (Doc. 24) on
December 17, 2012.
Defendants filed Defendants Palmerton Hospital
and Lois Richards’ Motion to Strike Plaintiff’s Fourth Amended
Complaint (Doc. 25) and supporting brief (Doc. 26) on December 19,
2012.
The Court struck Plaintiff’s Fourth Amended Complaint as an
improper filing by Order of December 19, 2012, and clarified that
the operative Complaint in the case remained Plaintiff’s Third
Amended Complaint.
(Doc. 28.)
On December 19, 2012, Defendants
filed a Praecipe to Consider Plaintiff’s Lack of Contest as Consent
to Defendants’ Motion to Dismiss Plaintiff’s Third Amended
Complaint. (Doc. 27.)
On December 20, 2012, Defendants filed Defendants Palmerton
Hospital and Lois Richards’ Rule 11 Motion for Sanctions (Doc. 29)
and supporting brief (Doc. 30).
Plaintiff filed a brief in
opposition to the motion on January 2, 2013.
(Doc. 36.)
Defendants filed a reply brief on January 15, 2013.
2
(Doc. 39.)
On December 21, 2012, Plaintiff filed Plaintiff’s Motion for
Leave of Court to file a Fourth Amended Complaint (Doc. 32) and
supporting brief (Doc. 33).
on January 8, 2013.
Defendants filed an opposition brief
(Doc. 38.)
II. Discussion
a.
Plaintiff’s Motion for Leave to File a Fourth Amended
Complaint
We first discuss Plaintiff’s Motion for Leave to File a Fourth
Amended Complaint. (Doc. 32.)
As noted above, Plaintiff filed this
motion and supporting brief (Doc. 33) on December 21, 2012, and
Defendants filed an opposition brief on January 8, 2013.
38.)
(Doc.
The last day for filing a reply brief was January 25, 2013,
and Plaintiff did not do so.
For the reasons discussed below,
Plaintiff’s motion is denied.
Rule 15 of the Federal Rules of Civil Procedure provides that
“[t]he court should freely give leave [to amend] when justice so
requires.”
Fed. R. Civ. P. 15(a)(2).
The Supreme Court identified
a number of factors to be considered in deciding a motion to
dismiss under Rule 15(a) in Foman v. Davis, 371 U.S. 178 (1962).
If the underlying facts or circumstances
relied upon by a plaintiff may be a proper
subject of relief, he ought to be afforded an
opportunity to test his claim on the merits.
In the absence of any apparent or declared
reason–such as undue delay, bad faith or
dilatory motive on the part of the movant,
repeated failure to cure deficiencies by
amendments previously allowed, undue
prejudice to the opposing party by virtue of
the allowance of the amendment, futility of
3
the amendment, etc.–-the leave sought should,
as the rules require, be freely given.
Id. at 182.
Plaintiff argues that Federal Rule of Civil Procedure 15(a)’s
liberal policy to allow amended pleadings supports her request in
that her proposed amendment would not be futile.
(Doc. 33 at 4.)
Placing the burden of showing futility on Defendants, Plaintiff
maintains this is a “heavy burden” and “[i]f a proposed amendment
is not clearly futile, then denial of leave to amend is improper.”
(Doc. 33 at 4 (citations omitted).)
Defendants maintain that the Court should deny Plaintiff’s
motion on several bases: 1) Defendants will suffer prejudice; 2)
Plaintiff has unduly delayed requesting leave to amend; 3)
permitting Plaintiff leave to amend would be unjust; and 4)
Plaintiff’s Fourth Amended Complaint is futile.
(Doc. 38 at 8-15.)
We will address each of these arguments.
1.
Prejudice
Defendants argue that permitting Plaintiff to file another
complaint, “and once again, forcing Defendants to move to dismiss
Plaintiff’s pleading” would be unduly prejudicial because Plaintiff
has already filed four complaints which have resulted in Defendants
“expending significant effort, time, and expense to file four (4)
separate motions to dismiss to defend this case.” (Doc. 38 at 9.)
We agree.
Foman includes “repeated failure to cure deficiencies by
4
amendments previously allowed [and] undue prejudice to the opposing
party by virtue of the allowance of the amendment” as reasons to
deny leave to amend.
371 U.S. at 182.
The Third Circuit Court of
Appeals has found that denying leave to amend was properly within a
district court’s discretion where the defendants had already been
forced to defend against three complaints.
California Public
Employees’ Retirement System v. Chubb Corp., 394 F.3d 126, 166 (3d
Cir. 2004).
First, we note that although Plaintiff recognizes prejudice to
the other party as a pertinent consideration (Doc. 33 at 2), she
did not further discuss prejudice in her supporting brief, nor did
she reply to Defendants’ argument on the issue.
After filing her Complaint and Second Amended Complaint,
allowed as a matter of course pursuant to Federal Rule of Civil
Procedure 15(a)(1)(B), the Court issued a Memorandum (Doc. 19) and
Order (Doc. 20) on November 13, 2012, which dismissed the Second
Amended Complaint but allowed leave to amend on limited bases,
recognizing the Court was doing so only “in an abundance of
caution.”
(Doc. 19 at 11, 18.)
The Court’s Memorandum provided a
blueprint to Plaintiff as to how she might remedy the deficiencies
in her claims, particularly regarding her wrongful termination
claim.
(Doc. 19 at 14-18.)
In general terms, the scope of Plaintiff’s proposed Fourth
Amended Complaint is consistent with the Court’s Order of November
5
13, 2012.1
(Doc. 20.)
However, this compliance does not favor
allowance to amend because, following the Court’s November 13,
2012, Order, Plaintiff filed two other complaints before filing the
one under consideration here.
(Docs. 21, 24.)
Plaintiff filed her
Third Amended Complaint (Doc. 21) as allowed by the Court’s
November 13, 2012, Order.
After Defendants filed a motion to
dismiss the Third Amended Complaint (Doc. 22) and supporting brief
(Doc. 23), Plaintiff filed a Fourth Amended Complaint (Doc. 24).
In response to Plaintiff’s filing, Defendants filed a motion to
strike the Fourth Amended Complaint (Doc. 25) and supporting brief
(Doc. 26).
The Court granted the motion by Order of December 18,
2012, finding the Fourth Amended Complaint to be an improper filing
and clarifying that the operative complaint in the case is the
Third Amended Complaint.
(Doc. 28.)
In response to the December
18, 2012, Order, Plaintiff attached another “Fourth Amended
Complaint” to the Rule 15 motion under consideration here.
(Doc.
32-1.)
A review of Plaintiff’s filings and Defendants’ responses
thereto indicates that Plaintiff’s submissions have been repeated
attempts to cure deficiencies identified either in Defendants’
motions to dismiss the previously filed complaint or the Court’s
1
Plaintiff’s proposed Fourth Amended Complaint is brought
only against Defendant Palmerton Hospital. (Doc. 32-1 at 1.) It
contains one count: Wrongful Termination for Public Policy. (Doc.
32-1 at 14.)
6
consideration of such a motion.
Whether allowed as a matter of
course, by Court Order, or unauthorized under applicable rules,
Plaintiff’s failure to cure the deficiencies in her previous
complaint has prompted the subsequent filing.
Defendants have had
to respond to each of the complaints by filing a motion and
supporting brief; they have had to file a brief in opposition to
the motion under consideration here.
Thus, Defendants have five
times had to expend substantial effort and incur substantial
expense in attempting to move this case forward.
Given these
circumstances, we conclude it would be unfair to force Defendants
to defend against yet another complaint.
See California Public
Employees’ Retirement System v. Chubb Corp., 394 F.3d at 166.
2.
Undue Delay
Defendants next argue that further amendment should not be
allowed based on the “undue delay” consideration in that all of the
allegations Plaintiff seeks to include in her proposed Fourth
Amended Complaint were within her knowledge when she filed her
initial Complaint.
(Doc. 38 at 10.)
We agree.
The passage of time is not predominant in the “undue delay”
inquiry–“[d]elay alone is an insufficient ground to deny leave to
amend.”
Cureton v. National Collegiate Athletic Ass’n, 252 F.3d
267, 273 (3d Cir. 2001) (citing Adams v. Gould Inc., 739 F.2d 858,
868 (3d Cir. 1984); Cornell & Co., Inc. v. Occupational Safety &
Health Review Comm’n, 573 F.2d 820, 823 (3d Cir. 1978)); see also
7
Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266 (3d Cir. 2008).
“Undue delay” may be found where the delay places an unwarranted
burden on the court or places an unfair burden on the opposing
party.
Cureton, 252 F.3d at 273 (citing Adams, 739 F.2d at 868).
“Delay may become undue when a movant has had previous
opportunities to amend a complaint.”
Id. (citing Lorenz v. CSX
Corp., 1 F.3d 1406, 1414 (3d Cir. 1993)).
The earlier availability
of the new factual information set out in the proposed amendment is
pertinent to the issue.
Id. at 273-74.
The question of undue
delay requires the court to focus on why the movant did not amend
sooner.
Id. (citing Adams, 739 F.2d at 868).
As with the prejudice factor, Plaintiff recognizes undue delay
as a pertinent consideration (Doc. 33 at 2), but she neither
discusses it in her supporting brief, nor did she reply to
Defendants’ argument on the issue.
Here the passage of time from the removal of the case to this
Court (Doc. 1) on September 5, 2012, to the filing of Plaintiff’s
Motion for Leave of Court to File a Fourth Amended Complaint (Doc.
32) on December 21, 2012, is not great.
However, Plaintiff
provides no reasons for the delay in including information in the
proposed Fourth Amended Complaint–-information available when she
filed her first complaint in state court–-in any previous filing.
Plaintiff has had previous opportunities to amend, and each filing
has placed a burden on the Court and a burden on Defendants.
8
The
docket in this case shows that Plaintiff has unduly delayed in
trying to get it right.
Together with the prejudice prong, this
provides a basis to deny further leave to amend.
3.
Justice Requirements
Although prejudice and undue delay are factors which weigh
against allowing amendment under the generally liberal pleading
philosophy of Rule 15 and are thus considerations regarding what
justice requires under the rule, see Foman, 371 U.S. at 182; see
also Lorenz, 1 F.3d at 1414, Defendants also set out a general
argument that permitting Plaintiff to further amend her complaint
would be unjust. (Doc. 38 at 11-12.)
We agree.
“A District Court has discretion to deny a plaintiff leave to
amend where the plaintiff was put on notice as to the deficiencies
in his complaint, but chose not to resolve them.”
Krantz v.
Prudential Investmenst Fund Management LLC, 305 F.3d 140, 144 (3d
Cir. 2002) (citing Rolo v. City Investing Co. Liquidating Trust 155
F.3d 644, 654 (3d Cir. 1998)).
Courts have found that “three
attempts at a prior pleading is enough,” Gasoline Sales, Inc. v.
Aero Oil Co., 39 F.3d at 74.
Defendants assert that permitting Plaintiff leave to amend
would be unjust in that Plaintiff has been given a previous
opportunity to amend and, rather than following the Court’s
directions, filed a Third Amended Complaint substantively identical
to the one previously dismissed.
(Doc. 38 at 11-12.)
9
Based on our
discussion of the prejudice and undue delay factors, we agree
justice does not require that Plaintiff be given another bite at
the apple.
4.
Futility
We have already determined that justice does not require
allowing Plaintiff further leave to amend, but we will briefly
discuss the futility factor because it also weighs in favor of
denying Plaintiff’s motion.
Futility is governed by the same standard of legal sufficiency
that applies under Rule 12(b)(6).
F.3d 275, 291 (3d Cir. 2000).
See, e.g., Oran v. Stafford, 226
“[I]t essentially means that a
‘complaint, as amended, would fail to state a claim’ for relief.”
Dombroski v. J.P. Morgan Chase Bank, N.A., No.12-1419, 2013 WL
4102030, at *2 (3d Cir. Feb. 4, 2013) (not precedential) (quoting
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 231 (3d Cir. 2011)).
Here the only claim in Plaintiff’s proposed Fourth Amended
Complaint is a wrongful termination claim against Palmerton
Hospital.
(Doc. 32-1 at 14.)
In our previous analysis of this
issue, we noted that “Plaintiff faces a difficult task making the
necessary factual averments to survive a challenge to a wrongful
termination claim based on the public policy exception to the atwill employment presumption.”
(Doc. 19 at 17.)
We allowed
amendment of the claim only “in an abundance of caution.”
at 18.)
(Doc. 19
Reiteration of our complete discussion of a wrongful
10
termination claim set out in our Memorandum addressing Plaintiff’s
Second Amended Complaint is not necessary.
(See Doc. 19 at 11-18.)
Rather, because we determined that Plaintiff’s wrongful termination
claim should be dismissed because her “Second Amended Complaint
does not articulate what public policy of the Commonwealth of
Pennsylvania is implicated” (Doc. 19 at 14), our focus is whether
Plaintiff’s proposed Fourth Amended Complaint identifies a public
policy of the Commonwealth which can overcome the at-will
employment presumption and support her wrongful termination claim.
“Pennsylvania presumes all employment to be ‘at-will.’”
Scully v. Watts, 238 F.3d 497, 505 (3d Cir. 2001) (citing Geary v.
United States Steel Corp., 319 A.2d 174, 176 (Pa. 1974)).
“As a
general rule, there is no common law cause of action against an
employer for termination of an at-will employment relationship.”
Krajsa v. Keypunch, Inc., 622 A.2d 355, 359 (Pa. Super. 1993)
(listing cases).
“Exceptions to this rule have been recognized in only the most
limited of circumstances, where discharges of at-will employees
would threaten clear mandates of public policy.”
Clay v. Advanced
Computer Applications, Inc., 559 A.2d 917, 918 (Pa. 1989).
Pennsylvania courts have narrowly construed the public policy
exception and have generally held that the plaintiff must
demonstrate that a statute or constitutional provisions applied to
his case and that his discharge resulted from his duty to act in
11
accordance with applicable law.
359.
See, e.g., Krajsa, 622 A.2d at
In Betts v. Stroehmann Bros., 512 A.2d 1280 (Pa. Super.
1986), the Pennsylvania Superior Court identified the relevant twopart test: first, the court “must decide whether any public policy
is threatened”; and second, “even if an important public policy is
involved a discharge of an employee is lawful if the employer has
separate, plausible, and legitimate reasons for doing so.”
Id. at
1281 (citing Cisco v. United Parcel Services, Inc., 476 A.2d 1340
(Pa. Super. 1984)).
We keep in mind Plaintiff’s high burden of
challenging a termination under the public policy exception theory.
Marsh v. Boyle, 530 A.2d 491, 495 (Pa. Super. 1987).
Plaintiff asserts that she has alleged additional facts in her
proposed Fourth Amended Complaint and articulates a specific public
policy violation with the following averments:
64. With respect [sic] the conduct of the
Plaintiff, as alleged herein, the Plaintiff
was attempting to act at all times in
accordance with radiation dose limits for
individual members of the public as set forth
in sections 301 and 302 of the Radiation
Protection Act (35 P.S. §§ 7110.301 and
currently defined in 10 CFR Part 20
incorporated by reference in Pa. Code Title
25 Sec. 219.51.
65. Based on the foregoing, that Plaintiff
was attempting to carry out the public policy
of Pennsylvania, as cited above, to protect
members of the public from dangerous exposure
to harmful radiation, and was punished by the
Defendant for her efforts.
(Doc. 32-1 ¶¶ 64, 54.)
12
The provisions specifically cited are part of the Radiation
Protection Act which define the “[p]owers and duties of the
Department of Environmental Resources,” 35 P.S. § 7110.301, and the
“[p]owers of Environmental Quality Board,” 35 P.S. § 7110.302.
These provisions neither address nor reference individual reporting
duties.
Thus, they do not exhibit a clear public policy regarding
a prohibition of termination of individuals who report allegedly
dangerous exposure to radiation to internal supervisory personnel.
In her supporting brief, Plaintiff cites to a Western District
of Pennsylvania case where the court found the plaintiff had
alleged a cognizable violation of public policy under The Worker
and Community Right-to-Know Act, 35 P.S. § 7313.
(Doc. 33 at 5
(citing Lambert v. Envtl. Restoration Group, Inc., No. 2:07-cv1573, 2008 U.S. Dist. Lexis 20351, *6-*11 (W.D. Pa. March 14,
2008)).)
Plaintiff does not mention this act in her Complaint.
Plaintiff does not analogize Lambert to the situation presented
here and her failure to do so is significant in that Lambert found
the plaintiff “was statutorily required to exercise his expertise
to protect worker and public safety in his role as an ARSO
[Assistant Radiation Safety Officer].”
*3.
Lambert, 2008 WL 723328, at
Plaintiff had no similar duty.
Plaintiff cites a plethora of cases in which courts have found
that a wrongful discharge claim could go forward based on a public
policy exception.
(Doc. 33 at 5-9.)
13
However, as with Lambert,
Plaintiff provides no specific analogy to her situation.
Rather,
she says only that all of the cases cited “are clearly analogous to
the case at bar, where the Plaintiff tried, and was punished, for
attempting to ensure that patients and employees were not exposed
to radiation.”
(Doc. 33 at 9.)
This conclusory statement does not
meet Plaintiff’s high burden of showing that her “discharge[] . . .
would threaten [a] clear mandate[] of public policy.”
Clay, 559
A.2d at 918.
We further conclude that, even if the cited Pennsylvania
provisions (and their federal counterparts) were to be found to
form the basis of a clearly mandated public policy, Plaintiff’s
claim would fail under the second prong of the inquiry.
This is a
case where Plaintiff’s Complaint shows that the employer had
“separate, plausible, and legitimate reasons” for termination.
Betts, 512 A.2d at 1281.
First, we note that many of the violations alleged in
Plaintiff’s proposed Fourth Amended Complaint are unrelated to
radiation dosage or improper exposure to radiation.
In general,
the proposed Fourth Amended Complaint sets out a litany of negative
interactions between Plaintiff and her employer, specifically Lois
Richards who was Plaintiff’s supervisor.
At the meeting which took place the day before Plaintiff was
terminated, Plaintiff asserts that Richards accused her of
“refusing to perform a scan,” “canceling a CT order,” “sending a
14
patient to another facility[,]” and “using profanity.”
¶ 53.)
(Doc. 32-1
Plaintiff’s refusal to perform a scan and cancel a CT order
presumably relate to her June 30, 2011, refusal to scan a patient
who was over the documented weight limit for the table.2
1 at 33.)
(Doc. 32-
Richards instructed Plaintiff to scan the patient,
stating that the patient had been scanned a day or two earlier by
two other technicians.
(Doc. 32-1 at 34.)
Plaintiff’s refusal to
follow her supervisor’s directive would be a reason for termination
separate from any public policy exception based on Plaintiff’s
radiation exposure allegations in that Plaintiff’s refusal related
to an alleged potential table failure.
Plaintiff’s alleged use of
profanity would also be separate from any public policy exception
as it relates to the same incident.3
Given the lack of relationship between what Plaintiff alleges
were reasons for her termination and the purported public policy
relating to her “attempting to ensure that patients and employees
were not exposed to radiation” (Doc. 33 at 9) as well as the
picture of the generally difficult relationship between Plaintiff
2
Other instances where Plaintiff states that she refused to
perform scans or x-rays are remote in time from the meeting. (See,
e.g., Doc. 32-1 ¶¶ 15-17.)
3
Plaintiff states that when asked whether she used profanity
during a conversation with two other employees on June 30, 2011,
Plaintiff responded that “she did not recall, but, that she had
indeed been very upset and distraught over the issue.” (Doc. 32-1
¶ 39.) Her Complaint later states that she “believes, and
therefore avers, she did not use any profanity.” (Doc. 32-1 ¶ 55.)
15
and her supervisor, even if Plaintiff were terminated in part for
complaints regarding improper radiation exposure, her employer had
separate, plausible, and legitimate reasons for her termination.
In sum, all factors relevant to the inquiry of whether
Plaintiff should be allowed to file another amended complaint
indicate that justice does not require granting leave to amend and
Plaintiff’s Motion for Leave of Court to File a Fourth Amended
Complaint is properly denied.
b.
Motion to Dismiss Third Amended Complaint
Plaintiff timely filed a Third Amended Complaint on November
23, 2012.
(Doc. 21.)
On December 3, 2012, Defendants filed
Defendants Palmerton Hospital and Lois Richards’ Motion to Dismiss
(Doc. 22) and supporting brief (Doc. 23) seeking dismissal of
Plaintiff’s Third Amended Complaint.
On December 19, 2012,
Defendants filed a Praecipe to Consider Plaintiff’s Lack of Contest
as Consent to Defendants’ Motion to Dismiss Plaintiff’s Third
Amended Complaint.4
(Doc. 27.)
We conclude that Defendant’s
4
Defendants state that Plaintiff’s response was due on or
before December 17, 2012, pursuant to Local Rule 7.6. (Doc. 27 ¶
3.) We agree that Local Rule 7.6 allows fourteen days from service
of the supporting brief, but we must also consider the Federal Rule
of Civil Procedure which addresses the computing of time generally
applicable to the Federal Rules and local rules. Fed. R. Civ. P.
6. Although Defendants are correct that a straight calculation
would be fourteen days from date of service, December 19, 2012,
Federal Rule 6(d) provides that“[w]hen a party may or must act
within a specified time after service and service is made under
Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the
period would otherwise expire under Rule 6(a). Because 5(b)(2)(E)
relates to service by electronic means, three days are added to the
16
motion is properly granted.
Pursuant to Rule 7.6 of the Local Rules of Court of the Middle
District of Pennsylvania, a party who fails to submit a brief
opposing a motion is deemed not to oppose the motion.
The Court of
Appeals for the Third Circuit has held that dismissal of a case for
failure to comply with a local rule is a “drastic sanction” which
should, with few exceptions, follow a merits analysis.
Stackhouse
v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1992); see also Shuey v.
Schwab, 350 F. App’x 630, 632-33 (3d Cir. 2009) (not precedential).
“‘[I]t is imperative that the District Court have a full
understanding of the surrounding facts and circumstances pertinent
to the Poulis [v. State Farm Fire & Casualty Co., 747 F.2d 863, 868
(3d Cir. 1984)] factors before it undertakes its analysis.’”
Shuey, 350 F. App’x at 632-33 (quoting Briscoe v. Klaus, 538 F.3d
252, 258 (3d Cir. 2008)).
Because the three counts contained in Plaintiff’s Third
Amended Complaint (Doc. 21) are almost identical to those set out
in the Second Amended Complaint (Doc. 7),5 and because, following a
merits analysis, the Court found that those claims were properly
fourteen days. Therefore, Plaintiff had until December 20, 2012,
to respond to Defendants’ motion to dismiss and the time for filing
had not elapsed before Defendants filed their Praecipe (Doc. 27).
5
As noted by Defendants, the relevant sections of the Second
Amended Complaint and the Third Amended Complaint differ only in
that a single paragraph identifying Lois Richards’ business address
was deleted from the Third Amended Complaint. (Doc. 22 ¶ 7.)
17
dismissed (Doc. 19), the same conclusion is warranted here.
Further, Plaintiff’s duplication was intentional as evidenced by
correspondence between Plaintiff’s counsel and Defendants’ counsel
following the filing of the Third Amended Complaint.
2-4, 11.)
(Doc. 29-1 at
For the reasons discussed above, granting leave to
further amend is not warranted and all claims are properly
dismissed with prejudice.
c.
Motion for Sanctions
In Defendants Palmerton Hospital and Lois Richards’ Rule 11
Motion for Sanctions (Doc. 29), Defendants assert that sanctions
are appropriate because Plaintiff’s Third Amended Complaint raises
no new factual averments that were not included in the Second
Amended Complaint and continues to name Lois Richards as a
Defendant although all claims against her in the Second Amended
Complaint were dismissed with prejudice.
(Doc. 29.)
Defendants
specifically request “reasonable attorneys’ fees incurred in
presenting a Motion to Dismiss Plaintiff’s Third Amended Complaint
as well as this Motion for Sanctions.”
(Doc. 29 at 4.)
Because the Court has determined that all claims in
Plaintiff’s Third Amended Complaint are properly dismissed with
prejudice and the case will be closed, Defendants’ motion for
sanctions is denied.
III. Conclusion
For the reasons discussed above, Defendants Palmerton Hospital
18
and Lois Richards’ Motion to Dismiss (Doc. 22) is GRANTED;
Defendants Palmerton Hospital and Lois Richards’ Rule 11 Motion for
Sanctions (Doc. 29) is DENIED; and Plaintiff’s Motion for Leave to
File a Fourth Amended Complaint (Doc. 32) is DENIED. All claims
contained in the operative complaint, Plaintiff’s Third Amended
Complaint (Doc. 21), are dismissed with prejudice.
An appropriate
Order is filed simultaneously with this Memorandum.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: February 15, 2013____________________
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