Parks Miller v. Centre County et al

Filing 91

MEMORANDUM (Order to follow as separate docket entry) re 30 MOTION to Dismiss filed by Michelle Shutt.Signed by Honorable Matthew W. Brann on 5/11/16. (km)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

STACY PARKS MILLER,
Plaintiff,
v.
MICHELLE SHUTT, et. al.,
Defendants.

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Case No. 4:15-CV-1754
(Judge Brann)

MEMORANDUM OPINION
May 11, 2016
I.

BACKGROUND

On August 25, 2015, Stacy Parks Miller hereinafter “Parks Miller,” the current
District Attorney of Centre County, filed a thirteen count complaint against twelve
defendants in the Court of Common Pleas of that county. It was then removed to
this Court and all twelve Defendants filed motions to dismiss the complaint. In
response, Parks Miller filed an amended complaint.1 This Memorandum Opinion
addresses the motion to dismiss of Defendant Michelle Shutt, “hereinafter Shutt,”
formerly a paralegal working for Parks Miller.
The motion has been fully briefed, and I held oral argument on the motions
on March 3, 2016. The matter is now ripe for disposition. For the reasons that
1

ECF No. 25.
1

follow, I will grant the motion and dismiss the action as to Shutt.
II.

DISCUSSION
a. Motion to Dismiss Standard of Review
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may file a

motion to dismiss for “failure to state a claim upon which relief can be granted.”
Such a motion “tests the legal sufficiency of a pleading” and “streamlines litigation
by dispensing with needless discovery and factfinding.”2 “Rule 12(b)(6) authorizes
a court to dismiss a claim on the basis of a dispositive issue of law.”3 This is true of
any claim, “without regard to whether it is based on an outlandish legal theory or
on a close but ultimately unavailing one.”4
Beginning in 2007, the Supreme Court of the United States initiated what
some scholars have termed the Roberts Court’s “civil procedure revival” by
significantly tightening the standard that district courts must apply to 12(b)(6)
motions.5 In two landmark decisions, Bell Atlantic Corporation v. Twombly and
Ashcroft v. Iqbal, the Roberts Court “changed . . . the pleading landscape” by
“signal[ing] to lower-court judges that the stricter approach some had been taking

2

3
4
5

In re Hydrogen Peroxide Litigation, 552 F.3d 305, 316 n.15 (3d Cir. 2008) (Scirica, C.J.)
(quoting Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook,
J.)). Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).
Neitzke, 490 U.S. at 326 (citing Hishon v. King & Spalding, 467 U. S. 69, 73 (1984)).
Neitzke, 490 U.S. at 327.
Howard M. Wasserman, THE ROBERTS COURT AND THE CIVIL PROCEDURE REVIVAL, 31 Rev.
Litig. 313 (2012).
2

was appropriate under the Federal Rules.”6 More specifically, the Court in these
two decisions “retired” the lenient “no-set-of-facts test” set forth in Conley v.
Gibson and replaced it with a more exacting “plausibility” standard.7
Accordingly, after Twombly and Iqbal, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’”8 “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”9 “Although the
plausibility standard does not impose a probability requirement, it does require a
pleading to show more than a sheer possibility that a defendant has acted
unlawfully.”10 Moreover, “[a]sking for plausible grounds . . . calls for enough facts
to raise a reasonable expectation that discovery will reveal evidence of
[wrongdoing].”11
The plausibility determination is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.”12 No matter
the context, however, “[w]here a complaint pleads facts that are ‘merely consistent
6

550 U.S. 544 (2007); 556 U.S. 662, 678 (2009). Wasserman, supra at 319–20.
Iqbal, 556 U.S. at 670 (citing Conley v. Gibson, 355 U.S. 41 (1957)) (“[a]cknowledging that
Twombly retired the Conley no-set-of-facts test”).
8
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
9
Iqbal, 556 U.S. at 678.
10
Connelly v. Lane Const. Corp., No. 14-3792, 2016 WL 106159, at *3 (3d Cir. Jan. 11, 2016)
(Jordan, J.) (internal quotations and citations omitted).
11
Twombly, 550 U.S. at 556.
12
Iqbal, 556 U.S. at 679.
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with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of entitlement to relief.’”13
When disposing of a motion to dismiss, a court must “accept as true all
factual allegations in the complaint and draw all inferences from the facts alleged
in the light most favorable to [the plaintiff].”14 However, “the tenet that a court
must accept as true all of the allegations contained in the complaint is inapplicable
to legal conclusions.”15 “After Iqbal, it is clear that conclusory or ‘bare-bones’
allegations will no longer survive a motion to dismiss.”16 “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not
suffice.”17
As a matter of procedure, the United States Court of Appeals for the Third
Circuit has instructed that:
Under the pleading regime established by Twombly and Iqbal, a court
reviewing the sufficiency of a complaint must take three steps. First, it
must tak[e] note of the elements [the] plaintiff must plead to state a
claim. Second, it should identify allegations that, because they are no
more than conclusions, are not entitled to the assumption of truth.
Finally, [w]hen there are well-pleaded factual allegations, [the] court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.18

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18

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotations omitted)).
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).
Iqbal, 556 U.S. at 678 (internal citations omitted).
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.).
Iqbal, 556 U.S. at 678.
Connelly, 2016 WL 106159, at *4 (internal quotations and citations omitted).
4

b. Facts Alleged in the Amended Complaint
The procedural dictate when faced with a motion to dismiss is that the court
is to accept the facts alleged as true. “Rule 12(b)(6) does not countenance ...
dismissals based on a judge's disbelief of a complaint's factual allegations.”19
However, courts “are not bound to accept as true a legal conclusion couched as a
factual allegation.”20 That said, the following is a recitation of the allegations
according to Parks Miller.
Parks Miller has been District Attorney of Centre County since 2009.
During the pendency of an investigation of an inmate allegedly attempting to
contract someone to murder one of the assistant district attorneys in her office,
Parks Miller, together with defense counsel for a second inmate, acting as a prison
informant, devised a plan to move the informant to another prison as part of the
investigation. Parks Miller and the informant’s defense counsel decided that they
needed what the parties alternately and curiously refer to as a “pretend” or “fake”
order granting the informant release on bail.
Parks Miller had hired Shutt to work as a paralegal in the Office of the
District Attorney in 2012. During the investigation of the attempted murder plot,
Parks Miller asked Shutt to prepare a fake bail order, which she did. At some later
point, Shutt left her job at the District Attorney’s Office to work for the Masorti
19
20

Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)
Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)
5

Law Group in State College, Pennsylvania.
Parks Miller alleges that Shutt stole certain emails and documents about the
alleged attempted murder investigation by forwarding them to her personal email
account, and then from it to her Masorti Law Group email account. The forwarded
emails are attached to the amended complaint.21
The emails are apparently between Parks Miller, Shutt, the attorney
representing the informant, a member of the Pennsylvania Attorney General’s
Office and, in some emails, assorted others. The emails substantiate Parks Miller’s
claim that a fake bail order was to be prepared to assist in the murder attempt
investigation.
Shutt subsequently signed an affidavit in which she alleged that Parks Miller
forged Judge Pamela Ruest’s signature on the bail order. The affidavit is also
attached to the amended complaint. It reads, as follows:
I, Michelle Shutt, worked as the paralegal to the District
Attorney, Stacy Parks Miller from the time period of
June 6, 2012 until January 14, 2014. Stacy Parks Miller
directed me to review previous orders signed by Judge
Pamela Ruest in order to type a fake order for Stacy
Parks Miller that would look as similar as possible.
Stacy then directed me to type the contents of the fake
bail order and I did. I printed the fake order, took it to
Stacy and witnessed her sign “Pamela A. Ruest”. She
then had me take the forged bail order to the
Prothonotary’s office and file it. I brought a copy back
upstairs, scanned it to my computer and emailed it to
21

ECF No. 25-2 at 4-11.
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Stacy.
The forged Order was to be used to set up Ryan Richard
by using Defendant, Robert Albro. I also received emails
from Stacy Parks Miller relating directly to the use of the
forged Order. Both email and Order are attached [].
I swear that the above statement is accurate, true and
correct.
Shutt signed this affidavit on December 30, 2014.22
Because of Shutt’s allegations of forgery, a grand jury investigated Parks
Miller. Judge Ruest could not remember signing the bail order, but she also could
not recognize if it was, in fact, her signature on the bail order. The grand jury
eventually cleared Parks Miller of wrongdoing.
As a result of this troubling history, Parks Miller has now filed the instant
civil suit. The counts against Shutt are breach of fiduciary duty/duty of loyalty,
defamation/false light, injurious falsehood, negligence, intentional and/or negligent
infliction of emotional distress, concerted tortious conduct, and conspiracy.
c. Privilege and Immunity
As an initial matter, insofar as any allegations against Shutt are based on
grand jury testimony, she is immune from suit for that testimony. “Even if [the

22

ECF No. 25-2 at 2.
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one testifiying] knew [his or her] testimony was false, [he or she] receives absolute
immunity for the act of testifying to the grand jury.23
Second, statements made with the intent that disclosure lead to a judicial or
quasi-judicial proceeding are privileged. In Schanne v. Addis,24 the Supreme
Court of Pennsylvania held that the judicial privilege protects statements by
individuals seeking to initiate judicial or quasi-judicial proceedings. The Schanne
court held that the privilege did not protect the defendant, as that defendant did not
anticipate the friend she was speaking to would disclose the conversations to others
that who initiate due process termination hearings against plaintiff. The Schanne
court provided a useful guidepost for the matter at hand, however, stating:
Courts must also consider whether applying an absolute
privilege in a given case would promote the privilege’s
purpose. The purpose of the privilege is to afford parties
freedom of access to the courts, to encourage witnesses’
complete and unintimidated testimony in court, and to
enable counsel to best represent his client’s interests. If
not for this privilege, a realm of communication essential
to the exploration of legal claims would be hindered.
*****
Pennsylvania law closely guards the ability of a person
whose reputation has been injured by defamatory
statements to obtain redress for such injury. [] The Court
explained that the Pennsylvania Constitution places
reputational interests on the highest plane, that is, on the

23

Rehberg v. Paulk, 611 F.3d 828, 839 (11th Cir. 2010) aff'd, 132 S. Ct. 1497, 182 L. Ed. 2d 593
(2012).
24
121 A.3d 942 (2015).
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same level as those pertaining to life, liberty, and
property.
At the same time, there is a fundamental societal need for
justice to be administered freely and efficiently through
the eliciting of speech from parties and witnesses that
may be accusatory or otherwise reflect negatively upon
another’s character.
Thus, notwithstanding any
reputational harm that may ensue, Pennsylvania, like
many other jurisdictions, recognizes a judicial privilege
providing immunity for communications which are made
in regular course of judicial proceedings and are material
to the relief sought. The privilege covers statements by a
party, a witness, an attorney, or a judge. Furthermore,
the privilege is absolute, meaning that, where it attaches,
the declarant’s intent is immaterial even if the statement
is false and made with malice.
*****
A witness is absolutely privileged to publish defamatory
matter concerning another in communications
preliminary to a proposed judicial proceeding or as a part
of a judicial proceeding in which he is testifying, if it has
some relation to the proceeding.
*****
[] The judicial privilege operates by incentivizing
individuals to speak freely within a judicial (or quasijudicial) context – or more to the point here, to speak
freely in seeking to initiate judicial or quasi-judicial
proceedings.
*****
For the privilege to apply in a defamation case, litigation
must be truly under serious consideration.

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Reviewing courts are capable of discerning whether a
particular proceeding fits that description.25
The operative allegations against Shutt are that she spoke to Attorney Philip
Masorti, disclosed her accusations against Parks Miller,26 and that there was a
grand conspiracy against Parks Miller to prosecute her.27 This falls precisely
within the scope of privilege contemplated in Schanne. Parks Miller herself
alleges in the amended complaint that the intent of Defendants was to seek the
initiation of judicial proceedings against her. Accordingly, her arguments that
Schanne is inapplicable are not well taken, as the thrust of her amended complaint
is the conspiracy theory of the use of court proceedings against her.
It is disingenuous for Parks Miller to allege in her amended complaint that
the Defendants, including Shutt, had an intent to initiate criminal proceedings
against her, then, when it does not further her case, to allege the opposite in her
briefs. At this stage in the proceedings, I must accept the alleged facts as true; by
Parks Miller’s own allegations, Shutt’s intent in speaking to Masorti and signing
the affidavit was designed to initiate proceedings against Parks Miller.
Absent the statements to Masorti, or provided during the grand jury
proceedings, there are no claims remaining against Shutt. Although Parks Miller
makes much of the allegation that Shutt “stole” emails, the emails themselves
25

Id. at 945-951 (internal citations omitted).
See ¶ 81 of Amended Complaint.
27
See ¶ 98 of Amended Complaint.
26

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belie this allegation. The emails are attached to the amended complaint and show
in the ‘to’ and ‘cc’ lines, that Parks Miller herself circulated the emails to no less
than eleven individuals. With such a wide dissemination, these can hardly be
considered to be private property capable of being stolen.
III.

CONCLUSION

Defendant Shutt’s motion to dismiss will be granted. Moreover, as
explained below, the Court will deny Parks Miller further opportunity to
amend her complaint, thereby foreclosing her ability to submit a third
iteration of what is quite evidently an irrepealably flawed pleading.
Federal Rule of Civil Procedure 15(a), which governs a plaintiff’s ability
to amend her complaint, instructs that after the window for amendment as a
matter of course has closed, a plaintiff may amend her complaint “only with
the opposing party's written consent or the court's leave.” “The decision to
grant or deny leave to amend a complaint is committed to the sound
discretion of the district court.”28 “Factors the trial court may appropriately
consider in denying a motion to amend include undue delay, undue prejudice
to the opposing party, and futility of amendment.”29 For instance, “if the
proposed change clearly is frivolous or advances a claim or defense that is

28

Coventry v. U.S. Steel Corp., 856 F.2d 514, 518 (3d Cir. 1988).
Averbach v. Rival Mfg. Co., 879 F.2d 1196, 1203 (3d Cir. 1989) (quoting Foman v. Davis, 371
U.S. 178, 182 (1962).
29

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legally insufficient on its face, the court may deny leave to amend.”30
As it applies to the instant matter, Parks Miller has already amended
her complaint once as a matter of course pursuant to Rule 15. Having
occurred after the various defendants filed their first motions to dismiss, that
amendment effectively rendered those motions moot. To allow Parks Miller
a third bite at the apple would contravene fundamental notions of justice for
the following reasons.
First, the unjustifiable delay associated with further amendment and
subsequent motions practice would significantly prejudice Defendant Shutt
here. To the extent that the defendants in this matter represent the public or
work in private legal practice, a speedy resolution of this politically charged
dispute is both efficient and proper. No defendant, whether a representative
of the people or a private advocate, should be forced to endure the looming
specter of such accusations, particularly where those charges have been
judged deficient as a matter of law by a federal tribunal.
Moreover, Parks Miller has already enjoyed the benefit of responding
with an amended complaint after reading and considering the arguments
raised in the first round of defendants’ motions to dismiss. Based upon my
30

Ross v. Jolly, 151 F.R.D. 562, 565 (E.D. Pa. 1993) (citing 6 Wright, Miller, & Kane, Federal
Practice & Procedure: Civil 2d § 1487). See also Vosgerichian v. Commodore Int’l Ltd., No.
Civ. A. 92-CV-4867, 1998 WL 966026, at * 3 (E.D. Pa. Nov 6, 1998) aff’d sub nom
Vosgerichian v. Commodore Int’l, 191 F.3d 446 (3d Cir. 1999).
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review of the claims asserted therein, a third version of the complaint would
fare no better; any non-futile allegations that Parks Miller could possibly
make should have already been advanced. With the likelihood that Parks
Miller could plead an adequate complaint so low at this stage, I find that the
certainty of substantial prejudice to the Defendant outweighs any interest
Parks Miller might have in filing a further amended complaint.
Nor would discovery remedy the deficiencies in the complaint.
Accordingly, at this juncture, reasonable research and diligence should have
already led Plaintiff to discover any published statements made by Shutt.
Discovery simply would not be a fruitful endeavor for the kinds of claims
that Parks Miller has chosen to advance.
Ultimately, I find that this determination also adheres to the dictates of
the federal rules. As amended Federal Rule of Civil Procedure 1 now
instructs, “the just, speedy, and inexpensive determination of every action”
is the responsibly of both judges and litigants. Permitting amendment merely
for the sake of amendment at this point would only further squander
valuable time and resources of the Court and the parties. I am unwilling to so
indulge Plaintiff.

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BY THE COURT:

/s Matthew W. Brann
Matthew W. Brann
United States District Judge

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