ELCHIK v. AKUSTICA, INC et al
Filing
72
MEMORANDUM OPINION AND ORDER. IT IS HEREBY ORDERED that 11 Motion to Dismiss for Lack of Personal Jurisdiction is DENIED WITHOUT PREJUDICE to renew it in accordance with this Court's previous Orders and as set forth in the Report and Recommend ation. IT IS FURTHER ORDERED that 5 Motion to Dismiss is DENIED AS MOOT as to Plaintiff's voluntarily withdrawn claims for violation of the Pennsylvania Human Relations Act; GRANTED as to Plaintiff's third-party-beneficiary claim for brea ch of contract against Akustica; and DENIED as to Plaintiff's claim for violation of the Age Discrimination in Employment Act, against the Defendants. IT IS FURTHER ORDERED that 64 Report and Recommendation is ADOPTED as the Opinion of the Cou rt, except as to that portion of the Report and Recommendation set forth at pages 15 to 25 inclusive as relating to the inherent authority of the Equal Employment Opportunity Commission to issue a Notice of Reconsideration. Signed by Judge Mark R. Hornak on 4/5/13. (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL ELCHIK,
)
)
Plaintiff,
)
)
v.
Civil Action No.2: 12-cv-00578
)
U.S. District Judge Mark R. Hornak
Chief Magistrate Judge Lisa Pupo Lenihan
)
AKUSTICA, INC., et aI,
)
Defendants.
ECF Nos. 5 and 11
)
)
MEMORANDUM OPINION AND ORDER
The Complaint in the above captioned case was received by the Clerk of Court and was
filed on May 1, 2012 and was referred to United States Magistrate Judge Lisa Pupo Lenihan for
pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. §636(b)(1), and
Local Rules of Court 72.C and 72.D.
The March 6, 2013 Report and Recommendation (the "Report") (ECF No. 64)
recommended that Defendant Bosch GmbH's Motion to Dismiss for Lack of Personal
Jurisdiction (ECF No. 11) be denied without prejudice to renew in accordance with this Court's
determination that the jurisdictional motion could not be decided without specific, limited
discovery, ordered to be undertaken by the parties.
It further recommended that the other
Defendants' (i.e., Akustica, Bosch N.A and Bosch LLC) Motion to Dismiss (ECF No.5) be
denied as moot as to Plaintiffs voluntarily withdrawn claims for violation of the Pennsylvania
Human Relations Act (the "PHRA"), 43 Pa. Cons. Stat. Ann. Section 955(a) et seq., and breach
of fiduciary duty; granted as to Plaintifrs third-party-beneficiary claim for breach of contract
against Akustica; and denied as to Plaintiff s claim for violation of the Age Discrimination in
Employment Act (the "ADEN'), 29 U.S.C. Section 623(a)(l), against the Defendants.
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Service was made on all counsel of record. The parties were informed that in accordance
with the Magistrate Judges Act, 28 U.S.C. § 636(b)(l)(B) and (C), and Rule 72.D.2 of the Local
Rules of Court, that they had fourteen (14) days to file any objections. Objections were filed to
the Report and Recommendation, along with an appeal from it, by all Defendants on March 20,
2013 (ECF No. 68, 69); Plaintiff filed a Response to the objections on April 3, 2013 (ECF No.
70, 71).
After reVIew of the pleadings and pertinent documents in the case, including the
Defendants' Objections to the Report and Recommendation, the Plaintiff's Response, and the
lengthy Report and Recommendation itself, the following Order is entered:
AND NOW, this 5th day of April, 2013, IT IS HEREBY ORDERED that Defendant
Bosch GmbH's Motion to Dismiss for Lack of Personal Jurisdiction (ECF No. 11) is denied
without prejudice to renew it in accordance with this Court's previous Orders and as set forth in
the Report and Recommendation.
IT IS FURTHER ORDERED that the remaining Defendants' Motion to Dismiss (ECF
No.5) are (a) denied as moot as to Plaintiffs voluntarily withdrawn claims for violation of the
Pennsylvania Human Relations Act (the "PHRA"), 43 Pa. Cons. Stat. Ann. Section 955(a) et
seq.; and breach of fiduciary duty, (b) granted as to Plaintiffs third-party-beneficiary claim for
breach of contract against Akustica, and (c) denied as to Plaintiff s claim for violation of the Age
Discrimination in Employment Act (the "ADEA"), 29 U.S.C. Section 623(a)(1), against the
Defendants.
IT IS FURTHER ORDERED that the Report and Recommendation of Chief Magistrate
Judge Lenihan dated March 6, 2013 is adopted as the Opinion of this Court, except as to that
portion of the Report and Recommendation set forth at pages 15 to 25 inclusive as relating to the
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inherent authority of the Equal Employment Opportunity Commission ("EEOC") to issue a
Notice of Reconsideration. The Court declines to adopt that portion of the Report and
Recommendation solely because the Court concludes that the Report and Recommendation's
analysis and conclusion that the 90-day filing period could be equitably tolled by the EEOC's
Notice ofIntent to Reconsider dated November 3, 2011 revoking its October 17, 2011 Notice of
Right to Sue followed by its Notice of Right to Sue dated February 3, 2012 is plainly correct. Ifit
is demonstrated that the timing of the filing of the Plaintiffs ADEA claim was affected by that
procedural two-step on the part of the EEOC, it would be fundamentally inequitable that such
tolling doctrine not apply in the specific circumstances of this case, given that its application
would be based specifically on the affirmative acts of the EEOC. See McCray v. Corry Mfg. Co.,
61 F. 3d 224, 226, n. 2.
Once the EEOC issued its Notice of Reconsideration and then its second Notice of Right
to Sue, the Plaintiff was in a position in which he could have justifiably relied upon that
communication from the federal agency charged with the administration and enforcement of the
ADEA, and this Court is simply not in a position at the Motion to Dismiss stage to conclude that
his filing of a lawsuit setting forth his claim under the ADEA was therefore untimely as a matter
of law. 1 Our Court of Appeals has cautioned that it is generally inappropriate to resolve a
plausible equitable tolling argument against a plaintiff at the Motion to Dismiss stage, especially
considering that the statute of limitations is an affirmative defense. See In re Community Bank of
Northern Virginia, 622 F. 3d 275,301-02 (3d Cir. 2010).
1 This is so whether the EEOC has the authority to reconsider its first Notice of Right to Sue or to thereafter issue its
second Notice of Right to Sue. The tolling doctrine is triggered by the impact of those Notices from the EEOC on
the actions of the Plaintiff, not by their validity.
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This is the case even when what is known as the "Third Circuit Rule" is applied, which
permits the assertion of a statute of limitations defense at the Motion to Dismiss stage when the
time alleged in the statement of the claim shows that the cause of action was not brought within
the statute of limitations. See Robinson v. Johnson, 313 F. 3d 128, 135 (3d Cir. 2002), cert.
denied, 540 U.S. 826 (2003). Here, that is not the case at all, as the Complaint, ECF No. 1, ~ 2,
pleads that this action was in fact instituted within the limitations period, calling into question
whether the Defendants can litigate their limitations defense at this stage of the proceedings in
the first instance. Rycoline Products, Inc. v. C&W Unlimited, 109 F.3d 883,886 (3d Cir. 1997).
As the Chief Magistrate Judge accurately noted in her Report and Recommendation, as a
general matter, a court may elect to consider omitted matters when it is apparent that the pleader
had notice of them at the time the Complaint was filed. ECF No. 64, at 15, n. 27. That said, the
obligation of the Court to consider the omitted EEOC procedural documents pre-dating the
February, 2012 Right to Sue Notice pled in the Complaint is not nearly as compelling as the
Defendants contend. The Plaintiff s Complaint is accurate in that the EEOC did issue a Right to
Sue notice on February 3,2012 and that the Plaintiff acted in accordance with it. Thus, the face
of the Complaint does not demonstrate that the assertion of the ADEA claim was untimely. If it
is untimely, it is only because, as the Defendants contend, the February, 2012 EEOC Notice has
no legal significance.
Plaintiff can hardly be taken to task for his reliance at the pleading stage on an actual
EEOC Right to Sue Notice. That he did not affirmatively anticipate and then rebut the defenses
to be raised by the Defendants (including one premised on the legal invalidity of the EEOC's
actions) does not strike the Court as falling short in his pleading duties. Also, holding him to the
pleading standard advocated by the Defendants would in effect expand what is a rather narrow
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exception embodied in the "Third Circuit Rule" by converting a permissible consideration of
matters stated on the face of the Complaint into a legal battle involving matters outside of and
collateral to the Complaint. Thus, the Defendants' contention that the Plaintiff was obligated to
demonstrate in his Complaint that the applicable limitations period was equitably tolled, ECF
No. 10 at 2, or that the EEOC's February, 2012 Notice of Right to Sue was valid, is without
merit. After all, the statute of limitations is a defense.
Whatever the Twiqbal rule, RHJ Med Ctr. Inc. v. City of DuBois, 754 F.Supp. 2d 723,
730 (W.D. Pa. 2010), stands for, it is not a direction, or invitation, for trial courts to in effect
decide the merits of a case at the pleadings stage, except in those limited cases in which the
Complaint facially demonstrates a lack of plausibility. See In re Ins. Brokerage Antitrust Litig.,
618 F. 3d 300,341 n. 42 (3d Cir. 2010); Grier v. Klem, 591 F.3d 672, 676 (3d Cir. 2010). When,
as here, the face of the Complaint does not reveal that the ADEA claim is time-barred, and a
plausible basis is then presented for the application of a tolling doctrine, the Chief Magistrate
Judge was quite correct in concluding that it would be inappropriate to resolve at the Motion to
Dismiss stage the contested application of that affirmative defense.
The Court therefore concludes that it is not necessary to the decision and judgment of the
Court to now reach or resolve those interpretive matters set forth at pages 15 to 25 inclusive of
the Report and Recommendation relating to the statutory, regulatory or inherent authority of the
EEOC to issue a Notice of Reconsideration as to a claim arising under the ADEA. It is sufficient
at this juncture to conclude that the Plaintiffs receipt of a Notice of Reconsideration from the
EEOC purporting to put a halt to his obligation to file his ADEA lawsuit within the ninety (90)
day period set out in the EEOC's first Notice of Right to Sue may equitably toll that ADEA
filing period.
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That is not to say that this issue may not become relevant at the summary judgment stage
of the proceedings. As the Chief Magistrate Judge cogently noted, the application of the
"inherent authority" doctrine to support the EEOC's power to issue a Notice of Reconsideration
necessarily involves balancing the tried and true principle that decisional bodies must have the
ability to reconsider their own decisions, particularly when that reconsideration comes within the
applicable limitations period, ECF No. 64 at 21, with the concern that such power not be
exercised in a fashion that allows for the avoidance of limitations periods or filing obligations
otherwise defined by statute. Id at 25.
As the Chief Magistrate Judge observed, it is a far different case when the EEOC would
purport to "reconsider" after the ninety-day filing period has expired, as opposed to the situation
here, where that action took place within the ninety-day window. At the same time, the Court
believes that before the EEOC could have the inherent authority to reconsider in a fashion that
would extend (rather than resurrect) that ninety-day period, it would have to be demonstrated
that the agency did, in fact, engage in "reconsideration". Otherwise, a limitations period
prescribed by Congress could be easily circumvented in the absence of the actual exercise of
agency discretion. See Report and Recommendation, ECF No. 64 at 23, n.42. Therefore, the
application of the "inherent authority" doctrine could also involve the resolution of a factual
issue as to the reality of reconsideration, making it inappropriate to conclusively resolve its
application at the Motion to Dismiss stage. In any event, the Court would not need to reach that
question at all, one involving significant interpretive and policy choices on which our Court of
Appeals has yet to weigh in, if the facts adduced in discovery support the applicability of the
equitable tolling doctrine. See Fowler v. UPMC Shadyside, 578 F. 3d 203, 213 (3d Cir. 2009)
(role of reasonably anticipated discovery).
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Therefore, as the Chief Magistrate Judge recommended, dismissal of Plaintiff's ADEA
claims now on statute of limitations grounds would be improvident.
Mark R. Hornak
United States District Judge
Dated: AprilS, 2013
cc:
All counsel of record (Via Electronic Mail)
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