SILLA v. ONE THREE FIVE, INC. et al

Filing 60

MEMORANDUM OPINION & ORDER granting in part and denying in part 30 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, MOTION to Enforce Settlement Agreement filed by ALBERT BORTZ, ONE THREE FIVE, INC. and treated as a motion for summary judgment, denying 43 Motion to Strike Plaintiff's Responsive Concise Statement of Material Facts filed by ONE THREE FIVE, INC. Signed by Magistrate Judge Robert C. Mitchell on 3/25/2019. (spc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
REJEANA SILLA,
Plaintiff,

)
)
)
v.
)
)
ONE THREE FIVE, INC., doing business as )
BLUSH, et al.
)
Defendants.
)

Civil Action No. 17-1393
Magistrate Judge Robert C. Mitchell

OPINION
Presently pending before the Court is a third motion to dismiss the pro se amended
complaint (ECF No. 30), with brief in support (ECF No. 31), filed by defendants, One Three Five,
Inc., doing business as, Blush Gentleman’s Club (Blush), and Albert Bortz (Bortz), collectively,
Defendants. Because resolution of this issue requires the Court to go beyond the amended
complaint, the Court converted the motion into a motion for summary judgment (ECF No. 34).
Plaintiff ReJeana Silla (Silla) has filed a response (ECF No. 37). Also before the Court is a motion
to strike Silla’s responsive concise statement of material facts (ECF No. 43). For the reasons that
follow, the Court will deny the motion to strike and grant in part Defendants’ motion for summary
judgment.

Relevant Factual and Procedural History
Silla began working as an exotic dancer at Blush in 2005 (ECF No. 13, ¶18). During her
time as a dancer, Silla alleges she was subjected to harassment by Defendants and their employees,
culminating in a mental breakdown in November of 2015. While she was suffering her mental
breakdown, Silla alleges she was sexually assaulted by a former employee of Blush. Silla was
eventually hospitalized. Silla alleges that she was forced to authorize Defendants’ access her

medical records as a condition of her promised re-hiring. The content of those records was made
available to other dancers, who continued their pattern of harassment. Silla returned to work, but
took an approved leave of absence. Shortly thereafter, in February of 2016, her employment with
Blush was terminated.
While the above events were unfolding, a class action lawsuit alleging violations of the
FLSA, the PMWA, and the WPCL was brought against Blush in the United States District Court
for the Western District of Pennsylvania by Katisha Correll on behalf of herself and all other exotic
dancers who performed at Blush between November 8, 2010 and the date of the entry of the
settlement agreement, December 4, 2015. Pursuant to the settlement agreement reached in that
case, the class members agreed to a release of certain federal and state law claims arising out of or
related to the subject matter of the lawsuit. See Correll v. One Three Five, Inc. 2:13-cv-1610 (W.D.
Pa.).
Following her termination, Silla initiated this action in October of 2017, alleging that she
had been fired in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101, et
seq. and Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. 1981, et seq. In addition,
Silla raised claims challenging her classification as an independent contractor and seeking
damages related to Blush’s alleged failure to pay overtime pursuant the Fair Labor Standards Act
(FLSA), 29 U.S.C. § 201 et seq.; the Pennsylvania Minimum Wage Act (PMWA), 43 P.S.
§ 333.101, et seq.; and the Pennsylvania Wage Payment & Collection Law (WPCL), 43 P.S.
§ 260.1, et seq. (ECF No. 13). Silla also raised a number of related state court claims, including
invasion of privacy, breach of contract, fraud, unjust enrichment, and negligence (Id.)

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On February 9, 2018, Defendants filed a motion to dismiss the amended complaint, (ECF
No. 16), which was denied in part and granted in part by memorandum opinion and order of this
Court on June 26, 2018 (ECF No. 21).
On October 1, 2018, Defendants filed another motion to dismiss, (ECF No. 30), alleging
that the claims raised in Silla’s amended complaint were barred by the class action settlement
agreement adopted in Correll. This motion was converted into a motion for summary judgment,
and Silla filed a number of responsive pleadings, including a concise statement of material facts
(ECF No. 39), which Defendants have moved to strike (ECF No. 43).
This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. The parties
have consented to proceed before the undersigned pursuant to 28 U.S.C. § 636(c). (ECF No. 7, 9).

Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure provides that:
[a] party may move for summary judgment, identifying each claim or defense—or
the part of each claim or defense—on which summary judgment is sought. The
court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law. The court should state on the record the reasons for granting or denying the
motion.
Fed.R.Civ.P. 56(a).
The moving party bears the initial burden of identifying evidence which demonstrates the
absence of a genuine issue of material fact. Once that burden has been met, the non-moving party
must set forth “specific facts showing that there is a genuine issue for trial” or the factual record
will be taken as presented by the moving party and judgment will be entered as a matter of law.
Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). For the purposes
of summary judgment, “[a] material fact is ‘[a] fact[ ] that might affect the outcome of the suit
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under the governing law.’” Haybarger v. Laurence Cnty. Adult Prob. & Parole, 667 F.3d 408, 412
(3d Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). For an issue
to be genuine, “all that is required is that sufficient evidence supporting the claimed factual dispute
be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.”
(Id.) (quoting Anderson, 477 U.S. at 248-49).
In resolving a motion for summary judgment, a court must take the facts in the light most
favorable to the non-moving party, and must draw all reasonable inferences and resolve all doubts
in that party’s favor. Hugh v. Butler County Family YMCA, 418 F.3d 265, 266 (3d Cir. 2005);
Doe v. County of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001).

Discussion
I.

Defendants’ Motion to Strike (ECF No. 43)

Rule 12(f) of the Federal Rules of Civil Procedure, which governs motions to strike
pleadings, serves a specific and narrow purpose and provides, in part, that:
(f) Motion to Strike. The court may strike from a pleading an insufficient defense
or any redundant, immaterial, impertinent, or scandalous matter.
Fed. R. Civ. P. 12(f).1
“The purpose of a motion to strike is to clean up the pleadings, streamline litigation, and
avoid unnecessary forays into immaterial matters.” Simmons v. Simpson House, Inc., 224 F. Supp.
3d 406, 421 (E.D. Pa. 2016) (quotation and citation omitted). “Relief under Rule 12(f) is generally
disfavored and will be denied unless the allegations have no possible relation to the controversy
and may cause prejudice to one of the parties, or if the allegations confuse the issues in the case.”

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Defendant’s motion, which was filed within 21 days of service of Silla’s concise statement, is
timely. Fed. R. Civ. P. 12(f)(2).
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Id. (quotation and citation omitted). “Indeed, striking a pleading is a drastic remedy to be resorted
to only when required for the purposes of justice and should be used sparingly.” Spiess v. Pocono
Mountain Reg’l Police Dep’t, No. 3:10CV287, 2011 WL 662977, at *1 (M.D. Pa. Feb. 14, 2011)
(citation and internal quotation marks omitted).
Here, Defendants seek to strike the entirety of Silla’s concise statement and all attachments
thereto on the basis that the filing contains speculative information regarding Silla’s involvement
in the Correll litigation (ECF No. 44). The challenged averments are arguably relevant to the
question of whether Silla is bound by the settlement agreement entered in Correll, the central
premise of the motion at issue. Because the information has direct bearing on the issues herein,
and given that such motions are generally disfavored, Defendants’ motion will be denied.

II.

Defendants’ Motion for Summary Judgment (ECF No. 43)

In their motion, Defendants ask this Court to dismiss Silla’s amended complaint in its
entirety on the basis that the claims raised therein are specifically barred by the release contained
in the Correll settlement agreement. In response, Silla argues that Defendants have waived this
defense by failing to include it in their answer (ECF No. 47, pg. 2). Further, Silla alleges that she
is not bound by the terms of the settlement agreement because of defective notice (Id. at 3). Finally,
she argues that even if this Court finds the settlement terms binding upon her, certain of her claims
which are unrelated to the subject matter of the Correll suit survive Defendants’ motion (Id.)

a. Waiver
Federal Rule of Civil Procedure 8(c) requires a party responding to a pleading to raise in
its answer all enumerated affirmative defenses, including “release” Fed.R.Civ.P. 8(c). As Silla

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points out, Defendants’ answer to the amended complaint failed to include the Correll release as
an affirmative defense (ECF No. 22).
Nonetheless, this Court cannot conclude that Defendants’ omission results in waiver. The
purpose of requiring a defendant to plead available affirmative defenses in its answer is to “avoid
surprise and undue prejudice by providing the plaintiff with notice and the opportunity to
demonstrate why the affirmative defense should not succeed.” Robinson v. Johnson, 313 F.3d 128,
134–35 (3d Cir.2002) (citing Blonder–Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313
(1971)). Instantly, Silla was aware of the Correll case, having referenced it in her amended
complaint (ECF No. 13, pg. 45), Further, although she objects to the pleading defect, she has not
alleged that she was prejudiced by Defendants’ untimely assertion. Indeed, she has been given
notice and an opportunity to respond to Defendants assertion of the release as an affirmative
defense. Accordingly, this Court is constrained to conclude that waiver is inappropriate under the
circumstances.

b. Notice
In her response in opposition to Defendants’ motion for summary judgment, Silla argues
that she cannot be bound by the terms of the Correll settlement agreement because her notice of
the class action lawsuit was defective (ECF No. 47, pg. 10-12). Specifically, she alleges that the
class notice intended for her misspelled her name and was sent to the wrong address, despite Blush
having the correct address on file (Id.)
Federal Rule of Civil Procedure 23(e)(1)(B) requires the court to direct notice in a
reasonable manner to “all class members who would be bound by a proposed settlement, voluntary
dismissal, or compromise” Fed. R. Civ. P. 23(e)(1)(B). Specifically, “the court must direct to class

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members the best notice that is practicable under the circumstances, including individual notice to
all members who can be identified through reasonable effort” (Id.) As the Third Circuit has
recognized,” Rule 23 does not require actual notice to all potential class members” City Select
Auto Sales Inc. v. BMW Bank of N. Am. Inc., 867 F.3d 434, 445 (3d Cir. 2017). Indeed, courts
interpreting this Rule have held that “notice to the last known address, as well as notice to an
incorrect address where the defendant had been notified of the correct address, met the due process
requirement of notice through reasonable effort.” See In re Prudential Ins. Co. of Am. Sales
Practices Litig., 177 F.R.D. 216, 238 (D.N.J. 1997) (collecting cases). Accordingly, Silla’s
argument that she did not actually receive notice is unavailing.

c. Whether Silla is bound by the terms of the Correll release
On February 4, 2014, the district court conditionally certified litigation as a collective action
and issued notices to putative collective action members. Subsequently, on December 4, 2015, the
parties filed a joint motion to approve an attached class and collective settlement agreement. That
agreement defined “class member” as “all persons who meet one or both of the definitions of FLSA
Collective or State Law Class” as those terms were defined in the agreement (Id. at ¶ 19). The
document defines the FLSA Collective as “all individuals … who submitted consents to join the
collective action and who were not later dismissed, and are identified in Exhibit D, hereto, which
identifies each and every member of the FLSA Collective which shall control to identify such
persons” (Id. at ¶ 31). It is undisputed that Silla did not consent to join the collective action and is
therefore not a member of the FLSA Collective.
The State Law Class is defined as “Plaintiff Katisha Correll and all members of the FLSA
Class who worked at [Blush] at any time between November 8, 2010 to [December 2015], and

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who are not FLSA Opt-In Plaintiffs” (Id. at ¶ 48). The “FLSA Class means the class of persons
certified by the Court as conditionally permitted to join the collective action under the FLSA” (Id.
at ¶ 30). Silla, by virtue of the timing of her employment with Blush, qualifies as member of the
FLSA class. As it is undisputed that she did not opt in to the FLSA collective, she is a member of
the State Law Class.
The “Final Settlement Class refers to all Class Members who do not timely and validly
exclude themselves from the Settlement consistent with the exclusion procedures set forth in this
Settlement Agreement” (Id. at ¶ 29). It is undisputed that Silla did not seek to exclude herself from
the settlement. Accordingly, this Court is constrained to conclude that she is bound by the
provisions of the settlement agreement, including the release provisions.
The following definitions are relevant.
The “Released Parties” means the same as “Blush,” or “Defendant” and
include Blush’s present and former parent companies, subsidiaries, affiliated
entities, shareholders, owners, officers, directors, employees, agents, attorneys,
insurers, and successors and assigns.
“Released State Law Claims” means any and all applicable state and local
law claims, obligations, demands, actions, rights, causes of action, and liabilities
against the Released Parties, of whatever kind and nature, character and description,
whether known or unknown, and whether anticipated or unanticipated, that were
asserted in, arise out of, or are related to the subject matter of this Litigation.
The Released State Law Claims include but are not limited to claims meeting the
above definition under all applicable statutes, regulations or common law. The
Parties stipulate and agree only for purposes of this Agreement that the Court has
jurisdiction over all applicable state and local law claims pursuant to 28 U.S.C. §
1332(d).
“Released Federal Law Claims” means any and all federal law claims,
obligations, demands, actions, rights, causes of action, and liabilities against the
Released Parties, of whatever kind and nature, character and description, whether
known or unknown, and whether anticipated or unanticipated, that were asserted
in, arise out of, or are related to the subject matter of this Litigation. The
Released Federal Law Claims include but are not limited to claims meeting the
above definition under all applicable statutes, regulations or common law.

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Id. at ¶¶ 39-41 (emphasis added).
The release itself provides as follows.
Upon Final Approval and in consideration of obligations as set forth in this
Agreement, the Class Members, on behalf of themselves and each of their heirs,
executors, administrators, representatives, successors, assigns, and attorneys, and
all persons who may have a cause of action through them, shall be deemed to
unconditionally, irrevocably, completely and forever release and discharge all
Released State Law Claims. In addition, upon Final Approval, the Named Plaintiff,
Class Members who are Claimants, and the FLSA Opt-In Plaintiffs shall be deemed
to unconditionally, irrevocably, completely and forever release and discharge all
Released State Law Claims and all Released Federal Law Claims. Class Members
may hereafter discover facts in addition to or different from those they now know
or believe to be true with respect to the subject matter of the Released State Law
and Released Federal Law Claims. However, on Final Approval (and to the extent
provided for in this paragraph), Class Members who are Claimants shall be deemed
to have, and by operation of the Final Judgment fully, finally, and forever settled
and released any and all of the Released State Law and Released Federal Law
Claims, whether known or unknown, suspected or unsuspected, contingent or
noncontingent, which now exist, or heretofore have existed, upon any theory of law
or equity now existing or coming into existence in the future, including, but not
limited to, conduct that is negligent, intentional, with or without malice, or a breach
of any duty, law or rule, without regard to the subsequent discovery or existence of
such different or additional facts which are released by this Agreement. This release
includes but is not limited to any and all claims based upon the Civil Rights Act of
1886, 1871, 1964, and 1991; 42 U.S.C. Section 1981; the Age Discrimination in
Employment Act; the Fair Labor Standards Act; the Equal Pay Act; the Employee
Retirement Income Security Act; the Americans with Disabilities Act; the Family
and Medical Leave Act; the National Labor Relations Act; the Immigration Reform
and Control Act of 1986; the Worker Adjustment Retraining and Notification Act;
the Occupational Safety and Health Act; the Consolidated Omnibus Budget
Reconciliation Act; the Pennsylvania Civil Rights Act; Pennsylvania Minimum
Wage Act (PMWA), Pennsylvania Wage Payment and Collection Law (WPCL);
Pennsylvania’s Worker Compensation Statute; the Pennsylvania Whistle- Blower’s
Act; and any all amendments to said laws; and any other statutory, common law,
or public policy claim, whether in tort (including without limitation any claim for
assault, battery, intentional infliction of emotional distress, invasion of privacy,
negligence, or negligent hiring, retention, or supervision) or contract; whether
federal, state, or local; whether in law or in equity; whether of any type whatsoever
from the beginning of the world to the effective date of this Agreement. This
complete release additionally includes, without limitation, any and all claims for
attorney’s fees, costs, and expenses.
***

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Each Class Member who has not submitted a valid Request for Exclusion
forever agrees that she shall not institute any action seeking, nor accept, back pay,
overtime premiums, penalties, liquidated damages, punitive damages, penalties of
any nature, attorneys’ fees and costs, or any other relief from any other suit, class
or collective action, administrative claim or other claim of any sort or nature
whatsoever against Released Parties, for any period through the Preliminary
Approval Date, arising from any claims released in this Agreement, with the
understanding that only the Named Plaintiff, Class Members who are Claimants,
and the FLSA Opt-In Plaintiffs shall be deemed to have released the Released
Federal Law Claims pursuant to this Agreement. This release shall become
effective at such time as Defendant has complied with all of its obligations pursuant
to the Settlement Agreement.
Id. at ¶¶ 85, 87).
Even when viewed in the light most favorable to Silla as the non-moving party, the terms
of the settlement agreement in Correll act to bar Silla’s claims pursuant to the FLSA, PMWA, and
the state law claims related thereto. Accordingly, this Court will grant Defendants’ motion for
summary judgment as to Count VI as it relates to the Equal Pay Act, Count VII, Count IX, Count
X, and Count XI.
However, as the settlement agreement defines released claims as those having been
“asserted in, aris[ing] out of, or are related to the subject matter of” the Correll litigation, Silla’s
remaining claims under the ADA and the state law claims stemming from her allegations of
harassment and disability discrimination will survive Plaintiff’s motion.

Conclusion
For the foregoing reasons, this Court will deny Defendants’ motion to strike (ECF No. 43).
The Court will grant Defendants’ motion for summary judgment (ECF No. 30) as to Count VI as
it relates to the Equal Pay Act, Count VII, Count IX, Count X, and Count XI. The remainder of
that motion is denied in its entirety. An appropriate order follows.

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Dated: March 25, 2019

/s/ Robert C. Mitchell
ROBERT C. MITCHELL
United States Magistrate Judge

Cc: record counsel via CM-ECF

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
REJEANA SILLA,
Plaintiff,

)
)
)
v.
)
)
ONE THREE FIVE, INC., doing business as )
BLUSH, et al.
)
Defendants.
)

Civil Action No. 17-1393
Magistrate Judge Robert C. Mitchell

ORDER
AND NOW, to-wit, this 25th day of March, 2019, for the reasons stated in the Opinion
filed contemporaneously herewith, it is hereby ORDERED that Defendants’ Motion to Strike (ECF
No. 43) is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss Pro Se Amended
Complaint (ECF No. 30) is GRANTED IN PART and DENIED IN PART as follows:
a. The motion is GRANTED as to
1. the allegations of Equal Pay Act violations in Count VI of the amended
complaint;
2. Count VII
3. Count IX
4. Count X
5. Count XI
b. The motion to is DENIED as to Count I, Count II, Count III, Count V, Count VI as it
relates to Silla’s claims of harassment and hostile work environment, Count VIII, and Count XII.
/s/ Robert C. Mitchell
ROBERT C. MITCHELL
United States Magistrate Judge

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Cc: record counsel via CM-ECF

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