FERRARACCIO v. GUARDIAN HOME AND COMMUNITY SERVICES, INC. et al

Filing 22

MEMORANDUM OPINION AND ORDER denying 12 Motion to Strike, and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 2/6/2015. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LINDA FERRARACCIO,

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Plaintiff,

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v.

CIVIL ACTION NO. 3:14-177

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GUARDIAN HOME AND
COMMUNITY SERVICES, Inc., a
subsidiary of GUARDIAN ELDER CARE
HOLDINGS, Inc.; GUARDIAN LITC
MANAGEMENT, INC., a Pennsylvania
corporation d/b/a/ GUARDIAN ELDER
CARE; AND GUARDIAN ELDER CARE,
INC., a Pennsylvania Corporation,

JUDGE KIM R. GIBSON

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Defendants.

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MEMORANDUM OPINION
I.

Introduction
Pending before the Court is Plaintiff's motion to strike portions of Defendants'

answer. (ECF No. 12). The issue this Court must decide is whether to grant Plaintiff's
motion to strike portions of Defendants' answer when Defendants responded "denied as
stated" to paragraphs 34, 39, 59, 62, 63, 66, 74, 76, 92, 94, 95-98, and 114 of the complaint.
Having reviewed the parties' briefs, the applicable Rules of Civil Procedure, and relevant
case law, this Court will deny Plaintiff's motion to strike, because Defendants' response,
"denied as stated," is sufficiently specific so that Plaintiff will have adequate notice of the
claims that are at issue so that she can prepare her case.

II.

Jurisdiction
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 over the

federal claims made under the Americans with Disabilities Act, the Age Discrimination in
Employment Act, and Section 504 of the Rehabilitation Act, and the Court has
supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over the state law clams made
under the Pennsylvania Human Relations Act. Venue is proper under 28 U.S.C. § 1391(b).

III.

Background
Plaintiff Linda Ferraraccio brought suit against Guardian Horne and Community

Services, Guardian LTC Management, Inc., and Guardian Elder Care, Inc. (collectively
"Defendants") pursuant to the Americans with Disabilities Act, the Age Discrimination in
Employment Act, Section 504 of the Rehabilitation Act, and the Pennsylvania Human
Relations Act. (ECF No. 1). In her complaint, Plaintiff alleges facts relating to her rate of
compensation, treatment required by Defendants, and conversations with Defendants'
employees. (Id. at ')[ 34, 39, 59, 62, 63, 66, 74, 76, 92, 94, 95-98, and 114). Specifically,
Plaintiff alleges:
34. In 2011, Plaintiff received a significant raise, from $20 per hour to
$22.95 per hour.

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39. Both Plaintiff's supervisor at [Defendant], Catherine Grove "Grove",
and Defendants' worker's compensation program required Plaintiff
to receive treatment at [DuBois Regional medical Center].

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59. On or about February 2, 2012, when Plaintiff's husband saw [Peter]
Varischetti [a shareholder, director, and office of Defendant],
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Varischetti told Plaintiff's husband that Plaintiff should have the
surgery and should not worry about her job because it would be
there when she returned.

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62. Thereafter, at a staff meeting, Plaintiff's condition was again
discussed and Catherine Grove announced that she could no longer
speak to Plaintiff because Plaintiff had hired a worker's
compensation attorney.
63. Plaintiff and her husband ran into Peter Varischetti on April 8, 2012
who again told Plaintiff that her job was waiting for her.

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66. Thereafter, and unknown to Plaintiff at that time, Grove contacted
[her doctor's office] and told him she could give Plaintiff sedentary
work if [her doctor] provided a sedentary work order.

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74. Grove told Plaintiff that she had not called her because Plaintiff
could not drive, and no sedentary job was available.

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76. Grove also told Plaintiff she could not speak to her because Plaintiff
had a lawyer.
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92. On or around May 24, 2012, Grove again refused to speak to Plaintiff
by telephone because Plaintiff had hired a worker's compensation
lawyer.

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94. On or around May 31, 2012, once again, Varischetti and Plaintiff's
husband met at a social setting, and again Varischetti told Plaintiff's
husband that Plaintiff's job was still available, and that the letter that
Plaintiff received saying Plaintiff was eligible for COBRA based on
her termination was just a formality and that Plaintiff was not
terminated.
95. Varischetti told Plaintiff's husband that a $200,000 reserve had been
set aside in Plaintiff's workers' compensation case.
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96. Varischetti also told Plaintiff's husband that she could call Mike
Long, Brian Rendos, the Chief Financial Officer of Guardian Elder
Care, Eddy J. lnzana, President and Chief Executive Officer of
Guardian Elder Care, and Catherine Grove.
97. Thereafter, Plaintiff again tried unsuccessfully to speak with Grove,
who again told Plaintiff that she could not speak to her because
Plaintiff had a worker's compensation attorney.
98. At Varischetti's suggestion, Plaintiff called Long, Rendo[s] and
Inzano but received no response.

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114. Because of the close personal relationship between Plaintiff,
Plaintiff's husband and Peter Varischetti, Defendants were aware
that Plaintiff was one of the oldest employees, that her medical bills
were high, and that her husband who was insured through health
insurance coverage with Defendants by virtue of Plaintiff's
employment, had a serious and costly medical condition.
In their answer to Plaintiff's complaint, Defendants' responded "denied as stated"
to each of these allegations. (ECF No. 10). Plaintiff subsequently filed a motion to strike
Defendants' answer to paragraphs 34, 39, 59, 62, 63, 66, 74, 76, 92, 94, 95-98, and 114 of the
complaint (hereinafter "relevant paragraphs") pursuant to Federal Rule of Civil
Procedure 12(f)(2). (ECF No. 12).
Plaintiff argues that Defendants' response, "denied as stated," to the relevant
paragraphs in the complaint does not comply with Rule 8(b).

(ECF No. 13 at 1-2).

Plaintiff argues that the response is ambiguous and impermissible under the Federal
Rules of Civil Procedure. (Id. at 2). Plaintiff reasons that she does not know what is being
denied or admitted in the relevant paragraphs because they are not fully denied, and, in
order to learn the facts behind Defendants' responses, she would have to use fifteen of the
twenty-five interrogatories allotted. (Id. at 2-3). In support of her argument, Plaintiff cites
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Lipton v. Ralston Purina Co., 670 F.2d 1024, 1030 (C.C.P.A. 1982), stating that" ... denials
must not be evasive. An answer which attempts to evade the pleading requirements of
Rule 8 by the tactic of an equivocal admission or denial is an admission." (Id. at 3). As
such, Plaintiff requests this Court to strike Defendants' answer to the paragraphs at issue
in the complaint pursuant to Rule 12(£)(2), and require Defendants to file an amended
answer consistent with Rule 8(b). (Id.). In the alternative, Plaintiff asks that the Court
treat the responses as admitted. (Id.).
Defendants argue that Plaintiff's motion to strike must be denied because
Defendants' responses have adequately denied the allegations in the relevant paragraphs
of the complaint in their entirety. (ECF No. 15 at 1). Defendants argue that:
Based on Plaintiff's mischaracterizations of those conversations and her
inability to accurately recall unplanned and fleeting interactions with
Catherine Grove and Peter Varischetti, over two years ago, Defendants
appropriately responded to those averments with "denied as stated;" an
answer which noted the deficiencies in Plaintiff's pleading,
acknowledged their inaccuracy, and denied those averments in their
entirety.
(Id.).

Further, Defendants argue that the relevant paragraphs of the complaint were

insufficiently pled under Rule 8, because they are unclear and argumentative. (Id. at 3).
Therefore, Defendants were "forced to differentiate their answer to those paragraphs as
Plaintiff focused on capturing the tone and tenor," of the conversations, "rather than their
substance." (Id.). Finally, Defendants argue that Plaintiff can follow up on any issues
through discovery, and that in discovery Plaintiff is not limited to the use of
interrogatories, but can also use "an unlimited [number of] request[s] for production of
documents." (Id. at 3-4).
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IV.

Standard of Review
Plaintiff has moved to strike portions of Defendants' answer pursuant to Rule

12(£)(2). (ECF No. 12). Under Rule 12(f)(2), on a motion made by a party either before
responding to the pleading or, if a response is not allowed, within 21 days after being
served with the pleading, this Court may strike an insufficient defense from a pleading.
Fed. R. Civ. P. 12(£). "The function of Rule 12(£) is to expedite the administration of
justice, and pursuant thereto a court will delete allegations that are not responsive, but an
entire defense should not be eliminated unless it grossly violates the requirements of Rule
8 relating to the general rules of pleading." SA Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure§ 1380, n.30 (3d ed. 2004) (citing American Mach. & Metals,

Inc. v. De Bothezat Impeller Co., 8 F.R.D. 306 (D.C. N.Y.1948). The standard to strike under
Rule 12(£) is strict. In re Cantanella and E.F. Hutton and Co., Inc. Securities Litigation, 583 F.
Supp. 1388, 1400 (E.D. Pa. 1984). "Even where the challenged material is redundant,
immaterial, impertinent, or scandalous, a motion to strike should not be granted unless
the presence of the surplusage will prejudice the adverse party." Pennington v. Wells Fargo

Bank, N.A., 947 F. Supp. 2d. 529, 534 (E.D. Pa. 2013) (internal citations omitted).

V.

Discussion
The issue raised by the parties-whether the response "denied as stated" is

sufficient to satisfy the pleading requirements of Rule 8(b) and survive a plaintiff's Rule
12(£)(2) motion to strike-is a matter of first impression for this Court. Rule 8(b) governs
the general rules of pleading for admissions and denials. Fed. R. Civ. P. 8(b). In general,

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Rule 8(b) requires that, in response to a pleading, a party must "state in short and plain
terms its defense to each claim asserted against it; and admit or deny the allegations
asserted against it by an opposing party." Fed. R. Civ. P. 8(b)(l)(A), (B). A denial of an
allegation made by the opposing party must fairly respond to the substance of the
allegation. Fed. R. Civ. P. 8(b)(2). In addition, a party that "intends in good faith to deny
only part of an allegation must admit the part that is true and deny the rest." Fed. R. Civ.
P. 8(b)(4).
Rule 8(b) is intended to inform the pleader how to challenge and place in issue the
allegations in the previous pleading. SA Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure §1380 (3d ed. 2004). Together, Rule 8(b) and 8(d) require that a
defendant's responsive pleading make the plaintiff aware of the "allegations in the
complaint that stand admitted and will not be in issue at trial and those that are contested
and will require proof to be established to enable the plaintiff to prevail." Id. As with
complaints, "plain notice" of the issues raised by the defendants is all that is required
under the federal rules. Id. If an answer is not sufficiently definite to give the plaintiff
reasonable notice of the allegations that are to be at issue, the answers may be treated as
admitted. Id.
In this case, Defendants' response, "denied as stated," satisfies the requirements of
Rule 8 because the responses put Plaintiff on notice that the allegations in the relevant
paragraphs of the complaint are contested. Defendants' denial effectively alerts Plaintiff
that the allegations in the relevant paragraphs are denied and that Plaintiff will be
required to provide evidence as to those claims. In addition, the fact that Defendants
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responded "denied," rather than "denied as stated," to other allegations in the complaint
is of no consequence. For, the particular language or form of the specific denial is not
important as long as it is clear which allegations are being negated and which are not. 5A
Charles A Wright & Arthur R. Miller, Federal Practice and Procedure § 1266 (3d ed.
2004).
This issue was briefly considered by the U.S. Bankruptcy Court for the Eastern
District of Pennsylvania. See In re Supermarkets of Cheltenham, 1999 WL 260956, *6 n. 16
(Bankr. E.D. Pa. 1999). In Cheltenham, the Bankruptcy Trustee, similar to Plaintiff in the
present case, argued that the defendant's answer of "denied as stated" did not sufficiently
deny the allegations and that the answers therefore effectively "admitted the substance of
the allegations."

Id.

The bankruptcy court disagreed and noted that, unlike in

Pennsylvania state court practice, general denials, such as "denied as stated," are
permitted in federal pleading practice. Id.
Plaintiff also argues that if the relevant paragraphs of the answer are not stricken,
then she will be required to use at least fifteen of her twenty five interrogatories to obtain
"information that should have been provided by Defendants' responses." (ECF No. 13).
However, despite Plaintiff's argument that she is prejudiced by the Defendants' responses
to the relevant paragraphs, Plaintiff will nonetheless be able to acquire additional
information in discovery. Further, Plaintiff is not limited to the use of interrogatories.
Plaintiff can depose Defendants' employees about the relevant conversations and submit
requests for production of documents.

In addition, Plaintiff can submit requests for

admission regarding the relevant conservations, to which Defendants must provide
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specific answers. See Guinan v. A.I. duPont Hasp. for Children, 2008 WL 938874, *2 (E.D. Pa.
2008). Therefore, Plaintiff has not demonstrated prejudice as a result of Defendants'
responses of "denied as stated" to the relevant paragraphs of the complaint.

VI.

Conclusion
For the foregoing reasons, this Court will deny Plaintiff's motion to strike

Defendants' answer to paragraphs 34, 39, 59, 62, 63, 66, 74, 76, 92, 94, 95-98, and 114 of the
complaint, because the answer "denied as stated" sufficiently alerts Plaintiff that the
issues will be contested and Plaintiff has not demonstrated prejudice.
responses of "denied as stated" will be treated as denials.
An appropriate order follows.

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Defendants'

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LINDA FERRARACCIO,

)

)

Plaintiff,

)

)

v.

CIVIL ACTION NO. 3:14-177

)
)

GUARDIAN HOME AND
COMMUNITY SERVICES, Inc., a
subsidiary of GUARDIAN ELDER CARE
HOLDINGS, Inc.; GUARDIAN LITC
MANAGEMENT, INC., a Pennsylvania
corporation d/b/a/ GUARDIAN ELDER
CARE; AND GUARDIAN ELDER CARE,
INC., a Pennsylvania Corporation,

JUDGE KIM R. GIBSON

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Defendants.

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ORDER
AND NOW, this 6th day of February 2015, upon consideration of Plaintiff Linda
Ferraraccio' s motion to strike portions of Defendants' answer (ECF No. 12), and for the
reasons set forth in the accompanying memorandum,
IT IS HEREBY ORDERED that Plaintiff Linda Ferraraccio' s motion to strike
portions of Defendants' answer is DENIED.

BY THE COURT:

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KIM R. GIBSON
UNITED STATES DISTRICT JUDGE