HAY v. SOMERSET AREA SCHOOL DISTRICT
MEMORANDUM OPINION & ORDER - upon consideration of Third-Party Defendant's Motion to Strike Complaint to Join Third-Party Defendant (ECF No. 29 ), and in accordance with the foregoing Memorandum Opinion, it is hereby Ordered that Third-Party De fendant's motion is GRANTED. Accordingly, Defendant's Third-Party Claim against the Third-Party Defendant IS HEREBY DISMISSED with prejudice, and as more fully stated in said Memorandum Opinion & Order. Signed by Judge Kim R. Gibson on 10/31/2017. (dlg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Case No. 3:16-cv-229
JUDGE KIM R. GIBSON
SOMERSET AREA SCHOOL DISTRICT,
Before the Court is Third-Party Defendant Stephen Shaffer's Motion to Strike, which this
Court construes as a motion to dismiss. 1 (ECF No. 29.) The motion has been fully briefed (see ECF
Nos. 30, 32, 33, 35) and is ripe for disposition. For the reasons that follow, Third-Party Defendant
Schaffer's motion will be GRANTED.
While the motion is titled "Motion to Strike," in this Court's determination it is more properly described
as a motion to dismiss. Specifically, each sub-heading is labeled "Motion to Dismiss," followed by the
reasons Shaffer believes this Court should grant the requested relief. (See ECF No. 29.) Moreover, Shaffer
concludes his brief by asking that this Court enter an order "dismissing [SASD's] Complaint to Join Third
Party Defendant. .. ". (Id. at 7.) The headings in Shaffer's reply brief (ECF No. 33) are similarly labeled
"Motion to Dismiss," and Schaffer also avers therein that "SASD's third party complaint should be
dismissed with prejudice ... ". (Id. at 11.) Therefore, this Court will construe Shaffer's "Motion to Strike"
(ECF No. 29) as a motion to dismiss.
This Court has jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. § 1983. Venue is proper
under 28 U.S.C. § 1391.
Plaintiff initiated this civil rights action by filing a complaint in this Court on November
1, 2016. (ECF No. 1.) Plaintiff alleges that Defendant Somerset Area School District ("SASD")
acted with deliberate indifference towards inappropriate sexual conduct by Stephen Shaffer, a
former teacher, causing Plaintiff to be sexually abused while she was a student. Plaintiff asserts
two claims against SASD: (1) a 42 U.S.C. § 1983 claim for deliberate indifference to Plaintiff's
constitutional right of bodily integrity, and (2) a Title IX, 20 U.S.C. § 1681 claim for subjecting
Plaintiff to a hostile educational environment.
Defendant filed its answer on December 13, 2016. (ECF No. 9.) On January 31, 2017,
Defendant filed a Motion for Leave to File Complaint to Join Third-Party Defendant Stephen
Shaffer (ECF No. 14), which this Court granted. (ECF No. 15.) SASD subsequently filed a ThirdParty Complaint against Shaffer. (ECF No. 23.) Shaffer now asks this Court to dismiss him as a
third-party defendant. (See ECF No. 29).
A complaint may be dismissed under Federal Rule of Civil Rule 12(b)(6) for "failure to
state a claim upon which relief can be granted." Connelly v. Lane Const. Corp., 809 F.3d 780, 786
(3d Cir. 2016). But detailed pleading is not generally required. Id. The Rules demand only "a
short and plain statement of the claim showing that the pleader is entitled to relief" in order to
give the defendant fair notice of what the claim is and the grounds upon which it rests. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2)).
Under the pleading regime established by Twombly and Iqbal, a court reviewing the
sufficiency of a complaint must take three steps. 2 First, the court must "tak[e] note of the elements
[the] plaintiff must plead to state a claim." Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). Second, the
court should identify allegations that, "because they are no more than conclusions, are not
entitled to the assumption of truth." Id. at 679; see also Burtch v. Milberg Factors, Inc., 662 F.3d 212,
224 (3d Cir. 2011) ("Mere restatements of the elements of a claim are not entitled to the assumption
of truth." (citation omitted)). 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." Iqbal, 556 U.S. at 679. "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." Id.; see also Connelly, 809 F.3d at 786. Ultimately, the
plausibility determination is "a context-specific task that requires the reviewing court to draw on
its judicial experience and common sense." Iqbal, 556 U.S. at 679.
Shaffer asserts four arguments for why this Court should grant his motion to dismiss
SASD's Third-Party Complaint. (See ECF No. 29.) 3 Shaffer argues that: (1) SASD failed to state a
Although Iqbal described the process as a "two-pronged approach," Iqbal, 556 U.S. at 679, the Supreme
Court noted the elements of the pertinent claim before proceeding with that approach, Id. at 675-79. Thus,
the Third Circuit has described the process as a three-step approach. See Connelly, 809 F.3d at 787; Burtch v.
Milberg Factors, Inc., 662 F.3d 212, 221 n.4 (3d Cir.2011) (citing Santiago v. Warminster Township, 629 F.3d 121,
3 ECF No. 29 lacked page numbers. The Court's references to specific page numbers are based on its own
pagination starting with the number "1" on the first page.
proper third-party claim (Id. at 6-7); (2) SASD improperly failed to seek leave of the Court before
filing its Third-Party Complaint (Id. at 2) 4; (3) SASD untimely filed its Third-Party Complaint (Id.
at 3); and (4) SASD's Third Party Complaint confuses the issues. (Id. at 4-5.)s
As explained below, this Court agrees with Shaffer that SASD failed to state a viable thirdparty claim. Therefore, this Court need not address Shaffer's remaining arguments.
A. SASD Failed to State a Viable Third-Party Claim
Shaffer argues that this Court should dismiss SASD's third-party claim for contribution.
Shaffer contends that the statues that Plaintiff sued under-§ 1983 and § 1861-do not provide
for contribution as a remedy. (See ECF No. 33 at 6.) Shaffer also contends that the federal common
law does not permit a plaintiff to seek contribution on civil rights claims. (Id.) Shaffer further
asserts that SASD has not brought a proper third-party claim because SASD's Third-Party
Complaint fails to establish that Shaffer and SASD are joint tortfeasors, as is required for
contribution under Pennsylvania law. (Id. at 8.)
In response, SASD argues that it has filed a proper third-party claim against Shaffer. SASD
asserts that that Third Circuit recognizes a right to contribution in civil rights actions. (ECF No.
35 at 4.) According to SASD, contribution and/or indemnification is appropriate here because
SASD is only liable to Plaintiff due to its relationship as Shaffer's employer; any liability against
SASD is secondary because SASD cannot be held liable absent a finding that Shaffer engaged in
the alleged conduct. (ECF No. 30 at 5.) Overall, SASD contends that this is the "classic" and
While Schaffer advanced this argument in his Motion to Strike (ECF No. 29), he later acknowledged that
Plaintiff did in fact ask this Court for leave to file its Third-Party Complaint. (See ECF No. 32 at 2.)
5 While these arguments are not stated in this order in Schaffer' s brief, the Court has reordered them here
because resolution of what this Court has described as Schaffer's first argument will render the rest of
Schaffer' s arguments moot.
"textbook" example of a situation where contribution and/or indemnification are appropriate.
(ECF No. 30 at 5; ECF No. 35 at 4.)
1. There is no federal right to contribution in§ 1983 cases
District Courts in the Third Circuit disagree about whether contribution is available in
civil rights cases. This disagreement stems from the Third Circuit's decision in Miller v. Apartments
& Homes of New Jersey, Inc., 646 F.2d 101 (3d Cir. 1981). In Miller, the plaintiffs brought racial
discrimination claims under the Fair Housing Act and 42 U.S.C. § 1982. Id. at 104. The plaintiffs
sued several defendants, some of whom settled before trial. Id. The claims against the remaining
defendants proceeded to a bench trial, where the court found for the plaintiffs and awarded
damages. Id. The Third Circuit held that "in federal civil rights cases, where one or more
defendants have settled with a plaintiff, the damages recoverable by that plaintiff shall be reduced
by the amount of the settlement received." Id. at 110. In reaching this holding, the Miller panel
relied on Gius v. G.C. Murphy Co., 629 F.2d 248 (3d. Cir. 1980), where the Third Circuit recognized
an implied right to contribution based on "federal common law." Id. at 107. Relying on Glus,
Miller recognized an implied right to contribution based on federal common law; the Miller panel
stated that "[n]othing in this case suggests that a different result [from Glus] should follow in civil
rights cases." Id.
In what a recent Pennsylvania District Court appropriately called "some unfortunate
timing," 6 Miller was issued just two days after the Supreme Court's decision in Northwest Airlines,
Inc. v. Transport Workers Union of America, 451 U.S. 77 (1981). In Northwest Airlines, the Court
Kohn v. Sch. Dist. of City of Harrisburg, No. 1:11-CV-109, 2012 WL 3560822, at *2 (M.D. Pa. 2012).
clarified that federal courts have limited powers to create federal common law; the Court
emphasized that "federal courts, unlike their state counterparts, are courts of limited jurisdiction
that have not been vested with open-ended lawmaking powers." Id. at 95 (internal citations
omitted). The Court then examined the instances where federal courts have the power to create
federal common law; first, when faced with "[b ]roadly worded constitutional and statutory
provisions" that lack "concrete meaning" absent judicial interpretation in "the common law
tradition," id., and second, in "cases raising issues of uniquely federal concern, such as the
definition of the rights or duties of the United States, or the resolution of interstate controversies."
Id. The Supreme Court cited admiralty law one "narrow exception to the limited lawmaking role
of the federal judiciary ... ". Id.
In Northwestern Airlines, the Court held that the federal common law did not provide for
a right of contribution in cases brought under Title VII or the Equal Pay Act. Id. at 94-95. In
reaching this decision, the Court specifically rejected Glus as an instance of a lower federal court
failing to recognize that "no such general federal right [to contribution] has been recognized" by
the Supreme Court. Id. at 77. Accordingly, the Court vacated Glus and remanded the case to the
Third Circuit "for further consideration in light of Northwest Airlines." Retail, Wholesale & Dep't
Store Union, AFL-CIO v. G.C Murphy Co., 451 U.S. 935 (1981). "On remand, the Third Circuit
recognized that Title VII did not permit contribution claims, thus removing the foundation upon
which Miller relied." Bank v. City of Philadelphia, 991 F. Supp. 2d 523, 538 (E.D. Pa. 2014) (citing
G.C. Murphy Co., 654 F.2d 944).
While Northwest Airlines seemed to foreclose the approach to federal common law upon
which the Third Circuit relied in Miller, "Miller's approach to federal common law differs even
more markedly from Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 101 S.Ct. 2061, 68
L.Ed.2d 500 (1981), a case decided about a month after Miller." Kohn, 2012 WL 3560822 at 3. In
Texas Industries, Chief Justice Burger unequivocally stated "[t]here is, of course, 'no federal
general common law.'" Texas Indus., Inc., 451 U.S. at 640 (quoting Erie R. Co. v. Tompkins, 304 U.S.
64, 78 (1938)). The Court further stated that, "absent some congressional authorization to
formulate substantive rules of decision, federal common law exists only in such narrow areas as
those concerned with the rights and obligations of the United States, interstate and international
disputes implicating the conflicting rights of States or our relations with foreign nations, and
admiralty cases." Id. at 641. After clarifying the federal courts' limited powers to create federal
common law and articulating these three instances in which federal courts maintained that
power, Texas Industries held that federal courts lack the power to fashion a common law right to
contribution in antitrust cases. Id. at 647.
Following Northwest Airlines and Texas Industries, federal courts from numerous
jurisdictions have held that contribution and indemnity are unavailable in § 1983 actions. See
Rocuba v. Mackrell, No. CIV.A. 3:10-1465, 2011WL5869787, at *3 (M.D. Pa. 2011) (collecting cases);
Woodson v. City of Richmond, Va., 2 F. Supp. 3d 804, 811 (E.D. Va. 2014) (collecting cases); Hoa v.
Riley, 78 F. Supp. 3d 1138, 1146 (N.D. Cal. 2015) (collecting cases); Katka v. Mills, 422 F. Supp. 2d
1304, 1308 (N.D. Ga. 2006) (collecting cases and observing that "most cases decided since
Northwest Airlines have held that there is no right to contribution under§ 1983."); Vercusky v. Wech,
No. 3:CV-13-1459, 2013 WL 5966159, at *3 (M.D. Pa. 2013) (observing that "the vast majority of
courts outside the Third Circuit to address this issue have concluded that there is no right to
contribution in § 1983 cases.")
Despite the "vast majority" of courts outside the Third Circuit consistently holding that
there is no right to contribution in civil rights cases, "District courts in the Third Circuit have
struggled with whether there is a federal right to contribution on a§ 1983 claim." Bank v. City of
Philadelphia, 991 F. Supp. 2d 523, 538 (E.D. Pa. 2014). This confusion sterns from the fact that
despite Northwest Airlines and Texas Industries rejecting the logic upon which Miller relied, Miller
has never been overturned. 7
Three District Courts in the Third Circuit have considered Miller to be good law and held
that contribution is available in§ 1983 actions. Klaitz v. New Jersey, No. CIV. 04-529 (RBK), 2006
WL 1843115, at *6 (D. N.J. 2006); Alexander v. Hargrove, No. CIV. 93-5510, 1994 WL 444728, at *3
(E.D. Pa. 1994); Fishman v. De Meo, 604 F. Supp. 873, 877 (E.D. Pa. 1985) (same).
However, Judge Caldwell in the Middle District of Pennsylvania recently held that Miller
was implicitly overruled by Northwest Airlines and Texas Industries, and therefore that no right to
contribution exists for § 1983 claims. Kohn, 2012 WL 3560822, at 4. Further, several other
Pennsylvania District Courts have recently expressed skepticism that Miller remains valid. See
Bank, 991 F. Supp. 2d at 538 (dismissing cross-claim that requested indemnity and/or contribution
and stating that "[g]iven Miller's history and the fact that a majority of courts do not permit
contribution for § 1983 actions, it is unlikely that [the third-party plaintiff] could maintain a
contribution claim for the alleged § 1983 violation even if they alleged that the [third-party
"Even though Miller dealt with claims under§ 1982 and the Fair Housing Act, rather than§ 1983, district
courts have looked to Miller in determining whether there can be a claim for contribution for § 1983
actions-presumably because Miller is also a civil rights case." Bank v. City of Philadelphia, 991 F. Supp. 2d
523, 538 (E.D. Pa. 2014). Like the courts in Fishman and Kohn, "we do not believe Miller can be distinguished
because it dealt with section 1982 rather than section 1983, nor because the court's discussion of contribution
was in the context of determining apportionment of damages among codefendants rather than determining
if third-party defendants can be joined." Kohn, 2012 WL 3560822 at 4.
defendants] were joint tortfeasors."); Rocuba, 2011 WL 5869787, at 3 (stating that "[a]lthough
Miller has never been overturned by the Third Circuit, with the foundation of Miller having been
overturned, and in light of the intervening Supreme Court precedent, the precedential value of
Miller is suspect); Diaz-Ferrante v. Rendell, No. CIV.A. 95-5430, 1998 WL 195683, at *4 (E.D. Pa.
1998) (explaining that "[a]lthough Miller has never been overturned by the Third Circuit, the
viability of a contribution claim in a§ 1983 action is thus dubious.")
This Court finds that Miller is no longer good law. As several District Courts have
previously observed, the holding in Miller was based on an expansive notion of the federal courts'
power to create federal common law, which the Supreme Court explicitly rejected in Northwest
Airlines and Texas Industries. See Kohn, 2012 WL 3560822, at 5; Bank, 991 F. Supp. 2d at 538; Rocuba,
2011 WL 5869787, at 3; Diaz-Ferrante, 1998 WL 195683, at 4. Moreover, Miller relied on Glus, which
the Supreme Court vacated in light of Northwest Airlines. See G.C Murphy Co., 451 U.S. 935. Given
the fact that the Supreme Court explicitly rejected the reasoning behind Miller and vacated the
decision that Miller relied on, this Court holds that Miller is no longer good law. Kohn, 2012 WL
3560822, at 5. Accordingly, this Court declines to recognize a federal common law right to
contribution in an § 1983 action. Id.
Impleader is improper because SASD has not alleged facts that establish a right to contribution
under Pennsylvania law
This Court's holding that§ 1983 does not provide a right of contribution does not end the
inquiry. "When federal law is deficient, section 1988(a) authorizes us to look to state law, as long
as it is 'not inconsistent with the Constitution and laws of the United States.'" Kohn, 2012 WL
3560822, at 5, citing 42 U.S.C. § 1988(a); see also Bank, 991 F. Supp. 2d at 532. "Since it appears that
federal law is deficient on the right to contribution in section 1983 claims, we therefore look to
Pennsylvania law on contribution." Kohn, 2012 WL 3560822, at 5. If SASD has sufficiently pled
facts plausibly giving rise to contribution under Pennsylvania law, SASD's third-party claim will
survive Shaffer's motion to dismiss.
"Contribution in Pennsylvania is governed by the Pennsylvania Uniform Contribution
Among Tortfeasors Act" (the "Act"). Smerdon v. GEICO Cas. Co., No. 4:16-CV-02122, 2017 WL
2506421, at *4 (M.D. Pa. 2017). Under the Act, a claim for contribution is only proper if it arises
between joint tortfeasors. Ford Motor Credit Co., LLC v. Maxwell, No. 3:10CV1926, 2011 WL
3206479, at *7 (M.D. Pa. 2011), (citing National Railroad Passenger Corp. v. URS Corp., 528 F.Supp.2d
525, 531 (E.D. Pa. 2007)); 42 Pa. Stat. and Cons. Stat. Ann. § 8324. The Act defines "joint
tortfeasors" as "two or more persons jointly or severally liable in tort for the same injury to persons
or property, whether or not judgment has been recovered against all or some of them." 42 Pa.
Stat. and Cons. Stat. Ann.§ 8322 (emphasis added).
In determining whether the defendants are separate or joint tortfeasors, Pennsylvania
courts consider several factors, including:
the identity of a cause of action against each of two or more defendants; the existence of a
common, or like duty; whether the same evidence will support an action against each; the
single, indivisible nature of the injury to the plaintiffs; identity of the facts as to time, place
or result; whether the injury is direct and immediate, rather than consequential,
responsibility of the defendants for the same injuria as distinguished from damnum.
Harmelin v. Man Fin. Inc., No. CIV.A. 06-1944, 2007 WL 3146666, at *6 (E.D. Pa. 2007) (quoting
Voyles v. Corwin, 295 Pa. Super. 126, 131, 441 A.2d 381, 383 (1982) (internal citations omitted));
Waters v. NMC Wollard, Inc., No. CIV.A. 06-0032, 2008 WL 3930275, at *2 (E.D. Pa. 2008) (same);
Neal v. Bavarian Motors, Inc., 2005 PA Super 305,
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