DIFRISCHIA v. VIECARE BEAVER, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

STEVIE DIFRISCHIA, )

)

Plaintiff, )

)

v. ) Civil Action No. 22-641

) Judge Nora Barry Fischer

LUTHERAN SENIORLIFE, INC., d/b/a LIFE )

LAWRENCE COUNTY, and VIECARE )

BEAVER, LLC d/b/a LIFE BEAVER )

)

Defendant. )

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STEVIE DIFRISCHIA, )

)

Plaintiff, )

)

v. ) Civil Action No. 22-1668

) Judge Nora Barry Fischer

VIECARE BEAVER, LLC d/b/a LIFE )

BEAVER )

)

Defendant. )

ORDER OF COURT

AND NOW, this 23rd day of February, 2023, upon consideration of the Motion to

Dismiss and Motion to Strike filed by Defendants Lutheran Seniorlife, Inc. (“Seniorlife”) and

Viecare Beaver, LLC (“Viecare”) in Civ. A. No. 22-641, (Civ. A. No. 22-641, Docket No. 45);

the Motion to Dismiss filed by Viecare in Civ. A. No. 22-1668, (Civ. A. No. 22-1668, Docket

No. 11), Plaintiff Stevie Difriscia’s Responses thereto, (Civ. A. No. 22-641, Docket Nos. 50,

59), and the multiple briefs filed with respect to these motions, (Civ. A. No. 22-641, Docket

Nos. 46, 51, 56, 58, 59; Civ. A. No. 22-1668, Docket No. 12), in light of the relevant standards

governing Motions to Dismiss and Strike under Rules 12(b)(6) and 12(f), respectively, as well

as the discretion afforded to the Court to manage cases on its docket so as to avoid duplicative

litigation, see e.g., McKenna v. City of Philadelphia, 304 F. App’x 89, 91 (3d Cir. 2008)

(quoting Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977)), and “to secure the just,

speedy, and inexpensive determination of every action and proceeding,” Fed. R. Civ. P. 1, the

Court hereby ORDERS the following:

1. Defendant Viecare’s Motion to Dismiss Plaintiff’s Complaint in Civ. A. No. 22-1668 [11]

is GRANTED and Plaintiff’s Complaint in Civ. A. No. 22-1668 [1] is DISMISSED,

without prejudice, to Plaintiff litigating her claims against Viecare in Civ. A. No. 22-641.

To that end, the U.S. Court of Appeals for the Third Circuit has held that a plaintiff is

prohibited from “maintain[ing] two separate actions involving the same subject matter at

the same time in the same court and against the same defendant,” and this Court exercises

its discretion to dismiss the latter-filed action, without prejudice, to Plaintiff pursuing her

claims against Viecare in Civ. A. No. 22-641. McKenna, 304 F.App’x at 91; see also

Pletcher et al. v. Giant Eagle et al., Civ. A. No. 21-1361, Docket No. 4 (W.D. Pa. Nov.

10, 2021). The Clerk of Court shall mark Civil A. No. 22-1668 CLOSED.

2. Defendants Seniorlife and Viecare’s Motion to Dismiss Plaintiff’s Third Amended

Complaint in Civ. A. No. 22-641 [45] is GRANTED, in part, and DENIED, in part. Said

Motion is granted insofar as Plaintiff has withdrawn her disability discrimination and

failure to accommodate claims (Counts IV, V, X, XI) but denied in all other respects. At

the outset, Defendants previously filed an Answer to Plaintiff’s First Amended Complaint

containing essentially the same claims and raised affirmative defenses rather than moving

to dismiss under Rule 12(b)(6). (See Docket Nos. 12, 16). Hence, Defendants’ present

objections to the sufficiency of the FMLA retaliation and joint employer allegations are

not well taken because Plaintiff’s Third Amended Complaint includes more robust factual

allegations than her earlier pleadings and after evaluating the current pleading under the

relevant standard, the Court finds that Plaintiff has plausibly stated claims for relief under

these theories. See Lutz v. Portfolio Recovery Assocs., LLC, 49 F.4th 323, 327 (3d Cir.

2022).

Likewise, Plaintiff’s Title VII claims are not subject to dismissal under Rule

12(b)(6) based on Defendants’ assertion of the affirmative defenses of administrative

exhaustion and the statute of limitations because those defenses are not clear on the face of

the Third Amended Complaint, Plaintiff is not required to plead around the affirmative

defenses and she may be able to overcome those defenses with evidence obtained through

discovery supporting equitable tolling or relation back of her amendments to the EEOC

charges. See e.g., Burg v. U.S. Dept. of Health and Human Serv., 387 F. App’x 237, 241,

n.6 (3d Cir. 2010) (citing Brown v. Cook, 312 F.3d 109, 111 (3d Cir. 2002)) (exhaustion of

administrative remedies is affirmative defense); Silla v. Holdings Co. LP, 2021 WL

4206169, *1-2 (3d Cir. 2021) (vacating District Court order dismissing Title VII claim

based on statute of limitations as affirmative defense was not clear on the face of the

complaint and plaintiff should have been afforded discovery on equitable tolling); Schmidt

v. Skolas, 770 F.3d 241, 249-51 (3d Cir. 2014) (to warrant dismissal under Rule 12(b)(6),

affirmative defenses such as statute of limitations must be clear on the face of the

complaint and the Court may not require a plaintiff to plead around an affirmative

defense).

Finally, Plaintiff has provided a proposed Fourth Amended Complaint containing

placeholder counts for PHRA claims which she admits have not yet been exhausted.

(Docket No. 51-1). As is routine practice in employment discrimination matters, the

Court has already granted Plaintiff leave to add the PHRA claims after she is authorized to

pursue those claims in this Court. (Docket Nos. 32, 33). It appears that the parties agree

that the PHRC maintains jurisdiction over those claims until one year after the charges

were filed on April 26, 2022, or until April 26, 2023. (Docket Nos. 46, 51). Hence, the

Court grants Plaintiff leave to add her PHRA claims to her proposed Fourth Amended

Complaint and to file her Fourth Amended Complaint by May 17, 2023. Defendants shall

file their Answer by May 31, 2023.

3. Defendants’ Motion to Strike in Civil A. No. 22-641 [53] is DENIED. Motions to strike

under Rule 12(f) are disfavored and only apply to allegations set forth in pleadings such

that Defendants’ Motion seeking to strike statements by opposing counsel in the

previously filed motion for extension of time is procedurally defective. See PG Publ'g

Co. v. Aichele, 902 F. Supp. 2d 724, 735 (W.D. Pa. 2012), aff'd, 705 F.3d 91 (3d Cir.

2013)). Beyond such deficiencies, the motion is untimely and moot as the Court granted

the requested extension of time 20 days before this motion was filed and fact discovery

was extended to end on April 17, 2023 under that Order. (Docket No. 49). In addition,

the most recent Joint Status Report of February 17, 2023 indicates that a further extension

of the period for fact discovery may be necessary. (Docket No. 60). To the extent that the

parties’ briefing criticizes opposing counsel, (in footnotes or otherwise), “[c]ounsel should

not have to be reminded that this is a court of law, where justice is paramount. It is not an

appropriate forum for counsel to litigate personal grudges and engage in ad hominem

attacks, through briefing filed with the Court, at oral argument, during proceedings or

otherwise.” United States v. Kubini, 304 F.R.D. 208, 212 (W.D. Pa. 2015).1 Finally, the

parties are directed to comply with the dictates of Rule 1 and to work cooperatively to

complete all outstanding discovery. See Fed. R. Civ. P. 1 (Federal Rules to be employed

by the Court and parties in order “to secure the just, speedy, and inexpensive

determination of every action and proceeding.”).

IT IS SO ORDERED.

s/Nora Barry Fischer

Nora Barry Fischer

Senior United States District Judge

cc/ecf: All counsel of record.

1 See also Practices and Procedures of Judge Nora Barry Fischer, § I.I “Conduct of Attorneys”, available at:

https://www.pawd.uscourts.gov/sites/pawd/files/Fischer_Practices_Procedures_2_16_22.pdf (effective 2/16/2022).