HATCHIGIAN v. WHELAN

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DAVID HATCHIGIAN :

: CIVIL ACTION

v. : No. 25-3551

:

JOHN J. WHELAN, et al. :

McHUGH, J. September 29, 2025

MEMORANDUM

I. Relevant Background

This lawsuit arises out of an underlying state court action involving a $945 repair of

Plaintiff’s vehicle. In September 2023, following an appeal from the Magisterial District Court,

the underlying case proceeded to a bifurcated jury and non-jury trial before Judge Whelan in the

Court of Common Pleas of Delaware County. Following a one-day trial, the jury returned a verdict

in favor of the defendant repair shop on Plaintiff’s breach of contract claim, and Judge Whelan

found in favor of the repair shop on Plaintiff’s unfair trade practices claim.1

1 The state court action lasted nearly four years, consisting of a hearing in the Magisterial District Court, an

arbitration before a panel of arbitrators in the Court of Common Pleas of Delaware County, a bifurcated

bench and jury trial, two appeals to the Pennsylvania Superior Court, and a Petition for Allowance of Appeal

to the Pennsylvania Supreme Court. While the present lawsuit has been in litigation for only five months,

it already has a tortuous procedural history of its own. On March 28, 2025, Plaintiff filed a Complaint in

this Court, docketed at 2:25-cv-01639-GAM (“Hatchigian v. Whelan I”). The Complaint in Hatchigian v.

Whelan I set forth the same nine counts which are set forth in the present Complaint. On April 18, Plaintiff

withdrew Hatchigian v. Whelan I (2:25-cv-01639-GAM, ECF 9), and two weeks later, refiled the complaint

at 2:25-cv-02209-GAM (Hatchigian v. Whelan II). He did so in the hope of assignment to a different judge.

On May 13, Plaintiff filed a motion for my recusal. 2:25-cv-02209-GAM, ECF 5. On May 28, I entered an

order dismissing Hatchigian v. Whelan II without prejudice, for failure to pay the filing fee or move to

proceed in forma pauperis. Plaintiff was advised that given his “previous withdrawal and re-filing of this

same action, he is advised that should he decide to refile this case or file other cases in this Court pro se,

the Court’s assignment procedures will result in those future cases also being assigned to this judicial

officer.” 2:25-cv-02209-GAM, ECF 7. On May 24, before withdrawing Hatchigian v. Whelan II, Plaintiff

filed a Complaint in the Court of Common Pleas of Philadelphia County, Pennsylvania, setting forth the

same facts and claims which were included in Plaintiff’s prior complaints. Gibson & Perkins, P.C. and

Paul Fellman, Esq. removed the state court action on July 11, 2025. ECF 1. On August 15, I denied

In the present suit, Plaintiff sets forth a litany of grievances related to the underlying action.

Specifically, he contends that “collusive” activity between Judge Whelan, defense counsel, and

the state court defendants rendered the proceeding fundamentally unfair.2 See Compl. at p. 16 ¶

20.3 Plaintiff brings claims under 42 U.S.C. § 1983 for violation of his due process rights (Count

I) and for civil conspiracy (Count II). He also advances claims for Breach of Duties (Count III),

Common Law Fraud (Count V), Professional Negligence (Count VI), and Negligent Retention and

Supervision/Vicarious Liability (Count VII). Plaintiff seeks injunctive relief (Count IV), punitive

damages (Count VIII), and counsel fees (Count X).4

Defendants have moved to dismiss. Because Plaintiff may not use this lawsuit as a vehicle

to relitigate identical issues from the underlying action—and because there is no colorable basis

to support his claims for conspiracy or the related tort claims—I will grant Defendants’ motions

in full.

II. Standard of Review

Within the Third Circuit, motions to dismiss under Federal Rule of Civil Procedure

12(b)(6) are governed by the well-established standard set forth in Fowler v. UPMC Shadyside,

578 F.3d 203, 210 (3d Cir. 2009). Because Plaintiff is pro se, the Complaint is held to “less

stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519,

Plaintiff’s Motion to Remand. ECF 17. Plaintiff then filed a motion for my recusal, ECF 18, which was

also denied. ECF 23. He has since moved for an interlocutory appeal. ECF 24.

2 Plaintiff names the following Defendants: (1) Judge John Whelan; (2) Paul Fellman, Esq. and Michael

Siddons, Esq. (defense counsel in the state court action); (3) Gibson & Perkins, P.C. and the Law Offices

of Michael Siddons (defense counsel’s law firms); and (4) state court defendants David Mardinly and his

repair shop, Mardinly Enterprises, LLC (“MEL”).

3 At page 12 of the Complaint, the paragraph numbers start over, with the result that there are multiple

paragraphs labeled with the same number. For purposes of clarity, when citing to the Complaint I will

identify the page number in addition to the paragraph marker.

4 There is no “Count IX” in Plaintiff’s Complaint.

520 (1972), and the Court must “liberally construe” the pleadings. Higgs v. Att’y Gen., 655 F.3d

333, 339 (3d Cir. 2011). The Court will “apply the relevant legal principle even when the

complaint has failed to name it.” Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (citations omitted).

Nonetheless, “pro se litigants still must allege sufficient facts in their complaints to support a

claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).

III. Discussion

A. Res judicata bars Plaintiff from relitigating the merits of Judge Whelan’s

rulings.

Pursuant to the Full Faith and Credit Statute, 28 U.S.C. § 1738, “judicial proceedings . . .

shall have the same full faith and credit in every court within the United States . . . as they have by

law or usage in the courts of such State.” R & J Holding Co. v. Redevelopment Auth., 670 F.3d

420, 426 (3d Cir. 2011). Section 1738 “has long been understood to encompass the doctrines of

res judicata, or ‘claim preclusion,’ and collateral estoppel, or ‘issue preclusion.’” Id. (quoting San

Remo Hotel, L.P. v. City & County of San Francisco, 545 U.S. 323, 336 (2005)).5 Federal courts

are required to give state court judgments the same preclusive effect that the issuing state courts

would give them. Rycoline Prods., Inc. v. C & W Unlimited, 109 F.3d 883, 887 (3d Cir. 1997).

Under Pennsylvania law, issue preclusion bars re-litigation of an issue “in a subsequent suit if, in

a prior suit, (1) the same issues (2) were necessary to a final judgment on the merits, and (3) the

party against whom issue preclusion is asserted was a party . . . to the prior action and (4) had a

full and fair opportunity to litigate the issue in question.” Robinson v. Fye, 192 A.3d 1225, 1231-

5 The Third Circuit has stated that “the preferred usage of the term res judicata encompasses both claim and

issue preclusion.” United States v. 5 Unlabeled Boxes, 572 F.3d 169, 173-74 (3d Cir. 2009) (citing Venuto

v. Witco Corp., 117 F.3d 754, 758 n.5 (3d Cir. 1997)) (cleaned up).

32 (Pa. Cmmw. Ct. 2018) (citing Balent v. City of Wilkes-Barres, 669 A.2d 309, 313 (Pa. 1995))

(cleaned up).

Plaintiff contends that Judge Whelan allowed the state court defendants to ignore discovery

requests without consequence, refused to recuse himself, dismissed Mr. Mardinly prior to trial,

granted Mr. Mardinly and MEL’s Motion in Limine, failed to compel depositions, admitted the

trial testimony of Mr. Mardinly and “surprise witness” Alex Zhekhov, and overruled Plaintiff’s

objections to Zhekhov’s testimony.6 Compl., ECF 1-2 at p. 4-10 ¶¶ 11-31, 36, p. 12-14 ¶¶ 2-6, p.

16-18 ¶¶ 23-31.

Res judicata precludes Plaintiff from reviving previously decided issues relating to

discovery and the admission of evidence during the underlying litigation. Plaintiff had an

opportunity to raise these objections on appeal in the state court system, but he waived his right to

do so by filing an untimely post-trial motion and appeal. See ECF 6-3 (Judge Whelan’s opinion

and recommendation to quash appeal); ECF 6-4 (Superior Court order quashing appeal); ECF 6-5

(Pennsylvania Supreme Court order denying petition for appeal).7 Judge Whelan’s rulings were

by definition necessary to a final judgment on the merits, and they are the same issues that Plaintiff

had an opportunity to litigate in the underlying proceeding but which he waived by filing an

untimely post-trial motion and notice of appeal.8

6 Zhekov appears to be the mechanic who repaired Plaintiff’s van, who testified at the underlying trial

regarding the scope of the repairs. See Compl. at p. 7-9 ¶¶ 27-29; see also ECF 6-3 at 2 n.2.

7 Courts are “permitted to take judicial notice of docket entries filed in separate litigation proceedings.”

FCS Cap. LLC v. Thomas, 579 F. Supp. 3d 635, 647 (E.D. Pa. 2022); see also S. Cross Overseas Agencies,

Inc. v. Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir. 1999) (“To resolve a 12(b)(6) motion, a court

may properly look at public records, including judicial proceedings, in addition to the allegations in the

complaint” and “may take judicial notice of another court’s opinion – not for the truth of the facts recited

therein, but for the existence of the opinion, which is not subject to reasonable dispute over its

authenticity.”).

8 The attorney defendants separately argue that Mr. Hatchigian’s dismissal of his second action filed in

connection with this case renders his claims here barred by res judicata under the “two dismissal rule”

B. Judge Whelan is immune from suit under Section 1983.

“[J]udges defending against § 1983 actions enjoy absolute immunity from damages

liability for acts performed in their judicial capacities.” Dennis v. Sparks, 449 U.S. 24, 27 (1980).

The doctrine of judicial immunity “is founded upon the premise that a judge, in performing his or

her judicial duties, should be free to act upon his or her convictions without threat of suit for

damages.” Figueroa v. Blackburn, 208 F.3d 435, 440 (3d Cir. 2000). Like other forms of official

immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of

damages. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Accordingly, judicial immunity is not

overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be

resolved without engaging in discovery and eventual trial. Pierson v. Ray, 386 U.S. 547, 554

(1967) (“[I]mmunity applies even when the judge is accused of acting maliciously and corruptly.”).

See also Harlow v. Fitzgerald, 457 U.S. 800, 815-819 (1982) (allegations of malice are insufficient

to overcome qualified immunity); Mireles v. Waco, 502 U.S. 9, 11 (1991). Judicial immunity is

overcome in only two circumstances: “first, a judge is not immune from liability for nonjudicial

actions, i.e., actions not taken in the judge’s judicial capacity . . . second, a judge is not immune

for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Mireles,

502 U.S. at 11-12. An act is judicial in nature if “it is a function normally performed by a judge”

and the parties “dealt with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S. 349,

362 (1978). Here, Plaintiff contends that Judge Whelan’s “one-sided evidentiary rulings and

failure to properly supervise the discovery process” violated his constitutional right to due process.

Orman v. Citimortgage, 2016 WL 1592948, at *4 (E.D. Pa. 2016) (citing Cooter & Gell v. Hartmarx

Corp., 496 U.S. 384, 397 (1990)). ECF 20. This argument also appears to have merit.

See Compl. at p. 18 ¶ 29. While these rulings may have been adverse, they were plainly judicial

in nature. Moreover, Plaintiff does not allege that the Judge lacked jurisdiction over the state court

matter. Judge Whelan is therefore entitled to judicial immunity on Plaintiff’s section 1983 due

process claim. Count I will be dismissed.

C. Plaintiff fails to state a plausible Section 1983 conspiracy claim.

Plaintiff also advances a conspiracy claim under 42 U.S.C. § 1983, asserting that Judge

Whelan acted in coordination with the other Defendants to deprive him of due process. As an

initial matter, to state a claim under section 1983, a plaintiff must show that an alleged deprivation

of a constitutional right “was committed by a person acting under color of state law.” West v.

Atkins, 487 U.S. 42, 48 (1988). While “[a]ttorneys performing their traditional functions will not

be considered state actors solely on the basis of their position as officers of the court,” Angelico v.

Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999), attorneys who “corruptly conspire

with a judge in connection with an official judicial act are acting under color of state law within

the meaning of § 1983.” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159,

176 (3d Cir. 2010) (quoting Dennis v. Sparks, 449 U.S. 24, 29 (1980)).

As to Judge Whelan, in my view judicial immunity would bar this claim as well. If not, I

accept his argument that Eleventh Amendment immunity would bar the claim, ECF 19, and reject

Plaintiff’s contention that his claim falls within the exception for prospective injunctive relief.

ECF 21.

Turning to the other defendants, to establish an unconstitutional conspiracy, “a plaintiff

must assert facts from which a conspiratorial agreement can be inferred.” Great W. Mining &

Mineral Co., 615 F.3d at 178. To plead an agreement between private parties and a state court

judge, a plaintiff must allege “facts that plausibly suggest a meeting of the minds” such as “specific

conduct by the non-judicial actors that caused the judge [] to enter into an unlawful conspiracy.”

Id. at 179. Critically, “[a] conspiracy cannot be found from allegations of judicial error, ex parte

communications (the manner of occurrence and substance of which are not alleged) or adverse

rulings absent specific facts demonstrating an agreement to commit the alleged improper actions.”

Capogrosso v. Supreme Court of N.J., 588 F.3d 180, 185 (3d Cir. 2009) (per curiam) (quoting

Crabtree v. Muchmore, 904 F.2d 1475, 1481 (10th Cir. 1990)). As relevant here, the Supreme

Court has instructed that “merely resorting to the courts and being on the winning side of a lawsuit

does not make the winning party a co-conspirator or a joint actor with the judge.” Great W. Mining

& Mineral Co., 615 F.3d at 178 (quoting Dennis, 449 U.S. at 28) (cleaned up).

Plaintiff contends that Judge Whelan, “[b]efore during and after trial . . . acted in concert

with [Defendants] to deprive the pro se plaintiff of his right to discovery and the right to a jury

trial on the merits” and “sought to dispose of the pro se claims and thereby minimize the

defendants’ exposure to a judgment of liability and/or treble damages.” Compl. at p. 18 ¶ 30; p.

15 ¶ 14. Plaintiff asserts that the Defendants in the underlying action failed to engage in discovery

and that Judge Whelan, driven by “pro-defense bias,” failed to sanction their behavior. Id. at p. 4-

10 ¶¶ 11-31; p. 12 ¶¶ 2-3. Additionally, Plaintiff avers that Judge Whelan and the private parties

“mutually ignored the trial court’s failure to provide service conforming to Pa. Rule 236”9 and

“mutually violated their duty to recognize and report” an alleged malfunction in the electronic

docketing system. Id. at p. 15 ¶¶ 15-16. Plaintiff maintains that, absent this “collusive” and

“coordinated” conduct, he would have prevailed on his claims. Id. at p. 16 ¶¶ 18-20.

9 Pennsylvania Rule of Civil Procedure 236 provides that “the prothonotary shall immediately give written

notice of the entry of . . . any [] order or judgment to each party’s attorney of record or, if unrepresented, to

each party. The notice shall include a copy of the order or judgment.” Moreover, “[t]he prothonotary shall

note in the docket the giving of the notice and, when a judgment by confession is entered, the mailing of

the required notice and documents.” Pa. R. Civ. P. 236.

Plaintiff’s factual allegations fall well short of establishing “plausible grounds to infer an

agreement” between Judge Whelan and the private parties. Great W. Mining & Mineral Co., 615

F.3d at 178 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). A judge’s adverse

rulings (even if in error) cannot—without specific factual allegations supporting an agreement—

form the basis of a conspiracy claim. Capogrosso, 588 F.3d at 185. Moreover, Plaintiff’s bare

assertions of “coordinated” and “collusive” conduct are wholly conclusory and are not entitled to

the presumption of truth.10 Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). Absolutely nothing in the

record here suggests that Judge Whelan was doing anything other than making rulings in a case in

accord with normal judicial procedure, and it bears emphasis that the case was subject to appellate

review in the Pennsylvania courts. Because Plaintiff has not alleged any facts that would plausibly

suggest a meeting of the minds, his conspiracy claim under Count II must be dismissed.11

D. Plaintiff’s remaining claims must be dismissed, as there is no colorable basis

upon which relief can be granted.

Count III of Plaintiff’s Complaint purports to set forth a claim against the Defendants for

“Breach of Duties.” Compl. at p. 20 ¶¶ 37-40. Plaintiff alleges that Defendants “mutually violated

their duty to recognize and report the e-filing docket system’s temporary suppression of timely

10 In his Response, Plaintiff contends that “an express (or implicit) agreement was at some point reached

and operative between the State Judge, adverse counsel of record and their respective law firms, which was

specifically aimed at deterring the progress of pro se litigation in the State Court Proceedings in violation

[of] pro se plaintiff’s constitutional due process rights.” ECF 13 at 12. Such an assertion plainly does not

set forth “facts from which a conspiratorial agreement can be inferred.” Great W. Mining & Mineral Co.,

615 F.3d at 178. Moreover, I note that both the Rule 236 and the electronic docketing issue were raised

and addressed in the underlying action. Judge Whelan specifically stated in his opinion that “[t]he record

reflects that judgment was eventually entered on February 12, 2024 and docketed on February 23, 2024”

and that “[t]he docket also reflects that notice of the order was provided to the parties as required by [Rule]

236(b).” See ECF 6-3 at 3. And Plaintiff appears to have raised the issue of a breakdown in the court’s

notification system with Mary J. Walk, Esq., the Director of the Office of Judicial Support in Delaware

County, who informed Plaintiff that there was no breakdown in the system. See ECF 1-3, at Ex. 0069-71.

11 Count X of Plaintiff’s Complaint seeking counsel fees pursuant to 42 U.S.C. § 1988 must also be

dismissed. As a “non-lawyer, pro se litigant,” he is not entitled to an award of counsel fees under section

1988. See Pitts v. Vaughn, 679 F.2d 311, 313 (3d Cir. 1982).

Rule 236 notifications to the trial and appellate courts” and that Judge Whelan’s purported failure

to supervise the discovery process violated “settled duties.” Id. at p. 15 ¶ 16; p. 20 ¶ 37. Plaintiff

does not specify what duties Defendants owed him, what the applicable standard of care was, how

Defendants breached the duties, or how Defendants’ breach caused Plaintiff to suffer actual loss.

Moreover, Plaintiff’s breach of duties claim rests on the same threadbare allegations that form the

basis of his conspiracy claim, with the result that Count III of the Complaint must be dismissed.

Count IV of Plaintiff’s Complaint seeks “permanent” injunctive relief to prevent

Defendants from “threaten[ing] Plaintiff with future harassment and litigation in order to conceal

their false statements in the course of defending the Underlying Action.” Id. at p. 20-21 ¶¶ 42-44.

A plaintiff seeking permanent injunctive relief must show “(1) that it has suffered an irreparable

injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate

for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant,

a remedy in equity is warranted; and (4) that the public interest would not be disserved by a

permanent injunction.” eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). It is not clear

from the face of the Complaint what Plaintiff means by “future harassment and litigation.” Even

construing the Complaint broadly, as I must, Plaintiff has plainly not met his burden of showing

“irreparable” harm. I will therefore deny Plaintiff’s request for injunctive relief.

Count V of Plaintiff’s Complaint purports to set forth a claim against all Defendants for

common law fraud. Compl. at p. 21, ¶¶ 45-46. In Pennsylvania, common law fraud consists of six

elements: (1) a misrepresentation or concealment; (2) which is material to the transaction at hand;

(3) made with knowledge of its falsity or recklessness as to its truth (for a misrepresentation), or

calculated to deceive (for a concealment); (4) with intent to mislead another into reliance; (5) that

causes justifiable reliance on the misrepresentation; and (6) results in an injury proximately caused

by such reliance. SodexoMAGIC, LLC v. Drexel Univ., 24 F.4th 183, 205 (3d Cir. 2022) (citing

Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994)). Plaintiff alleges that Defendants made “intentional

misrepresentation[s] meant to deceive the prior courts, and, as intended by the Defendants, the

state trial court was actually deceived, causing Plaintiff’s damages.” Compl. at p. 21 ¶ 46.12

Plaintiff’s fraud claim is rooted in the same set of facts that form the basis for his conspiracy claim,

and his formulaic recitation of the elements of the cause of action cannot elevate his otherwise

conclusory assertions into a viable claim for fraud. Count V of the Complaint will be dismissed.

Count VI of Plaintiff’s Complaint purports to set forth a claim against Gibson & Perkins,

P.C., Attorney Fellman, and Attorney Siddons for professional negligence. Compl. at p. 21-22, ¶¶

48-49. “To maintain a claim of legal malpractice based on negligence, a plaintiff must show an

attorney-client or analogous professional relationship with the defendant-attorney.” Hess v. Fox

Rothschild, LLP, 925 A.2d 798, 806 (Pa. Super. Ct. 2007) (citing Guy v. Liederbach, 459 A.2d

744, 746, 750 (Pa. 1983)). The general rule in Pennsylvania is that “an attorney will be held liable

for negligence only to their client.” Mentzer & Rhey, Inc. v. Ferrari, 532 A.2d 484, 486 (Pa. Super.

Ct. 1987) (citations omitted). Here, Plaintiff was not a client of Mr. Fellman or Mr. Siddons.

Rather, they were opposing counsel.13 Plaintiff’s professional negligence claim will be dismissed.

12 In his Response, Plaintiff asserts that there was “clearly a joint misrepresentation by Whelan and the

Mardinly Parties that Hatchigian was not entitled to the requested discovery which reasonably led to

Plaintiff to belief [sic] that his discovery rights were limited to the discovery exchanged at the time of

arbitration.” ECF 13 at 20.

13 Indeed, Plaintiff affirmatively pleads that he was a “nonclient.” Compl. at p. 22 ¶ 49. In his Response,

Plaintiff asserts that he nonetheless has standing to sue for professional negligence – even though he was

not Defendants’ client – because “a reasonable fact finder may conclude that in seeking reimbursement of

his repair costs, Mr. Hatchigian was a third party beneficiary of adverse counsel’s arrangement with Client

Mardinly Enterprises and Dave Mardinly.” ECF 13 at 20 n.8. But as Defendants correctly note in their

Reply, Mr. Fellman and Mr. Siddons were retained for the specific purpose of defending Mr. Mardinly and

MEL against Plaintiff’s claims, and neither the state court defendants nor their attorneys intended for their

representation to benefit Plaintiff. ECF 15 at 4-5.

Count VII of Plaintiff’s Complaint purports to set forth a claim against Gibson & Perkins,

P.C. for vicarious liability and negligent retention. Compl. at p. 22-23, ¶¶ 50-54. Plaintiff avers

that the Defendant law firms are vicariously liable for the Defendant-attorneys’ “negligence and

fraud.” Compl. at p. 22-23 ¶¶ 51-53. But there can be no claim for vicarious liability against an

employer in the absence of a prima facie claim against an employee. Mamalis v. Atlas Van Lines,

Inc., 560 A.2d 1380, 1383 (Pa. 1989) (“A claim of vicarious liability is inseparable from the claim

against the agent” and “termination of the claim against the agent extinguishes the derivative claim

against the principal.”). Plaintiff does not state any plausible claims for relief against Mr. Fellman

or Mr. Siddons, so his claim for vicarious liability against their law firms must also be dismissed.

The Pennsylvania Supreme Court adopted the Restatement (Second) of Torts § 317 to

guide lower courts in their evaluation of negligent retention claims. Dempsey v. Walso Bureau,

Inc., 246 A.2d 418, 421-22 (Pa. 1968); Gunn v. On The Border Acquisitions, LLC, 298 F. Supp.

3d 811, 825-26 (E.D. Pa. 2018). Section 317 applies only where it is alleged that the employee

was acting outside the scope of their employment. Id. The Complaint does not allege that Mr.

Fellman was acting outside the scope of his employment. To the contrary, Plaintiff avers that

Fellman was “under the direction, supervision, and control” of Gibson & Perkins. Compl. at p.

22-23 ¶¶ 51-53. Accordingly, Plaintiff has not stated a claim for negligent retention and/or

supervision.

IV. Conclusion

For the reasons set forth above, Defendants’ Motions to Dismiss will be granted. Because

I see no conceivable basis on which Plaintiff can state a plausible claim, and because I am

concerned about whether Plaintiff is pursuing this action to harass the Defendants, dismissal will

be with prejudice. An appropriate order follows.

/s/ Gerald Austin McHugh

United States District Judge