Opinion
NO. 03-CV-3877
September 18, 2003
MEMORANDUM AND ORDER
Pursuant to Rule 12(b)(6), Defendant International Brotherhood of Teamsters, Local #773 (Union) moves for an order dismissing the instant case with prejudice. Fed.R.Civ.P. 12(b)(6). For the reasons discussed below, this Court grants the Motion to Dismiss as to the Union. An appropriate order follows.
I. Factual Background
Plaintiff was employed as a mechanic from 1987 through 2002 for Defendant United Postal Service, Inc. (UPS). Plaintiff alleges that during that time, his supervisor oversaw the UPS Stroudsburg Automotive Department, where Petitioner worked, in a manner that violated state and federal safety regulations. (Emergency Petition at ¶ 2.) Plaintiff further alleges that he signed a resignation letter terminating his employment with UPS under duress and which had been altered by UPS. (See Emergency Petition at ¶ 5.)
Based on these allegations, Plaintiff filed a praecipe for writ of summons (CA No. 2003-C-1190) in the Court of Common Pleas for Lehigh County, Pennsylvania (State Court).That same day, May 5, 2003, the Prothonotary issued a summons to Defendants.
Upon request by Defendant International Brotherhood of Teamsters, Local #773 (Union), on May 28, 2003, the State Court entered a Rule for the plaintiff to file a complaint within twenty days or suffer entry of a judgment nonpros.
On June 23, 2003, Plaintiff filed in State Court an Emergency Petition for Protective Order Striking the Application for Twenty Day Rule and Enabling Pre-Complaint Discovery (Emergency Petition). The Emergency Petition stated that the plaintiff had "initiated claims for Racketeering (witness tampering pursuant to 18 U.S.C. § 1961, et. seq., and 18 U.S.C. § 1512), whistle blowing, breach of contract and conspiracy against the named defendants." (Emergency Petition at ¶ 1.)
On June 27, 2003, pursuant to 28 U.S.C. § 1441, Defendants jointly removed the case to this Court. In response, on July 28, 2003, Plaintiff filed a Motion to Remand on grounds that this Court lacks subject matter jurisdiction.
On August 15, 2003, Defendants filed separate Oppositions to Plaintiffs Motion to Remand. In addition, Defendant Union cross-filed the instant Motion to Dismiss.
II. Jurisdiction
This Court has jurisdiction under 28 U.S.C. § 1881. See Northeast Women's Center. Inc. v. McMonagle. 939 F.2d 57, 59 (3d Cir. 1991).
III. Discussion
Defendant Union moves this Court to dismiss the case against it under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Because Plaintiff failed to respond, pursuant to Local Rule 7.1(c), and because we find Defendant Union's motion to have merit, we grant this motion as uncontested.
Local Rule 7.1(c) states, in pertinent part, "any party opposing the motion shall serve a brief in opposition, together with such answer or other response which may be appropriate, within fourteen (14) days after service of the motion and supporting brief. In the absence of a timely response, the motion may be granted as uncontested. . . ." United States District Court, Eastern District of Pennsylvania, Local Rules of Civil Procedure, Rule 7.1(c); See Sawka v. Healtheast. Inc., 989 F.2d 138, 139-40 (3d Cir. 1993) (upholding the predecessor rule, Rule 20(c)); King v. Township of East Lampeter. 17 F. Supp.2d 394, 407 (E.D.Pa. 1998).
Defendant Union filed the Motion to Dismiss on August 15, 2003. Thus, pursuant to Local Rule 7.1(c), Plaintiff needed to file a response by September 2, 2003. Because Plaintiff has yet to file a response, Rule 7.1(c) allows us to consider the motion uncontested and grant it.
Because service was made by mail, Federal Rule 6(e) extended the deadline by three days. Fed.R.Civ.P. 6(e).
Moreover, because the Union's motion has merit and no party has detrimentally relied on Rule 7.1(c), there is more than adequate rationale for granting the motion to dismiss on this technical ground.See United States v. Eleven Vehicles. Their Equipment and Accessories. 200 F.3d 203 (3d Cir. 2000) (identifying the standard for departing from local procedural rules).
Rule 12(b)(6) provides for the dismissal of an action for "failure to state a claim upon which relief can be granted." Dismissal on this ground is restricted to those instances where it is clear that relief could not be granted based on the facts presented by the plaintiff. In making this determination, this Court is required to accept as true all allegations made by the plaintiff, as well as any reasonable inferences to be drawn from those facts. Hishon v. King Spaulding. 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990).
Accepting as true all facts set forth by the plaintiff, we have no choice but to dismiss this matter. We deal first with the state whistle blower claim, as it is the sole claim that Plaintiff asserts. (See Motion to Remand at ¶ 7). However, for the sake of completeness, we also review the other state and federal claims mentioned in the pleadings. Notwithstanding the technical grounds for granting the motion to dismiss, we find that no cause of action asserted at anytime by the plaintiff would survive Rule 12(b)(6).
Plaintiff alleges a claim under the Pennsylvania Whistle Blower Law, 43 P.S. § 1421, et. seq. However, it is well established that this law protects solely public employees from the acts of government officials.Clark v. Modern Group Ltd., 9 F.3d 321, 326 n. 4 (3d Cir. 1993);Holewinski v. Children's Hosp. of Pittsburgh. 437 Pa. Super. 174, 179, 649 A.2d 712, 715 (1994). By refusing to expand the scope of the Whistle Blower Law to include private practice, the Pennsylvania Superior Court has made clear that it does not believe the state legislature intended the statute to apply to private employees. Krajsa v. Keypunch. 424 Pa. Super. 230, 241, 622 A.2d 355, 360 (1993). Thus, because Plaintiffs claims arise from his employment at a private company, UPS, and against a private entity, Defendant Union, he cannot obtain relief under Pennsylvania's whistle blower statute. We thus grant relief under Rule 12(b)(6) for failure to state a claim for which relief could be granted.
Notwithstanding both the technical grounds and Plaintiffs failure to state a claim under the state whistle blower statute as warranting dismissal, we further find that the other possible actions the plaintiff could claim would not survive Defendant's Rule 12(b)(6) motion.
Accepting Plaintiffs allegations as true, as required by Rule 12(b)(6), this Court would have to dismiss the federal claims. The plaintiff leaves no room for consideration otherwise when he expressly states in his pleadings that "[he] does not at this time have a claim under either the Labor Relations Management Act of 1947, 29 U.S.C. § 185, or the Racketeering and Corrupt Organizations Act of 1970, 18 U.S.C. § 1961." (Motion to Remand at ¶ 9).
At this stage of the proceedings, accepting Plaintiff's allegations, we recognize that he claims not to allege a LRMA claim and thus, there is no need to consider it under Rule 12(b)(6). However, for the sake of completeness, we included it in our review. Moreover, it represents our analysis of Plaintiff s contract claim because, while we need not rule on it, Section 301 of the LRMA likely preempts that state claim. See 29 U.S.C. § 185(a); Allis-Chalmers Corp. v. Lueck. 471 U.S. 202, 209-10, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985) (discussing Section 301's preemption of state contractual disputes involving a collective bargaining agreement).
To underscore this statement, and hence the futility of his claims, Plaintiff also highlights that his pleadings fail to mention the LRMA and makes plain that, regarding the RICO claim, he cannot survive the Rule 12(b)(6) standard claim because he "does not at his time possess facts sufficient to constitute a claim for racketeering." (Motion to Remand at ¶¶ 7, 8). Based on Plaintiffs assertions, we must grant the motion to dismiss with respect to these federal claims.
Finally, we would grant the Rule 12(b)(6) motion with respect to Plaintiffs conspiracy claim because, having found no viable cause of action, there are no underlying actions upon which we could sustain a conspiracy charge. As Defendant Union argues, the Superior Court of Pennsylvania has made clear that "absent a civil cause of action for a particular act, there can be no cause of action for civil conspiracy to commit that act." Pelagatti v. Cohen. 370 Pa. Super. 422, 432, 536 A.2d 1337, 1342 (1987): see also Ford v. Isdaner. 374 Pa. Super. 40, 45, 542 A.2d 137, 139 (1988) (applying the rule stated in Pelagatti). With no underlying cause of action, Plaintiffs civil conspiracy charge must fail.
IV. Conclusion
Plaintiffs failure to respond to Defendant Union's Motion to Dismiss within fourteen days, pursuant to Local Rule 7.1(c) for the Eastern District of Pennsylvania, allows this Court to grant Defendant's motion as uncontested. Moreover, notwithstanding Plaintiffs failure to comply with the Rule, we find that the defendant would have succeeded on the merits under Rule 12(b)(6) because Plaintiff has no cause of action under the state whistle blower statute. Thus, this Court grants Defendant Union's Motion to Dismiss. An appropriate order follows.
ORDER
AND NOW, this 18th day of September, 2003, after consideration of the Motion to Dismiss filed by Defendant International Brotherhood of Teamsters, Local #773, it is hereby ORDERED that Defendant's Motion to Dismiss is GRANTED and the case against Defendant is DISMISSED WITH PREJUDICE.