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AIKEN v. BUCKS ASSN. FOR RETARDED CITIZENS

July 10, 1992

GLORIA AIKEN, Plaintiff,
v.
BUCKS ASSOCIATION FOR RETARDED CITIZENS, INC. (B.A.R.C.), ROBERT SCHRAM, SCOTT KULP, JOAN BAKER, and JOANNE SCHMALZ, Defendants.



The opinion of the court was delivered by: LOWELL A. REED, JR.

 Reed, J.

 July 10, 1992

 INTRODUCTION

 There are presently two (2) motions before me in this employment discrimination case, both filed on behalf of plaintiff Gloria Aiken ("Aiken"). The first motion requests that I enter final judgment under Fed. R. Civ. P. 54(b) against plaintiff Aiken on Count IV and Count V of her complaint (Document No. 16), which allege, respectively, supplemental state law claims of wrongful discharge and intentional infliction of emotional distress. I dismissed these counts, as well as a portion of Count III, under my Order of November 14, 1991 (Document No. 9) after granting a motion of the defendants to dismiss for failure to state a claim upon which relief can be granted. Pursuant to a subsequent Order issued on January 22, 1992 (Document No. 20), I denied a motion of the plaintiff for reconsideration of my dismissal of Counts IV and V.

 The second motion asks that I allow plaintiff to amend Count I and Count II of her complaint (Document No. 21), containing claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. (West 1981 & Supp. 1992), and the Civil Rights Act of 1866, 42 U.S.C.A. § 1981 (West 1981 & Supp. 1992), respectively, so that she may incorporate amendments to these statutes enacted as part of the Civil Rights Act of 1991 ("the Act"), Pub. L. No. 102-166, 105 Stat. 1071 (1991). The Act was signed into law by President Bush on November 21, 1991.

 Jurisdiction is founded upon the existence of a federal question under 28 U.S.C.A. § 1331 (West 1966 & Supp. 1992). Upon consideration of the motions of the plaintiff, the responses of the defendants thereto, and for the reasons which follow, I shall deny both motions.

 DISCUSSION

 The Rule 54(b) Motion of Plaintiff Aiken

 In Chalfin v. Beverly Enter., Inc., 745 F. Supp. 1117 (E.D. Pa. 1990), I reviewed the analysis to be undertaken when a party requests certification of final judgment pursuant to Fed. R. Civ. P. 54(b). Under Rule 54(b), a court possesses the discretion to enter a final judgment relating to one or more claims or parties. Id. at 1121 (citing Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 10, 64 L. Ed. 2d 1, 100 S. Ct. 1460 (1980); Fed. R. Civ. P. 54(b) advisory committee notes; 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2654, at 38 (1990)). Rule 54(b) motions should not be entered routinely, however, or as a courtesy or accommodation to counsel, but only in the "'infrequent harsh case' as an instrument for the improved administration of justice.'" Id. (quoting Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 363 (3d Cir. 1975)).

 The responsibility of a district court under a Rule 54(b) motion is to act as a "dispatcher," determining in its discretion the appropriate time when a final decision in an action with multiple claims is ready for appeal. Curtiss-Wright Corp., 446 U.S. at 8. In fulfilling this function, the district court must consider the interests of judicial administration as well as the equities of the particular case under review. Id. A review of the interests of judicial administration is required to make sure that the use of Rule 54(b) in a given case comports with the "historic federal policy against piecemeal appeals." Id.

 Courts consider many factors in examining requests for certification under Rule 54(b), such as the relationship of the adjudicated and unadjudicated claims, the possibility that the need for appellate review might be mooted by future developments in the district court, the possibility that the reviewing court might be obliged to consider the same issue a second time, and miscellaneous factors such as delay, economic and solvency considerations, shortening the time of the trial, and the frivolity of competing claims. Chalfin, 745 F. Supp. at 1121 (citing Allis-Chalmers Corp., 521 F.2d at 364). See also Curtiss-Wright Corp., 446 U.S. at 8 (proper for district judge to have considered whether claims under review separable from claims remaining to be adjudicated).

 In Chalfin, the plaintiffs, Arlene Chalfin and her family, brought claims under the Social Security Act, the Pennsylvania Health Care Facilities Act, the Pennsylvania Unfair Trade Practices and Consumer Protection Law, and state common law claims for breach of contract and intentional infliction of emotional distress. Chalfin, 745 F. Supp. at 1118-19. I dismissed all of the claims of plaintiff Arlene Chalfin except for her claims alleging violations of the unfair trade practices and consumer protection statute, and intentional infliction of emotional distress. Id. at 1119 n.3. I also dismissed all of the claims asserted by the other plaintiffs except for their breach of contract claim. Id. I found that the claims that remained pending were related to the dismissed claims and included the same underlying facts. Id. at 1121. As a result, I found that certification of the dismissed claims as final judgments would result in an inefficient use of the appellate court's resources. Id. (citing Jack Walters & Sons Corp. v. Morton Bldg., Inc., 737 F.2d 698 (7th Cir.), cert. denied, 469 U.S. 1018, 83 L. Ed. 2d 359, 105 S. Ct. 432 (1984)). Consequently, I concluded that the interests of sound judicial administration and justice would not be advanced by entering a final judgment on the dismissed claims. Id. at 1121-22 (citing Curtiss-Wright, 446 U.S. at 5).

 The commonality of facts among the pending and dismissed claims which plagued the motion for certification in Chalfin also exists in this case. Plaintiff Aiken seeks a certification of final judgment under Rule 54(b) on Count IV and Count V of her complaint, asserting, respectively, state law claims of wrongful discharge and intentional infliction of emotional distress. Although each cause of action in the complaint asserts a different legal theory, all arise out of a common core of operative facts. Plaintiff acknowledges this in her brief in support of her motion for certification: "Plaintiff seeks to have all claims tried together because they arise from the same set of operative facts, but the standard of proof is different for the federal and state law claims." See Memorandum of Law Supporting Plaintiff's Motion for Rule 54(b) Certification ("Plaintiff's Memo.") at 3.

 As I found in Chalfin, it constitutes an inefficient use of judicial resources to certify dismissed claims for appeal where these claims and the pending claims rest upon a common core of operative facts. Chalfin, 745 F. Supp. at 1121-22. In the instance that Count IV and Count V of the complaint are certified for appeal, the court of appeals would essentially have to review plaintiff's allegations that she was harassed and discriminated against because of her race and consequently forced to resign from her job. These same issues would confront the court of appeals if a judgment on Counts I, II or III were subsequently appealed. Denying the motion for certification allows the court of appeals, if an appeal is taken, to resolve the common nucleus of allegations common to each of the counts in the same appeal.

 Accordingly, the motion of plaintiff Aiken for entry of a final judgment under Fed. R. Civ. P. 54(b) against her on Count IV and Count V of the complaint shall be denied.

 The Motion to Amend

 Count I and Count II of the Complaint

 Plaintiff Aiken has also filed a motion to amend Count I and Count II of her complaint, containing claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C.A. § 1981, respectively, to incorporate amendments to these statutes enacted as part of the Civil Rights Act of 1991. *fn1" As noted above, the Act was signed into law on November 21, 1991. Resolution of this motion requires the examination of an issue that is quickly spreading throughout the federal judiciary, namely, whether the Act may be applied retroactively to cases pending at the time the Act became law. *fn2"

 Title VII and Section ...


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