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OSHIVER v. LEVIN

April 5, 1993

SHERRY OSHIVER
v.
LEVIN, FISHBEIN, SEDRAN & BERMAN



The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER

 JOYNER, J.

 April 5, 1993

 This employment discrimination case is before this Court upon motion of the defendant law firm, Levin, Fishbein, Sedran & Berman to Dismiss the Plaintiff's Complaint with prejudice pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). For the reasons which follow, the motion is granted and the Plaintiff's complaint is dismissed.

 According to the factual averments set forth in her complaint, in May, 1989, plaintiff, Sherry Oshiver, applied to the defendant firm for work as an associate attorney. In response to that inquiry, Howard Sedran, a partner in the Levin firm, told Ms. Oshiver that while there were no salaried associate's positions open at the time, the firm could offer her employment on an hourly basis and she would be considered for an associate's position if one should become available. Ms. Oshiver accepted the offer of hourly employment and began working for Levin, Fishbein, Sedran & Berman on May 25, 1989 at the rate of $ 25.00 per hour. The complaint further alleges that Ms. Oshiver worked for the Defendant full time on this basis until April 10, 1990 when she was advised by Mr. Sedran that the firm had no more work available for her. In the course of her attendance at an unemployment compensation hearing on May 21, 1991, however, Ms. Oshiver "first discovered that she had been replaced by a male and that apparently there was work to do at the firm." As a consequence of this action on the part of the Levin firm and the fact that the male individual hired as an associate was purportedly less qualified and experienced than is the plaintiff, Plaintiff commenced this action seeking declaratory, injunctive and equitable relief, together with, inter alia, damages in excess of $ 100,000 pursuant to the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 and the Pennsylvania Human Relations Act, 43 P.S. § 951 et. seq. In support of its motion to dismiss, Defendant argues: (1) that this Court lacks subject matter jurisdiction because the firm did not have the "fifteen or more employees for each working day in each of twenty or more weeks" required to bring it within the purview of Title VII; and (2) that even if it did have the statutorily-required minimum number of employees, Plaintiff's claims are time-barred because she did not file her claim with the Equal Employment Opportunity Commission ("EEOC") or the Pennsylvania Human Relations Commission ("PHRC") until more than 1 1/2 years after she was notified that no other work was available and she last worked for the defendant firm. In the absence of federal subject matter jurisdiction, Defendant submits that the Plaintiff's pendent state claim under the Pennsylvania Human Relations Act, 43 Pa.C.S.A. § 951 should also be dismissed.

 II. STANDARDS GOVERNING MOTIONS TO DISMISS UNDER FED.R.CIV.P. 12(B)(1) AND 12(B)(6)

 It has long been recognized that a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted is most frequently employed to challenge the legal sufficiency of a claim or pleading filed in the district courts. See, e.g.: United States v. Marisol, Inc., 725 F. Supp. 833 (M.D. Pa. 1989). In ruling upon a 12(b)(6) motion, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. 5A Wright & Miller, Federal Practice and Procedure: Civil 2d § 1357, citing, inter alia, Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3rd Cir. 1990). In so reviewing the pleadings and any materials of record, the court must accept as true all of the materials pleaded and all reasonable inferences that can be drawn therefrom, construing them in a light most favorable to the non-moving party. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3rd Cir. 1990); Hough/Lowe Assoc., Inc. v. CLX Realty Co., 760 F. Supp. 1141, 1142 (E.D. Pa. 1991); Ambrogi v. Gould, Inc., 750 F. Supp. 1233, 1241 (M.D. Pa. 1990). In this way, the court's inquiry is directed to whether the allegations constitute a statement of a claim under Rule 8(a) and whether the plaintiff has a right to any relief based upon the facts pled. A complaint is properly dismissed only if it appears certain that the plaintiff cannot prove any set of facts in support of her claim that would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-102, 2, 2 L. Ed. 2d 80 L. Ed. 2d (1957); Ransom v. Marrazzo, 848 F.2d 398, 401 (3rd Cir. 1988).

 Moreover, as a general rule under Fed.R.Civ.P. 8(c):

 
(emphasis supplied)

 Although the quoted language of this rule would seem to suggest that the statute of limitations defense cannot be raised via a Rule 12(b) motion to dismiss, an exception is made where the affirmative defense clearly appears on the face of the pleading. In this regard, it has been reasoned that since Rule 9(f) makes averments of time material, the inclusion of dates in the complaint indicating that the action is untimely renders it subject to dismissal for failure to state a claim. 5A Wright & Miller, Federal Practice and Procedure: Civil 2d, § 1357. Consequently, a 12(b)(6) motion should not be granted on limitations grounds unless the complaint facially shows noncompliance with the limitations period. Morgan v. Kobrin Secur., Inc., 649 F. Supp. 1023, 1027-1028 (N.D. Ill. 1986). See Also: Trevino v. Union P. Railroad Co., 916 F.2d 1230 (7th Cir. 1990).

 On the other hand, a Rule 12(b)(1) motion to dismiss for want of jurisdiction can be granted when the claim clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or is wholly insubstantial and frivolous. Unlike a Rule 12(b)(6) motion, it is the plaintiff who bears the burden of demonstrating that the requisite jurisdiction exists. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3rd Cir. 1991); Norman v. Levy, 756 F. Supp. 1060 (N.D. Ill. 1990).

 If jurisdiction is based on a federal question, the pleader must show that he has alleged a claim under federal law and that the claim is not frivolous. Bartholomew v. Librandi, 737 F. Supp. 22 (E.D. Pa. 1990), aff'd, 919 F.2d 133 (3rd Cir. 1990). A Rule 12(b)(1) motion is usually considered an appropriate vehicle when the plaintiff has failed to exhaust administrative remedies that are a prerequisite to his suit. 5A Wright and Miller, Federal Practice and Procedure: Civil 2d, § 1350 at 195 (1990). While the court may postpone a decision on the jurisdictional issue in order to allow for the presentation of evidence on that matter if none has been provided or if that which has been offered is inconclusive, once it finds that no jurisdiction exists, it ...


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