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Carey v. KOS Pharmaceuticals

April 21, 2006

MARIA CAREY AND JAMES P. CAREY, PLAINTIFFS,
v.
KOS PHARMACEUTICALS, INC., DEFENDANT.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Before me is Defendant's Motion to Dismiss (Doc. 14). It seeks dismissal of Plaintiffs' six count complaint which seeks recovery under Title VII of the Civil Rights Act of 1964, 420 U.S.C. § 2000e, et seq., for a sexually hostile work environment. In addition, three are state claims under the Pennsylvania Human Relations Act, 43 Pa. Stat. § 951, et seq. (PHRA), for assault and battery, intentional infliction of emotional distress, negligence and loss of consortium.

The plaintiffs concede the failure to exhaust remedies under the PHRA and have therefore conceded that Count II should be dismissed.

Because the Plaintiff has adequately pleaded a sexually hostile work environment, assault and battery, and loss of consortium, the motion will be denied as to Counts II, III and VI. The motion will be granted as to Count IV and Count V for failure to state a claim upon which relief can be granted and preemption of the PHRA, respectively.

DISCUSSION

I. Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting all factual allegations in the complaint as true and "drawing all reasonable inferences in the plaintiff's favor, no relief could be granted under any set of facts consistent with the allegations in the complaint." Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts, Inc., 140 F.3d 478, 483 (3d Cir. 1998).

In deciding a motion to dismiss, a court should consider the allegations in the complaint, exhibits attached to the complaint and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The court may also consider "undisputedly authentic" documents where the plaintiff's claims are based on the documents and the defendant has attached a copy of the document to the motion to dismiss. Id. The court need not assume that the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir. 1998), nor credit a complaint's "bald assertions" or "legal conclusions." Morse v. Lower Marion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).

When considering a Rule 12(b)(6) motion, the court's role is limited to determining whether the plaintiff is entitled to offer evidence in support of the claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The court does not consider whether the plaintiff will ultimately prevail. See id. In order to survive a motion to dismiss, the plaintiff must set forth information from which each element of a claim may be inferred. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The defendant bears the burden of establishing that the plaintiff's complaint fails to state a claim upon which relief can be granted.See Gould Electronics v. United States, 220 F.3d 169, 178 (3d Cir. 2000).

II. Sexual Harassment Claim

To state the obvious, pleading under Rules of Civil Procedure is notice pleading; not fact pleading. See Rule 8, Fed.R.Civ.P., and Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 513 ("Rule 8's simplified pleading standard applies to all civil actions. . . ").

The elements of a hostile work environment under Title VII in this case are:

(1) the plaintiff suffered intentional discrimination because of her gender;

(2) the discrimination was pervasive and regular;

(3) the discrimination detrimentally affected Plaintiff;

(4) the discrimination would detrimentally affect a reasonable person of the same ...


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