The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER
Presently before the Court in this employment discrimination case are the following:
* Defendants' MOTION TO DISMISS and brief in support thereof (Doc. Nos. 7 and 8)
* Plaintiff's OPPOSITION AND BRIEF IN SUPPORT OF HIS OPPOSITION TO DEFENDANT'S MOTION TO DISMISS (Doc. No. 14)
* Defendant's REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS (Doc. No. 15)
* Plaintiff's SURREPLY BRIEF TO DEFENDANT'S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS (Doc. No. 18)
* Plaintiff's MOTION FOR RULE 11 SANCTIONS and brief in support thereof (Doc. Nos. 16 and 17).
* Defendant's RESPONSE TO PLAINTIFF'S MOTION FOR SANCTIONS and brief in support thereof (Doc. Nos. 19 and 20)
* Plaintiff's REPLY BRIEF IN SUPPORT OF HIS MOTION FOR SANCTIONS (Doc. 22) For the reasons hereinafter set forth the Court will grant Defendants' motion to dismiss (1) on counts 9, 10, 15, and 16 of the complaint with respect to all defendants, (2) on counts 1, 2, 5, and 6 with respect to all discriminatory conduct alleged to have occurred before October 2, 2003, or 300 days before the administrative charge was filed, and (3) on counts 1, 2, 5, and 6 with respect the individual defendants. The Court will deny Defendants' motion with respect to all other counts. Plaintiff's motion for Rule 11 sanctions will be denied.
Plaintiff is an African American male formerly employed by Defendant II-VI, Incorporated ("II-VI"), a manufacturing company located in Saxonburg, Pa. (Compl. ¶ 11). II-VI hired Plaintiff on January 31, 2000 and terminated his employment on May 19, 2004. (Compl. ¶ 27-28, 62). At the time of his dismissal, he was 43 years old. (EEOC Discrimination Charge, Ex. A to Defendant's Brief in Support of Motion to Dismiss ("Def. Brief")).*fn1 Plaintiff alleges that Defendants discriminated against him and terminated his employment because of his age and race and in retaliation for complaining that he was being discriminated against. (Compl. ¶¶ 74-137). He further alleges that the Defendants are liable for their actions in relation to his employment at II-VI under Pennsylvania common law. (Compl. ¶¶ 138-59).
This is the third legal action Plaintiff has initiated that arises out of his employment with Defendant II-VI. On May 17, 2005, Plaintiff filed a Praecipe for Writ of Summons against Defendants in the Butler County Court of Common Pleas. (Ex. B to Def. Brief). It does not appear, however, that plaintiff has pursued that action. On June 16, 2005 Plaintiff filed a civil action in the Court of Common Pleas of Allegheny County against the same Defendants named in the present action. (Ex. C to Def. Brief). The Fifth Amended Complaint, filed on January 19, 2006, in that case included eight counts against defendants: intentional infliction of emotional distress, negligently conducted and maintained performance appraisal, negligent supervision, failure to comply with duty to investigate, intentional interference with prospective employment relationship, negligent retention, negligent training, and negligent failure to provide a safe work environment. Id.
Defendants filed preliminary objections to that Fifth Amended Complaint on February 6, 2006. (Ex. D to Def. Brief). In those objections, Defendants argued that Plaintiff's claims should be dismissed because (1) some of Plaintiff's claims were not pled with sufficient factual specificity, (2) all of Plaintiff's claims were legally insufficient, and (3) Plaintiff had prior legal action pending on the same claims. Id. The Defendants' preliminary objections identified two pending proceedings that it argued should bar Plaintiff's claims:
1. The Plaintiff commenced a civil action against these same defendants in the Court of Common Pleas of Butler County Pennsylvania at 2005-10546, which action is still pending in said court. . .
2. The Plaintiff filed a charge of discrimination against Defendant II-VI before the Equal Employment Opportunity Commission at Docket No. 172-2004-01603, which action was recently dismissed by said Commission, with advice to the Plaintiff that he was given leave to file a civil action to redress any alleged harm to him, and in which action he is permitted to raise the same allegations as are raised in this suit.
On March 9, 2006, after hearing oral argument, Judge Judith Friedman sustained defendants' preliminary objections and dismissed the action. (Ex. E to Def. Brief) The entire text of the order dismissing the action was as follows:
"AND NOW, this 9th day of March, 2006, after consideration of the Preliminary Objections and Brief in Support Thereof heretofore filed by the Defendants, and after review of Plaintiff's response and following oral argument, the Plaintiff's Fifth Amended Complaint is hereby dismissed in its entirety."
Id. The record does not reflect the specific reasoning behind the dismissal. On April 10, 2006, Plaintiff filed a Notice of Appeal in the matter to the Superior Court of Pennsylvania. (Ex. F to Defendant's Brief in Support of Motion to Dismiss). The Superior Court dismissed that appeal on October 4, 2006, because Plaintiff failed to file a brief. (Ex. A to Defendant's Reply Brief in Support of Motion to Dismiss).
Before initiating his actions in the Pennsylvania state courts, Plaintiff had filed a charge of discrimination against Defendants with the EEOC. (Ex. A to Defendant's Brief in Support of Motion to Dismiss). On January 31, 2006, the EEOC issued a right to sue letter to Plaintiff with respect to that charge. (Ex. G to Defendant's Brief in Support of Motion to Dismiss) On April 28, 2006, Plaintiff commenced the instant action in this Court. The Complaint cites sixteen counts against defendants. Plaintiff alleges that Defendants: violated Title VII of the Civil Rights Act, 42 U.S.C. §2000e (counts 1 and 2); violated the Pennsylvania Human Rights Act, 43 P.S. § 951 et seq. (counts 3 and 4); violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. (counts 5 and 6); violated the Civil Rights Act of 1866, 42 U.S.C. § 1981 (counts 7 and 8); violated the Civil Rights Act of 1871, 42 U.S.C. § 1985(3) (counts 9 and 10); tortiously interfered with a contractual relationship (count 11); breached the employment contract with defendant (count 12); breached their fiduciary duty, duty of loyalty, and duty of good faith and fair dealing with respect to Plaintiff (count 13); made fraudulent misrepresentations to Plaintiff (count 14); engaged in a civil conspiracy to commit the above alleged actions (count 15); and intentionally inflicted emotional distress on Plaintiff (count 16). Between August 15th and 17th, 2006, Defendants were served with the complaint (and possibly a summons) by United States Mail. (Doc. Nos. 9, 10, 11, and 12). On August 28, 2006, Defendants filed a Motion for Extension of Time to File a Responsive Pleading (Doc. No. 4), arguing that Plaintiff had failed to serve defendants with a summons or with a waiver of service. Plaintiff filed returns of service with the Court on September 13, 2006. (Doc. Nos. 9, 10, 11, and 12).
On September 11, 2006 defendants filed a Motion to Dismiss Plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(5), and 12(b)(6) with a supporting brief. (Doc. Nos. 7 and 8). In their brief, Defendants argued that Plaintiff's complaint should be dismissed because (1) Plaintiff failed to properly serve Defendants, (2) Plaintiff's Title VII and ADEA claims were time-barred, (3) the individual defendants were not liable under Title VII and the ADEA, (4) some of Plaintiff's claims were barred by res judicata and collateral estoppel, (5) Plaintiff failed to exhaust his administrative remedies for his ADEA and Title VII retaliation claims, (6) Plaintiff failed to state a claim with respect to his § 1981 and § 1985 claims and all of his state law claims, and (7) Plaintiff failed to allege a contract with respect to his § 1981 claims.
On October 17, 2006, Plaintiff filed a Motion for Rule 11 Sanctions (Doc. No. 16), alleging that Defendants' Motion to Dismiss and their Motion for Extension of Time to File a Responsive Pleading contained "incomplete and/or false and reckless allegations of facts," including that Plaintiff had not served Defendants with summonses. On October 23, 2006, Defendants withdrew their motion to dismiss with respect rules 12(b)(2) and 12(b)(5). (Doc. No. 21).
When considering a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts as true all well pleaded allegations of fact. Pennsylvania Nurses Ass'n. v. Pennsylvania State Educ. Ass'n, 90 F.3d 797, 799-800 (3d Cir.1996). In addition, the Court must view all facts, and reasonable inferences drawn therefrom, in the light most favorable to the non-movant. General Motors Corp. v. New A.C. Chevrolet, Inc., 263 F.3d 296, 325 (3d Cir. 2001). Dismissal is appropriate only "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); see also Lorenz v. CSX Corp., 1 F.3d 1406, 1411 (3d Cir.1993).
A. Res judicata effect of State Court Dismissal (Counts 7, 8, 9, 10, 11, 12, 13, 14, and 15)
Defendants argue that the doctrine of res judicata bars all of Plaintiff's claims that he could have brought in his state court action in the Court of Common Pleas. The doctrine of res judicata, or claim preclusion, "prohibits litigants from pursuing a matter that has not previously been litigated but which should have been advanced in an earlier suit." General Elec. Co. v. Deutz AG, 270 F.3d 144, 158 n.5 (3d Cir. 2001) (citing Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1 (1984)).
Under 28 U.S.C. § 1738, the rulings of state courts "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 ... from which they are taken." Thus, this Court must give the same preclusive effect to a judgment of a Court of Common Pleas of Pennsylvania as Pennsylvania courts would give that judgment. Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542, 548 (3d Cir. 2006).
In Pennsylvania, res judicata bars parties "from litigating claims that were or could have been raised in the prior action which resulted in a final judgment on the merits, so long as the claims derive from the same cause of action." Balent v. City of Wilkes-Barre, 669 A.2d 309, 315 (Pa. 1995) (citing Allen v. McCurry, 449 U.S. 90, 94 (1980)). Res judicata does not, however, preclude a litigant from bringing in a second action a claim that he could not have raised in the first action. See McCarter v. Mitcham, 883 F.2d 196, 199 (3d Cir.1989) (finding that prior Pennsylvania civil rights suit did not bar a Title VII action because Title VII claims cannot be brought in state court).
Two suits are sufficiently similar for res judicata purposes when the two actions share the following four characteristics: (1) the thing sued upon or for; (2) the cause of action; (3) the persons and parties to the action; and (4) the capacity of the parties to sue or be sued. Turner, 449 F.3d 542, 548 (citing Bearoff v. Bearoff Bros., Inc., 458 Pa. 494, 327 A.2d 72, 74 (1974)); McGill v. Southwark Realty Co., 828 A.2d 430, 435 (Pa. Cmwlth. Ct. 2003) (citing Myers v. Workers Comp. Appeal Bd. (Univ. of Pennsylvania), 782 A.2d 1108 (Pa. Cmwlth. Ct. 2001).
It is not clear whether the dismissal by the Court of Common Pleas of Plaintiff's state court action was a "final judgment on the merits" because it is not clear from the record the basis upon which the state trial court dismissed Plaintiff's claim(s). Thus, res judicata cannot apply in this case. The Pennsylvania Supreme Court has recognized that the "sustaining of preliminary objections in the nature of a demurrer . . . is a final appealable order." United State National Bank in Johnstown v. Johnson, 487 A.2d 809, 813 (Pa. 1985) (internal citations omitted). Further, such an order, "becomes res judicata if not appealed within the prescribed appeal period." Id. Thus, if the Court of Common Pleas had clearly dismissed Plaintiff's claims on the basis of a demurrer, the order would be res judicata with respect to any further claims by plaintiff that could have been brought in the state court proceeding. See, e.g., J. A. & W. A. Hess, Inc. v. Hazle Tp., 350 A.2d 858, 861 (Pa. 1976) (noting that "[a]n order granting a demurrer says, in effect, that the plaintiff is not entitled to proceed to trial because he has not stated a cause of action, it puts the plaintiff out of court as to a particular defendant").
In this case, however, the order which dismissed Plaintiff's claim(s) did not specifically indicate that the court dismissed Plaintiff's claim(s) on the basis of a demurrer and Defendant's had also argued in their preliminary objections that the Plaintiff's complaint should be dismissed in its entirety because of the pendency of other actions.*fn2 Specifically, Defendants argued in their preliminary objections that because Plaintiff had commenced an action in Butler County and because the EEOC had just dismissed Plaintiff's complaint and given him leave to file a civil action "in which action he is permitted to raise the same allegations as are raised in this suit." (Defendant's Preliminary Objection, Ex. D of Def. Brief at 12-13).
Because it is not clear from the order why the court dismissed Plaintiff's state court action, it has become necessary to consider whether a dismissal on the basis of a pendency of another action would also constitute a "final judgment on the merits." In Pennsylvania, a judgment dismissing an action will not necessarily bar a later suit. Wade v. City of Pittsburgh, 765 F.2d 405, 409 (3d Cir. 1985) (citing Restatement of Judgment 2d § 20) (applying Pennsylvania law). In Pennsylvania courts, the "essential inquiry" in determining whether res judicata applies "is whether the ultimate and controlling issues have been decided in a prior proceeding in which the present parties had an opportunity to appear and assert their rights."Callery v. Municipal Authority, 243 A.2d 385, 387 (Pa. 1968). In addition, "A former judgment is not conclusive of anything which was not directly decided by it or was not material to the decision. Before such effect can be given to it in another suit, it should appear ... that [the earlier decision] rested on the precise questions which it is sought again to agitate." Wade, 765 F.2d at 409 (quoting Haefele v. Davis, 160 A.2d 711, 713 (Pa. 1960)). Thus, a dismissal based on the expiration of a statute of limitations in one forum may not necessarily bar a suit on the same cause of action in another jurisdiction. See Wade, 765 F.2d at 409 (citingHartmann v. Time, Inc., 166 F.2d 127, 138 (3d Cir.1948)).
The opinion of the Superior Court of Pennsylvania in Consolidation Coal Co. v. District 5, United Mine Workers of America, 485 A.2d 1118 (Pa. Super. Ct. 1984) is instructive on this point. The court held that a preliminary injunction, which is only a temporary remedy granted in contemplation of the time when the parties' dispute may be resolved, is not a final judgment on the merits. Id. at 1122. The court recognized that while there a strong public policy in Pennsylvania against splitting a cause of action, the rationale that underlies this policy is that "it is seen as inappropriate to drag a party through the litigation process twice." Id. at 1122-23. See also, Clark v. Troutman, 502 A.2d 137, 139 (Pa. 1985) (noting that "[t]he purposes of the rule are the protection of litigants from the dual burden of relitigating an issue with the same party or his privy and the promotion of judicial economy through prevention of needless litigation"); In re Estate of Tower, 343 A.2d 671, 674 (Pa. 1975) (observing ...