Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wadhwa v. Nicholson

April 24, 2009

DOM WADHWA, M.D., ET AL.
v.
R. JAMES NICHOLSON, ET AL.



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

Dom Wadhwa, M.D., and Sharon A. Finizie, R.N., are employees of the United States Department of Veterans Affairs Medical Center ("VA") in Philadelphia, Pennsylvania. This consolidated case, which was originally filed as four separate lawsuits, is the result of a series of alleged employment disputes between the plaintiffs and the VA.*fn1 At this stage, the only claims remaining are those related to the plaintiffs' "Bivens action," originally filed as Civil Action No. 07-2750.

The defendants have filed a motion to strike and to dismiss, in which they ask that the Court: (1) strike all allegations and claims in the plaintiffs' new Second Amended Consolidated Complaint (the "new SACC," Docket No. 70) that are unrelated to the plaintiffs' Bivens action; (2) dismiss R. James Nicholson as a defendant under Rule 12(b)(6); and (3) strike the plaintiffs' affidavit of service filed on January 30, 2009, and order the plaintiffs to properly serve the summons and new SACC on each individual defendant. The Court will grant the defendants' motion in part and deny it in part.

I. Background

On February 29, 2008, the Court heard oral argument on the government's omnibus motion to dismiss the claims in each of the plaintiffs' four lawsuits. On June 20, 2008, the Court dismissed all of the plaintiffs' claims, with the exception of the claims in the plaintiffs' "Bivens action," Civil Action No. 07-2750. See Docket No. 40.*fn2

On July 18, 2008, the Court granted the plaintiffs leave to file a consolidated second amended complaint containing the allegations of three previous amended complaints submitted by the plaintiffs. On August 6, 2008, the plaintiffs filed their second amended complaint. On August 19, 2008, the Court ordered that complaint stricken, as it contained amendments that the Court did not give the plaintiffs leave to make. See Docket Nos. 49, 54, 57.

In striking the complaint, the Court clarified which claims the plaintiffs could include in their new complaint. These claims "include only the alleged false arrest and related events on June 23 and 26, 2007; the alleged retaliatory incident on February 29, 2008; and the alleged unreasonable search and seizure of June 27, 2008." Docket No. 57 ¶ 2.

On January 20, 2009, the Court ordered the Clerk to file the new SACC submitted by the plaintiffs, which contained a modified caption and additional individual defendants for the plaintiffs' Bivens action. On that date, the Court also ordered the Clerk to issue summonses as to the new defendants named in the new SACC. See Docket No. 69.

On January 30, 2009, the plaintiffs filed a set of eight forms entitled "Sheriff's Return of Service - Philadelphia Co." - with one form for each of the eight defendants named in the new SACC. According to the certificate of service attached to these returns, the returns are meant to establish service of the summons and new SACC on "all Defendants." On each of the returns, however, the section entitled "TO BE COMPLETED BY SHERIFF" is blank. None of these forms states when any defendant was served or the manner of service. See Docket No. 71.*fn3

The defendants filed a motion to strike and to dismiss on March 2, 2009. See Docket No. 73. After the plaintiffs filed a motion to compel the VA Chief Counsel's office to permit service at the VA, the defendants filed an amended motion to strike and to dismiss. See Docket No. 75.*fn4

II. Discussion

In their amended motion, the defendants ask the Court (1) to strike all allegations and claims in the new SACC that are not related to the plaintiffs' Bivens causes of action; (2) to dismiss defendant Nicholson from the lawsuit for failure to state a claim; and (3) to strike the affidavit of service filed on January 30, 2009, and order the plaintiffs to properly serve the summons and new SACC on each individual defendant. The Court will grant the defendants' motion in part and deny it in part.*fn5

A. Motion to Strike Non-Bivens-Related Claims and Allegations

First, all allegations and claims in the plaintiffs' new SACC that relate to employment discrimination under Title VII, the Age Discrimination in Employment Act ("ADEA"), and nonBivens-related tort claims are stricken. The Court has not given the plaintiffs leave to include ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.