The opinion of the court was delivered by: Judge McClure
On July 10, 2009, plaintiffs, John and Leslie Conrad, a married couple, commenced a civil action by filing a complaint against defendants Northumberland County, Northumberland County Prison Board, Robert Sacavage, Anthony Rosini, Chad Reiner, Frank Sawicki, Kurt Masser, Charles Erdman, Vinny Clausi and Ralph M. Reish. In their complaint, the Conrads allege a violation of John Conrad's Right to Free Speech (Count I); deprivation of John Conrad's Substantive and Procedural Due Process rights (Count II);denying Conrad Equal Protection of the laws (Count III); wrongful discharge (Count IV); intentional infliction of emotional distress (Count V); violation of whistle blower statutes (Count VI); defamation (Count VII); loss of consortium (Count VIII); and violation of 42 U.S.C. 1985(2) (Count IX).
On September 22, 2009, defendants filed a Motion to Dismiss and a supporting brief. (Rec. Doc. Nos. 10 and 11). Plaintiffs were granted an extension of time within which to file their opposing brief, and thus their opposing brief was timely filed October 28, 2009. Defendants filed a reply brief November 9, 2009; thus the matter is ripe for disposition.
Now, therefore, for the following reasons we will grant the motion in part and deny it in part.
I. Motion to Dismiss Standard
When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must view all allegations stated in the complaint as true and construe all inferences in the light most favorable to plaintiff. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). "The tenet that a court must accept as true all of the [factual] allegations contained in the complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, __ U.S. __ , 2009 U.S. Lexis 3472, *29 (internal citations omitted). In ruling on such a motion, the court primarily considers the allegations of the pleading, but is not required to consider legal conclusions alleged in the complaint. Kost, 1 F.3d at 183. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, __ U.S. at *29. At the motion to dismiss stage, the court considers whether plaintiff is entitled to offer evidence to support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000).
A complaint should only be dismissed if, accepting as true all of the allegations in the complaint, plaintiff has not pled enough facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1960 (2007). "Determining wether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, __ U.S. at *30. In considering a Rule 12(b)(6) motion, we must be mindful that federal courts require notice pleading, as opposed to the heightened standard of fact pleading. Hellmann v. Kercher, 2008 U.S. Dist. LEXIS 54882, 4 (W.D. Pa. 2008). Federal Rule of Civil Procedure 8 "'requires only a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the.claim is and the grounds on which it rests,'" Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964, (2007) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, (1957)). However, even under this lower notice pleading standard, a plaintiff must do more than recite the elements of a cause of action, and then make a blanket assertion of an entitlement to relief under it. Hellmann, 2008 U.S. Dist. LEXIS at 4-5. Instead, a plaintiff must make a factual showing of his entitlement to relief by alleging sufficient facts that, when taken as true, suggest the required elements of a particular legal theory. Twombly, 127 S.Ct. at 1965. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - - but it has not "shown" - - "that the pleader is entitled to relief." Iqbal, __ U.S. at *29, citing Fed. R. Civ. P. 8(a). The failure-to-state-a-claim standard of Rule 12(b)(6) "streamlines litigation by dispensing with needless discovery and factfinding." Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where there is a "dispositive issue of law." Id. at 326. If it is beyond a doubt that the non-moving party can prove no set of facts in support of its allegations, then a claim must be dismissed "without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one." Id. at 327
II. Allegations in the Complaint
Accepting as true all of the allegations in the complaint, the facts are as follows.Plaintiffs John Conrad ("Conrad") and Leslie Conrad ("Leslie Conrad") are a married couple. In 1990, Conrad was hired by Northumberland County as its Finance Officer. In October 2001, Conrad was appointed as Deputy Warden of the Northumberland County Prison. As Deputy Warden, most of Conrad's performance reviews were "very good or excellent." Conrad asserts that he never received any reprimands during his tenure with the prison, nor did he receive any criticism from Warden Ralph M. Reish, his supervisor.
In February 2009, Todd Kerstetter, Solicitor for Northumberland County Prison, advised Conrad that he would be suspended with pay for 1) making critical statements about Ralph M. Reish, the prison Warden, to a newspaper reporter, 2) injuring Don Keeley*fn1 , and 3) failing to stop overtime at the prison. According to the complaint, Kerstetter told Conrad he would be availed of a hearing, but suggested that Conrad resign to "save him further trouble." On March 25, 2009, Conrad's employment was terminated at a public hearing held by the Northumberland Prison Board.Conrad was not provided with a statement of charges prior to the hearing; however, Kerstetter orally advised Conrad that the charges included the three he had previously been advised of, in addition to a fourth charge. The fourth charge was that Conrad was responsible for his son-inlaw's actions in taking scrap metal from the prison to sell without paying the prison. Conrad was allowed to testify at the hearing. Conrad asserts that because he did not have formal notice of the charges against him, he was unable to meaningfully present evidence or call witnesses on his behalf. Plaintiffs aver that the hearing was a sham and the Board members had decided prior to the hearing to terminate Conrad's employment.
Plaintiffs believe that the reasons given for Conrad's termination were pretextual. Plaintiffs assert that Conrad's employment was terminated in retaliation for his testifying truthfully before a Grand Jury investigating corruption at the Northumberland County Prison and in two separate lawsuits against Northumberland County. Presumably his testimony had negative implications for the county.
Plaintiffs assert that prior to Conrad's termination, Commissioner Frank Sawicki requested that Reish send Sawicki a letter concerning the termination of Conrad. In that letter, Reish advised that Conrad's employment should be terminated, in part, because of his testimony in the two lawsuits against the county.
At all times relevant to the complaint, defendants Sacavage, Rosini, Reiner, Sawicki, Masser, Erdman and Clausi were members of the Northumberland County Prison Board and agents and representatives of Northumberland County acting within the scope of their employment for Northumberland County. At all times relevant to the complaint, defendant Reish was the Warden of the Northumberland County Prison and an employee of Northumberland County and/or the Northumberland County Prison Board and was an agent and representative of Northumberland County acting within the scope of his employment with the county. Plaintiffs aver that the defendant Prison Board and its individual defendant members were the highest decision-making and policy-making members concerning Conrad's employment. In the alternative, plaintiffs aver that Reish was the highest decision-making or policy-making member over Conrad.
Although defendants titled their motion a Motion to Dismiss, they indicate in their reply brief that it should have been styled as a partial motion, as they did not seek to dismiss all causes of action. Additionally, defendants' reply brief clarifies which claims they are seeking to dismiss. Plaintiffs' brief narrows the scope of their §1985 claim and plaintiffs agree to voluntarily dismiss some counts. Therefore, a brief recital of which counts are and are not the subject of the motion is in order before dealing with the substance of the motion.
Plaintiffs' complaint sets forth nine counts, each count being against all defendants. The parties agree that counts IV, V and VII should be dismissed as to Northumberland County and the Northumberland Prison Board. As a result, Count VIII will be dismissed as to the County and Prison Board, as Leslie Conrad's right to recover in Count VIII is based on a finding of tort liability in Counts IV, V and/or VII. Defendants did not move to dismiss counts IV, V, and VII as to the individual defendants; thus these counts remain as to the individual defendants. Defendants are not moving for Count VI to be dismissed; therefore this count remains as to all defendants. Plaintiffs' complaint pled §1985 generally, but in their opposing brief, plaintiffs limit their §1985 claim to §1985(2). As a result, in their reply brief, defendants withdrew their motion to dismiss ...