The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER
Presently before the Court for disposition is the MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT AND INCORPORATED MEMORANDUM OF LAW filed by Defendant, PGT Trucking, Inc. (Document No. 36), and the RESPONSE IN OPPOSITION filed by Plaintiff, Mark Arner (Document No. 37).
This lawsuit commenced on February 13, 2009, with the filing of a one-count Complaint in the United States District Court for the Middle District of Florida, Tampa Division, in which Plaintiff, Mark Arner, alleged that his former employer, Defendant PGT Trucking, Inc., terminated his employment in retaliation for his reporting and refusing to participate in "violations of law and regulations" in violation of the Pennsylvania's Whistleblower Law. See 43 Pa. Cons. Stat. § 1421, et seq.
Defendant moved to dismiss the Complaint for lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, and failure to state a claim or in the alternative, to transfer the case to the United States District Court for the Western District of Pennsylvania. By Order of May 7, 2009, Judge Steven D. Merryday granted the motion to transfer pursuant to 28 U.S.C. § 1404(a), and the case was thereafter transferred to the United States District Court for the Western District of Pennsylvania and assigned to this member of the Court.
On July 30, 2009, Plaintiff filed an unopposed Motion for Leave to File Amended Complaint to Add Additional Claims, which was granted by the Court. On August 17, 2009, Plaintiff filed his First Amended Complaint, in which he added a second claim alleging wrongful discharge in violation of the public policy exception to at-will employment.
On August 31, 2009, Defendant filed an Answer and Affirmative Defenses to the First Amended Complaint. On October 30, 2009, the Court conducted a Case Management Conference with counsel.
On December 2, 2009, three months after Defendant filed its Answer, Defendant filed the instant Motion to Dismiss. Discovery is scheduled to close in this matter on March 31, 2010. A post discovery status conference is scheduled for April 7, 2010.
A. Motion to Dismiss is More Properly Analyzed Under Rule 12(c), not Rule 12(b)(6)
As noted supra, on August 31, 2009, Defendant filed an Answer and Affirmative Defenses to the First Amended Complaint
See Document No. 29. However, on December 2, 2009, Defendant then filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.
Rule 12(b) specifically states that "[a] motion asserting [a failure to state a claim upon which relief can be granted] must be made before pleading if a responsive pleading is allowed." Fed.R.Civ.P. 12(b) (emphasis added). Clearly, Defendant filed its motion to dismiss after filing its Answer, which at first blush would appear to be untimely.
However, under Rule 12(h)(2): "Failure to state a claim upon which relief can be granted . . . may be raised . . . by a motion under Rule 12(c) [for judgment on the pleadings]." Fed.R.Civ.P. 12(h)(2)(B). As a result of this rule, district courts within the Third Circuit have construed motions to dismiss under Rule 12(b)(6) filed after the close of pleadings as motions for a judgment on the pleadings under Rule 12(c). See, e.g. Turbe v. Gov't of the V.I., 938 F.2d 427, 428 (3d Cir. 1991); Penzoil Prods. Co. v. Colelli & Assocs., Inc., 953 F.Supp. 669, 671 n. 1 (W.D. Pa. 1997) (converting a post-answer motion for a preserved Rule 12(b)(2) defense to a motion under Rule 12(c)), rev'd on other grounds, 149 F.3d 197 (3d Cir. ...