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Markert v. Becker Technical Staffing

May 5, 2010


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


This case is now before the Court on Defendants Joan and Harvey Becker's Motion to Dismiss Plaintiff's Amended Complaint (Doc. No. 17). For the reasons set forth below, the Motion is GRANTED.

Factual Background*fn1

Plaintiff was employed by Defendant Becker Staffing Services, LLC ("Becker Staffing") as a Senior Account Executive and Senior Executive Recruiter for the IT Division from August 2007 until August 2009. In addition to Becker Staffing, Plaintiff has named five other Defendants: Daniel Becker, who is the President of Becker Staffing; Renee Becker, who is Daniel Becker's wife, and the President of Defendant Becker Technical Staffing, Inc. ("Becker Technical"), a corporation that is a separate legal entity from, but affiliated and shares office space with, Becker Staffing; Harvey Becker, who is Daniel Becker's father, and ran the predecessor companies to Becker Staffing; and, finally, Joan Becker, who is Harvey Becker's wife.

Plaintiff asserts that during his time at Becker Staffing, he became one of the company's top producers, provided management-level expertise in training other employees, allowed his personal information and information stored on his personal hard drive to be used by other Becker Staffing employees, and was otherwise a good employee. Notwithstanding these facts, Plaintiff asserts that in or around February 2008, his base salary was cut from approximately $70,000 per year to approximately $40,000 per year. Plaintiff began to look for other work in March of 2009, but asserts that he continued to put forth his best efforts while working for Becker Staffing.

On August 3, 2009, Plaintiff was working from home and remotely accessed his work computer through his personal laptop. At some point during this time, he logged into his personal Gmail account and did not log out, causing his personal e-mail inbox to appear on the screen of his work computer. Included in this inbox was an e-mail that discussed what Defendants believed was an attempt to divert business away from Becker Staffing. When Daniel Becker saw this e-mail, he allegedly proceeded to search through the rest of Plaintiff's personal e-mails. When Plaintiff arrived at the office for his next day of work he discovered that his printer was missing, his computer was disconnected, and his chair had been removed. When he inquired about the missing items he was informed that he was fired from his position. Plaintiff asserts that, although he requested that his portable hard drive and any other personal information in the office be returned to him, he never received this property back from Defendants.

Plaintiff alleges that he subsequently discovered that Defendants have utilized the personal information that was contained on his portable hard drive and have reviewed e-mails within his Gmail account, which was not used for work purposes. He further asserts that Defendants co-mingled assets and funds during his employment, which resulted in Plaintiff not receiving all of the money to which he was entitled from Becker Staffing's profit-sharing plan. In addition, Plaintiff asserts that Defendants manipulated the net profit from which his commissions were determined, thereby decreasing his payments. Finally, Plaintiff asserts that after his separation from Becker Staffing, Defendants defamed and slandered him by attacking his business ethics.

Plaintiff has brought claims against all individual Defendants for defamation and slander, violation of the Federal Stored Communications Act ("FSCA"), invasion of privacy, and conversion, and claims against all Defendants for violation of the Pennsylvania Wage Payment and Collection Law ("PWPCL") and the Employee Retirement Income Security Act ("ERISA"). Defendants Harvey and Joan Becker have filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting that Plaintiff has failed to state a claim against them on which relief can be granted.


Federal Rule of Civil Procedure 12(b)(6) requires a court to dismiss a complaint if the plaintiff has failed to "state a claim on which relief can be granted." In evaluating a motion to dismiss, the court must take all well-pleaded factual allegations as true, but it is not required to blindly accept "a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 283, 286 (1986). Although a plaintiff is not required to plead detailed factual allegations, the complaint must include enough facts to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In order to do so the plaintiff must show that his right to relief is at least "plausible." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); Twombly, 550 U.S. at 570. This requires more than a "formulaic recitation of the elements of a cause of action," Twombly, 550 U.S. at 555, and the complaint must allege facts "suggestive of" the elements of the cause of action in order to survive a motion to dismiss. Phillips v. County of Allegheny, 515 F.3d 224, 232-33 (3d Cir. 2008).



As an initial matter, we must first ensure that this Court has jurisdiction over all of Plaintiff's claims. Plaintiff brings his case under this Court's federal question jurisdiction, as provided by 28 U.S.C. § 1331. Out of Plaintiff's seven counts, two raise a federal claim: Count III's allegations of an ERISA violation and Count IV's claim under the FSCA. When jurisdiction is proper under § 1331, supplemental jurisdiction can be exercised over state law claims under 28 U.S.C. § 1367(a) if the claims form part of the same "case or controversy under Article III of the Constitution." Cases have subsequently interpreted this phrase to require that the claims over which the court exercises supplemental jurisdiction have a "common nucleus of operative facts" and be of the type that would ordinarily be expected to be tried in the same proceeding as the federal claim. Lyon v. Whisman, 45 F.3d 758, 760 (3d Cir. 1995) (citing United Mineworkers of Am. v. Gibbs, 383 U.S. 715, 725 (1966)).

Applying this standard to Plaintiff's case, we must determine which state law claims have a common nucleus of operative facts with ...

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