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Davis-Heep v. City of Philadelphia

July 27, 2010


The opinion of the court was delivered by: Robert F. Kelly, Sr. J.


Presently before the Court is Defendant Kathleen Tia Burke's ("Burke") Motion to Dismiss, or in the alternative, Motion for Summary Judgment against Plaintiff Darlene DavisHeep ("Davis-Heep"). For the reasons set forth below, this Motion will be denied.


Davis-Heep is a former Senior Attorney for the City's Law Department ("Law Department"). Shelly R. Smith ("Smith") was appointed as the City Solicitor for the City of Philadelphia (the "City") in January 2007, and was Davis-Heep's direct supervisor. Burke was hired by Smith as an attorney in the Law Department and is alleged to have been in a "supervisory position" over Davis-Heep. (Compl. ¶ 7.) Davis-Heep asserts that Burke was having an extramarital affair with Davis-Heep's then husband Jeremy Heep. (Compl. ¶¶ 8-9.) In February 2008, Davis-Heep commenced a defamation suit against Burke in the Court of Common Pleas of Philadelphia County (the "Heep-Burke Lawsuit"). That suit was based on allegations that Burke, in her capacity as a supervisor, made false statements about Davis-Heep in the course and scope of Burke's employment with the Law Department. (Compl. ¶ 10.) Davis-Heep asserts that the Heep-Burke Lawsuit was settled in September of 2008 in exchange for a written concession by Burke that she had made misrepresentations about her. (Compl. ¶ 11.)

In an unrelated suit against the City, McKenna/Carnation v. City of Philadelphia (the "McKenna Lawsuit"),*fn1 counsel for plaintiffs McKenna and Carnation, Brian Puricelli, Esquire ("Puricelli")*fn2 requested that the City provide a copy of the settlement agreement in the Heep-Burke Lawsuit. Davis-Heep asserts that the McKenna Lawsuit resulted in a jury verdict against the City in the amount of ten million dollars. Davis-Heep alleges that Burke was the supervising attorney for the City during post-trial activities in the McKenna Lawsuit, and that during a settlement conference in another case against the City (Speck v. City of Philadelphia), Burke "threatened to paper to death Puricelli in the McKenna/Carnation suit if he did not settle the case." (Resp. Mot. Dismiss at 2.) Davis-Heep states that this threat was reported to the court, but Burke denied making the threat. (Id.) The City asserts that in addition to seeking a copy of the Heep-Burke settlement agreement, Puricelli also sought information regarding the status of Burke's maternity leave which was a Law Department matter wholly unrelated to the McKenna Lawsuit. (Mot. Dismiss, Ex. B.) The City maintains that upon learning that Davis-Heep had communicated internal personnel matters to Puricelli, she was terminated on December 4, 2008.

(Mot. Dismiss, Ex. C.)

Plaintiff filed the instant Complaint on November 25, 2009, and asserts claims for "42 U.S.C. § 1983: Retaliation for First Amendment free speech and petition clause Protected Activities" (Count I); "42 U.S.C. [§] 1983- Monell/Conspiracy & Equal Protection" (Count II); "Wrongful Termination- Pendant State Claim" (Count III); and "Civil Conspiracy - Pendent State Claim" (Count IV). (Mot. Dismiss, Ex. A.) The City and Smith filed a Motion to Dismiss on February 19, 2010. On April 19, 2010, this Court granted this Motion in part and denied it in part. Specifically, we determined that the Motion was granted with respect to the following claims: First Amendment retaliation, § 1983 conspiracy, § 1981 race discrimination, state law wrongful termination, and state law conspiracy. The Motion was denied with respect to DavisHeep's First Amendment retaliation concerning the Heep-Burke Lawsuit, § 1983 claim against the City, and § 1983 race discrimination claim. See Davis v. City of Philadelphia, No. 09-5619, 2010 WL 1568502, at *1 (E.D. Pa. Apr. 19, 2010).

Burke has now filed the instant Motion to Dismiss, or in the alternative, Motion for Summary Judgment on her own behalf asserting that Davis-Heep's Complaint fails to state any claims upon which relief can be granted.


A. Motion to Dismiss

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). Under Rule 12(b)(6), the defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atl. Corp. v. Twombly, the Supreme Court stated that "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." 550 U.S. 544, 555 (2007). Following Twombly, the Third Circuit has explained that the factual allegations in the complaint may not be "so undeveloped that [they do] not provide a defendant the type of notice which is contemplated by Rule 8." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Moreover, "it is no longer sufficient to allege mere elements of a cause of action; instead 'a complaint must allege facts suggestive of [the proscribed] conduct.'" Id. (alteration in original) (quoting Twombly, 550 U.S. at 563 n.8). Furthermore, the complaint's "factual allegations must be enough to raise a right to relief above the speculative level." Id. at 234 (quoting Twombly, 550 U.S. at 555). "This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.'" Id. (quoting Twombly, 550 U.S. at 556).

Notwithstanding Twombly, the basic tenets of the Rule 12(b)(6) have not changed. The Knit With v. Knitting Fever, Inc., No. 08-4221, 2009 U.S. Dist. LEXIS 30230, at *6 (E.D. Pa. Apr. 8, 2009). The general rules of pleading still require only a short and plain statement of the claim showing that the pleader is entitled to relief, not detailed factual allegations. Phillips, 515 F.3d at 231. Moreover, when evaluating a motion to dismiss, the court must accept as true all well-pleaded allegations of fact in the plaintiff's complaint, and must view any reasonable inferences that may be drawn therefrom in the light most favorable to the plaintiff. Id.; Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Finally, the court must "determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002).

B. Motion for Summary Judgment

Federal Rule of Civil Procedure 56(c) states that summary judgment is proper "if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." See Hines v. Consol. Rail Corp., 926 F.2d 262, 267 (3d Cir. 1991). The Court asks "whether the evidence presents a sufficient disagreement to require submission to the jury or whether... one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The moving party has the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A fact is material if it could affect the outcome of the suit after applying the substantive law. Further, a dispute over a material fact ...

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