OPINION JAMES KNOLL GARDNER, United States District Judge
This matter is before the court on defendant's Motion to Dismiss Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6), which motion was filed August 17, 2010. Plaintiff's Opposition to Defendant's Motion to Dismiss Plaintiff's Complaint Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure was filed September 15, 2010.
On November 19, 2010, Defendant's Reply to Plaintiff's Opposition to Defendant's Motion to Dismiss Complaint Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure was filed with leave of court. For the following reasons, I grant the motion in part, deny it in part, and dismiss it in part as moot.
Specifically, regarding Count I, I grant the motion to the extent it seeks dismissal of plaintiff's defamation claim as untimely, and Count I is dismissed without prejudice for plaintiff to re-plead his defamation claim in accordance with this Opinion. To the extent the motion seeks dismissal of Count I for failure to state a claim for defamation under Pennsylvania law, the motion is dismissed as moot.
I grant the motion to the extent it seeks dismissal of Count II, and Count II is dismissed with prejudice.
Finally, I deny the motion to the extent it seeks dismissal of Count III.
Jurisdiction in this case is based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331.
Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to plaintiff's claims allegedly occurred in Lancaster County, Pennsylvania, which is within this judicial district.
Plaintiff James W. Swayne initiated this action on July 7, 2010 by filing a three-count civil Complaint against his employer, defendant Mount Joy Wire Corporation, in the Court of Common Pleas of Lancaster County, Pennsylvania. The Complaint arises from the prior termination of plaintiff's employment, and alleges claims for defamation (Count I), misuse of legal procedure (Count II),*fn1 and breach of contract (Count III).
Defendant timely removed the matter to this court by Notice of Removal filed August 10, 2010, and filed the within motion to dismiss on August 17, 2010. Plaintiff responded in opposition on September 15, 2010. Defendant filed its reply brief on November 19, 2010 with leave of court.
A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Generally, in ruling on a motion to dismiss, the court relies on the complaint, attached exhibits, and matters of public record, including other judicial proceedings. Sands v. McCormick, 502 F.3d 263, 268 (3d. Cir. 2008).
Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Rule 8(a)(2) "[does] not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. at 1974, 167 L.Ed.2d at 949.*fn2
In determining whether a plaintiff's complaint is sufficient, the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading, the plaintiff may be entitled to relief." Fowler, 578 F.3d at 210 (citing Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).
Although "conclusory or bare-bones allegations will [not] survive a motion to dismiss," Fowler, 578 F.3d at 210, "a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips, 515 F.3d at 231. Nonetheless, to survive a 12(b)(6) motion, the complaint must provide "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]." Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940) (internal quotations omitted).
The court is required to conduct a two-part analysis when considering a Rule 12(b)(6) motion. First, the factual matters averred in the complaint, and any attached exhibits, should be separated from legal conclusions asserted therein. Fowler, 578 F.3d at 210. Any facts pled must be taken as true, and any legal conclusions asserted may be disregarded. Id. at 210-211. Second, the court must determine whether those factual matters averred are sufficient to show that the plaintiff has a "plausible claim for relief." Id. at 211 (quoting Iqbal, __ U.S. at __, 129 S.Ct. at 1950, 178 L.Ed.2d at 884).
Ultimately, this two-part analysis is "context-specific" and requires the court to draw on "its judicial experience and common sense" to determine if the facts pled in the complaint have "nudged [plaintiff's] claims" over the line from "[merely] conceivable [or possible] to plausible."
Iqbal, __ U.S. at __, 129 S.Ct. at 1949-1950, 178 L.Ed.2d at 884-885.
A well-pleaded complaint may not be dismissed simply because "it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940-941.
Based upon the averments in plaintiff's Complaint, which I must accept as true under the foregoing standard of review, the pertinent facts are as follows.
Plaintiff is employed by defendant Mount Joy Wire Corporation ("Mount Joy"), and was previously employed by Mount Joy from June 1996 through September 2007. From about October 1, 2005 forward, plaintiff was a member of Local Lodge WW#1, District 98 of the International Association of Machinists and Aerospace Workers ("Union"). The Union and Mount Joy are contractually bound under a collective bargaining agreement ("CBA").
On April 16, 2007, a homemade bomb made of lime, water, and a plastic bottle was set off during the third shift on Mount Joy property ("lime bomb incident"). Shortly after the lime bomb incident, Anthony Hollingsworth, a Mount Joy employee, allegedly was confronted by plaintiff at Beanie's Bar in Mount Joy, Pennsylvania. During this alleged confrontation, Mr. Hollingsworth claims that plaintiff admitted he was the individual responsible for the lime bomb incident.
On April 17, 2007, defendant Mount Joy contacted local law enforcement officials to investigate the lime bomb incident. During the course of the police investigation (from April 17, 2007 through June 18, 2007), plaintiff was not formally questioned by police, and he did not provide any statements to Mount Joy regarding the lime bomb incident. There are no eye witnesses to plaintiff's alleged involvement with the lime bomb incident.
The police investigation of the lime bomb incident resulted in criminal charges against plaintiff issued on July 5, 2007. On July 16, 2007, Mr. Hollingsworth reported to Mount Joy management that plaintiff had allegedly threatened him at a bar outside of work hours, and off Mount Joy property.
On August 15, 2007, an additional criminal charge against plaintiff was issued in connection with the lime bomb incident. Plaintiff did not plead guilty to any of the criminal charges on September 5, 2007, the date of his preliminary hearing.
On September 7, 2007, defendant issued a written, five-day suspension to plaintiff based on the lime bomb incident. Mount Joy alleged that plaintiff did the following:
(a) provided false statements to defendant and the police;
(b) threatened and harassed Mr. Hollingsworth; and (c) plead guilty to two misdemeanors and intimidation of a witness.
Mount Joy also accused plaintiff of violating company Rules of Conduct by allegedly doing the following: (a) attempting bodily injury to another employee on company property; (b) making false statements concerning an employee and the employer during the course of an investigation; and
(c) violating health and safety rules. On September 11, 2007, defendant issued a letter to plaintiff, indicating that defendant was terminating plaintiff's employment effective September 13, 2007.
At the time of the termination of plaintiff's employment, all evidence against plaintiff originated solely from his alleged confession, without witnesses, to another Mount Joy employee at a bar after work hours. On March 12, 2009, all criminal charges against plaintiff regarding the lime bomb incident were dismissed by a Commonwealth assistant district attorney because of evidentiary issues.
In accordance with the CBA between the Union and Mount Joy, plaintiff filed a grievance contesting his termination from employment. His grievance was fully supported by the Union, and the Union appealed plaintiff's grievance to arbitration pursuant to the CBA.
Arbitration hearings were conducted before an American Arbitration Association arbitrator on December 14, 2009 and January 6, 2010. The arbitrator heard evidence and testimony from both parties, and received briefs from both sides before making a final disposition.
On March 9, 2010, the arbitrator concluded that defendant's termination of plaintiff's employment was too severe, and ordered that plaintiff be reinstated as a Mount Joy employee as soon as possible. ...