The opinion of the court was delivered by: M. Faith Angell United States Magistrate Judge
On May 15, 2007, the parties in the above-captioned actions filed a notice of consent to have me conduct all further proceedings in this action. See CA No. 03-2822, Docket Entry Nos. 11, 36 and 03-2824, Docket Entry No. 29. Presently before me are Plaintiffs' motions to add a Successor Defendant and Defendant's motions to dismiss Plaintiffs' Third Amended Complaints. For the reasons stated below, Plaintiffs' motions are denied, and Defendant's motions are granted.
BACKGROUND AND PROCEDURAL HISTORY*fn1
On May 1, 2003, Plaintiff George Frankenfield filed a Civil Action Complaint against Defendants Pizza Fresh and Pizza Fresh Express, Inc. ("Pizza Fresh"). He alleges in that Complaint that he was employed by Defendants as a delivery driver on or about February 21, 1999. From May, 1999, continuing until November 14, 2000, Frankenfield witnessed the sexual harassment of another employee, Linda Buckley, by two male employees of Pizza Fresh. On four separate occasions, March 17, March 19, September 19, and November 14, 2000, Frankenfield asked the man who hired him, Minor Garro, to do something about the sexual harassment of Buckley. Buckley was fired on November 14, 2000, and Frankenfield was fired on November 17, 2000.
Also on May 1, 2003, Plaintiff Linda Buckley filed a Civil Action Complaint against Defendants Pizza Fresh and Pizza Fresh Express, Inc. ("Pizza Fresh"). She alleged that she had been hired as a counter clerk by Pizza Fresh on or about March 16, 1999. Beginning in May, 1999, she began to be sexually harassed by two male co-workers. In or around October, 1999, Buckley complained to Pizza Fresh about the harassment, both in writing and verbally, but the harassment did not end. In or around March, 2000, and September, 2000, Buckley filed police reports about the situation. On November 14, 2000, she again complained and asked for Minor Garro's help in stopping the harassment. He replied that there was nothing he could do, and he fired Buckley.
Pizza Fresh answered both complaints, and discovery began. However, on February 25, 2004, the matter was placed in civil suspense pending the resolution of a Chapter 13 bankruptcy petition filed by Minor Garro. He received a discharge, and, on July 18, 2007, the actions were removed from suspense and returned to the active docket. Discovery proceeded.
Plaintiffs assert that they subsequently learned that a viable successor defendant, Fotios Malitas, existed as a result of his purchase of the Pizza Fresh business. The Court granted Plaintiffs' motion to file amended complaints, and, on February 21, 2008, an amended complaint was filed against Pizza Fresh; Pizza Fresh Express, Inc.; and Fotios Malitas. Approximately two months later, Plaintiffs withdrew the complaint as to Malitas only.
Discovery continued, and, over a year later, Plaintiffs once again moved to add successor defendants. Plaintiffs' counsel had learned that the new owner of Pizza Fresh was an entity called "Apollo Pizza". Plaintiffs believed the correct successor defendant to be "Apollo Pizza and Hoagies, Inc." ("Apollo Pizza and Hoagies"), 40 East State Street, Media, PA 19063 t/d/b/a "Apollo Pizza". There was no response to Plaintiffs' motions to add Apollo Pizza and Hoagies as a successor defendant in these matters. The motion was granted, and a second amended complaint was filed on June 23, 2009. Upon receiving no response from Apollo Pizza and Hoagies, Plaintiffs requested, and received, default. Subsequently, default judgment was entered in favor of Plaintiffs, and a hearing to determine damages was scheduled. Before the hearing took place, Apollo Pizza and Hoagies filed a motion to strike or open the default judgment. The motion was granted, and the default judgment against Apollo Pizza and Hoagies was stricken on September 10, 2010.
Also in September, 2010, Plaintiffs filed a motion to file a third amended complaint. They asserted that they had learned that the owner of the restaurant where the sexual harassment of Buckley took place was not Apollo Pizza and Hoagies but was an entity known as "Media Pizza, Inc." ("Media Pizza"), located at 40 East State Street, Media, PA 19063. They believed that Media Pizza had taken over operations of the former Pizza Fresh location in Glenside, PA. This motion was granted, and third amended complaints was filed against Media Pizza. Media Pizza has moved to dismiss these complaints to which Plaintiffs have not responded because, once again, they have filed a motion to add a successor defendant.
Plaintiffs state that they learned from the owner of Media Pizza that the entity operating the pizzeria where the harassment and discrimination at issue occurred is actually "Pizzeria of Glenside, LLC ("Pizzeria of Glenside"), a corporation doing business as "Apollo Pizza", and they wish to add Pizzeria of Glenside as yet another successor defendant in these matters. Media Pizza has filed an answer in opposition to the motions.
"In general, in the context of employment discrimination, the doctrine of successor liability applies where the assets of the defendant employer are transferred to another entity. Rego v. ARC Water Treatment Company of PA, 181F.3d 396, 401 (3d Cir. 1999). "Ordinarily, however, absent a contractual obligation to do so, a successor corporation does not assume the liabilities of its predecessor." Id. When that is the case, "[the Court looks] to less specific controlling legal principles which recognize that the successor will be liable if it is a 'mere continuation' of its predecessor." Id. at 402. In an employment discrimination case, it has been said that a court ought to consider three principal factors before it makes a successor liability determination. They are: "(1) continuity in operations and work force of the successor and predecessor employers; (2) notice to the successor employer of its predecessor's legal obligation; and (3) ability of the predecessor to provide adequate relief directly". Id.
On April 23, 2003, Pizzeria of Glenside, a Pennsylvania limited liability company, with an address of 99 Versailles Boulevard, Cherry Hill, New Jersey 08003, purchased certain assets of Pizza Fresh, a Pennsylvania corporation with an address of 112 S. Easton Road, Glenside, Pennsylvania 19038, by way of an Asset Purchase Agreement ("Agreement"). See Defendant's Answers in Opposition to Plaintiffs' Motion to Add Successor Defendant ("Defendant's Opposition"), Exhibit
A. The Agreement provided that Pizzeria of Glenside was purchasing certain assets of Pizza Fresh, but it ...