The opinion of the court was delivered by: David R. Strawbridge United States Magistrate Judge
Plaintiff Aqila Thomas ("Thomas") brought this action against her former employer, Bala Nursing & Retirement Center, Limited Partnership ("Defendant" or "Bala") asserting claims under the Americans with Disabilities Act, 42 U.S.C. § 1211, et seq. (the "ADA") and the Family Medical Leave Act, 29 U.S.C. § 2601, et seq. (the "FMLA") relating to, inter alia, her termination. (Doc. 1.) Bala filed its answer with affirmative defenses on October 4, 2011. (Doc. 4.)
While employed by Bala, Thomas, a licensed practical nurse, was a member of the National Union of Hospital and Healthcare Workers 1199c (the "Union"). The Union's collective bargaining agreement with Bala provided for a comprehensive grievance procedure by which a member could challenge certain employment-related decisions of the employer. Thomas availed herself of this procedure following her termination and participated in a grievance meeting challenging that decision. As came to light in Thomas's February 3, 2012 deposition in this litigation, she tape-recorded this meeting without the knowledge or consent of any of the other participants. On March 15, 2012, more than five months after answering the complaint, Bala filed a counterclaim for a violation of the Pennsylvania Wiretapping and Electronic Surveillance Act, 18 Pa. C.S. § 5701, et seq. (the "Wiretap Act"), seeking liquidated damages of $1,000, as well as punitive damages and counsel fees. (Doc. 24.) Plaintiff has moved to strike the counterclaim (Doc. 25) and Bala has filed its response asking that the motion be denied (Doc. 27) or in the alternative that the Court grant a Motion for Leave to File a Counterclaim that it attached to its response and which it offered to separately file (Doc. 27-1). Plaintiff has not filed any further reply. The matter is now ripe for resolution.
II. THE PARTIES' CONTENTIONS
Thomas asserts that the counterclaim should be stricken for failure to comply with Fed. R. Civ. P. 15(a)(2). As to cases in which the pleading to be amended was filed more than 21 days earlier, that rule provides that "a party may amend its pleading only with the opposing party's written consent or the Court's leave." Fed. R. Civ. P. 15(a)(2). She also argues that the counterclaim must be stricken pursuant to Fed. R. Civ. P. 12(b)(1) on the grounds that the Court lacks subject-matter jurisdiction over a counterclaim that is not "compulsory" but "permissive."*fn1
Bala concedes that neither Thomas's consent nor the court's permission was ever sought prior to the filing of the counterclaim, but asserts that neither is required; that the claim is compulsory under Fed. R. Civ. P. 13(a)(1)(A) and thus was properly pled in March 2012; and that the claim falls within the supplemental jurisdiction of the court pursuant to 28 U.S.C. § 1367. Bala also points out that it has now sought leave of court to amend its answer (see Doc. 27-1, filed Apr. 3, 2012) and thus remedied the Rule 15(a)(2) deficiency.
A. The amendment of Bala's answer to add the counterclaim
We initially consider the question raised by Plaintiff concerning Bala's failure to comply with Fed. R. Civ. P. 15(a)(2). It is undisputed that Defendant's failure to obtain consent or to seek leave would preclude the filing of the counterclaim. However, Defendant has now properly sought leave and demonstrated that the information giving rise to the claim of the Wiretap violation had not matured until well after service of the last filed pleading. Thus, we conclude that "justice so requires" that we accept the counterclaim as timely brought subject only to Plaintiff's motion to strike on jurisdictional grounds. See Fed. R. Civ. P. 13(e) (providing for counterclaim maturing after pleading); Fed. R. Civ. P. 15(a)(2) (requiring court to "freely give" leave to amend pleading "when justice so requires").
B. The Court's jurisdiction over the Wiretap Act claim
On the assumption that leave could be given for the amendment of the answer, Plaintiff asks that the Court nonetheless strike the counterclaim from the amended answer because it is subject to dismissal under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. Congress has described the Court's jurisdictional authority over additional claims, with some exceptions not applicable here:
In any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. 28 U.S.C. § 1367(a). The Supreme Court has described the test of the court's "constitutional power" to determine an ancillary state-law claim as depending on whether there is a "common nucleus of operative fact" between the state claim at issue and the accompanying federal claim. See United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966).*fn2
As our Court of Appeals has observed, this standard is satisfied if the pleader can establish that the counterclaim it seeks to bring meets the criteria for a compulsory counterclaim under Fed. R. Civ. P. 13(a)(1), which requires that ...