United States District Court, E.D. Pennsylvania
[Copyrighted Material Omitted]
For CATHERINE ROBERTS, KRISTEN CLEMENTS, Plaintiffs: GERARD K. SCHROM, LEAD ATTORNEY, SCHROM AND SHAFFER, MEDIA, PA; NEIL EVAN BOTEL, LEAD ATTORNEY, LAW OFFICE OF NEIL E. BOTEL, MEDIA, PA.
For CAESAR'S ENTERTAINMENT, INC., doing business as HARRAHS PHILADELPHIA, Defendant: JOHN M. NOLAN, LEAD ATTORNEY, JACKSON LEWIS P.C., PHILADELPHIA, PA; ALACOQUE HINGA NEVITT, JACKSON LEWIS LLP, PHILADELPHIA, PA.
For CPL. JOANNE DRAGOTTA, Defendant: RANDALL J. HENZES, OFFICE OF ATTORNEY GENERAL, PHILADELPHIA, PA.
TIMOTHY J. SAVAGE, J.
This action arises out of the arrest and the prosecution of two former employees, union members, for theft at the instigation of the employer. In moving to dismiss the amended complaint, the defendants raise two issues: (1) whether the plaintiffs have sufficiently alleged a deprivation of liberty constituting a seizure under the Fourth Amendment necessary to satisfy an essential element of a § 1983 cause of action based on a malicious prosecution theory; and (2) whether the state law claims are preempted by federal labor law.
Plaintiffs Catherine Roberts and Kristen Clements assert a federal claim under 42 U.S.C. § 1983 based on malicious prosecution against Joanne Dragotta, the Pennsylvania State Trooper who arrested them and filed the criminal charges, and state law claims against Caesar's Entertainment, their employer, for malicious prosecution and wrongful use of civil process. In their amended complaint, they contend that Caesar's management " had the[m] . . . arrested and prosecuted" and that Cpl. Dragotta " participated in the arrest, detention and prosecution of the plaintiffs." 
Both defendants have filed motions to dismiss plaintiffs' first amended complaint. Dragotta argues that plaintiffs fail to state a claim against her because they have not adequately pled a deprivation of liberty, an essential element of a Section 1983 malicious prosecution cause of action. Caesar's seeks dismissal pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), contending that plaintiffs' claims relate solely to protected
union activity, which are preempted by Section 301 of the Labor Management Relations Act and are time-barred. It also contends that plaintiffs' claims must be dismissed because Caesar's had a legal obligation to report any theft or suspected theft to the Pennsylvania State Police and Gaming Control Board.
We conclude that the plaintiffs have not pleaded facts which, if proven, would establish a deprivation of liberty, an essential element of their § 1983 claim based on malicious prosecution against Dragotta. We also hold that their state law claims for malicious prosecution and abuse of process against Caesar's are not preempted. Therefore, we shall grant Dragotta's motion to dismiss and deny Caesar's motion to dismiss.
The facts alleged in the amended complaint, which we must accept as true, recite the history of the events that the plaintiffs assert form the basis for their claims. Roberts and Clements were employed as waitresses at Harrah's Philadelphia Casino in Chester, Pennsylvania, which is owned by Caesar's Entertainment, a Delaware corporation. They were union employees covered by a collective bargaining agreement between Harrah's and Unite Here Local 54.
Caesar's issued free spending credits, known as " comps," to favored customers in the form of paper certificates. The certificates were redeemed in payment for meals and beverages. Managers could issue comps orally without paper certificates. Management recorded and reviewed all comp-based transactions, including gratuities, using Caesar's MICROS accounting software system. Wait staff were required to have an authorized manager validate payment of the bill, which included gratuities, into the MICROS system.
After conducting a review of the March 2012 MICROS and comp records, Mary Harper, Caesar's Director of Surveillance, submitted a report to Caesar's managers and administrators. In her report, Harper claimed that six wait staff employees, including plaintiffs, assigned unauthorized payment of gratuities from paper and verbal comps to themselves. Plaintiffs allege that " as a matter of custom and practice at the Cove," wait staff were permitted to assign gratuities to themselves against any portions of a written or verbal comp without patron endorsement of the MICROS receipt as long as the assignment of the gratuity was approved by a manager.
Harper also accused Clements of having committed theft by forging casino documents.
Clements alleges that Caesar's management designated her to redeem all gratuities registered on the MICROS system for cash at the close of every business day and to distribute the cash to members of the wait staff, which required her to get the " pro forma approval of a Cove manager" on a " disbursement of funds" sheet. Harper accused Clements of forging the signature of Banquet Manager Joel Friedman on one special events bill. Clements contends that she had permission to write " per Joel Friedman" on the bill.
After interviewing all six Cove wait staff and the Cove bartender, Caesar's suspended the wait staff. Plaintiffs contend that the report was based on Harper's theory that any gratuity in excess of 18 percent of the total bill was an excessive tip. Harper presented her report to Dragotta, including her account of Cove employee statements made during their interviews. Dragotta drafted affidavits of probable cause and obtained warrants for plaintiffs' arrest based on the information provided by Harper, " along with the falsehoods [Dragotta] added and omissions she withheld." 
Roberts was charged with receiving stolen property in the amount of $627.77. Clements was charged with theft in the amount of $2,551.74, receiving stolen property and forgery. Roberts and Clements surrendered to Dragotta on May 1, 2012. They were arrested, fingerprinted, photographed and handcuffed in the on-site State Police office. They were then transported to the Chester City Police Station where they were placed in a holding cell until later that afternoon when they were brought before a magisterial district justice.
At their initial appearance, they were formally charged and released on their own recognizance. As a condition of their release, plaintiffs were prohibited from leaving Pennsylvania without permission.
After a preliminary hearing, the plaintiffs were held over for trial. Pending trial, plaintiffs were required to appear at " numerous" hearings. Ultimately, the Court of Common Pleas dismissed the criminal ...