United States District Court, M.D. Pennsylvania
MICHELLE M. JOYCE, Plaintiff
CAPITAL AREA TRANSIT and JIM CRAMER, Defendants
Kane, District Judge.
the Court in the above-captioned action are three pending
motions to dismiss. (Doc. Nos. 3, 7, 12.) For the reasons set
forth below, the motion to dismiss filed by Plaintiff
Michelle M. Joyce (“Joyce”) will be deemed
withdrawn, the motions to dismiss filed by Defendants Capital
Area Transit (“CAT”) and Jim Cramer
(“Cramer”) will be granted in part, and this
action will be remanded to the Court of Common Pleas of
is an adult female residing in Hershey, Pennsylvania. (Doc.
No. 1-4 ¶ 1.) On the evening of December 31, 2013, Joyce
left work planning to take her regular bus - the Route 322
Hershey Hummelstown bus - home to Hershey. (Id.
¶ 11.) When her regular bus failed to arrive, she
decided to take the Number 7 bus to Middletown. (Id.
¶¶ 13-14.) Initially, the bus was filled with
passengers; however, the number of riders decreased as the
bus approached the stop at the Middletown Giant, where Joyce
planned to exit. (Id. ¶¶ 17-19.) Joyce
confirmed with the driver of the bus that the bus was going
to stop at the Middletown Giant. (Id. ¶ 20.)
The driver responded “yes, we will be alone at the
Giant.” (Id. ¶ 21.) The last remaining
passengers exited the bus at stops before the Middletown
Giant, leaving Joyce and the driver alone on the bus.
(Id. ¶ 23.)
the bus reached the Middletown Giant, the driver drove the
bus to the far left end of the parking lot, and parked.
(Id. ¶ 24.) As Joyce gathered her things to
exit the bus, she heard a loud “click” noise,
rather than the sound of the doors being opened.
(Id. ¶ 25.) The driver locked the doors to the
bus, trapping Joyce on the bus alone with him. (Id.
¶ 26.) The driver blocked the door to the bus and
stated, “OK, come on, you and I are going to get it on
in the back of the bus.” (Id. ¶ 27.)
While saying this, the driver made sexual thrusting motions
toward Joyce. (Id. ¶ 28.) Joyce remarked
“Are you kidding me?” (Id. ¶ 31.)
The driver persisted, responding “No, let's go,
right here in the back of the bus, just the two of us.”
(Id. ¶ 32.) Joyce refused his advances and
demanded to be let off the bus. (Id. ¶¶
33-34.) The driver blocked Joyce's exit, grabbed her,
stating “come on, it's New Year's Eve, ”
and then attempted to kiss her. (Id. ¶ 36.)
Joyce, fearing that she would be physically harmed by the
driver, pretended to be willing to give him a kiss, so she
could attempt to escape the bus. (Id. ¶¶
37-38.) However, the driver grabbed her arms tightly and
pulled her against him and kissed her on the mouth.
(Id. ¶¶ 39-40.) Joyce continued to
struggle and eventually freed herself from the driver, ran
towards the door, and demanded to be let off the bus.
(Id. ¶ 42.) The driver unlocked the doors, and
Joyce ran across the parking lot to a nearby pizza shop,
where she reported the incident. (Id. ¶¶
43-44.) Joyce subsequently took her regular bus to work on
January 2, 2014, and told the driver of her regular bus, who
she knew as “Corey, ” about the incident that
occurred on December 31. (Id. ¶¶ 48-50.)
Corey convinced her to go with him to the General Manager of
the CAT office as soon as he completed the route.
(Id. ¶ 51.) Joyce reported the incident to the
General Manager of CAT. (Id. ¶ 52.) The
individuals at CAT identified the driver based on the
description provided by Joyce, but did not provide his name
to her. (Id. ¶ 53.) He was described as a
“floater” driver. (Id. ¶ 54.)
Joyce's regular driver told her “that the driver
who assaulted Joyce had previously solicited [a relative of
his] for sex after acquiring her number under false
pretenses.” (Id. ¶ 55.) Joyce alleges
that the driver responsible for the incident was a former
firefighter in the City of Harrisburg and had a history of
similar misconduct prior to being hired by CAT. (Id.
¶ 56.) Joyce alleges that CAT was aware of other
incidents of misconduct by the driver prior to December 31,
2013. (Id. ¶ 57.)
about January 3, 2014, CAT Operations Manager Brad Flickinger
sent Joyce a letter of apology from CAT regarding the
incident. (Id. ¶ 58.) Flickinger indicated that
he had seen video and heard audio of the incident and that
the driver had been immediately terminated. (Id.
¶ 59.) On behalf of CAT, Flickinger gave Joyce several
months' worth of bus passes and admitted that “it
in no way compensates [her] for what [she] went
through.” (Id. ¶ 60.) As a result of this
incident, Joyce alleges that she has developed severe general
anxiety in public, and particularly in any enclosed space,
which is exacerbated if older men are present. (Id.
¶ 65.) Joyce also has exhibited symptoms of severe
anxiety including loss of sense of smell, ringing in her
ears, migraines, panic attacks, shortness of breath, nausea
and a nervous cough. (Id. ¶ 66.) Joyce has lost
significant time from work as a result of her anxiety and
depression, which have required ongoing treatment, including
prescription medication and ongoing therapy. (Id.
¶¶ 67- 68.) Joyce alleges that a criminal
investigation into the incident was initiated; however, she
is not aware of the status of the investigation.
(Id. ¶ 70.)
December 31, 2015, Joyce commenced this action by filing a
complaint in the Court of Common Pleas of Dauphin County
against CAT and Cramer, whom Joyce identified as the driver
of the Number 7 CAT bus on December 31, 2013. (Doc. No. 6 at
3.) Joyce's complaint asserts six counts for relief,
including five state law tort claims and one claim under
federal law. The first three counts are asserted solely
against Cramer: (1) false imprisonment; (2) assault and
battery; and (3) intentional infliction of emotional
distress. (Id. at 11-14.) Counts 4 and 5 are
asserted against CAT - Count 4 asserts negligence and gross
negligence, and Count 5 asserts a “respondeat
superior” claim. (Id. at 14-18.) Finally,
Count 6 asserts a 42 U.S.C. “§1983 action against
CAT and John Doe.” (Id. at 18-20.)
to the filing of her complaint in state court, Joyce filed
praecipes to reinstate the complaint on January 29, 2016,
February 29, 2016, and March 30, 2016. (Id. at
22-24.) The January 29 praecipe to reinstate the complaint
represented that “[e]fforts to secure acceptance by CAT
and a reliable address for Mr. Cramer are ongoing.”
(Id. at 22.) Further, the praecipes to reinstate the
complaint filed in the Court of Common Pleas of Dauphin
County on February 29 and March 30 stated that
“[s]ervice of defendants by the Sheriff at the best
known addresses is being processed on this date.”
(Id. at 23-24.) The complaint was ultimately served
on Defendant CAT on April 5, 2016, (id. at 77), and
on Defendant Cramer on April 12, 2016 (id. at 78).
CAT filed preliminary objections to the complaint on April
25, 2016, and amended preliminary objections to the complaint
on May 4, 2016. (Doc. No. 6 at 25, Doc. No. 10 at 2.) CAT
also filed a praecipe to file a certificate of incorporation
with attached articles of incorporation on May 4, 2016. (Doc.
No. 10 at 83.) CAT filed a notice of removal with this Court
on the same day. (Doc. No. 1.)
11, 2016, CAT filed a motion to dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(4) on the
grounds of insufficient process, Federal Rule of Civil
Procedure 12(b)(5) on the grounds of insufficient service of
process, and Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim. (Doc. No. 3.) On May 13, 2016,
Defendant Cramer filed his motion to dismiss on the same
grounds. (Doc. No. 7.) CAT filed a brief in support of its
motion to dismiss on May 25, 2016, (Doc. No. 9), and Cramer
filed a brief in support of his motion on May 27, 2016, (Doc.
No. 11). On June 15, 2016, Joyce filed a document entitled
“Motion to Dismiss Filed by Plaintiff Joyce.”
(Doc. No. 12.) Upon Joyce's failure to file a brief in
opposition to Defendants' motions to dismiss, the Court
issued an Order on June 17, 2016 directing Joyce to show
cause within ten days why Defendants' motions to dismiss
should not be granted as unopposed. (Doc. No. 13.) On June
27, 2016, Joyce filed a brief in opposition to
Defendants' motions to dismiss. (Doc. No. 14.) On July
11, 2016, Defendant CAT filed its reply brief in further
support of its motion to dismiss. (Doc. No. 15.) Having been
fully briefed, this matter is now ripe for disposition.
motion filed pursuant to Federal Rule of Civil Procedure
12(b)(6) tests the sufficiency of the complaint's factual
allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” in order to “give the defendant fair
notice of what the ... claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (internal quotation marks omitted)
(interpreting Fed.R.Civ.P. 8(a)). Generally, a court
considering a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6) must determine whether the complaint
contains sufficient factual matter, accepted as true, to
“state a claim to relief that is plausible on its
face.” Iqbal, 556 U.S. at 678.
with the Supreme Court's rulings in Twombly and
Iqbal, the United States Court of Appeals for the
Third Circuit requires district courts to engage in a
two-part analysis when reviewing a Rule 12(b)(6) motion: (1)
first, a court should separate the factual and legal elements
of a claim, accepted well-pleaded factual matter and
disregarding legal conclusion; (2) second, a court should
determine whether the remaining well-pled facts sufficiently
demonstrate that a plaintiff has a “plausible claim for
relief.” Fowler v. UPMC Shadyside, 578 F.3d
203, 210-11 (3d Cir. 2009) (quoting Iqbal, 556 U.S.
at 679). Facial plausibility exists when the plaintiff pleads