United States District Court, W.D. Pennsylvania
FIRST CHOICE FEDERAL CREDIT UNION et al., on behalf of themselves and all others similarly situated, and CREDIT UNION NATIONAL ASSOCIATION et al., Plaintiffs,
THE WENDY'S COMPANY et al., Defendants.
Barry Fischer United States District Judge.
action was received by the Clerk of Court on April 25, 2016,
and was referred to Chief United States Magistrate Judge
Maureen P. Kelly for report and recommendation in accordance
with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)
and Local Rules of Court 72.C.
Magistrate Judge Kelly's Report and Recommendation, filed
February 13, 2017, (Docket No. ), recommended that
Defendants' Motion to Dismiss, (Docket No. ), be
denied, without prejudice. Having conducted a de
novo review of this matter and having reviewed
Plaintiffs' Amended Complaint, (Docket No. );
Defendants' Motion to Dismiss and supporting briefing,
(Docket Nos. , ); Plaintiffs' Response in
Opposition, (Docket No. ); Defendants' Reply, (Docket
No. ); Plaintiffs' Sur-Reply, (Docket No. ), the
Report and Recommendation, (Docket No. ); Defendants'
Objections to the Report and Recommendation, (Docket No.
); Plaintiffs' Response in Opposition, (Docket No.
); Defendants' Reply, (Docket No. ); and
Plaintiffs' Sur-Reply, (Docket No. ), and for the
reasons set forth below, the Court overrules Defendants'
Objections to the Report and Recommendation. Accordingly, the
following Order is entered:
HEREBY ORDERED that Defendants' Objections to the Report
and Recommendation, (Docket No. ), are OVERRULED,
Defendants having failed to demonstrate that Chief Magistrate
Judge Kelly's Report and Recommendation of February 13,
2017 denying their motion to dismiss is “clearly
erroneous or contrary to law.” See LCvR
72.C.2; Fed.R.Civ.P. 72(a); see also Anderson v. City of
Bessemer, 470 U.S. 564, 573 (1985) (explaining that a
finding is clearly erroneous “when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed”).
extent that Defendants argue that the Report and
Recommendation should be rejected because it fails to perform
a comprehensive choice-of-law analysis at this state of the
litigation, the Court notes that motions relating to choice
of law are treated as non-dispositive motions. Shaw v.
Andritz Inc., No. 15-CV-725, 2016 U.S. Dist. LEXIS
180137, at *1 n.1 (D. Del. Dec. 29, 2016) (citing
Schoeberle v. United States, No. 99-CV-352, 2001
U.S. Dist. LEXIS 3572, at *4 (N.D. Ill. Mar. 26, 2001)
(“While the determination of the choice of law issue in
this case will impact the limits of the plaintiffs[']
recovery, it will not dispose of the cause of action
itself.”); Middleton v. Sutton, No. 92-CV-589,
1995 U.S. Dist. LEXIS 376, at *1 (D.N.H. Jan. 5, 1995)
(“The magistrate judge's choice-of-law
determination is not dispositive of the plaintiff's cause
magistrate judge's decision involves non-dispositive
matters, “the clearly erroneous standard implicitly
becomes an abuse of discretion standard.” Saldi v.
Paul Revere Life Ins. Co., 224 F.R.D. 169, 174 (E.D. Pa.
2004) (citing Scott Paper Co. v. United States, 943
F.Supp. 501, 502 (E.D. Pa. 1996)); see also Bracey v.
Harlow, No. 1:11-CV-4, 2013 U.S. Dist. LEXIS 72136, at
*3-4 (W.D. Pa. May 22, 2013) (explaining that the abuse of
discretion standard applies to review of magistrate
judges' rulings regarding non-dispositive issues). In
this Court's estimation, where the choice-of-law issue is
complex, as in this matter, and Chief Magistrate Judge Kelly
has sensibly recommended that the parties conduct discovery
prior to issuing a ruling, the Court concludes that Chief
Magistrate Judge Kelly did not abuse her discretion in
deferring a comprehensive choice-of-law analysis at this
early state of the litigation. See, e.g., First
Nat'l Bank of Pa. v. Transamerica Life Ins. Co.,
2015 U.S. Dist. LEXIS 7854, at *20 (W.D. Pa. Jan. 23, 2015)
(“[T]he Court finds that at this stage, where the
record is not fully developed and there remain several
factual issues to be resolved, a conflict of law analysis
would be inappropriate.”) (citing Reginella Const.
Co., Ltd. v. Travelers Cas. and Sur. Co. of Am., 949
F.Supp.2d 599, 610 (W.D. Pa. 2013), aff'd, 568
F. App'x 174 (3d Cir. 2014) (“A choice of law
analysis is appropriate at the Rule 12(b)(6) stage when it is
not dependent on factual issues that can be probed only with
the assistance of a fully developed record.”));
Highland Tank & Mfg. Co. v. PS Int'l, Inc.,
No. 3:04-100, 2010 U.S. Dist. LEXIS 30837, at *19 (W.D. Pa.
Mar. 30, 2010) (explaining that the court deferred its ruling
on choice of law in its motion to dismiss
opinion). As a final matter, the Court notes that it
understands that a second Case Management Conference will be
held after the Answer to the Amended Complaint is filed, at
which time the matters raised in Defendants' Motion to
Dismiss will be subject to further discussion, including the
scope of discovery on the choice-of-law dispute, and any
further briefing thereon, and the timing of the decision on
that issue vis-à-vis other issues in this
FURTHER ORDERED that Chief Magistrate Judge Kelly's
February 13, 2017, report and recommendation, (Docket No.
), is adopted as the opinion of the Court.
IT IS ORDERED that Defendants' Motion to Dismiss, (Docket
No. ), is DENIED, without prejudice.
 The Court notes that to the extent
that any party asserts that Pennsylvania law applies, the
Superior Court of Pennsylvania has recently found a lack of
duty in a potentially parallel setting. See Dittman v.
UPMC, No. 971 WDA 2015, 2017 WL 117652 (Pa. Super. Ct.
Jan. 12, 2017).
 At the first Case Management
Conference, which was held on June 29, 2016, the parties did
not raise the choice-of-law issue. (See ...