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Spano v. Ohio Hospice and Palliative Care

United States District Court, W.D. Pennsylvania

June 26, 2019

OHIO HOSPICE AND PALLIATIVE CARE d/b/a Paramount Hospice and Palliative Care, PARAMOUNT HOSPICE AND PALLIATIVE CARE, and JAMES J. COX, individually, Defendants



         Plaintiffs Virginia Spano (“Spano”) and Susan Mizak (“Mizak”) commenced this action against their former employers asserting claims under Pennsylvania's Wage Payment and Collection Law, 43 Pa. Stat. and Cons. Stat. Ann. § 260.1 et seq., and the federal Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., in addition to a common-law claim for wrongful discharge. Defendants advance counterclaims against Spano for common-law conversion and breach of fiduciary duty as well as a statutory claim under Pennsylvania's Uniform Trade Secrets Act, 12 Pa. Cons. Stat. § 5301 et seq. Spano moves for a more definite statement of defendants' counterclaims and alternatively to strike the counterclaims pursuant to Federal Rules of Civil Procedure 12(e) and 12(f). (Docs. 48, 49). Plaintiffs also seek spoliation sanctions against defendants. (Doc. 55 ¶ 2).

         I. Factual Background & Procedural History

          Spano and Mizak are former employees of defendant Ohio Hospice and Palliative Care (“Ohio Hospice”), which does business in Pennsylvania under the name Paramount Hospice and Palliative Care (“Paramount Hospice”). (Doc. 13 ¶¶ 4-5, 8, 18). The second amended complaint generally alleges that defendants underpaid Spano and Mizak, in violation of Pennsylvania's wage-and-hour law, by not allowing them to log overtime hours on their timesheets. (See Doc. 13 ¶¶ 9, 12, 17, 20). Plaintiffs also allege that their eventual terminations on November 24, 2015, were based on age discrimination, in violation of the ADEA, and retaliation for reporting fraud and poor patient conditions, in violation of Pennsylvania common law. (See id. ¶¶ 12, 17, 31-32). Defendants supposedly prevented Spano and Mizak from completing their final timesheets and then accused Spano and Mizak of falsifying various timesheets during their employment. (Id. ¶¶ 14, 22, 37-38).

         Defendants allege that, upon receiving notice of her termination, Spano entered a secure room and removed certain confidential and proprietary business records and patient records protected by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). (Doc. 46 ¶¶ 132-36). Spano shared these records with both her attorney, Robert M. Davant, Esquire (“Attorney Davant”), and Mizak. (Id. ¶¶ 138, 145). According to defendants, Attorney Davant used these records to prosecute plaintiffs' claims against defendants before the Equal Employment Opportunity Commission (“EEOC”) and in the instant litigation. (Id. ¶ 148). Defendants claim that Spano violated Paramount Hospice's confidentiality statement and policy and her HIPAA training, (see id. ¶¶ 128-31, 137), and that Spano's misconduct was reported to federal and state law enforcement authorities, (id. ¶ 152).

         Counsel for Spano and Mizak notified defendants of their intent to sue by letter dated March 21, 2016. (Doc. 71-12). After filing charges with the EEOC and receiving right-to-sue letters, plaintiffs filed a complaint in the Court of Common Pleas of Allegheny County, Pennsylvania, which defendants timely removed to this court. In their second amended complaint, Spano and Mizak raise a bevy of claims on behalf of themselves and all others similarly situated for unpaid overtime wages, wrongful termination, and age discrimination. Defendants answered the second amended complaint and asserted counterclaims against Spano for conversion, misappropriation of trade secrets, and breach of fiduciary duty.

         One of plaintiffs' pending motions concerns defendants' alleged failure to preserve sign-in and sign-out sheets in anticipation of litigation. According to plaintiffs, employees were required to sign in and out at the reception desk daily, and because defendants did not allow Spano and Mizak to log overtime on their timesheets, the sign-in and sign-out sheets more accurately reflect plaintiffs' hours worked. (Doc. 13 ¶¶ 9, 12, 17, 20). Plaintiffs served a request for production of documents on November 27, 2018, seeking sign-in and sign-out sheets from several of defendants' facilities for January 1, 2013, through November 24, 2015. (Doc. 71-9 ¶¶ 2-5). Defendants responded that sheets are not maintained for more than three months pursuant to unwritten company policy. (Id.; Doc. 71-10, Darmstadter Dep. 12:1-15; Doc. 71-18, Butter Dep. 15:7-18, 20:11-18).[1] Defendants retained only the sign-in and sign-out sheets for the three months before plaintiffs' termination which were used to determine that plaintiffs were supposedly falsifying their timesheets. (See Doc. 71-1 at 1-9; see also Butter Dep. 6:14-10:12, 15:7-18).

         Spano moves for a more definite statement of counterclaims pursuant to Federal Rule of Civil Procedure 12(e). Alternatively, Spano seeks to strike the counterclaims under Rule 12(f). Spano and Mizak together also move for spoliation sanctions against defendants. The motions are fully briefed and ripe for disposition.

         II. Legal Standard

         A. Rule 12(e)

         A party may move for a more definite statement of a pleading that is “so vague or ambiguous that the party cannot reasonably prepare a response.” Fed.R.Civ.P. 12(e). Any Rule 12(e) motion “must be made before filing a responsive pleading and must point out the defects complained of and the details desired.” Id. Courts should only grant a motion for a more definite statement in those “rare case[s]” when a pleading is so unintelligible or ambiguous that the movant cannot prepare a response-even a simple denial-without incurring potential prejudice. Wadhwa v. Sec'y, Dep't of Veterans Affairs, 505 Fed.Appx. 209, 214 (3d Cir. 2012) (nonprecedential) (quoting Schaedler v. Reading Eagle Publ'n, Inc., 370 F.2d 795, 798 (3d Cir. 1967)); 5C Charles Alan Wright & Arthur Miller, Federal Practice & Procedure § 1376 (3d ed. 2019).

         B. Rule 12(f)

         A court may strike any “insufficient defense or any redundant, immaterial, impertinent, or scandalous matter” from a pleading. Fed.R.Civ.P. 12(f). District courts have “considerable discretion in disposing of a Rule 12(f) motion to strike.” 5C Wright & Miller, supra, § 1382; see Zarichny v. Complete Payment Recovery Servs., Inc., 80 F.Supp.3d 610, 615 (E.D. Pa. 2015). Motions to strike are disfavored and will usually be denied unless the offending allegation has no relation to the action, prejudices one party, or will confuse the issues in the litigation. 5C Wright & Miller, supra, § 1382; see also Cipollone v. Liggett Grp., Inc., 789 F.2d 181, 188 (3d Cir. 1986). Any doubts about the challenged material should be resolved in favor of the nonmovant. 5C Wright & Miller, supra, § 1382.

         III. ...

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