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Higgins v. City of Philadelphia

United States District Court, E.D. Pennsylvania

August 13, 2019

THOMAS P. HIGGINS, Plaintiff,
v.
CITY OF PHILADELPHIA, et al., Defendants.

          MEMORANDUM

          C. DARNELL JONES, II J.

         Plaintiff Thomas P. Higgins (“Plaintiff”) brings the above-captioned action under 42 U.S.C. § 1981 against Defendants City of Philadelphia, Lloyd Ayers, and Jeremiah Laster (collectively, the “Defendants”) for his alleged unlawful termination. Plaintiff claims Defendants disciplined him more severely than his similarly situated African-American colleagues because of his Caucasian race. Pending before the Court is Defendants' Motion to Dismiss the Amended Complaint (ECF No. 8), Defendants' Motion to Strike Plaintiff's Second Amended Complaint (ECF No. 12), and Plaintiff's Cross-Motion for Leave Nunc Pro Tunc to File the Second Amended Complaint (ECF No. 15). For the reasons set forth below, the Court shall grant Defendants' motions and deny Plaintiff's motion.

         Standard of Review

         I. MOTION TO GRANT LEAVE TO AMEND AND MOTION TO DISMISS

         After an amendment as of right, “a party may amend its [complaint] only with the opposing party's written consent or the court's leave [and] the court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Courts will generally deny a request for leave, however, when justified by grounds such as “undue delay, bad faith, dilatory motive, prejudice, [or] futility.” Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). Courts have defined futility to “mean that the complaint, as amended, would fail to state a claim upon which relief could be granted.” Id.

         When determining the futility of an amended complaint, courts apply the same standard of review applicable to a motion to dismiss pursuant to Rule 12(b)(6). Id. This standard requires a court to “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation omitted). This inquiry requires courts to separate factual allegations from legal conclusions and determine whether the well-pled facts state a “plausible claim for relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Where it is apparent from the face of a complaint or a proposed amendment that plaintiff has failed to comply with a governing statute of limitations, the complaint should be dismissed or leave to amend denied. Datto v. Harrison, 664 F.Supp.2d 472, 482 (2009); see also Alston v. Parker, 363 F.3d 229, 236 (2004).

         II. MOTION TO STRIKE

         Under Rule 12(f) of the Federal Rules of Civil Procedure, “the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent or scandalous matter. “The purpose of a motion to strike is to clean up the pleadings, streamline litigation, and avoid unnecessary forays into immaterial matters.” Natale v. Winthrop Resources, Corp., No. 07-4686, 2008 WL 2758238, at *14 (E.D. Pa. July 9, 2008) (internal quotations omitted). Courts have significant discretion when disposing of a motion to strike under Rule 12(f), however, “such motions are not favored and usually will be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties, or if the allegations confuse the issues in the case.” Natale, 2008 WL 2758238, at *14. At base, striking a pleading is appropriate “when required for the purposes of justice.” Id.

         Factual Background and Procedural History

         The following facts are presented in the light most favorable to Plaintiff. On August 27, 2012, Plaintiff “was served with a formal notice of dismissal” from his employment as a firefighter with the City of Philadelphia at Ladder 15/C (“Ladder 15”) for his alleged involvement in a scheme for the theft of cable services from Comcast. (ECF Nos. 6, ¶¶ 10, 25; 11, ¶¶ 10, 25.)[1] Because of Plaintiff's “very limited connection to the [] scheme . . . many of the criminal charges against plaintiff were dropped in exchange for a guilty plea, community service and upon conclusion of the [ARD (Accelerated Rehabilitative Disposition)] program, expungement of the remaining charges and plea.” (ECF Nos. 6 ¶¶ 27, 29; 11, ¶¶ 27, 29.) After successful completion of the ARD program, performance of community service, and payment of fines, Plaintiff was placed on probation. (ECF Nos. 11, ¶ 30; 6, ¶ 30.) Other than Plaintiff's guilty plea to reduced charges, he had an “impeccable work record and unblemished work history as a firefighter.” (ECF Nos. 6, ¶ 33; 11, ¶ 33.)

         At some point within the six months following Plaintiff's release from employment, he challenged his termination through his collective bargaining unit, IAFF Local 22. (ECF Nos. 6, ¶ 31; 11, ¶ 31). Plaintiff claimed his termination “was unjust under the collective bargaining unit and applicable department Disciplinary Code.” (Id.)[2] On or about March 12, 2014, an arbitration was held denying Plaintiff's challenge. (ECF No. 11, ¶ 32; 6, ¶ 32.) During this process, his counsel “did not present disparate treatment evidence as a defense or mitigating factor [and] . . . [t]he question of race, and race comparators, did not come up.” (ECF No. 6, ¶¶ 36-39.) Moreover, his counsel did not advise him on anti-discrimination laws, nor did Plaintiff seek any such advice from him. (ECF No. 6, ¶ 40.)

         Four years later, on March 13, 2018, Plaintiff filed the underlying counseled complaint in the Philadelphia Court of Common Pleas alleging that he was unlawfully terminated on the basis of his race in violation of § 1981. (See ECF No. 11, ¶ 46.) Prior to filing the Complaint Plaintiff “had some idea that there was race discrimination in the Fire department, but . . . [a]ctive Fire Department members, who were also members of IAFF Local 22, refused to talk with plaintiff.” (ECF No. 11, ¶¶ 42-43). Plaintiff believes this was “due to fear of retaliation within the department, and for fear of being charged under Disciplinary Code for associating with a firefighter terminated for committing a crime.” (ECF No. 11, ¶ 43).

         Defendants timely removed the case to this Court and filed a Motion to Dismiss under Rule 12(b)(6) (“First Motion to Dismiss”). (ECF Nos. 1, 2.) In response, Plaintiff filed the Amended Complaint (“FAC”). (ECF No. 6.) Following Plaintiff's filing of the FAC, the Court denied Defendants' First Motion to Dismiss as moot. (ECF No. 7.) Defendants then filed the pending Motion to Dismiss the FAC under Rule 12(b)(6) (“Second Motion to Dismiss”). (ECF No. 8.) Rather than file a response in opposition, Plaintiff filed a Second Amended Complaint (“SAC”). (ECF No. 11.)[3] Plaintiff did so without Defendants' agreement or leave of this Court.

         In response to the SAC, Defendants filed a Motion to Strike the SAC (ECF No. 12), which they later amended, (ECF No. 15), arguing that Rule 15(a)(2) mandates the SAC be stricken because Plaintiff did not have Defendants' consent or leave of this Court prior to filing. (ECF No. 15, p. 1.) Defendants further argue that even if this Court is nonetheless inclined to allow the second amendment, doing so would be futile because the statute of limitations has run on Plaintiff's claim. (Id.) Plaintiff contends that the doctrine of equitable tolling allows his claim to proceed despite the expiration of the statute of limitations. (ECF No. 18, pp. 4-5). Plaintiff alleges that to his “best recollection anti-discrimination notices and notices of rights under the anti-discrimination laws were not posted at Ladder 15 during the time [he] was stationed there.” (ECF No. 6, ¶ 35.) According to Plaintiff, it was not until after March of 2018 when a current Fire Captain referred him to his current ...


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