IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BISHNU C. BORAH, M.D., P.C. and 

BISHNU BORAH, M.D., 

Plaintiffs,

v.

MONUMENTAL LIFE INSURANCE 

COMPANY, et. al. 

Defendants.

Civil Action No. 04-3617

PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION

TO THE MOTION TO DISMISS OF MONUMENTAL LIFE INSURANCE

COMPANY AND RELATED ENTITIES
INTRODUCTION

Plaintiffs submit this Memorandum of Law in opposition to 

the motion to dismiss that has been filed by Monumental Life 

Insurance Company and AEGON USA, Inc. (collectively 

"Monumental"). The Court should deny Monumental's motion to 

dismiss for insufficiency of service of process, pursuant to 

Fed. R. Civ. P. 12(b)(5). Contrary to the assertions made by 

Monumental, the Summons and Complaint in this case were timely 

and properly served on Monumental. 

The Court should deny Monumental's motion to dismiss 

pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that the 

arguments raised by Monumental, including its assertion of the 

affirmative defense of the statute of limitations, contradict 

the allegations of the Complaint, which must be accepted as true 

in the context of this motion. The other arguments raised by 

Monumental should be rejected as premature or because they 

attempt to rely upon matters beyond the Complaint, thereby 

improperly attempting to convert this motion into one for 

summary judgment, pursuant to Fed. R. Civ. P. 56.

FACTUAL BACKGROUND

As an initial matter, it should be noted that Monumental's 

brief contains numerous inaccurate and misleading assertions
2

concerning other lawsuits that have been brought against 

Monumental and its agents arising out of the VEBA "scheme" 

described by the United States Tax Court in Neonatology

Associates, et al, v. Commissioner of Internal Revenue, 115 T.C. 

43 (Tax Ct. 2000), aff’d, 299 F.3d 221 (3d Cir. 2002). For 

example, Monumental represents that the Court presiding over two 

consolidated cases, Cetel v. Kirwan Financial Group, Inc., No. 

00-5799 (D.N.J.) and Sankhla v. Commonwealth Life Insurance Co., 

No. 01-4781 (D.N.J.) (collectively the Cetel Litigation), 

recently granted "summary judgment in favor of the Monumental 

Defendants," thereby implying that all claims as against 

Monumental were dismissed. Monumental Br. at 3. In actuality, 

the Hon. Anne E. Thompson dismissed some but not all of the 

claims in those cases as barred by various statutes of

limitations, but permitted two of the plaintiffs in the Cetel

Litigation to proceed with many of their claims, including 

certain of their claims against the Monumental Defendants. See

Verification of Steven J. Fram, Esquire and Exhibits "A" and "B" 

thereto.

After Judge Thompson granted in part and denied in part the 

motions for summary judgment of the defendants, the remaining 

plaintiffs in the Cetel Litigation and Monumental entered into a 

Settlement Agreement pursuant to which a Consent Judgment was 

entered against Monumental for over $140,000.00. See Fram Ver., 
3

Exhibit "C." The claims of the remaining Cetel plaintiffs 

against the defendants who have not settled will proceed to 

trial before Judge Thompson on January 4, 2005. Id. at ¶ 6.

Monumental also distorts the nature of the proceedings in 

the Cetel Litigation in describing the grounds upon which Judge 

Thompson granted summary judgment on statute grounds. As 

discussed in more detail below, the facts specific to the 

plaintiffs in the Cetel Litigation are very different from those 

involving the plaintiffs in this case. Unlike the plaintiffs in 

the Cetel Litigation, the plaintiffs in this case were not 

audited by the IRS because of their participation in the VEBA 

program in 1995, were not made aware of IRS Notice 95-34 shortly 

after it was issued, and did not incur any damages by virtue of 

having to defend against IRS tax audits. As a consequence, the 

facts relied upon by Judge Thompson in holding that certain of 

the claims of certain of the plaintiffs in the Cetel Litigation 

accrued in 1995 do not exist in this case. 

As discussed below, it would be improper, and inconsistent

with Rule 12(b)(6), for this Court to rely upon factual findings 

made in a different case, involving different plaintiffs and 

different circumstances, in ruling on any issues relating to 

these plaintiffs. 
4

ARGUMENT

A. Monumental Was Properly Served.

Monumental contends that it was not properly served for two 

reasons. First, it asserts that service was not timely made 

because Rule 4(e), which allowed plaintiff to rely upon 

Pennsylvania law in making service, required plaintiffs to 

effect service within 90 days, as provided in the Pennsylvania 

Rules of Civil Procedure, rather than within 120 days, as 

specifically provided in Rule 4(m). As discussed below, this 

attempt to confuse the provisions of Rule 4(e), which provides a 

method of service, which the provisions of Rule 4(m), which 

specifies the time for service, must be rejected. 

Second, Monumental argues that service addressed to its 

President by certified mail, return receipt requested, was not 

effective because the employee of Monumental who signed the 

receipt for its President was not authorized to do so. As 

discussed below, this argument is frivolous Employees of 

Monumental who are generally authorized to accept mail on behalf 

of its President, and who did so in this case, cannot be deemed 

unauthorized to accept process after the fact. 

With respect to the timing of service, Monumental argues, 

without citing any authority, that Rule 4(e), which allows a 

plaintiff to effect service "pursuant to the law of the state in 

which the district court is located," incorporates all aspects 
5

of state procedure for service, including the 90-day provision 

for service contained in Rule 404 of the Pennsylvania Rules of 

Civil Procedure, thereby displacing the 120-day time period set 

forth in Rule 4(m). In Henderson v. United States, 517 U.S. 654 

(1996), the United States Supreme Court made clear that the 120-

day time limit is the minimum amount of time allowable to a 

plaintiff to effect service. In Henderson, an admiralty case 

brought against the Government, the Government had argued that a 

provision in the Suits in Admiralty Act that required service to

be made on the United States "forthwith," controlled over the 

120-day period contained in what was then Rule 4(j). The 

Supreme Court categorically rejected this argument, noting that 

Rule 4, when read in its historical context, establishes "that 

the 120-day provision operates not as an outer limit subject to 

reduction, but as an irreducible allowance." The Court added:

The Federal Rules thus convey a clear message: 

Complaints are not to be dismissed if served within 

120-days, or within such additional time as the court 

may allow. 

517 U.S. at 663.

The absurdity of incorporating shorter state time limits 

for service of process into federal practice under Rule 4(e) is 

made clear if one considers the waiver of service provisions of 

Rule 4(d). Under Rule 4(d)(2)(f), a defendant asked to waive 

formal service is entitled to a "reasonable" time to return the 
6

waiver, which shall be at least 30 days from the date in which 

the request is sent, or 60 days from the date if the defendant 

is outside the United States. Under Monumental's interpretation 

of Rule 4(e), which would apply the 60-day period for service 

provided under the laws of some states, such as Iowa and 

Maryland, a defendant could fail to respond to a request for 

waiver of service within 60 days and then contest the timeliness 

of service if a plaintiff attempted to rely upon the provisions 

of Rule 4(e) and serve pursuant to the law of one of the states. 

Any such interpretation would be inconsistent with the structure 

of Rule 4 and would defeat its goal of attempting to simplify 

service of process and eliminate the type of gamesmanship 

represented by Monumental's argument.

Instead, Rule 4(e) must be read as allowing reliance upon 

the method of service allowed under applicable state law, rather 

than as incorporating wholesale into the Federal Rules all state 

law provisions dealing with service of process. Rule 404 of the 

Pennsylvania Rules of Civil Procedure allows service upon an 

out-of-state defendant by mail in the manner set forth in Rule 

403, which provides for service by any form of mail requiring a 

"receipt signed by the defendant or his authorized agent." Rule 

403 further provides that if the mail is returned with a 

notation by the postal authorities that the defendant refused to 

accept the mail, the plaintiff may serve by ordinary mail. 
7

Plaintiffs served by certified mail, return receipt requested 

and, as indicated in the return of service filed with the Court, 

and as admitted by Monumental, the summons and Complaint were 

accepted and received by Monumental's and delivered to its 

President. Because the postal authorities did not advise 

Plaintiffs that Monumental had refused to accept delivery, there 

was no need for Plaintiff to follow through, as provided by Rule 

403(1), with service by ordinary mail.

Monumental's argument that its employee who signed for the 

certified mail addressed to its President was not authorized 

must also be rejected. The Courts have consistently held, in 

indistinguishable circumstances, that individuals who accept 

service for corporate officers are impliedly authorized to do 

so, and that their corporate employers cannot later claim 

otherwise. See, e.g., LSJ Investment Co. v. O.L.D., Inc., 167 

F.3d 320 (6th Cir. 1999) (service by registered mail that was 

signed by a woman who worked at the address given by the 

business complied with both the Ohio Rules and due process); 

Sellens v. Telephone Credit Union, 189 F.R.D. 461 (D. Kan. 1999) 

(where secretary told process server she could accept summons 

and signed for summons, service was effective absent a showing 

of prejudice); Kuhlik v. Atlantic Corp., 112 F.R.D. 146 

(S.D.N.Y. 1986) (receptionist at corporate offices who stated 

that she could accept summons was an implied agent authorized by 
8

appointment and capable of accepting service); Frank Keevan & 

Sun, Inc. v. Callier Steel Pipe & Tube, Inc., 107 F.R.D. 665 

(S.D. Fla. 1985) (where a corporate manager had actual knowledge 

of action, service upon receptionist and substituted service on 

manager's cousin were sufficient).

That certified mail addressed to Monumental's President was 

accepted and signed for by one of its employees is prima facie

evidence that the employee was authorized to accept service 

directed to him. Monumental's after-the-fact attempt to claim 

that its employee was not authorized should be rejected. 

At the very least, the circumstances raise an issue of fact 

about the scope of those employees. It is well-settled that 

where issues concerning authority to accept service exist, 

discovery should be allowed and the Court should conduct a 

hearing pursuant to Fed. R. Civ. P. 12(d) to resolve any factual 

issues that may exist. 5B Wright & Miller, Federal Practice and 

Procedure, Civil 3d (2004), § 1353 at pp. 344-46 and nn. 37-41. 

As a consequence, unless the Court rejects Monumental's lack of 

authority argument, plaintiffs should be granted leave to take 

discovery of Monumental concerning the nature and scope of 

authority of employees at Monumental to accept documents 

directed to its President. 
9

B. Choice of Law.

Monumental argues that plaintiffs' claims under the New 

Jersey Consumer Fraud Act and the New Jersey Racketeering Act 

must be dismissed because this case is governed by Pennsylvania 

law. Although Plaintiffs disagree with this assertion, they 

also believe that it is premature for the Court to adjudicate 

this issue. Because choice of law issues are fact-specific, 

plaintiffs respectfully submit that choice of law considerations 

should not be addressed based upon the allegations of the 

Complaint but should await a more complete development of the 

relevant facts in this case. 

Moreover, to the extent the Court decides that the law of 

Pennsylvania rather than New Jersey applies to the transactions 

at issue in this case, plaintiffs have the right to pursue 

analogous claims against defendants under Pennsylvania law. It 

would be inappropriate for any claims to be dismissed on the 

merits.

By way of background, there can be no question that the 

VEBA program at issue in this litigation was based in New 

Jersey, and that that program was marketed by defendants Barry 

Cohen and Michael Kirwan as the "authorized" representatives of 

The Medical Society of New Jersey, a New Jersey-based entity 

that represents the interests of New Jersey physicians. The 

evidence will establish that The Medical Society assisted Cohen 
10

and Kirwan by advertising the VEBA program heavily, not only to 

New Jersey physicians, but also to physicians located in other 

jurisdictions. Plaintiffs are in possession of voluminous 

documentation which demonstrates the integral role played by The 

Medical Society in endorsing and marketing the VEBA program. 

The central role of The Medical Society is reflected in the fact 

that most of the physicians who agreed to participate in the 

program, and all of the physicians who were audited by the IRS, 

were located in New Jersey. The physicians who agreed to 

participate in the VEBA program did not know, and could not have 

known, the roles played by the other defendants, including 

Monumental, in the scheme. 

Under these circumstances, which plaintiffs are prepared to 

outline in detail, plaintiffs are entitled to pursue claims 

under the New Jersey Consumer Fraud Act and the New Jersey 

Racketeering Act. The decision in Boyes v. Greenwich Boatworks, 

Inc., 27 F. Supp.2d 543 (D.N.J. 1998), involves circumstances 

strikingly similar to those presented here. The plaintiff, a 

resident of New Jersey, purchased a boat from the defendant, a 

New Jersey seller, after attending the 1995 Philadelphia Boat 

Show, which was held at the Philadelphia Civic Center in January 

of 1995. After the boat failed to operate as represented by the 

defendant, the plaintiff filed suit alleging, among other 

things, violation of the New Jersey Consumer Fraud Act. After a 
11

review of the facts and circumstances, Judge Irenas held that 

New Jersey law, including its Consumer Fraud Act, applied to the 

plaintiff's claims. Judge Irenas noted, before considering the 

appropriate choice of law, that litigation in the modern 

commercial world "often implicates transactions or events 

occurring in more than one jurisdiction." Id. at 546. After 

considering the interest in New Jersey in regulating the conduct 

of its residents, the Court held that the Consumer Fraud Act was 

properly applied to wrongful conduct that occurred in New 

Jersey, even where some aspects of the transaction took place 

outside New Jersey or affected non-New Jersey residents:

This Court has little doubt that the New Jersey 

Legislature intended its consumer fraud statute to 

apply to sales made by New Jersey sellers even if the 

buyer is an out-of-state resident and some aspect of 

the transaction took place outside of New Jersey. 

Courts have declared that the Consumer Fraud Act 

"should be construed liberally in favor of protecting 

consumers." . . . While there can be no doubt that 

the New Jersey Legislature desired to protect its own 

residents, it is equally clear that this state has a 

powerful incentive to insure that local merchants deal 

fairly with citizens of other states and countries. . 

. . 

Id. at 547 (citations omitted). 

As part of his opinion, Judge Irenas considered and 

rejected the defendants' argument that plaintiffs' consumer 

fraud claim should be considered under the Pennsylvania Unfair 

Trade Practices and Consumer Protection Law ("UTPCPL"), 73 P.S. 

§ 201-1 et seq. After noting that the New Jersey Consumer Fraud 
12

Act is somewhat more protective of the rights of consumers than 

UTPCPL, Judge Irenas held that it would not conflict with any 

policies of Pennsylvania to apply the Consumer Fraud Act. Both 

statutes, the Court noted, 

reflect the legislative determination to attack the 

same evil. Because plaintiff has chosen to invoke the 

remedies of the New Jersey law, a reasonable 

interpretation of the statute suggests that it was 

meant to apply to New Jersey sellers, and nothing in 

the law is in conflict with or repugnant to 

Pennsylvania law. This court will apply such law in 

the resolution of this case.

Id. at 548. 

In Fresh Start Indus. v. ATX Telecommunications Serv., 295 

F. Supp.2d 521 (E.D. Pa. 2003), Judge Robreno recently undertook 

a similar analysis of the New Jersey Consumer Fraud Act and the 

UTPCPL in holding that the Consumer Fraud Act could be applied 

to claims asserted in this Court by a Delaware company against a 

company based in New Jersey. In response to litigation 

instituted in this Court by Fresh Start Industries, a New Jersey 

company, ATX Telecommunications Services, which is based in 

Delaware, asserted by way of counterclaim that Fresh Start had 

violated the New Jersey Consumer Fraud Act. After a detailed 

comparison of the Consumer Fraud Act and the UTPCPL, Judge 

Robreno held that application of the Consumer Fraud Act to the 

conduct of the New Jersey-based company would not impair any 

governmental interest of Pennsylvania, and that "the conflict 
13

between the New Jersey and Pennsylvania Consumer Fraud statutes 

is a false conflict." Id. at 528. Based upon this conclusion, 

the court denied Fresh Start's motion for summary judgment, 

ruling that ATX could proceed with claims under the Consumer 

Fraud Act. 

Boyes and Fresh Start make clear that activities of New 

Jersey-based companies that adversely impact plaintiffs in other 

jurisdictions may be the basis for claims under the Consumer 

Fraud Act, and that the governmental interests of Pennsylvania 

represented by the UTPCPL are not inconsistent with the Consumer 

Fraud Act. 

The sole case cited by Monumental in support of its 

argument on this point, the unpublished decision in Heindel v. 

Pfizer, Inc., 2004 WL 1398024 (D.N.J. June 7, 2004), is easily 

distinguishable. In Heindel, the plaintiffs, residents of 

Pennsylvania, asserted personal injury claims against a group of 

major drug manufacturers arising out of their activities in 

seeking FDA approval for, and their marketing of, Celebrex and 

Vioxx. The Plaintiffs were treated by physicians in 

Pennsylvania and read advertising about Celebrex and Vioxx in 

Pennsylvania. With respect to Merck, which manufactured Vioxx, 

the Court made specific findings that the employees of Merck 

responsible for interacting with the FDA regarding Vioxx were 

all located in Pennsylvania. With respect to drug companies 
14

involved in the sale of Celebrex, the court found that virtually 

all of the promotional activities relating to Celebrex took 

place in New York or Illinois. The court noted, in summary, 

that the defendants' contacts with New Jersey were essentially 

limited to the presence in New Jersey of the principal places of 

business of two of the defendants, and that virtually all of the 

marketing and advertising functions at issue in the lawsuit took 

place in other states. Based upon a detailed analysis of these 

and other factors, the court held, on balance, that the laws of 

Pennsylvania should govern the plaintiffs' claims. 

Heindel is factually distinguishable from this case because 

the activities of the defendants challenged by the plaintiffs 

did not take place in New Jersey. Moreover, Heindel underscores

that it is inappropriate for courts to undertake a choice of law 

analysis, which generally involves a detailed examination of the 

facts relating to a case, in the context of a 12(b)(6) motion. 

Although plaintiffs have made certain representations in 

this brief concerning the centrality of New Jersey to the 

wrongful conduct alleged, the timing of Monumental's motion to 

dismiss, which was filed on the eve of the Christmas holiday, 

has not permitted plaintiffs to develop in detail all of the 

facts and circumstances that bear upon the choice of law 

analysis. Because of the fact-intensive nature of that 

analysis, the Court should defer any consideration of the law 
15

that should be applied to plaintiffs' claims against the various 

defendants. 

If for any reason this Court does conclude that plaintiffs' 

consumer fraud claims are not governed by the New Jersey 

Consumer Fraud Act, plaintiff should be permitted to pursue 

consumer fraud claims under the UTPCPL. 

The same reasoning that justifies permitting plaintiffs to 

pursue claims under the New Jersey Consumer Fraud Act also 

allows Plaintiffs to pursue claims under the New Jersey 

Racketeering Act. Because the activities by which the 

defendants created and marketing the VEBA scheme were 

coordinated by the New Jersey Medical Society, which endorsed 

the VEBA program, and took place in New Jersey, the defendants 

had sufficient contact with New Jersey to warrant the assertion 

of claims under that statute.

C. Plaintiffs' Claims are Not Time-Barred.

Monumental also argues that plaintiffs’ claims should be 

dismissed as time-barred. This argument, which is based 

entirely upon factual findings made by a different court in a 

different case involving different plaintiffs, must be rejected. 

In Judge Thompson's opinions in the Cetel litigation, from which 

Monumental quotes selectively, Judge Thompson found that the 

claims of the Cetel plaintiffs accrued in 1995 because those 
16

plaintiffs were audited by the IRS beginning in 1995, because 

those plaintiffs suffered actual damages relating to their

audits in 1995, and because those plaintiffs knew or should have 

known, by virtue of IRS Notice 95-34, that misrepresentations

had been made to them by certain of the defendants. 

The factual findings made by Judge Thompson in the Cetel

Litigation have no bearing on when the claims of the plaintiffs 

in this case accrued. Unlike the plaintiffs in the Cetel 

Litigation, Dr. Borah was never audited by the IRS and was never 

aware of IRS Notice 95-34. Instead, the Complaint alleges that 

Dr. Borah only recently learned, based upon other litigation 

against the defendants brought by other victims of the VEBA 

scheme, that he had been fraudulently induced to participate in 

the VEBA Plan and had lost most, if not all, of his 

contributions to the VEBA program. See Complaint at ¶ 97. 

Although the Complaint does not specify when Dr. Borah learned 

about the VEBA scheme or that he had suffered financial losses, 

counsel can represent, and prove through an affidavit of Dr. 

Borah if necessary, that Dr. Borah did not discover either that 

he had been injured or of the wrongful nature of the defendants’ 

conduct until mid-2003, when he became aware of the Cetel 

Litigation. 

It is well settled, under both federal law and Pennsylvania 

law, that a cause of action does not accrue, and the statute of 
17

limitations does not begin to run, until a plaintiff discovers 

that she has been injured and the cause of the injury. Thus, in 

Forbes v. Eagleson, 228 F.3d 471 (3d Cir. 2000), the Third 

Circuit adopted an “injury discovery” rule for the purposes of 

determining when the statute begins to run on civil RICO claims. 

Under that rule, the limitations period begins to run when the 

Plaintiff “has discovered, or by exercising reasonable 

diligence, should have discovered (1) that he or she has been 

injured, and (2) that this injury has been caused by another 

party’s conduct.” Id. at 485 (quoting Oshiver v. Levine, 

Fishbein, Sedrin & Berman, 38 F.3d 1380, 1386 (3d Cir. 1994)).

Similarly, under the discovery rule as applied under New 

Jersey law, the statute of limitations does not begin to run 

until the plaintiff reasonably should have known of the 

existence of the potential cause of action. Thus, a cause of 

action for fraud accrues and the statute begins to run only when 

a plaintiff discovers both that she has been injured and the 

cause of the injury:

The plaintiff must be aware of an injury and 

a causal relationship between the injury and 

an actor, but need not know that the conduct 

is tortious or legally wrongful. . . . 

When the gist of the action is fraud 

concealed from the plaintiff, the statute 

begins to run on discovery of the wrong or 

facts that reasonably should lead the 

plaintiff to inquire into the fraud.
18

Southern Cross Overseas v. Wah Kwong Shipping, 181 F.3d 410, 425

(3d Cir. 1999). See also Holmin v. T.R.W., Inc., 330 N.J. 

Super. 30, 36, 748 A.2d 1141 (App. Div. 2000) ("until a 

plaintiff has suffered 'damages,' . . . he cannot maintain a 

suit for damages based on fraud since his cause of action has 

not yet accrued. It will accrue only when 'damage' is 

inflicted."), aff'd, 167 N.J. 205, 770 A.2d 283 (2001).

The discovery rule is essentially the same under 

Pennsylvania law. See, e.g., Murphy v. Saavedra, 560 Pa. 423, 

426, 746 A.2d 92, 94 (2000); Pocono International Raceway, Inc. 

v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A. 2d 468, 471 

(1983). Under the discovery rule, the limitations period begins

to run only when the plaintiff knows, or reasonably should know, 

“(1) that he has been injured, and (2) that his injury has been 

caused by another party’s conduct.” Urland v. Merrill-Dow 

Pharmaceuticals, Inc., 822 F.2d 1268, 1271 (3d Cir. 1987).

Because affirmative defenses such as the statute of 

limitations are fact-specific and often rely upon information 

outside of the pleadings, they generally may not be raised in 

pre-answer motions brought under Rule 12(b). See Worldcom, Inc. 

v. Graphnet, Inc., 343 F.3d 651, 657 (3d Cir. 2003)(“Affirmative 

defenses should be raised in responsive pleadings, not in preanswer motions brought under Rule 12(b)”). The Third Circuit 

has held that a statute of limitations defense may be raised in 
19

a motion under Rule 12(b)(6) “only if the time alleged in the 

statement of a claim shows that the cause of action has not been 

brought within the statute of limitations.” Robinson v. 

Johnson, 313 F.3d 128, 135 (3d Cir. 2002). Thus, unless a 

complaint affirmatively alleges that a cause of action accrued 

beyond the limitations period, it is improper to grant a motion 

to dismiss based upon the affirmative defense of the statute:

When the applicability of the statute of 

limitations in is in dispute, there are 

usually factual questions as to when a 

plaintiff discovered or should have 

discovered the elements of its cause of 

action, and thus “defendants bear a heavy 

burden seeking to establish as a matter of 

law that the challenge claims are barred.

Southern Cross Overseas, 181 F.3d at 425 (3d Cir. 1999) (quoting 

Van Buskirk v. Cary Canadian Mines, Ltd., 760 F.2d 481, 498 (3d 

Cir. 1985)).

The Seventh Circuit recently had occasion to apply these 

principles in reversing the dismissal of a Section 1983 claim as 

barred by the statute of limitations. In Clark v. City of 

Braidwood, 318 F.3d 764 (7th Cir. 2003), the plaintiff, a 

landowner, complained of events that took place “in or about 

1997,” but did not file suit until 2001. The City moved to 

dismiss under Rule 12(b)(6), claiming that the Section 1983 

claims were time-barred by the applicable two-year statute of 

limitations. The plaintiff opposed this motion by asserting, 
20

among other things, that the City’s actions constituted a

“continuing violation” and, in the alternative, that he did not 

discover the violation until two years before suit. The Seventh 

Circuit reversed the dismissal of the lawsuit, emphasizing the 

impropriety of a ruling on the affirmative defense of the 

statute of limitations in the context of a Rule 12(b)(6) motion:

The City contends that the discovery rule 

does not save Clark’s suit because his 

“complaint is wanting for any reasonable 

inference triggering the application of the 

discovery rule or otherwise resulting in a 

totaling of the limitations.” But again, a 

plaintiff is not required to negate an 

affirmative defense, such as the statute of 

limitations, in his complaint. And though a 

plaintiff can plead himself out of court if 

he alleges facts that affirmatively show 

that his suit is time-barred, . . . that is 

not what we have here. Clark’s complaint 

states that the city violated his 

constitutional rights “in or about 1997” but 

it is silent as to the date of discovery.

318 F.3d at 767 (citation omitted). The Seventh Circuit added 

that the plaintiff “could have spared everyone this appeal if he 

had just alleged the specific date of discovery in his reply to 

the motion to dismiss . . .” Id.

In this case, plaintiffs were not required to anticipate 

the statute as an affirmative defense or to aver the date upon 

which they discovered he had been injured or that the defendants 

had engaged in wrongful conduct. If requested to do so by the 

court, counsel will file an amended complaint that affirmatively 
21

alleges that Dr. Borah did not discover either that he had been 

injury or the basis for his claims until mid-2003, or will 

submit an affidavit to that effect. 

In any event, there is no basis in the Complaint for 

Monumental to assert the statute of limitations as an 

affirmative defense. Monumental's suggestion that the Court 

should rely upon factual findings relating to different 

plaintiffs in different litigation is wholly improper. What 

other physicians knew is irrelevant to what Dr. Borah knew and 

when he knew it. 

D. Piercing the Corporate Veil against AEGON

Monumental also argues that plaintiffs’ claims against 

AEGON should be dismissed on the grounds that it is not 

appropriate to “pierce the corporate veil.” This argument, like 

most of the arguments raised by Monumental, is premature and not 

appropriate for consideration in the context of a 12(b)(6) 

motion. Plaintiffs note that counsel for these defendants made 

this very same argument in their summary judgment motion in the 

Sankhla and Cetel cases, and that Judge Thompson rejected this 

contention. As part of the Consent Judgment between the Cetel

plaintiffs and these defendants, the Cetel plaintiffs agreed to 

dismiss their claims against AEGON in return for the payments 

from Monumental reflected in the Consent Judgment.
22

CONCLUSION

For the foregoing reasons, plaintiffs respectfully request 

that the Court deny Monumental’s motion in its entirety.

Respectfully submitted,

Archer & Greiner

Attorneys for Plaintiffs

BY: /s/

STEVEN J. FRAM, ESQUIRE (ID# 38825)

A Professional Corporation

One South Broad Street

Suite 1620

Philadelphia, PA 19107

Dated: January 3, 2005