IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LEONARD BOSLEY, ET AL. :

 : CIVIL ACTION

:

v. :

: NO. 04-CV-4598

:

THE CHUBB INSTITUTE :

SURRICK, J. MAY 25, 2007

MEMORANDUM & ORDER

Presently before the Court is Plaintiffs’ Motion For Leave To File Amended Pleading

(Doc. No. 34) and Plaintiffs’ Renewed Motion For Leave To File Amended Pleading (Doc. No.

86). For the following reasons, Plaintiffs’ Motions will be denied.

I. BACKGROUND

This case arises out of Plaintiffs’ claim that Defendant The Chubb Institute (“TCI”)

misclassified Admissions Representatives as exempt employees, not entitled to overtime pay,

under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. (Doc. No. 1 at 1.) 

Plaintiffs contend that they are actually non-exempt employees under the FLSA and, as a result,

are entitled to overtime. (Id.) Plaintiffs allege that Defendant maintained a regular practice of

requiring Plaintiffs to work in excess of 40 hours per week and that TCI maintained this practice

of failing to pay overtime compensation to Admissions Representatives at all TCI campuses. 

(Id. at 3.) Plaintiffs also contend that TCI violated the FLSA in that it “failed to make, keep and

preserve records of their employees and of the wages, hours and other conditions and practices

of employment maintained by the companies.” (Id.) In addition, Plaintiffs claim that by

requiring Plaintiffs to work more than forty hours per week and failing to pay them overtime,

TCI also violated the Pennsylvania Minimum Wage Act of 1868, 43 Pa. Stat. Ann. § 333.101. 

Case 2:04-cv-04598-RBS Document 98 Filed 05/25/07 Page 1 of 14
 On September 1, 2004, TCI was sold to High Tech Institute Inc., and Chubb no longer

1

has an ownership interest in it. (Doc. No. 37 at 4, n.1.)

2

(Id. at 4.)

On September 29, 2004, Plaintiffs filed their Complaint, seeking certification as a

collective action under the FLSA, 29 U.S.C. § 216(b) and seeking actual damages, liquidated

damages, attorneys fees, and costs. (Doc. No. 1.) On January 19, 2005, Plaintiffs filed a Motion

to Certify a Collective Class of Persons “Similarly Situated” Pursuant to 29 U.S.C. § 216(b) and

for Approval and Facilitation of Notice. (Doc. No. 13.) On June 3, 2005, after an initial period

of discovery, we granted pretrial certification and ordered counsel to meet and confer with

regard to the proposed notice. (Doc. No. 27 at 9.) In addition, in our Memorandum and Order

dated June 3, 2005, we granted then-Defendant The Chubb Corporation’s Motion to Dismiss

(Doc. No. 26). (Doc. No. 27 at 9.) The Motion was not opposed by Plaintiffs. (See id.)

In the instant Motions, Plaintiffs seek leave of Court to amend their Complaint to

reinstate The Chubb Corporation (“Chubb”) as a defendant in this case. Plaintiffs initially

named Chubb as a defendant because TCI was, at all relevant times, owned by Chubb Computer

Services Inc., which was, in turn, a wholly owned subsidiary of Chubb. (Doc. No. 37 at 4.) 1

Plaintiffs have offered evidence to support the present Motion in a series of supplements to their

initial Motion for Leave to Amend. (See Doc. Nos. 58, 60, 61, 94, and Letters to the Ct. of May

2, 2007 and May 15, 2007.) On May 15, 2007, Plaintiffs filed the Renewed Motion for Leave to

Amend seeking the same relief but including the opt-in Plaintiffs. (Doc. No. 86.) Chubb

responds that Plaintiffs’ Motion is, in fact, an untimely Motion for Reconsideration. Chubb also

argues that the Motion should be denied on res judicata grounds based on our prior dismissal of

Case 2:04-cv-04598-RBS Document 98 Filed 05/25/07 Page 2 of 14
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Chubb from the case.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 15(a) provides that once a responsive pleading has been

filed, a party may amend its pleading only “by leave of court or by written consent of the adverse

party; and leave shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a). “Among

the grounds that could justify a denial of leave to amend are undue delay, bad faith, dilatory

motive, prejudice, and futility.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434

(3d Cir. 1997) (citing Foman v. Davis, 371 U.S. 178, 182 (1962); Lorenz v. CSX Corp., 1 F.3d

1406, 1414 (3d Cir. 1993); Glassman v. Computervision Corp., 90 F.3d 617, 622 (1st Cir.

1996)). 

III. LEGAL ANALYSIS

As mentioned above, Plaintiffs’ Motions seek leave of Court to amend the Complaint to

reinstate Chubb as a defendant. In our Memorandum and Order of June 3, 2005, we stated the

following with regard to Chubb’s Motion to Dismiss:

Defendant Chubb has filed a Cross-Motion to Dismiss the Complaint in which it

asserts that Plaintiffs were never employed by Chubb, and therefore Plaintiffs

have improperly included Chubb as a Defendant. During the March 1, 2004,

Conference, we instructed Plaintiffs to determine whether Chubb is a viable

Defendant in this case. Plaintiffs failed to even mention this issue in their

Motion. Moreover, Plaintiffs have failed to respond to Defendant Chubb’s Motion

to Dismiss. Defendant Chubb’s Motion will be granted as unopposed.

Bosley v. Chubb Corp., No. Civ. A. 04-CV-4598, 2005 WL 1334565, at *5 (E.D. Pa. June 3,

2005). It is clear from the June 3, 2005 Memorandum that Plaintiffs were given ample

opportunity to present evidence and argument in support of their contention that Chubb was a

proper defendant. However, Plaintiffs failed to mention the issue in their contemporaneous brief

Case 2:04-cv-04598-RBS Document 98 Filed 05/25/07 Page 3 of 14
 Explaining the rationale for this position, the Supreme Court in Costello v. United

2

States, 365 U.S. 265 (1961), stated: 

All of the dismissals enumerated in Rule 41(b) which operate as adjudications on

the merits-failure of the plaintiff to prosecute, or to comply with the Rules of

Civil Procedure, or to comply with an order of the Court, or to present evidence

showing a right to the relief on the facts and the law-primarily involve situations

in which the defendant must incur the inconvenience of preparing to meet the

4

to the Court and failed to respond to Chubb’s Motion to Dismiss. We, therefore, granted that

Motion.

A. Prior Dismissal with Prejudice

Chubb argues that Plaintiffs’ current Motions for Leave to Amend should be denied on

res judicata grounds based on our prior dismissal of Chubb as a party to this case. In support,

Chubb points to our June 3, 2005 opinion and contends that the dismissal of Chubb constituted a

dismissal with prejudice under Federal Rule of Civil Procedure 41. Plaintiffs argue that our

Order dismissing Chubb was a dismissal without prejudice and thus cannot preclude an

amendment reinstating Chubb as a defendant. Rule 41(b) provides:

For failure of the plaintiff to prosecute or to comply with these rules or any order

of court, a defendant may move for dismissal of an action or of any claim against

the defendant. Unless the court in its order for dismissal otherwise specifies, a

dismissal under this subdivision and any dismissal not provided for in this rule,

other than a dismissal for lack of jurisdiction, for improper venue, or for failure to

join a party under Rule 19, operates as an adjudication upon the merits.

Fed. R. Civ. P. 41(b). The Supreme Court has advised that “Rule 41(a) . . . makes clear that ‘an

adjudication upon the merits’ in Rule 41(b) is the opposite of a dismissal without prejudice.”

Semtek Intern’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001). It is a dismissal that

prevents refiling of the claim in the same court. Id. at 506; see also Douris v. County of Bucks,

No. Civ. A. 99-3357, 2001 WL 695019, at *3 (E.D. Pa. June 18, 2001). In addition, it is clear

2

Case 2:04-cv-04598-RBS Document 98 Filed 05/25/07 Page 4 of 14
merits because there is no initial bar to the Court’s reaching them. It is therefore

logical that a dismissal on one of these grounds should, unless the Court

otherwise specifies, bar a subsequent action. 

Id. at 286.

 In granting Chubb’s Motion to Dismiss, we stated the following regarding parent 3

company liability: 

We note that Defendants correctly state that a parent corporation is not, under

normal circumstances, liable as the employer of its subsidiaries’ employees. 

(Doc. No. 26 at 8 (citing Marzano v. Computer Sci. Corp., 91 F.3d 497, 513 (3d

Cir. 1997) (“[W]hen a subsidiary hires employees, there is a strong presumption

that the subsidiary, not the parent company, is the employer.” (citation omitted)).) 

Bosley v. Chubb Corp., 2005 WL 1334565, at *5. Had Plaintiffs wanted to maintain Chubb as a

5

that when the dismissal is for a reason other than lack of jurisdiction, improper venue, or failure

to join a party, the dismissal is considered to be with prejudice even if the judgment did not so

specify. See LeBeau v. Taco Bell, Inc., 892 F.2d 605, 607 (7th Cir. 1989) (holding, where

dismissal was for lack of prosecution that “[b]ecause the judgment did not otherwise state, the

dismissal was on the merits-with prejudice”). Thus, absent a specific indication in a judgment of

dismissal, the reasoning behind the dismissal dictates whether it is with or without prejudice.

In this instance, our dismissal of Chubb as a defendant was clearly a dismissal with

prejudice. The Court gave Plaintiffs an opportunity to take discovery on the issue of Chubb’s

viability as a defendant. Nevertheless, Plaintiffs failed to present any evidence to support their

contention that Chubb was a proper defendant. In fact, Plaintiffs failed to respond to Chubb’s

Motion to Dismiss at all. As a result, we granted Chubb’s Motion. The dismissal was not based

on lack of jurisdiction, improper venue, or failure to join a party. Therefore, in accordance with

Rule 41(b), our dismissal of Chubb in June 2005 constituted a dismissal with prejudice.

3

Case 2:04-cv-04598-RBS Document 98 Filed 05/25/07 Page 5 of 14
defendant in this case, they would have had to supplement their Complaint to add facts that

support the argument that Chubb and TCI were an “integrated enterprise” such that Chubb could

be held liable. While Plaintiffs made no effort in 2005 to support such a claim, this is the

argument that Plaintiffs have now put forward in their Motion for Leave to Amend. 

 Plaintiffs rely on a line of cases from the Sixth Circuit that use the “integrated 4

enterprise” test to determine the liability under the FLSA of a parent corporation for the acts of

its subsidiaries. The court in Takacs v. Hahn Automotive Corp., Case No. C-3-95-404, 1999

U.S. Dist. LEXIS 21694 (D. Ohio Apr. 23, 1999) explained the test as follows:

Under the “integrated enterprise” or “single employer” test, the Sixth Circuit

considers four factors when determining whether to treat a parent corporation and

its subsidiary as separate entities, or as a single employer, for purposes of

statutory liability. Specifically, the court assesses the degree of: (1) interrelated

operations, i.e., common offices, common record keeping, shared bank accounts

and equipment; (2) common management, common directors and boards; (3)

centralized control of labor relations and personnel management; and (4) common

ownership or financial control. “No one of these factors is conclusive, and all

four need not be met in every case.”

Id. at *12 (quoting Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 993-994 (6th

Cir. 1997)).

6

B. Effect of Prior Dismissal

Chubb also argues that because we dismissed the company in our June 3, 2005 Order, the

principles of res judicata bar Plaintiffs from amending their Complaint to reinstate Chubb as a

defendant. Plaintiffs, on the other hand, argue that they have unearthed new evidence that

supports their contention of an “integrated enterprise” between TCI and Chubb, which, in turn,

supports their view that Chubb is a proper party to this suit. Plaintiffs contend that they did not 4

offer this evidence at the time of Chubb’s Motion to Dismiss for a number of reasons: (1)

Plaintiffs’ counsel was, at the time, engaged in leaving one firm and opening a new one; (2)

Plaintiffs’ counsel believed, at the time, that Chubb was not a proper defendant in this suit; and

(3) the evidence has only recently been discovered by Plaintiffs’ counsel. Chubb, while

Case 2:04-cv-04598-RBS Document 98 Filed 05/25/07 Page 6 of 14
 The Third Circuit provided an explanation of the various terms used to define the res 5

judicata concept as follows: 

The preclusive effects of former adjudication have been discussed and determined

in varying and occasionally conflicting terminology over the past hundred years. 

In early years, these concepts were referred to collectively by most commentators

as the doctrine of res judicata. . . . Today, however, the modern nomenclature for

these two doctrines is “claim preclusion” and “issue preclusion,” respectively:

Claim preclusion generally refers to the effect of a prior judgment in foreclosing

successive litigation of the very same claim. . . . Issue preclusion generally refers

to the effect of a prior judgment in foreclosing successive litigation of an issue of

fact or law. . . . These two doctrines share the dual purpose of protecting litigants

from the burden of relitigating an identical issue with the same party or his privy

and of promoting judicial economy by preventing needless litigation.

In re Cont’l Airlines, Inc. 279 F.3d 226, 232 (3d Cir. 2002) (internal citations and quotations

omitted).

7

contending that the new evidence does not support a finding of an “integrated enterprise,” also

counters that all of the evidence put forth by Plaintiffs was available at the time of its Motion to

Dismiss in 2005.

The fact that we entered an Order in June 2005 dismissing Chubb from this suit requires

that we approach the instant Motion by considering the “law of the case” doctrine and its

implications in this situation. The law of the case doctrine is similar to the doctrine of res

judicata or, alternatively, claim and issue preclusion, in that it limits relitigation of an issue once

it has been decided by the Court. “However, [the law of the case] doctrine is concerned with the 5

extent to which the law applied in decisions at various stages of the same litigation becomes the

governing legal precept in later stages.” In re Cont’l Airlines, Inc. 279 F.3d at 232-33 (citing 18

James Wm. Moore et al., Moore’s Federal Practice ¶ 134.20 (3d ed. 1999)). The law of the case

Case 2:04-cv-04598-RBS Document 98 Filed 05/25/07 Page 7 of 14
8

doctrine is an important rule of practice because it “protect[s] against the agitation of settled

issues.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988) (quoting 1B J.

Moore, J. Lucas, & T. Currier, Moore’s Federal Practice ¶ 0.404[1], p. 118 (1984)). “Because it

prevents courts from entertaining endless appeals on the same issue, the doctrine promotes

finality and judicial economy. ‘Law of the case rules have developed to maintain consistency

and avoid reconsideration of matters once decided during the course of a single continuing

lawsuit.’” Pub. Interest Research Group of NJ, Inc. v. Magnesium Elektron, Inc., 123 F.3d 111,

116 (3d Cir. 1997) (quoting 18 Charles A. Wright, Arthur R. Miller, Edward Cooper, Federal

Practice and Procedure § 4478 at 788 (1981)). 

The Third Circuit has recognized a number of “extraordinary circumstances” that warrant

reconsideration of an issue that was previously decided by the Court in an earlier stage of the

litigation. Those circumstances include “situations in which: (1) new evidence is available; (2)

a supervening new law has been announced; or (3) the earlier decision was clearly erroneous and

would create manifest injustice.” Pub. Interest Research Group of NJ, Inc., 123 F.3d at 117. In

qualifying the exception for new evidence in the context of res judicata, however, courts have

made clear that “[n]ewly discovered evidence does not prevent the application of res judicata,

‘unless the evidence was either fraudulently concealed or it could not have been discovered with

due diligence.’” Borough of Lansdale v. PP & L, Inc., 426 F. Supp. 2d 264, 307 (E.D. Pa. 2006)

(quoting Haefner v. N. Cornwall Twp., 40 Fed. App’x 656, 658 (3d Cir. 2002)); see also L-Tec

Elec. Corp. v. Cougar Elec. Org., 198 F.3d 85, 88 (2d Cir. 1999).

In this case, there are no extraordinary circumstances. The history of Chubb’s Motion to

Dismiss is particularly telling. On March 1, 2005, we held a Pretrial Conference, at which time

Case 2:04-cv-04598-RBS Document 98 Filed 05/25/07 Page 8 of 14
9

we inquired of the parties whether Chubb was a proper defendant in this case. (Doc. No. 26 at

Ex. B ¶ 7-8, Certification of Brian Bauman.) Plaintiffs’ counsel indicated that they needed some

limited discovery in order to decide whether or not to dismiss Chubb. (Id. ¶ 9.) We agreed to a

limited period of discovery, instructed Plaintiffs’ counsel to conduct this discovery and, if they

sought to keep Chubb in the case, instructed Plaintiffs to expand their claims against Chubb in an

amended complaint. (Id. ¶ 10.) We issued an Order on March 2, 2005, directing that this

discovery be completed by April 1, 2005. (Doc. No. 18.) Pursuant to Federal Rule of Civil

Procedure 30(b)(6), Plaintiffs propounded Requests for Production of Documents and a Notice

of Deposition upon Chubb. (Doc. No. 26 at Ex. B ¶ 13.) Chubb responded to the document

requests, informing Plaintiffs that it did not possess any responsive documents. (Id. ¶ 14.) In

addition, Plaintiffs’ counsel and Chubb’s counsel agreed that Chubb would provide a declaration

of a Chubb employee to address the matters listed in the 30(b)(6) notice and that if Plaintiffs

required additional information from Chubb, they would proceed with the 30(b)(6) deposition. 

(Id. ¶ 15.) Chubb provided Plaintiffs with the declaration of Steven M. Versaggi, dated March

31, 2005. (Id. ¶ 16; Versaggi Decl.) Plaintiffs’ counsel then informed Chubb’s counsel in April

2005 that Plaintiffs did not intend to conduct the Rule 30(b)(6) deposition of Chubb. (Doc. No.

26 at Ex. B ¶ 17.) In addition, Plaintiffs did not expand upon their claims against Chubb or even

make any allegations against Chubb in their Renewed and Amended Motion to Certify and for

Approval of Notice, the pleading that followed the limited discovery allowed by the Court. (Id.

¶¶ 18-19.) As a result, Chubb contacted Plaintiffs’ counsel to determine whether Plaintiffs

would voluntarily dismiss Chubb. (Id. ¶¶ 20-21.) Receiving no answer, Chubb filed the Motion

to Dismiss. Plaintiffs failed to respond to this Motion and never presented the Court with any

Case 2:04-cv-04598-RBS Document 98 Filed 05/25/07 Page 9 of 14
10

argument or evidence on the viability of Chubb as a defendant. Under the circumstances, we

granted Chubb’s Motion to Dismiss in June of 2005.

While Plaintiffs contend that they have discovered new evidence that supports a

reinstatement of Chubb as a proper defendant, Chubb argues that virtually all of this evidence

could have been discovered and submitted to the Court in 2005 when Chubb filed its Motion to

Dismiss. Plaintiffs now present the following items as new evidence in support of their Motion: 

(1) TCI was created to and continues to train Chubb employees (Doc. No. 34 at 7); (2) TCI

employees utilized Chubb’s Human Resources Department (id. at 3); (3) TCI employees used an

array of Chubb services and benefits including the 401(k) plans, contributions to the Chubb

Stock Fund or the Stock Fund Dividend Option, Chubb’s CashBuilder Pension Plan, and direct

deposit (id.); (4) TCI used Chubb’s Code of Conduct and Electronic Communications Policy for

its employees (id.); (5) Chubb reported TCI’s income/loss on its financial statements as opposed

to reporting the value of TCI as an investment holding (id. at 4); (7) a TCI executive held

positions at TCI and Chubb simultaneously (Doc. No. 60 at 3-5); and (7) Chubb forwarded a

prior FLSA lawsuit against TCI to a private law firm to defend TCI (Pl.’s May 15, 2007 Letter).

Chubb contests these allegations and asserts that they are distortions of the truth. 

Specifically, Chubb contends that: (1) when Chubb sent employees to TCI for training, the

tuition costs were paid by the individual employees; (2) Chubb did not provide payroll services

to TCI; (3) Chubb did not provide Human Resource assistance or services to TCI; (4) Chubb was

compensated for TCI’s accessing of its mainframe; (5) TCI was included in the consolidated

financial statements of Chubb because of accounting principles with which it complied; (6)

Chubb’s policies and procedures were made available to its subsidiaries, but those subsidiaries

Case 2:04-cv-04598-RBS Document 98 Filed 05/25/07 Page 10 of 14
 The parties vigorously dispute this point. Plaintiffs allege that Chubb’s representative,

6

Steven M. Versaggi, committed perjury in his March 7, 2006 Declaration filed in opposition to

Plaintiffs’ Motion for Leave to Amend. In the Declaration, Versaggi asserted that Chubb made

its Code of Business Conduct and Electronic Communication Policy available to its subsidiaries

but did not require them to adopt those policies. Rather, he stated, Chubb left it to the discretion

of each subsidiary to choose to adopt any of Chubb’s policies. (See Doc. 37 at Ex. 2 ¶ 12.) 

Plaintiffs contend that this statement was false and point to statements made in the Code of

Business Conduct and elsewhere, indicating that it was mandatory for all employees. (See Pl.’s

Letter of May 15, 2007 at 4.) Chubb contests this claim, arguing that the prior versions of the

Code of Conduct, on which Versaggi relied in making his Declaration and which were in effect

at the time, support his statements regarding the discretionary and non-mandatory nature of the

Code with respect to Chubb’s subsidiaries. (See Chubb’s Letter of May 7, 2007.)

11

were not required to adopt the policies; and (7) Chubb is reimbursed by subsidiaries for the 6

costs associated with benefits it provided to its subsidiaries’ employees. (Doc. No. 37 at 7.) 

In addition, while Chubb contests the truth of these assertions, Chubb also contends that

all of the documents cited by Plaintiffs in support of this evidence were discoverable in 2005 at

the time of Chubb’s Motion to Dismiss. Chubb points out that during the time between the

Court Order dismissing Chubb and Plaintiffs’ Motion for Leave to Amend filed eight-and-a-half

months later, no discovery occurred between these parties, and thus no new facts were developed

in discovery. (Doc. No. 37 at 11.) In fact, Plaintiffs admit that the integrated enterprise evidence

that they have discovered came from the internet and the limited discovery conducted thus far. 

(Doc. No. 48 at 1.) The documents attached in support of Plaintiffs’ Motion for Leave to Amend

affirm this point. The documents include TCI’s Admissions Manual, TCI’s September 2003

Manual entitled “You and Your Company Benefits,” TCI’s October 2003 Manual entitled “You

and Your Company Policies,” and Chubb’s November 2003 Form 10-Q retrieved online from the

U.S. Securities and Exchange Commission’s website. (Doc. No. 34 at Exs. 1-10.) Clearly,

Plaintiffs could have obtained and presented this evidence in response to Chubb’s Motion to

Case 2:04-cv-04598-RBS Document 98 Filed 05/25/07 Page 11 of 14
 Plaintiffs’ counsel admits in his most recent letter to the Court that, in 2005, he 7

“believed Chubb’s statements regarding its alleged arm’s length relationship with TCI [and]

thought the original complaint was just a slightly overzealous filing made without the benefit of

pre-litigation discovery.” (Pl.’s Letter of May 15, 2007.) Plaintiffs’ counsel clearly

contemplated the viability of Chubb as a defendant and chose not to pursue the matter despite

having been given the opportunity to conduct discovery to satisfy himself that this was the

proper course.

 While Plaintiffs have alleged that Chubb’s employee, Steven Versaggi, committed 8

perjury in his declaration to the Court, that declaration was filed on March 7, 2006 in response to

Plaintiffs’ Motion for Leave to Amend. Plaintiffs have alleged no fraudulent concealment of

evidence during the relevant period in 2005 when the Court gave Plaintiffs an opportunity to do

discovery on this issue and when Chubb filed its Motion to Dismiss. While Chubb contests the

allegation of perjury, this dispute is irrelevant to the present issue because it arose close to a year

after we granted Chubb’s Motion to Dismiss.

 Plaintiffs’ counsel also suggests that the eight month delay in filing the Motion for 9

Leave to Amend after Chubb was dismissed was due, in part, to the fact that counsel was

12

Dismiss in May 2005. Moreover, even if Plaintiffs could not have obtained this evidence

without some discovery, they were specifically given the opportunity to conduct discovery on

this issue in March through May of 2005 as is made clear in the Court’s Order of March 2, 2005. 

(Doc. No. 18.) Plaintiffs appear to have begun the discovery process as directed by the Court but

abandoned it after concluding that Chubb was not a proper defendant. Based on this course of 7

events, we dismissed Chubb from the action with prejudice. Plaintiffs have failed to raise any

new evidence that could not have been discovered with due diligence at the time of Chubb’s

Motion to Dismiss. In addition, Plaintiffs do not point to any fraudulent concealment of

evidence by Chubb. Accordingly, the law of the case doctrine and the doctrine of res judicata 8

compel us to deny Plaintiffs’ present Motion. Plaintiffs were given the opportunity in May 2005

to conduct discovery and present evidence to support their “integrated enterprise” argument. 

They failed to do so, and we cannot permit the reopening of this question now absent compelling

evidence. See Douris, 2001 WL 695019, at *4 (finding that dismissal of defendant was a 9

Case 2:04-cv-04598-RBS Document 98 Filed 05/25/07 Page 12 of 14
transitioning to a new private practice. (See Pl.’s Letter of May 15, 2007 at 3.) However, this

does not explain why Plaintiffs failed to conduct discovery on this issue when they were

permitted to do so in April and May 2005 and does not explain why they failed to oppose

Chubb’s Motion to Dismiss in May 2005. Chubb was dismissed in June 2005. The fact that

Plaintiffs’ counsel left his firm in August 2005 and began transitioning cases to his new firm in

October 2005 (Doc. No. 43 at 2) does not explain the failure to address this issue when the Court

gave the parties the opportunity to do so.

 Plaintiffs contend that we should defer decision on this Motion until after the close of 10

the opt-in period. They argue that the opt-in plaintiffs will not be bound by the Court’s earlier

dismissal of Chubb from the litigation because they had not yet entered the case. (Pl.’s Letter of

May 15, 2007 at 2.) However, in an opt-in collective action, opt-in plaintiffs are bound by the

judgments of the court in that case. See Bonilla v. Las Vegas Cigar Co., 61 F. Supp. 2d 1129,

1136 (D. Nev. 1999) (finding in collective action that there is no risk “that unnamed parties will

be bound by a judgment in which they had no participation because only those plaintiffs which

opt into the suit are bound by its result.”). When potential plaintiffs file their Notices to opt-in,

they are opting in to a suit in which some judgments have already been made. These plaintiffs

are choosing to opt-in to this suit rather than file their own individual suits in which there have

been no prior decisions. Thus, it is clear that under the law of the case doctrine, any prior

decision of the Court in an earlier stage of the litigation applies to all future opt-in plaintiffs in

the same action. There is no reason for us to defer decision on this Motion. 

13

dismissal with prejudice barring reinstatement at a later stage of the litigation). Accordingly, we

are compelled to deny Plaintiffs’ Motion for Leave to Amend.10

An appropriate Order follows.

Case 2:04-cv-04598-RBS Document 98 Filed 05/25/07 Page 13 of 14
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LEONARD BOSLEY, ET AL. :

 : CIVIL ACTION

:

v. :

: NO. 04-CV-4598

:

THE CHUBB INSTITUTE :

ORDER

AND NOW, this 25 day May, 2007, upon consideration of Plaintiffs’ Motion For th

Leave To File Amended Pleading (Doc. No. 34), Plaintiffs’ Renewed Motion For Leave To File

Amended Pleading (Doc. No. 86), Plaintiffs’ Motion To Strike Non-Party Responses To Motion

For Leave To File Amended Pleading (Doc. No. 59), and all papers submitted in support thereof

and in opposition thereto, it is ORDERED as follows:

1. Plaintiffs’ Motion for Leave to File Amended Pleading (Doc. No. 34) and

Plaintiffs’ Renewed Motion for Leave to File Amended Pleading (Doc. No. 86)

are DENIED.

2. Plaintiffs’ Motion to Strike Non-Party Responses to Motion for Leave to File

Amended Pleading (Doc. No. 59) is DENIED.

IT IS SO ORDERED.

BY THE COURT:

______________________

R. Barclay Surrick, Judge

Case 2:04-cv-04598-RBS Document 98 Filed 05/25/07 Page 14 of 14