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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

STANSFIELD, A MINOR, ET AL. :

:

Plaintiffs, :

v. : No. 05-cv-370

:

SUMMITQUEST ACADEMY, ET AL. :

:

Defendants. :

MEMORANDUM ORDER

Presently pending is the Partial Motion to Dismiss Plaintiffs’ Second Amended

Complaint (Dkt. #62) of Defendants Summit Quest Academy, Viaquest Behavioral Health of

Pennsylvania, LLC and Viaquest Behavioral Health, LLC (“Moving Defendants”) and the

response thereto. In their partial motion to dismiss, Moving Defendants seek dismissal of all

claims brought by Plaintiff Charlene Oberly (“Ms. Oberly”) in her own right as a matter of law

pursuant to Fed. R. Civ. Pro. 12(b)(6). Ms. Oberly’s individual claims against Moving

Defendants are as follows: civil rights claims brought pursuant to 42 U.S.C. § 1983, claim for

gross negligence, claim for parental loss of consortium and a claim for retaliation. In support of

their partial motion to dismiss, Moving Defendants argue that Ms. Oberly lacks standing to bring

individual claims for purported violations of her civil rights, her gross negligence claim and

retaliation claim are derivative claims stemming from alleged violations of Section 1983 for

which she lacks a cause of action, and that there is no recognizable claim for parental loss of

consortium in Pennsylvania. 

In response, Plaintiffs claim that Moving Defendants failed to challenge the

sufficiency of Ms. Oberly’s individual claims in either of their previously filed motions to dismiss

and therefore waived their rights to challenge these claims pursuant to Fed. R. Civ. P. 12(g)

and (h)(2). Plaintiffs assert that their second amended complaint merely included a count for

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retaliatory conduct on the part of Moving Defendants and Ms. Oberly’s claims brought in her

own right were not changed in any way from Plaintiffs’ first amended complaint. Furthermore,

Plaintiffs assert that Ms. Oberly’s retaliation claim should not be dismissed as a derivative claim

because this Court previously determined that a derivative claim survives a motion to dismiss

when the underlying claims have not been dismissed. 

“A court may dismiss a complaint only if it is clear that no relief could be granted

under any set of facts that could be proved consistent with the allegations.” Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992 (2002). Federal Rule of Civil Procedure 8(a)(2)

provides that a complaint must include only “a short and plain statement of the claim showing

that the pleader is entitled to relief.” Id. at 512. “Such a statement must simply ‘give the

defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.’” Id.

“This simplified notice pleading standard relies on liberal discovery rules and summary

judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.” 

Id. A motion to dismiss may only be granted if, after accepting all well pleaded allegations in

the complaint as true, and viewing them in the light most favorable to the plaintiff, the plaintiff is

still not entitled to relief. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d

Cir. 1987). 

A determination of Moving Defendants’ pending motion to dismiss requires a

review of the procedural history of this case. The docket reveals that Plaintiffs filed their

original complaint on January 26, 2005 and Moving Defendants filed their first motion to dismiss

on February 22, 2005. Plaintiffs filed their first amended complaint on March 31, 2005 and

Moving Defendants filed a second motion to dismiss for lack of jurisdiction on April 20, 2005

arguing that Plaintiffs failed to sufficiently allege that Moving Defendants were state actors and

therefore could not bring claims pursuant to Section 1983. A memorandum and order by this

Court was entered on September 23, 2005 denying Defendants’ various motions to dismiss. 

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Moving Defendants have not waived their arguments regarding Ms.

Oberly’s individual retaliation claim because Plaintiffs added Count V for

retaliation claims in their second amended complaint permitted under leave of

court pursuant to Fed. R. Civ. Pro. 15(a). 

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Thereafter, Plaintiffs filed their second amended complaint on December 12, 2005 adding 

retaliation claims against Defendants. Moving Defendants then filed the pending third motion to

dismiss all claims brought by Ms. Oberly in her own right in Plaintiffs’ second amended

complaint on January 3, 2006. 

This Court shall first consider Ms. Oberly’s claims brought identically in both

Plaintiffs’ first and second amended complaints. Fed. R. Civ. Pro. 12(g) states that “if a party

makes a motion under this rule but omits therefrom any defense or objection then available to

the party which this rule permits to be raised by motion, the party shall not thereafter make a

motion based on the defense or objection so omitted, except a motion as provided in

subdivision (h)(2) hereof on any of the grounds there stated.” Fed. R. Civ. Pro. 12(h)(2) states

“[a] defense of failure to state a claim upon which relief can be granted ... may be made in any

pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or

at the trial on the merits. ” Applying these rules to the instant case, defenses to Ms. Oberly’s

claims brought in her own right were available to Moving Defendants when they filed their

second motion to dismiss. However, as Moving Defendants admit in their pending motion when

referencing Ms. Oberly’s individual claims, “[t]his issue was not addressed in Moving

Defendants’ previously filed [m]otions to [d]ismiss.” Moving Def.’s Mot. to Dismiss at P. 4, ¶ 5. 

Therefore, Moving Defendants may not now present new defenses to claims in their third

motion to dismiss that they could have brought in their second motion to dismiss. Accordingly,

the following claims brought by Ms. Oberly in her own right will not be dismissed: her civil rights

claims, her gross negligence claim and her parental loss of consortium claim.1

Looking to Ms. Oberly’s retaliation claim brought in her own right, Moving

Defendants assert that the retaliation claim should be dismissed because it is simply a

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Defendant Community Care Behavioral Health Organization filed its

motion to dismiss on June 1, 2005 asserting that Plaintiff Oberly’s derivative

claims in Count IV of Plaintiffs’ first amended complaint must be dismissed

because Plaintiffs’ Section 1983 negligence claims fail to set forth a claim

upon which relief may be granted. See Def.’s Mot. to Dismiss at P. 6, ¶ 22. 

In its memorandum and opinion filed September 22, 2005 and entered September

23, 2005, this Court found that the derivative claim asserted in Count IV of

Plaintiffs’ first amended complaint should survive Defendant’s motion to

dismiss because the underlying Section 1983 claims had not been dismissed. 

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derivative claim stemming from civil rights claims that Ms. Oberly has no standing to bring

against Moving Defendants. In its memorandum and order dated September 22, 2005 and

entered September 23, 2005, this Court found that a derivative claim brought by Ms. Oberly in

her own right survived Defendant Community Care Behavioral Organization’s motion to dismiss

because assuming, arguendo, that said claim brought in her own right is a derivative claim, this

Court has not dismissed the underlying civil rights claims.2 Therefore, based on my previous

ruling, I find that Ms. Oberly’s retaliation claim will not be dismissed at this stage in the litigation

because the underlying civil rights claims have not been dismissed. 

AND NOW, on this 9th day of March 2006, upon consideration of arguments

raised by counsel for both parties in their memoranda submitted to this Court and the liberal

notice pleading standard for a motion to dismiss as set forth in the unanimous Supreme Court

opinion, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992 (2002), IT IS HEREBY

ORDERED that the Partial Motion to Dismiss Plaintiffs’ Second Amended Complaint (Dkt. #62)

of Defendants Summit Quest Academy, Viaquest Behavioral Health of Pennsylvania, LLC and

Viaquest Behavioral Health, LLC is DENIED in its entirety. 

 

BY THE COURT:

 S/ Clifford Scott Green 

CLIFFORD SCOTT GREEN

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