                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-8-2007

Gleeson v. Prevoznik
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4969




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                                               NOT PRECEDENTIAL


          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                      _______________

                         No. 06-4969
                       ______________

                  MICHAEL F. GLEESON,

                                                  Appellant,
                              v.

                    JOHN C. PREVOZNIK
                       ___________

        On Appeal from the United States District Court
            for the Middle District of Pennsylvania
                        (No. 03-cv-0552)
         District Judge: Honorable Thomas J. Vanaskie

          Submitted Under Third Circuit LAR 34.1(a)
                      October 26, 2007


Before: SLOVITER, CHAGARES, and HARDIMAN, Circuit Judges.


                  (Filed: November 8, 2007)


                    __________________

                 OPINION OF THE COURT
                   __________________
CHAGARES, Circuit Judge.

       Plaintiff appellant Dr. Michael F. Gleeson appeals the District Court’s

decision dismissing his unlawful search and seizure and related civil conspiracy

claims as time-barred. The District Court granted defendant assistant district

attorney John C. Prevoznik’s motion in limine, challenging the timeliness of

Gleeson’s claims, and denied Gleeson’s motion to strike the limitations defense.

In this appeal, Gleeson argues that Prevoznik’s assertion of the affirmative defense

of statute of limitations was untimely, and the “discovery rule” tolled any statute of

limitations defense. We disagree and will affirm the District Court’s decision.

                                          I.

       As we write only for the parties, we do not set out the facts in great detail.

Beginning in 1999, Gleeson, a medical doctor licensed to practice in Pennsylvania,

started performing trans-umbilical breast augmentation surgery, which he

advertised in newspapers in Monroe and Lackawanna counties. Gleeson consulted

with Dr. Robert Grafton, a board certified medical doctor licensed in Michigan but

not Pennsylvania, regarding the surgeries, and paid Grafton for his assistance. In

May 1999, a local Pennsylvania television station filmed portions of the surgery

that Dr. Gleeson and Dr. Grafton performed on a patient.

       Detective Michael Robson of the Pocono Mountain Regional Police

Department investigated whether the law had been violated, and Prevoznik was

assigned as the assistant district attorney. In November 2000, Robson obtained

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search warrants for Gleeson’s three medical offices. Robson served as the affiant

for the Affidavits of Probable Cause and other paperwork for the warrants, and

Prevoznik assisted with drafting the language for the warrants.

       In spring 2001, Robson and Prevoznik drafted a criminal complaint and

affidavit of probable cause, which Detective Robson submitted to a district justice,

who issued an arrest warrant for Gleeson. The criminal complaint contained over

400 charges, including unauthorized practice of medicine and surgery, theft by

deception, and deceptive or fraudulent business practices.

       The Commonwealth withdrew the charges against Gleeson in August 2001.

Gleeson filed an action against Detective Robson and others on October 1, 2002,

asserting, inter alia, unlawful search and seizure and malicious prosecution. The

complaint did not, however, name Prevoznik as a defendant.

       On April 1, 2003, Gleeson brought this action against Prevoznik, asserting

that he had acted with Robson to acquire the search warrants and file criminal

charges. Prevoznik filed a motion to dismiss on May 29, 2003, arguing that the

action was barred either by qualified immunity or absolute immunity. The motion

did not challenge the timeliness of Gleeson’s claims.

       In July 2003, the District Court conducted a case management conference

and directed the parties to file supplemental briefs on the immunity issues raised in

the motion to dismiss. The District Court allowed discovery to proceed while the

motion to dismiss was pending. Prevoznik was a witness in the first action that

                                          3
Gleeson had filed against Robson and others, and the claims in the case against

Prevoznik were similar to the claims in the case against Robson.

       Gleeson moved for partial summary judgment in February 2004, arguing

that there was no probable cause for the charges filed against him. In March 2004,

Prevoznik moved for summary judgment, even though the motion to dismiss was

still pending, reasserting the immunity defenses and claiming that as a matter of

law there was probable cause for the charges.

       On May 6, 2005, the District Court issued an opinion addressing the

summary judgment motions in this case and in the case against Robson. The

District Court granted Prevoznik summary judgment with respect to Gleeson’s

civil rights malicious prosecution and intentional tort claims. The District Court

did not, however, grant Prevoznik summary judgment with respect to Gleeson’s

unlawful search claim, finding a genuine issue of material fact as to the defense of

qualified immunity.

       After ruling on the immunity issues in the summary judgment context, the

District Court dismissed Prevoznik’s motion to dismiss as moot. Prevoznik was

then required, under the Federal Rules of Civil Procedure, to file an answer to the

complaint by May 20, 2005, ten business days from the time the motion was

dismissed. On May 19, 2005, the day before the answer to the complaint was due,

Prevoznik filed an appeal, and Gleeson cross-appealed. The litigation in the

District Court was stayed pending the outcome of the appeals.

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       On July 24, 2006, this Court affirmed the District Court’s May 6, 2005

decision, and on August 21, 2006 the District Court issued an order setting a trial

date of November 6, 2006, for both this action and the action against Robson. The

District Court directed the parties to file motions in limine by September 22, 2006.

       Prevoznik filed his answer to the complaint on September 6, 2006, raising

the bar of the statute of limitations, among other issues. In the answer, Prevoznik

noted that any remaining claims against him related to matters that had occurred

on or before November 15, 2000, and the two-year statute of limitations expired on

those claims before this action was brought on April 1, 2003. Prevoznik then filed

a motion in limine on September 22, 2006, in which he again raised the bar of the

statute of limitations and requested an order “precluding introduction of any

evidence for acts prior to April 2001.” Appendix (App.) 141. Prevoznik argued

that by filing suit on April 1, 2003, Gleeson only preserved claims relating to the

period after April 1, 2001. Because the alleged unlawful searches occurred in

November 2000, Prevoznik concluded that “[n]o claims may properly be stated

against Prevoznik for acts he took in preparing documents to obtain search

warrants for the search of Gleeson’s medical offices.” App. 142.

       On September 26, 2006, Gleeson moved to strike the statute of limitations

defense on the ground that Prevoznik had waived the defense by failing to raise it

in either his motion to dismiss or motion for summary judgment. Gleeson argued

in the alternative that he could not have known about Prevoznik’s involvement in

                                          5
the case at the time his offices were searched. On November 2, 2006, the District

Court denied Gleeson’s motion and granted Prevoznik’s, dismissing the remaining

claims against Prevoznik. This appeal followed.

                                          II.

       We have jurisdiction over the District Court’s final order pursuant to 28

U.S.C. § 1291. The District Court had jurisdiction over the case pursuant to 42

U.S.C. § 1983 and 28 U.S.C. §§ 1331, 1343 and 1367. We have plenary review

where an appeal “involves the selection, interpretation, and application of legal

precepts.” Westinghouse Electric Corp. v. Franklin, 993 F.2d 349, 352 (3d Cir.

1993) (quotation marks omitted); see also Swartz v. Meyers, 204 F.3d 417, 419

(3d Cir. 2000) (explaining in the context of a habeas petition that we have plenary

review when a case is dismissed as time-barred). The District Court’s

“interpretation of applicable tolling principles and its conclusion that the facts

prevented a tolling of the statute of limitations” are also subject to plenary review.

Lake v. Arnold, 232 F.3d 360, 365 (3d Cir. 2000).

       Rule 12(b) of the Federal Rules of Civil Procedure requires that a defendant

plead an affirmative defense, such as a statute of limitations defense, in his answer

to the complaint. Fed. R. Civ. P. 12(b); see also Fed. R. Civ. P. 8(c). The reason

for this requirement is “to avoid surprise and undue prejudice by providing the

plaintiff with notice and the opportunity to demonstrate why the affirmative

defense should not succeed.” Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir.

                                           6
2002). This Court, however, also allows the statute of limitations defense to be

raised in a motion to dismiss, “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.” Id.

at 135 (quotations marks omitted). Affirmative defenses, including a statute of

limitations defense, must generally be raised “as early as reasonably possible.” Id.

at 135-36.

                                         III.

       Gleeson argues that Prevoznik waived his statute of limitations defense by

failing to raise it in either his motion to dismiss or his motion for summary

judgment. Gleeson contends that because Prevoznik raised his statute of

limitations defense two months before trial and three and a half years after the

complaint was filed against him, his actions were “entirely inconsistent with the

purpose of Rule 8(c) which requires all affirmative defenses to be raised as early as

practicable so as to avoid prejudice and promote judicial economy.” Appellant Br.

at 14. According to Gleeson, Prevoznik “wasted precious legal and judicial

resources,” given that the parties had completed discovery and argued summary

judgment motions and interlocutory appeals. Id. at 15.

       Yet, as the District Court correctly explained, “Prevoznik asserted the

limitations defense in his initial responsive pleading to the Complaint. That the

initial responsive pleading was not due until August 29, 2006 is not the fault of

Prevoznik.” App. 12. The complicated procedural posture of this case, and the

                                          7
various interlocutory appeals and related proceedings, resulted in this unusual

timing.

       Prevoznik was not required to file the answer until ten days after the

District Court decided his motion to dismiss on May 6, 2005. When Prevoznik

filed an appeal on May 19, 2005, one day before the answer was due, the

requirement that he file an answer was suspended. Timely filing of a notice of

appeal conferred jurisdiction on this Court and divested the District Court of

control of the case. Venen v. Sweet, 758 F.2d 117, 120 (3d Cir. 1985). This Court

maintained jurisdiction until the mandate was issued on August 15, 2006. See

United States v. Jerry, 487 F.2d 600, 607 (3d Cir. 1973). The District Court

concluded that the ten-day period for filing an answer started anew on the date of

the mandate and determined that the answer to the complaint was therefore due on

August 29, 2006. Although Prevoznik did not file his answer until September 6,

2006, eight days later, we hold that the District Court correctly determined that the

delay did not compel a finding of waiver. See Eddy v. V.I. Water & Power Auth.,

256 F.3d 204, 209 (3d Cir. 2001) (noting that failure to assert an affirmative

defense in an appropriate responsive pleading does not automatically result in a

waiver).

       In addition, as the District Court correctly noted, Gleeson cannot show that

he suffered prejudice because Prevoznik did not raise the limitations defense until

the filing of the answer. Gleeson did not spend significant additional resources as

                                          8
discovery in this case was related to discovery in the other ongoing action against

Robson. Moreover, the record does not support a finding that Prevoznik delayed

asserting the limitations defense for tactical reasons or acted in bad faith. Finally,

although Prevoznik filed his answer eight days late, Gleeson did not suffer

prejudice from this delay. We therefore conclude that the defense was not waived.

See Long v. Wilson, 393 F.3d 390, 396-401 (3d Cir. 2004) (holding that the

Commonwealth did not waive the statute of limitations defense by failing to raise

it in its answer to a habeas petition and allowing the Commonwealth to raise the

defense in a supplemental pleading 14 months after the petition was filed where

delay did not cause prejudice).

                                         IV.

       In the alternative, Gleeson argues that his claims against Prevoznik were, in

fact, timely because the “discovery rule” tolls any statute of limitations defense.

Under Pennsylvania’s “discovery rule,” the statute of limitations is tolled until the

injured party “knows, or in the exercise of reasonable diligence should have

known, (1) that he has been injured, and (2) that his injury has been caused by

another’s conduct.” Haines v. Jones, 830 A.2d 579, 585 (Pa. Super. Ct. 2003)

(quotation marks omitted); see also O’Brien v. Eli Lilly & Co., 668 F.2d 704, 711

(3d Cir. 1981). Gleeson does not dispute that the cause of action for the alleged

unlawful search of Gleeson’s medical offices accrued when the searches were

conducted on November 15, 2000 and that a two-year statute of limitations applies

                                           9
   to the unlawful search claims. Lake, 232 F.3d at 368-69. Rather, he contends that

   the “discovery rule” exception to the two year statute of limitations should apply

   because he did not learn of Prevoznik’s involvement in the alleged unlawful

   searches and accompanying paperwork until Robson’s deposition on March 24,

   2003, and he filed a complaint against Prevoznik one week later.

           This argument is unpersuasive. The “discovery rule” does not apply

   where, as here, plaintiff could reasonably have discovered Prevoznik’s identity and

   named him in the complaint. The “discovery rule” requires that a plaintiff

   “exercise a reasonable amount of diligence and vigilance when pursuing a claim.”

   Id. at 367. In addition, we have previously explained that “[t]here are very few

   facts which diligence cannot discover, but there must be some reason to awaken

   inquiry and direct diligence in the channel in which it would be successful. This is

   what is meant by reasonable diligence.” Vernau v. Vic’s Mkt., Inc., 896 F.2d 43,

   46 (3d Cir. 1990). As Prevoznik notes, Gleeson knew both of the injury and its

   cause at the time it accrued, and if he had been reasonably diligent, he could have

   identified the defendant or listed additional “John Doe” defendants, while

   engaging in further discovery.1



       1
        The District Court concluded that the discovery rule did not toll the limitations
period because Gleeson’s counsel at the final pre-trial conference “conceded that, unless
waived, the statute of limitations defense bars recovery against Prevoznik with respect to
the unlawful search and related conspiracy claims.” App. 9. Given our determination
that Gleeson’s attempt to invoke the “discovery rule” is without merit, we need not
address this conclusion.
                                            10
                                         V.

       For all of the foregoing reasons, we will affirm the District Court’s decision

in all respects.




                                         11
