Lettich v. Kenway, Civ. A. No. 83-0931-C.

• Decision Date: 05 September 1984
• Docket Number: Civ. A. No. 83-0931-C.
• Court: U.S. District Court — District of Massachusetts
• Parties: Robert H. LETTICH, Plaintiff, v. Herbert P. KENWAY, et al., Defendants.

590 F. Supp. 1225

Robert H. LETTICH, Plaintiff, v. Herbert P. KENWAY, et al., Defendants.

Civ. A. No. 83-0931-C.

United States District Court, D. Massachusetts.

September 5, 1984.

Patricia Randall, Homans, Hamilton, Dahmen & Marshall, Boston, Mass., for plaintiff.

Jerome Gotkin, Michael S. Bearse, Widett, Slater & Goldman, Boston, Mass., for defendants Kenway, Lynch, Crowley, Horn, Pahl, Lorusso & Manus.

Barry C. Klickstein, Forman, Roberts, Klickstein & Levy, Boston, Mass., for defendants Lahive, Liepmann, Cockfield, Lappin & Walpert.

MEMORANDUM

CAFFREY, Chief Judge.

This is a civil action brought by plaintiff Robert J. Lettich against certain named general partners of the law firm of Kenway & Jenney. Plaintiff alleges violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., as amended, and the Massachusetts statute prohibiting discrimination in employment and retaliation on account of age, M.G.L. c. 151B. Plaintiff also sets forth state common law claims for breach of the implied covenant of fair dealing and good faith in employment contracts, and for intentional infliction of emotional distress. In June 1983, defendants filed a motion to dismiss or, in the alternative, to stay. United States Magistrate Collings heard oral arguments in October 1983, and on January 9, 1984, issued his report and recommendations on the motion. Magistrate Collings recommended in his report that defendants' motion to dismiss plaintiff's state claims be allowed. Plaintiff objects to the Magistrate's report and recommendation, and the matter is presently before this Court on plaintiff's objections and on defendants' motion for summary judgment.

Defendants assert that plaintiff's state statutory and common law claims should be dismissed for lack of subject matter jurisdiction. This Court may, in its discretion, assert pendent jurisdiction over state law claims in certain circumstances. United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). However, I decline to exercise pendent jurisdiction over plaintiff's state claims in this case for at least two reasons. First, trial of plaintiff's state law claims would involve complex and difficult issues of fact and law, and would go far beyond the scope of the detailed and comprehensive statutory scheme of the ADEA. The "likelihood of jury confusion" resulting from trial of the state and federal claims together far outweighs considerations of "judicial economy, convenience and fairness to litigants" which might favor trial of the claims together. Id. at 726-27, 86 S.Ct. at 1139. Second, as Magistrate Collings concluded in his report, the ADEA appears to be an exclusive remedy, and this Court has no authority to rule on both plaintiff's ADEA claim and his state law claims arising out of the same incident. Accord Pandis v. Sikorsky Aircraft Division of U.T.C., 431 F.Supp. 793 (D.Conn. 1977). Accordingly, I rule that defendants' motion to dismiss plaintiff's state law claims should be allowed.

I turn now to defendants' motion for summary judgment. Defendants argue that plaintiff has no claim against them under the ADEA because they were not the plaintiff's "employers" within the meaning of that statute. They assert that the law partnership of Kenway & Jenney was plaintiff's employer, and that any claims plaintiff may have against the law partnership cannot be brought against the individual general partners. Plaintiff does not name the partnership of Kenway & Jenney as a defendant in this lawsuit.

Defendants' argument can be disposed of summarily. The ADEA defines "employer" as

a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.... The term also means ... any agent of such a person.....

29 U.S.C. § 630(b) (emphasis added). Partnerships are included within the statutory definition of person. 29 U.S.C. § 630(a). It is fundamental partnership law that each general partner is an agent of the partnership. See M.G.L. c. 108A, § 9 (Uniform Partnership Act). Accordingly, I rule that the individual general partners of Kenway & Jenney are "employers" within the meaning of the ADEA.

Defendants then argue that plaintiff has failed to state a claim against the individual general partners because the complaint does not allege that any of the named defendants themselves engaged in unlawful activities. Defendants read plaintiff's complaint as alleging that the law partnership of Kenway & Jenney alone committed all the unlawful acts set out in the pleadings. Defendants apparently overlook, however, paragraph seven of the complaint in which plaintiff explains that "for purposes of this complaint, the general partners are collectively referred to as the `Defendants' or as `Kenway & Jenney.'" I...