MEMORANDUM
In November of 2000, Joseph Giannone, Jr., a minor, enrolled in Alldredge Academy’s wilderness program. Just over two weeks later, he left the program with severe frostbite and other physical and emotional injuries. His parents, Joseph Giannone, Sr. and Rita Giannone (the “Giannones”), individually and on Joseph, Jr.’s behalf, filed a twenty-three count complaint against Alldredge, its employees, and its agents. Several of the defendants have moved to dismiss the complaint, and we here address their motions.
Factual Background
In late 2000, Joseph Giannone, Jr. (“Joseph”) was fourteen years old and suffering from Attention Deficit Hyperactivity Disorder (“ADHD”) and Tourettes Syndrome. Consolidated Am. Compl. ¶¶ 28-29. Concerned with Joseph’s difficulties at school and at home, the Giannones contacted an educational consulting firm, Options for Special Kids, run by Nancy Greene. Id. at ¶ 33.
The Giannones met with Greene in November of 2000 to discuss how they could help their son. At this meeting, they provided Greene with Joseph’s medical, psychological, and educational records. Greene reviewed these records and suggested that Alldredge Academy’s wilderness program would be ideally suited for Joseph’s needs. Id. at ¶¶ 35-38. According to Greene’s description, Alldredge combined outdoor group activities, such as hiking and learning to make a fire, with intensive one-on-one psychological counseling. She also explained that Joseph would sleep in a heated shelter, or, occasionally, in a tent. Id. at ¶ 40.
When the Giannones balked at All-dredge’s $17,000 tuition, Greene informed them that her own son had attended a similar program and suggested that they might borrow to cover the cost. Id. at ¶¶ 43, 45. After the Giannones decided to send Joseph to Alldredge, Greene disclosed her $2,000 fee for finding a “suitable program” for Joseph. Id. at ¶ 48.
On November 21, 2000, the Giannones signed Alldredge Academy’s two-page, standard-form Contract, Medical Authorization, Release, and Consent Agreements (the “Contract”). In addition to an integration clause, the Contract contains seven paragraphs in which the Giannones consent to,
inter alia,
Joseph’s participation in Alldredge Academy and medical treatment for him. Most relevant here, one of these paragraphs, entitled “Agreement to Arbitrate All Disputes” (the “Arbitration Clause”), provides for the resolution of “any claim of any nature and description arising out of or connected in any way with the student’s participation in the program, education, counseling, or lodging, or with any other matter arising from the student’s or parent’s connection and agree
On or about November 29, 2000, Joseph and his father flew to West Virginia. Two Alldredge representatives, “Stan” and “Sarah”, met them at the airport and for the first time informed Joseph that he would be attending a wilderness program that included hiking and backpacking. Consolidated Am. Compl. ¶ 54. Joseph left the airport with Stan and Sarah, and the trio traveled by van to a remote location. Upon arrival, Alldredge employees allegedly required Joseph to remove all of his clothing and stand barefoot in the snow while they searched for drugs and other contraband. Id. at ¶ 55. One of All-dredge’s Field Supervisors, Carrie Hawkins, called the Giannones that night to inform them that Joseph’s introduction to the program had gone “very well” and that the fresh snow made for a “very beautiful sight.” Id. at ¶¶ 57-58.
Concerned about where her son would be sleeping at night, Rita Giannone called Greene on November 30, 2000 and asked her to confirm that Joseph would be sleeping indoors if it became too cold. After contacting Alldredge, Greene told the Giannones that Joseph would be sleeping in a heated shelter because a cold front had recently moved in. Id. at ¶¶ 62-63. On the same day, the Giannones received a letter from Michael Beswick, Alldredge’s Program Director, explaining policies about contact between parents and their children and a letter from Hawkins emphasizing the importance of communication between parents and the program. The Giannones also received invoices from All-dredge by mail, and they made payments by mail. Id. at ¶¶ 59-61.
On or about December 6, 2000, Hawkins discovered injuries to Joseph’s feet. Id. at ¶ 117-18.
Although Alldredge was scheduled to contact them on Friday, two days later, the Giannones received no phone call. On the following day, however, Greene left a message on the Giannones’ answering machine to inform them that Alldredge’s Director of Admissions, Glenn Bender, had reported a “medical emergency” concerning Joseph. Id. at ¶¶ 64-65. On hearing the message, Rita Giannone immediately contacted Greene and learned that Joseph’s feet had become extremely discolored due to exposure to the cold and that a local doctor had diagnosed him with “Rei-nard’s Phenomenon.” Id. at ¶ 67.
After speaking with Greene, Rita Gian-none contacted Alldredge and spoke with Sandra J. Schmiedeknecht, Alldredge’s Medical Director. Schmiedeknecht explained that Joseph’s feet had turned a “very scary” black color, but had “pinked up” after an application of warm water. Though a local doctor had concluded that Joseph was “fine,” Schmiedeknecht told Mrs. Giannone that Joseph would be taken to an appointment with a rheumatologist on Monday. Schmiedeknecht refused to allow Mrs. Giannone to speak directly with Joseph. Id. at ¶¶ 71-77.
On Monday, December 11, 2000, Rita Giannone called Hawkins to discuss Joseph’s rheumatologist appointment, and Hawkins promised that Schmiedeknecht would contact her. After waiting in vain for some response, Mrs. Giannone called Alldredge again, and Schmiedeknecht told her that no one had ever made an appointment for Joseph because the nearest rheu-
Unable to consult with the treating physician, Mrs. Giannone asked to speak with her son. Schmiedeknecht transferred her to Hawkins, and Hawkins initially refused to let her talk with Joseph. When Mrs. Giannone told Hawkins that she planned to remove Joseph from Alldredge, Hawkins finally promised that Joseph would call her by 10:00 p.m. The appointed hour passed, but the Giannones received no telephone call. They contacted Alldredge, and Hawkins eventually arranged for the Gian-nones to speak with their son. Joseph told his parents that his feet hurt and that he had lost a lot of weight. Id. at ¶¶ 84-90.
Joseph left Alldredge Academy on December 14, 2000 and met the Giannones at Philadelphia International Airport. Joseph could not walk without excruciating pain, so his parents used a wheelchair to transport him to their car and had to assist him into their house. Safely at home, Joseph told his parents that, at Alldredge, he had slept outside in the snow, sheltered only by a sleeping bag with a plastic cover. Id. at ¶¶ 91-96.
The next day, the Giannones took Joseph to the Emergency Room at Children’s Hospital of Philadelphia. Joseph had lost fifteen pounds since entering All-dredge’s program, and doctors diagnosed him with bi-lateral frostbite of the feet and neuropathic pain. Joseph received pain medication and remained at the hospital overnight. Later, he was transferred to the intensive care unit. Id. at ¶¶ 98-104, 115.
Over the following days, Joseph began to relate some of his experiences at All-dredge to his parents. He had slept outside in the cold without any kind of heat or shelter, except for his sleeping bag. All-dredge employees berated Joseph when he asked to speak with his parents. Unable to make a fire for himself, Joseph attempted to eat “frozen” food, but the food caused him to vomit. Travis and Keith, two Alldredge employees, poured water down his throat, causing him to choke, and they poured water on his chest as a form of punishment. The wet clothing froze and stuck to Joseph’s body, leaving him cold throughout the day. Id. at ¶¶ 108-14.
Joseph continues to suffer severe pain, mental anguish, humiliation, anxiety, and stress as a result of his time at Alldredge Academy. Id. at ¶ 141.
On their own behalf on behalf of Joseph, the Giannones filed a Consolidated Amended Complaint against the Alldredge Defendants,
1
the Greene Defendants,
2
and fifteen John Does. The complaint includes twenty-three counts, including thirteen counts against the Alldredge Defendants
Analysis
The motions seek the dismissal of all of the Giannones’ individual claims and many of their claims as Joseph’s representative. At the outset, the Alldredge Defendants argue that the Arbitration Clause divests this Court of subject matter jurisdiction over the Giannones’ individual claims. 7 The Alldredge Defendants also request that we dismiss several of the counts for failure to state claims upon which relief could' be granted.
A. The Arbitration Agreement
According to the Alldredge Defendants, we should dismiss all of the Giannones’ individual claims because their agreement to arbitrate “any claim ... arising out of [Joseph’s] participation” in Alldredge Academy’s program
8
deprives us of sub
We begin with the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16 (2003), the statute “creat[ing] a body of federal substantive law establishing and regulating the duty to honor an agreement to arbitrate.”
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,
Notwithstanding this policy, arbitrators “derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration.”
AT & T Techs., Inc. v. Communications Workers,
The Supreme Court construed Section 4 in
Prima Paint Corp. v. Flood & Conklin Mfg. Co.,
In reaching this result, the Court emphasized language in Section 4 referring to the “making of the agreement for arbitration. ” 9 U.S.C. § 4 (emphasis added). The final prepositional phrase requires the severance of consideration of an arbitration clause from the rest of the contract:
[I]f the claim is fraud in the inducement of the arbitration clause itself — an issue which goes to the “making” of the agreement to arbitrate — the federal court may proceed to adjudicate it. But the statutory language does not permit the federal court to consider claims of fraud in the inducement of the contract generally. ... We hold, therefore, that ... a federal court may consider only issues relating to the making and performance of the agreement to arbitrate.
Id.
at 403-404,
Our Court of Appeals addressed a similar situation in
Sandvik AB v. Advent Int’l Corp.,
Despite
Prima Paint’s
preference for arbitration, the Third Circuit used the theoretic distinction between void and voidable contracts to uphold the district court’s decision.
See Sandvik,
Read together,
Sandvik
and
Prima Paint
require a complex analysis of any challenge to the enforceability of an arbitration agreement.
10
First, the Court
In this case, the Giannones claim that the Alldredge Defendants and their agent fraudulently misrepresented that All-dredge Academy offered “a therapeutic program to help their disabled child” when it was actually “a boot camp where their son was intentionally abused and neglected.” Pis.’ Mem. Opp. Mot. to Dismiss at 19. They characterize such misrepresentations as fraud in the factum that renders “the entire contract, including the arbitration provision, ... void ab initio. ” Id. While the Giannones’ assertions clearly raise questions about whether the All-dredge Defendants acted fraudulently, we must look deeper into the precise nature of the fraud they identify because the type of fraud alleged is highly consequential to out resolution of the motions to dismiss.
Courts “classically” distinguish between two types of fraud, fraud in the factum and fraud in the inducement. 26 Samuel Williston,
A Treatise on the Law of Contracts
§ 69:4 (Richard A. Lord ed., 4th ed.1990);
see also
7 Arthur Linton Corbin,
Corbin on Contracts
§ 28.22 (Joseph M. Perillo ed., rev. ed.1993) (distinguishing between fraud in the factum and fraud in the inducement). In cases where one party’s assent has been procured by fraud in the factum, courts treat the agreement as void and legally ineffective.
See, e.g., Resolution Trust Corp. v. Koock,
Despite the “metaphysical ring” of the fraud-in-the-factum/fraud-in-the-inducement distinction,
see Sphere Drake Ins. Ltd. v. Clarendon Nat’l Ins. Co.,
Fraud in the factum occurs when “fraud ... procures a party’s signature to an instrument without knowledge of its true nature or contents.”
FDIC v. Deglau,
Using these definitions, one could reasonably argue that the Alldredge Defendants’ alleged misrepresentations (ie., describing a program as therapeutic for a disabled child when it was really a “boot camp”) constitute either kind of fraud. The Giannones argue that the misrepresentations were fraud in the factum because they involved the contract’s “essential terms,” see Pis.’ Mem. Opp. Mot. to Dismiss at 19, but the misrepresentation could also be seen as fraud in the inducement. To resolve this issue, we look to the ancient roots of the distinction between fraud in the factum and fraud in the inducement.
In medieval England, plaintiffs initiated contract litigation by obtaining writs of covenant or debt sur obligation. Kevin M. Teeven, A History of the Anglo-American Common Law of Contract 6-8 (1990). These actions lay only when a sealed instrument memorialized the transaction at issue, and — when such formalities were observed^ — the common law courts required defendants to honor the contract, unless they pled and proved the defense of non est factum (“not his deed”). See Clinton W. Francis, The Structure of Judicial Administration and the Development of Contract Law in Seventeenth-Century England, 83 Colum. L.Rev. 35, 91-92 (1983). A non est factum plea asserted that the sealed instrument did not bind the defendant because the defendant had not actually signed it (i.e., his signature had been forged) or because he “signed an instrument that [was] radically different from that which he was led to believe.” 7 Arthur Linton Corbin, Corbin on Contracts § 28.22 (Joseph M. Perillo ed., rev. ed.1993).
For example, the English Common Pleas court considered a case arising out of a debt that Chicken owed to Thorou-ghgood, who was “not lettered”. After someone told him that it would release Chicken’s debt, Thoroughgood signed a document that was actually a deed giving Chicken a limited right to use some of Thoroughgood’s land. The court held that “if the effect [of a writing] be declared to him in other form than is contained in the writing ... he shall avoid the deed.” Thoroughgood v. Cole, 76 Eng. Rep. 408, 410 (1582). In modern parlance, the deed was void because misstating the contents of a document to an illiterate constitutes fraud in the factum.
Though the common law courts upheld pleas of
non est factum
when the “party was misled into misunderstanding the essential nature of what he was doing,” Bernard E. Gegan,
Turning Back the Clock on the Trial of Equitable Defenses in New York,
68 St. John’s L.Rev. 823, 843 (1994),
Despite the relatively recent merger of law and equity, modern courts have continued to distinguish between fraud in the factum and fraud in the inducement. Courts find fraud in the factum only in rare cases, such as those involving forgery,
see, e.g., Resolution Trust Corp. v. Forlini,
Nos. 91-3215, 91-3216, 91-3610, 91-3612, 91-3613, 91-3615,
On the other hand, most contemporary cases dealing with contractual fraud involve claims of fraud in the inducement. In
Langley v. FDIC,
With these ancient and modern precedents providing the necessary context, we conclude that, despite their attempt to characterize it otherwise, the Giannones have alleged fraud in the inducement, not fraud in the factum. They claim that the Alldredge Defendants and their agent fraudulently misrepresented that Alldredge Academy offered “a thera
Where, as here, the party seeking to avoid arbitration alleges fraud that would render a contract voidable, the
Prima, Paint
severability doctrine applies.
14
Thus, we turn now to the question of whether the alleged fraud induced assent to the entire contract or only to the arbitration clause. The Giannones have not claimed that the alleged fraud induced them to agree to arbitrate claims against the Alldredge Defendants. Rather, they assert that the fraud affects the validity of “the
entire
contract, including the arbitration provision.” Pls.’ Mem. Opp. Mot. to Dismiss at 19 (emphasis added). Because
Prima Paint,
B. Sufficiency of the Representative Claims
Though the Giannones must arbitrate their individual claims against the All-dredge Defendants, they also assert thirteen claims on Joseph’s behalf. Pursuant to Fed.R.Civ.P. 12(b)(6), the Alldredge Defendants have moved to dismiss many of these representative claims for failure to state claims upon which relief may be granted. 16
In Count I, the Giannones allege that the Alldredge Defendants violated the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968 (2003). See Consolidated Am. Compl. ¶¶ 121-42, at 20-28. RICO permits “[a]ny person injured in his business or property by reason of a violation of section 1962” to bring a civil action in federal court. 18 U.S.C. § 1964(c). While the parties focus on whether the Giannones adequately pled violations of Section 1962, see Defs.’ Mem. Supp. First Mot. to Dismiss at 14-17; Pis.’ Mem. Opp. Mot. to Dismiss at 21-32, they fail to address whether the complaint alleges that Joseph suffered an injury to “his business or property” that would entitle his parents to assert a RICO claim on his behalf.
The complaint alleges that Joseph suffered severe physical and emotional injuries and irreparable harm to his relationship with his parents.
See
Consolidated Am. Compl. ¶¶ 137,141. Though certainly significant, these personal injuries cannot sensibly be said to relate to Joseph’s business or property.
Genty v. Resolution Trust Corp.,
Because Count I of the complaint fails to allege injury to Joseph’s “business or property,” we will dismiss Joseph’s RICO claim.
2. Cotmts III and XI: Negligent Child Abuse and Negligent Supervision
In addition to their general allegations of negligence in Count X, the Giannones bring separate causes of action for negligent child abuse and negligent supervision in Counts III and XI, respectively. The Alldredge Defendants request that we dismiss the more specific allegations of negligence in Counts III and XI because Count X encapsulates them and makes them redundant.
See
Defs.’ Mem. Supp. First Mot. to Dismiss at 27. In response, the Giannones boldly assert that each of these claims involve “different facts and legal principles,”
see
Pis.’ Mem. Opp. Mot. to Dismiss at 50, without identifying any case law recognizing separate claims for negligent child abuse and/or negligent supervision, and without specifying how the legal
In Pennsylvania,
17
“[t]he necessary elements to maintain an action in negligence are: a duty or obligation recognized by the law, requiring the actor to conform to a certain standard of conduct; a failure to conform to the standard required; a causal connection between the conduct and the resulting injury and actual loss or damage resulting to the interests of another.”
Morena v. South Hills Health System,
In short, Pennsylvania courts do not distinguish between general negligence and either negligent supervision or negligent child abuse. Because we find claims for these latter claims to be duplicative of the former, we will dismiss Counts III and XI of the Giannones’ complaint.
See also Post v. Hartford Life & Accident Ins. Co.,
No. 02-1917,
3. Counts TV and V: Fraud and Fraudulent Misrepresentation
The Giannones also assert claims of fraud and fraudulent misrepresentation. Because both parties treat these causes of action as identical, see Defs.’ Mem. Supp. First Mot. to Dismiss at 23-24 (describing them as “duplicative”); Pis.’ Mem. Opp. Mot. to Dismiss at 41 (explaining that they are defined by identical elements), we consider these claims together.
Under Pennsylvania law, fraud consists of “the following elements: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury
While the Giannones allege that the All-dredge Defendants made many misrepresentations to them, see, e.g., Consolidated Am. Compl. ¶¶ 38, 63, an arbitrator will decide whether they were personally defrauded, see supra Part A. We deal now only with the claims the Giannones brought on Joseph’s behalf. In this regard, the complaint fails to allege even that the Alldredge Defendants made a representation to Joseph, much less that one was misleading, false, intended to injure, and justifiably relied upon.
Because the Giannones have not alleged sufficient facts to make out a claim that the Alldredge Defendants defrauded Joseph, we will dismiss the claims for fraud and fraudulent misrepresentation.
4. Count VI: Breach of Fiduciary Duty
In Count VI, the Giannones claim that the Alldredge Defendants breached their fiduciary duties to Joseph. Specifically, they allege that “[djefendants, all of them, were in a fiduciary relationship and/or stood in loco parentis with Joseph, and as hereinbefore set forth, breached their duty to Joseph which directly and/or proximately caused Joseph to suffer severe and permanent personal injuries.” Consolidated Am. Compl. ¶ 171.
The Alldredge Defendants disparage this pleading as a “fail[ure] to allege any specifics regarding the nature of the relationship between Joseph ... and each of the [Alldredge] Defendants,” Defs.’ Mem. Supp. First Mot. to Dismiss at 25-26, but the Giannones needed only to include “a short and plain statement of the claim showing that [they are] entitled to relief.” Fed.R.Civ.P. 8(a)(2). We hold that the Giannones have adequately alleged sufficient facts to state a claim for breach of fiduciary duty because “the liberal opportunity for discovery and the other pretrial procedures established by the Rules” afford the Alldredge Defendants an opportunity to establish “more precisely the basis of both claim and defense and to define more narrowly the disputed facts and isues.”
Conley v. Gibson,
Thus, we will allow the Giannones to proceed with Count VI on Joseph’s behalf.
5. Count VII: Breach of Contract
Count VII purports to state a cause of action for breach of contract. In their briefs, the parties discuss whether the individual Alldredge Defendants may be held liable for breaching a contract to which they were not parties. See Defs.’ Mem. Supp. First Mot. to Dismiss at 26; Pis.’ Mem. Opp. Mot. to Dismiss at 47-49. These arguments, however, focus on liability for breaching a contract between the Giannones and the Alldredge Defendants, an issue that we leave to the arbitrator, see supra Part A.
We address now only whether the Giannones, as Joseph’s representatives, have stated a claim for breach of contract between Joseph and the Alldredge Defendants. This question need not detain us long, for the complaint never alleges that Joseph entered into any contract whatsoever.
Cf. CoreStates Bank, N.A. v. Cutil
We shall, therefore, dismiss Count VII of the complaint.
6. Counts VIII and IX: Assault and Battery
The Giannones seek to recover for assault in Count VIII of the complaint and for battery in Count IX. The Pennsylvania Supreme Court has defined battery as “a harmful or offensive contact,”
Dalrymple v. Brown,
Alldredge Academy asserts that it is not responsible for the torts of Keith and Travis because those torts were committed outside the scope of their employment.
See
Defs.’ Mem. Supp. First Mot. to Dismiss at 20-21. While an employer certainly is not liable for the torts an employee commits while acting outside the scope of his employment,
Pilipovich v. Pittsburgh Coal Co.,
The remaining Alldredge Defendants contend that the Giannones “have not alleged any act on [their] part ... which would give rise to ... claims” for assault and battery. Defs.’ Mem. Supp. First Mot. to Dismiss at 21. The Giannones suggest, however, that Pennsylvania courts recognize a “concert of action” theory which imposes vicarious liability on “all persons counseling, abetting, plotting, assenting, consenting and encouraging the committing of the assault and battery.” Pis.’ Memo. Opp. Mot. to Dismiss at 38. After reviewing the authorities cited in their brief, we cannot agree.
Only one modern Pennsylvania court has recognized a concert-of-action theory. In that case, the Court of Common Pleas for Dauphin County based its opinion exclusively on a dusty decision of the state Supreme Court.
See Keich v. Frost,
63 Pa. D.
&
C.2d 499, 501 (C.C.P. Dauphin Cty.1973) (quoting
Frantz v. Lenhart,
Although some courts may “believe [ ]” otherwise,
see Shoop v. Dauphin County,
Still, the other individual Alldredge Defendants could be liable if they personally assaulted or battered Joseph. The Gian-nones have alleged that all of the “[defendants” committed these torts, see Consolidated Am. Compl. ¶¶ 175, 177 (emphasis added). In light of the earlier descriptions of Joseph’s injuries, see id. ¶ 141, these allegations are specific enough to preclude dismissing the claims for assault and battery against any of the Alldredge Defendants.
7. Count XII: Intentional Infliction of Emotional Distress
In Count XII, the Giannones attempt to recover for intentional infliction of emotional distress. The Pennsylvania Supreme Court has not been inclined to specify the elements of this tort,
See Hoy v. Angelone,
At this stage of the proceedings, we cannot hold that the Alldredge Defendants did not act outrageously, so we will allow the claim for intentional infliction of emotional distress to proceed.
See also Hatchigian v. Hartford Ins. Co.,
No. 03-3252,
8. Count XIII: Negligent Infliction of Emotional Distress
The Alldredge Defendants move for dismissal of Count XIII’s claim for negligent infliction of emotional distress because they claim that the Giannones have “failed to allege the requisite elements to proceed” with that claim. Defs.’ Mem. Supp. First Mot. to Dismiss at 30. Under Pennsylvania law, a plaintiff may recover for negligent infliction of emotional distress when he “sustains bodily injuries, even though trivial or minor in character, which are accompanied by fright or mental suffering directly traceable to the peril in which the defendant’s negligence placed the plaintiff....”
Potere v. Philadelphia,
The complaint clearly alleges that Joseph sustained bodily injuries, see, e.g., Consolidated Am. Compl. ¶ 141, and it also states that the “[djefendants [’]” negligence “led to ... [Joseph’s] severe emotional distress,” id. at ¶ 187 (emphasis added). These allegations state a claim upon which relief may be granted, so we will not dismiss the cause of action for negligent infliction of emotional distress.
The final count in the Giannones’ complaint asserts the existence of a civil conspiracy including the Alldredge and Greene Defendants. “To prove a civil conspiracy, it must be shown that two or more persons combined or agreed with intent to do an unlawful act or to do an otherwise lawful act by unlawful means. Proof of malice, i.e., an intent to injure, is essential in proof of a conspiracy.”
Thompson Coal Co. v. Pike Coal Co.,
C. Conclusion
As noted, the Giannones, individually and on behalf of Joseph, seek to recover from the Alldredge Defendants on thirteen separate causes of action. Because they agreed to arbitrate their own claims, we will dismiss all thirteen of the Giannones’ individual claims. In addition, we will dismiss the claims for RICO (Count I), negligent child abuse (Count III), fraud (Count IV), fraudulent misrepresentation (Count V), breach of contract (Count VII), negligent supervision (Count XI), and civil conspiracy (Count XXIII) that they assert on Joseph’s behalf. We will, however, allow the Giannones to proceed with Joseph’s claims for breach of fiduciary duty (Count VI), assault (Count VIII), battery (Count IX), negligence (Count X), intentional infliction of emotional distress (Count XII), and negligent infliction of emotional distress (Count XIII). 21
The procedural consequences of these decisions have not escaped our attention. This litigation is now on two tracks, one arbitral, the other judicial. Because, as noted above, it is entirely possible that the arbitrators may ultimately conclude that the merits of this matter should return to our Court, it is entirely possible that we could twice confront the same merits, albeit in different claim dress. In the interest qf judicial economy, therefore, we will stay our hand until the arbitral picture clarifies.
An Order follows.
ORDER
AND NOW, this 29th day of October, 2003, upon consideration of defendants’ motions to dismiss and plaintiffs’ responses thereto, and in accordance with the accompanying Memorandum, it is hereby ORDERED that:
1. Defendants’ motions to dismiss (docket entries # 8 and 18) are GRANTED IN PART AND DENIED IN PART, as follows:
a. Insofar as they assert plaintiffs’ own causes of action, Count I, Counts III
b. Insofar as they assert plaintiffs’ causes of action as representatives of Joseph Giannone, Jr., Counts I, III, IV, V, VII, XI, and XXIII are DISMISSED WITH PREJUDICE;
2. Insofar as they relate to their own causes of action, and if they elect to press them, plaintiffs SHALL ARBITRATE Count I, Counts III through XIII, and Count XXIII;
3. By November 17, 2003, plaintiffs shall SHOW GOOD CAUSE for their failure to serve Lance Wells, Ray Gwilliam, Tom Harvey, Stan (Last Name Unknown), Sarah (Last Name Unknown), Travis (Last Name Unknown), Keith (Last Name Unknown), and John Doe Nos. 1-15, or all counts against these defendants shall be dismissed;
4. Except as to the preceding paragraph, this action is STAYED pending final arbitral action; and
5. The Clerk shall place this matter in CIVIL SUSPENSE.
Notes
. The "Alldredge Defendants” are Alldredge Academy; Ayne Institute, LLC, an entity affiliated with Alldredge Academy; L. Jay Mitchell and Lance Wells, co-founders and owners of Alldredge; Glenn F. Bender, Alldredge's Director of Admissions and Marketing; Michael Beswick, Alldredge's Head of School; J. Weston White, an Alldredge employee; Ron Schwenkler, Alldredge's Director of Village; Ray Gwilliam, Alldredge's Director of Extended Stay; Tom Harvey and Carrie Hawkins, two Alldredge Wilderness Field Supervisors; Sandra J. Schmiedeknecht, All-dredge's Medical Director; Patrick O’Brien, Alldredge’s Village Program Director; and four other Alldredge employees whose last names are unknown but whose given names are Stan, Sarah, Travis, and Keith.
. The "Greene Defendants” are Nancy V. Greene, individually and trading as Options for Special Kids, and Options for Special Kids.
. This apparent failure to sum is because the Giannones bring Count XXIII against all of the defendants.
. The parties to this "First Motion to Dismiss” were Alldredge Academy, Ayne Institute, LLC, L. Jay Mitchell, Michael Beswick, J. Weston White, Carrie Hawkins, Sandra J. Schmiedeknecht, Ron Schwenlder, and Patrick O’Brien.
. We refer to Bender’s motion as the "Second Motion to Dismiss.”
. Despite some inconsistency with our earlier usage, see, e.g., supra note 1, we collectively refer to the parties to the First and Second Motions to Dismiss as the "Alldredge Defendants” throughout the remainder of this opinion.
Because it appears that the Giannones have not yet served Lance Wells, Ray Gwilliam, Tom Harvey, Stan, Sarah, Travis, Keith, and the fifteen John Does, we will dismiss without prejudice all claims against them, unless the Giannones can show good cause for their failure to serve by November 17, 2003. See Fed.R.Civ.P. 4(m).
. Alternatively, the Alldredge Defendants contend that the Arbitration Clause’s existence makes the Giannones’ pleading defective. See, e.g., First Mot. to Dismiss ¶ 19, at 6 (arguing for dismissal for "failure to set forth a claim upon which relief can be granted”). Assuming, however, that the complaint is otherwise sufficient, the fact that such a clause exists would not doom any of the Giannones’ claims. Thus, we hold that the Arbitration Clause's existence, by itself, does not entitle the Alldredge Defendants to Rule 12(b)(6) dismissal of the claims that the Giannones assert on their own behalf.
.We recognize that the Contract on which the Alldredge Defendants rely was not attached to the complaint, so it is somewhat unusual for us to consider it when ruling on filings styled as “motions to dismiss.”
But cf. infra
note 9 (characterizing the motion as one to compel arbitration). Still, we may consider "an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.”
Pension Ben. Guar. Corp. v. White Consol. Industries, Inc.,
. Though styled as a motion to dismiss for want of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), we treat the portion of the Alldredge Defendants' motion addressing the Arbitration Clause as a motion to stay this action and to compel arbitration pursuant to Sections 3 and 4 of the Federal Arbitration Act, 9 U.S.C. § 4 (2003). Our Court of Appeals has recognized the functional equivalence of dismissing an action and directing the parties to proceed to arbitration.
See Seus v. John Nuveen & Co.,
. As we engage in this analysis, we rely on federal law.
See Goodwin v. Elkins & Co.,
. A void agreement is one with a "total absence of legal effect,” 1 Arthur Linton Corbin, Corbin on Contracts § 1.7 (Joseph M. Perillo ed., rev. ed.1993), or one "which produces no legal obligation.” 1 Samuel Williston, A Treatise on the Law of Contracts § 1:20 (Richard A. Lord ed., 4th ed.1990). See also Restatement (Second) of Contracts § 7 cmt. a (1981) (“A promise for breach of which the law neither gives a remedy nor otherwise recognizes a duty of performance by the promisor is often called a void contract.”)
. A voidable agreement "is, to some extent, legally operative,” but at least one of the parties usually possesses both "a power to avoid [its legal effect] and a power to validate [that effect] by ratification.” 1 Arthur Linton Corbin, Corbin on Contracts § 1.6 (Joseph M. Perillo ed., rev. ed.1993). See also Restatement (Second) of Contracts § 7 (1981) ("A voidable contract is one where one or more parties have the power, by a manifestation of election to do so, to avoid the legal relations created by the contract, or by ratification of the contract to extinguish the power of avoidance.”).
. This disparate treatment of the same contract by different courts also explains the distinction between void and voidable contracts. The common law courts would decide whether sealed instruments were valid or void, but litigants could, in certain circumstances, petition the Chancellor for an injunction against enforcement of a valid instrument. In such situations, the valid instrument would be "voidable,” though not void. For an informative discussion of the power struggles between the courts of law and equity, see generally John P. Dawson, Coke and Ellesmere Disinterred: The Attack on the Chancery in 1616, 36 Ill. L.Rev. 127 (1941-1942).
. We cannot resist noting the irony in how a distinction created by sixteenth-century courts of equity to attract cases from the courts of law provided the opportunity for the federal courts to deflect adjudicatory responsibility onto arbitrators.
. Before the arbitrator, the Giannones may argue that the entire Contract, including the Arbitration Clause, is voidable under a fraud-in-the-inducement theory. If the arbitrator decides that fraud vitiated their assent to the Arbitration Clause, then he or she should allow the Court to reach the merits of their claims. On the other hand, if the arbitrator concludes that the Arbitration Clause binds the Giannones, then he or she may resolve those claims.
. The Court may grant a motion to dismiss under Rule 12(b)(6) "only if, accepting all well pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief.”
In re Burlington Coat Factory Sec. Litig.,
Even if the allegations are insufficient by themselves, we will still deny a motion to dismiss so long as the allegations "in addition to inferences drawn from those allegations, provide a basis for recovery.”
Menkowitz v. Pottstown Mem’l Med. Ctr.,
. We apply Pennsylvania law to Counts III through XIII and to Count XXIII because the parties implicitly agree that Pennsylvania law controls resolution of those claims by citing only Pennsylvania precedents in their briefs. Under Klaxon, this assumption seems to us unwarranted in view of all of the pertinent conduct to these tort claims having occurred in West Virginia, but in an effort to avoid further arcane analysis, we shall take the parties' citations as their waiver of West Virginia authority.
. In pressing the negligence claim as Joseph's representatives, the Giannones may attempt to prove that the Alldredge Defendants abused Joseph and failed to supervise him adequately.
. For the same reasons, we will not dismiss the claims for assault and battery against Ayne Institute, LLC.
. The Giannones claim that the Alldredge Defendants "were more interested in generating revenue and improving their corporate and personal earnings than in the welfare of Joseph," Consolidated Am. Compl. ¶ 131, but this allegation falls short of the "intent to injure” that the Pennsylvania Supreme Court requires to state a cause of action for civil conspiracy.
. The Greene Defendants have not filed a motion to dismiss, so we will not dismiss any of the claims against them stated in Count II and Counts XIV through XXII of the complaint.