DIANTONIO v. VANGUARD FUNDING, LLC et al
Filing
26
OPINION FILED. Signed by Judge Noel L. Hillman on 6/10/15. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
CARL DIANTONIO,
Plaintiff,
Civil No. 14-4526 (NLH/JS)
v.
VANGUARD FUNDING, LLC, et al.,
OPINION
Defendants.
__________________________________
APPEARANCES:
Joseph Ives Picillo, Esquire
The Picillo Law Firm LLC
112 Johnson Road
Turnersville, New Jersey 08012
Counsel for Plaintiff
Sherri A. Affrunti, Esquire
Reed Smith LLP
Princeton Forrestal Village
136 Main Street
Suite 250
Princeton, New Jersey 08540
Counsel for Defendants
HILLMAN, District Judge:
Presently before the Court is the motion [Doc. No. 13] of
Defendants, Vanguard Funding, LLC, Ed Bohm, Brian Ofsie, Robert
Tuzzo, Nick Maniscalco and Nancy Azzara, seeking judgment on the
pleadings pursuant to Fed. R. Civ. P. 12(c).
1
Plaintiff, Carl
DiAntonio, did not file opposition to the motion. 1
The Court has
considered Defendants’ submissions and decides this matter
pursuant to Fed. R. Civ. P. 78.
For the reasons that follow, Defendants’ motion will be
granted in part and denied in part.
I.
BACKGROUND
In this action, Plaintiff alleges that he was employed by
Defendant Vanguard Funding LLC (hereafter, “Vanguard”) as the
manager of an office in New Jersey.
(Compl. ¶ 10.)
According
to Plaintiff, he entered into a contract with Vanguard by which
Plaintiff was to be paid based upon agreed percentage terms for
mortgages produced by Plaintiff or his branch employees.
(Id.)
Plaintiff purportedly entered into this contract after several
conversations, interviews and negotiations with Defendants Tuzzo
and Maniscalco, who allegedly attempted to entice Plaintiff to
enter into service exclusively producing mortgages for Vanguard.
(Id. ¶ 11.)
Plaintiff contends that Defendants failed to pay
Plaintiff what he was owed under the contract.
(Id. ¶ 12.)
Plaintiff avers that the purported basis for Defendants’ refusal
to pay was that an employee in Plaintiff’s office alleged that
Plaintiff sexually harassed her, but it was thereafter
1
The Court notes that Plaintiff’s attorney recently filed a
motion to withdraw as counsel. The motion is pending before the
Honorable Joel Schneider, United States Magistrate Judge.
2
determined that the employee’s allegations were false.
16.)
(Id. ¶
Because Defendants failed to pay Plaintiff, he allegedly
was forced to terminate his relationship with Vanguard and seek
new employment.
(Id. ¶ 17.)
Additionally, Plaintiff avers that Bohm and other
defendants subsequently made defamatory statements to a company
that Plaintiff began working for, telling “high-level officers”
that Plaintiff was about to be charged with rape.
20.)
(Compl. ¶
Plaintiff was then called to the head office of his new
employer to “face an inquisition” requiring him to defend
himself in connection with the false allegations.
(Id. ¶ 21.)
Plaintiff asserts that as a result of the “slanderous and
defamatory allegations,” he is the subject of heightened
scrutiny causing a “great deal” of stress.
(Id. ¶¶ 22, 23.)
Plaintiff filed a thirteen-count complaint in the Superior
Court of New Jersey, Law Division, Camden County, and the action
was then removed to this Court.
Although the counts of the
complaint do not contain titles identifying the causes of
action, it appears that Plaintiff asserts the following claims:
breach of contract (Counts I and V), defamation (Counts II, III,
IV, and VII), tortious interference (Counts VI and VIII), and
negligence (Counts IX and X).
Count XIII appears to be an
effort to establish liability against Bohm, Ofsie, and Vanguard
3
under the doctrine of respondeat superior.
Counts XI and XII
are placeholder claims against fictitious defendants.
II.
JURISDICTION
Plaintiff brought suit in the Superior Court of New Jersey,
and the case was removed to this Court on the basis of diversity
jurisdiction.
Defendants’ removal notice, however, did not
sufficiently establish diversity jurisdiction, and the Court
required Defendants to demonstrate that the Court may exercise
subject matter jurisdiction over this matter.
Defendants filed
an amended notice of removal in response to the Court’s Order.
Upon reviewing Defendants’ amended removal notice, the Court is
satisfied that there is complete diversity among the parties and
that subject matter jurisdiction is appropriate under 28 U.S.C.
§ 1332.
III. STANDARD FOR DISMISSAL
Defendants move for dismissal pursuant to Fed. R. Civ. P.
12(c) rather than Fed. R. Civ. P. 12(b)(6).
In analyzing a Rule
12(c) motion, a court applies the same legal standards as
applicable to a motion filed pursuant to Rule 12(b)(6).
Turbe
v. Gov't of V.I., 938 F.2d 427, 428 (3d Cir. 1991).
In considering whether a plaintiff’s complaint fails to
state a claim, the Court must accept all well-pleaded
allegations in the complaint as true and view them in the light
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most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d
347, 350 (3d Cir. 2005); see also Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (“[I]n deciding a
motion under Fed. R. Civ. P. 12(b)(6), [a district court is] . .
. required to accept as true all factual allegations in the
complaint and draw all inferences from the facts alleged in the
light most favorable to” the plaintiff).
A pleading is
sufficient if it contains “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed. R.
Civ. P. 8(a)(2).
“[A] complaint must do more than allege the plaintiff’s
entitlement to relief.”
Fowler, 578 F.3d at 211; see also
Phillips, 515 F.3d at 234 (“The Supreme Court’s Twombly
formulation of the pleading standard can be summed up thus:
‘stating . . . a claim requires a complaint with enough factual
matter (taken as true) to suggest’ the required element.
This
‘does not impose a probability requirement at the pleading
stage,’ but instead ‘simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of’
the necessary element.”) (citing Twombly, 550 U.S. at 556, 127
S. Ct. 1955).
A court in reviewing a Rule 12(b)(6) motion must consider
the facts alleged in the pleadings, the documents attached
thereto as exhibits, and matters of public record.
5
Guidotti v.
Legal Helpers Debt Resolution, 716 F.3d 764, 772 (3d Cir. 2013).
A court may also consider “‘undisputedly authentic documents if
the complainant's claims are based upon these documents[.]’”
Id. (quoting Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir.
2010)).
IV.
ANALYSIS
In their motion, Defendants argue that Plaintiff has failed
to sufficiently plead any of his claims against them.
(Mem. of
Law in Supp. of Defs.’ Mot. for J. on the Pleadings (hereafter,
“Defs.’ Br.”) 5.)
Defendants assert that Plaintiff has not met
the basic requirements of Twombly/Iqbal.
(Id. at 7, 9, 11.)
Federal Civil Procedure Rule 8(a) provides that a “pleading
that states a claim for relief must contain . . . a short and
plain statement of the claim showing that the pleader is
entitled to relief.”
Fed. R. Civ. P. 8(a)(2). 2
2
Concomitant with
Because the Court determines only whether the complaint
contains enough facts to satisfy Rule 8(a), the Court will not
set forth the legal elements for proving each of the claims in
the complaint. Plaintiff's claims are based on state law, and a
determination as to whether a complaint states a claim requires
a finding about which state’s law applies to each claim.
Defendants argue that it is possible that Plaintiff’s claims
arise under either New Jersey law or New York law. (Defs.’ Br.
5 n.2.) Defendants analyze the motion under New Jersey law but
refuse to concede that New Jersey law applies. (Id.) Even if
the parties agreed that New Jersey law applies, the Court must
conduct a choice of law analysis. See Shannon v. B.L. England
Generating Station, Civ. A. No. 10–04524, 2013 WL 6199173, at *4
(D.N.J. Nov. 27, 2013) (“Because this Court knows of no New
Jersey choice-of-law authority allowing parties to stipulate as
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this rule, the Twombly/Iqbal pleading standard, as detailed
above, requires that a claim must be pled with enough factual
matter to suggest the required elements necessary to prove that
claim.
A. Breach of Contract
The allegations of the complaint apparently arise from the
existence of an agreement entitling Plaintiff to be paid, but
the complaint fails to allege any specific facts that would give
Defendants fair notice of the claim.
“It is axiomatic that
contract-based claims that do not adequately identify the
contract at issue fail to ‘set forth fair notice’ of a claim and
‘the grounds upon which it rests’ and do not ‘raise a right to
relief above the speculative level.’”
In re Samsung DLP
Television Class Action Litig., Civ. A. No. 07-2141, 2009 WL
3584352, at *6 (D.N.J. Oct. 27, 2009).
Here, the complaint does not contain the specific terms of
the contract, does not identify how much money Plaintiff was due
under the contract, and does not identify the actual terms or
provisions of the contract that Defendants allegedly breached.
Defendants note that there is an Outside Loan Origination
to applicable law, the analysis does not end on the basis of the
parties’ mutual agreement that New Jersey substantive law
applies.”). Therefore, any future motion addressing the merits
of this case must thoroughly discuss the choice of law issue.
7
Agreement between Plaintiff and Vanguard, a copy of which is
attached to Defendants’ brief, but they also note that the
complaint alleges that Defendants made unspecified oral promises
to Plaintiff.
(Defs.’ Br. 7.)
Defendants also note that the
Outside Loan Origination Agreement is only between Plaintiff and
Vanguard, yet Plaintiff’s contract claim is asserted against all
of the defendants.
(Id.)
It is thus unclear whether the breach
of contract claim is based on a breach of the Outside Loan
Origination Agreement, an alleged oral agreement, or both.
Additionally, Plaintiff’s allegation that Defendants’ refusal to
pay Plaintiff some unspecified amount due under the contract is
conclusory.
As such, the Court finds that the complaint does
not satisfy the requirements of Rule 8(a) and Twombly/Iqbal and
will dismiss Plaintiff’s breach of contract claim without
prejudice.
B. Defamation
The complaint contains more specific allegations concerning
the defamation claim, and the Court finds that there are enough
facts to demonstrate that the right to relief is more than
speculative.
Specifically, Plaintiff alleges that Defendant
Bohm and the other defendants told high-level officers at
Plaintiff’s new employer that Plaintiff was about to be
criminally charged with rape, when the defendants knew that the
statement was false.
(Compl. ¶ 20.)
8
Defendants assert that the
claim fails because Plaintiff does not identify the source of
the defamatory statement or the person or persons to whom the
statement was made.
(Defs.’ Br. 9.)
The Court disagrees with Defendants’ argument.
While the
complaint does not contain a great deal of factual allegations,
it contains enough facts to raise Plaintiff’s right to relief
above the speculative level.
Plaintiff has stated who made the
statement (Bohm and the other defendants), to whom the statement
was made (“high-level officers” of Plaintiff’s current
employer), what was stated (that Plaintiff was going to be
criminally charged for rape), approximately when the statement
was made (between the end of 2013 and the filing of the
complaint in June 2014 (Compl. ¶ 13)), and why the statement was
made (“intent to harm the plaintiff’s professional and personal
reputation and his ability to earn income, earn a living or
otherwise earn the money necessary for Plaintiff to survive both
in business and personally” (id. ¶ 34)).
Furthermore, Plaintiff
refers to the statement as “slanderous” (id. ¶ 23), thereby
suggesting that the statement was made orally rather than in
writing.
See Restatement (Second) of Torts § 577, cmt. a
(1965)(“In the case of slander, the act is usually the speaking
of the words, although under some circumstances there may be an
act of publication by transitory gestures[.] . . . In the case
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of libel, there is usually some act whereby written or printed
words are brought to the attention of a third person[.]”).
The complaint contains enough factual matter to put
Defendants on notice of the claim they must defend against.
Further specificity regarding who made the statement or to whom
the statement was published is not necessary under the federal
rules.
See Blocker v. Cmty. Educ. Ctrs., Inc., Civ. A. No. 13-
5127, 2014 WL 1348959, at *7 (E.D. Pa. Apr. 7, 2014) (“‘Under
Federal Rule of Civil Procedure 8(a), a defamation plaintiff
does not have to plead the precise defamatory statements, nor
must she specifically name the person who made the statements. .
. .
As long as a defamation count provides sufficient notice to
defendants it states a claim.’”) (internal citation omitted);
Varrato v. Unilife Corp., Civ. No. 1:11-398, 2011 WL 1522170, at
*4-5 (M.D. Pa. Apr. 20, 2011)(allegation that defamatory
statement was made to “Unilife employees, vendors and/or
suppliers” satisfied federal pleading standards, and plaintiff
did not need to specifically plead party to whom statements were
made).
Defendants’ motion for judgment on the pleadings as to
the defamation claims contained in Counts II, IV and VII is
therefore denied. 3
3
To the extent Count VII relates to conduct other than the
defamatory statement allegedly made by Bohm and/or the other
defendants, there are no facts to support such claim. The only
two instances of wrongdoing described in the complaint concern a
10
C. Claims for Economic Loss
Several of Plaintiff’s claims are based on alleged economic
loss, but the complaint fails to contain facts to support these
allegations.
For example, Count III alleges that as a result of
Defendants’ defamatory conduct, Plaintiff has sustained “great
economic loss,” including loss of income and loss of future
economic benefits.
(Compl. ¶ 25.)
Count VI alleges that the
alleged breach of contract, defamatory statements, and other
unspecified “acts of negligence” have interfered, and will
continue to interfere, with prospective economic benefits. (Id.
¶ 32.)
Count VIII alleges that Defendants’ conduct constitutes
malicious interference with economic advantage which purportedly
caused “grave economic losses.”
(Id. ¶ 36.)
The economic losses alleged in the complaint that have
factual support relate to contractually-based damages.
In this
regard, Plaintiff alleges that he is owed a sum of money
pursuant to a contract with Defendants, but there are no
averments to support Plaintiff’s claim for economic harm beyond
the monies he is purportedly owed pursuant to contract.
The
only other wrongful conduct alleged in the complaint is the
breach of contractual obligations, for which the damages would
be those warranted under the contract, and defamation. While
the complaint refers to other unspecified acts of negligence,
there are no facts concerning other negligent conduct by any of
the defendants. Consequently, the Court will allow Count VII to
proceed as it relates to the defamation claim only.
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defamatory statement that Bohm and the other defendants
purportedly made, but Plaintiff does not allege any economic
harm resulting therefrom. 4
Accordingly, Count III, Count VI, and
Count VIII do not contain facts sufficient to meet the federal
pleading requirements and will be dismissed without prejudice.
D.
Remaining Counts
Count IX is a boilerplate negligence claim.
To the extent
such claim is predicated on the conduct of Defendants in making
defamatory statements, the claim will be dismissed as
duplicative.
Under both New Jersey and New York law, defamation
requires some level of negligence by the defendants in making
false statements about a plaintiff.
Under New Jersey law, “a
traditional negligence standard of fault is applicable” when the
plaintiff is a private figure.
Zheng v. Quest Diagnostics,
Inc., 248 F. App’x 416, 418 n.3 (3d Cir. 2007).
Under New York
law, fault is judged, “at a minimum,” by a negligence standard.
Dillon v. City of New York, 261 A.D.2d 34, 38, 704 N.Y.S.2d 1
(N.Y. App. Div. 1999).
Because the Court has already allowed
the defamation claim to proceed, Plaintiff’s stand-alone
4
Plaintiff alleges that he was forced to answer questions, is
subjected to additional scrutiny by his new employer, suffers
emotional distress as a result of the scrutiny, and has suffered
damage to his personal and professional reputation (Compl. ¶¶
21-23, 27), but he does not allege that his employment was
terminated, that his income has somehow been reduced, or any
other facts to demonstrate that the defamatory statement has
caused Plaintiff economic harm.
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negligence claim based on defamatory statements is subject to
dismissal.
Moreover, to the extent the negligence claim is based upon
Defendants’ failure to comply with contractual obligations, the
claim is subject to dismissal under the “economic loss” doctrine
under both New Jersey law and New York law.
See Carpenter v.
Plattsburgh Wholesale Homes, Inc., 83 A.D.3d 1175, 1176, 921
N.Y.S.2d 654 (N.Y. App. Div. 2011) (“damages alleged by
plaintiffs were ‘contractually based’ and the economic loss
doctrine served to bar their causes of action alleging that
defendants were negligent.”); Saltiel v. GSI Consultants, Inc.,
170 N.J. 297, 316, 788 A.2d 268 (N.J. 2002)(“Under New Jersey
law, a tort remedy does not arise from a contractual
relationship unless the breaching party owes an independent duty
imposed by law.”).
Count IX will therefore be dismissed with
prejudice.
In Count X, Plaintiff attempts to plead punitive damages as
a stand-alone cause of action.
However, “[p]unitive damages are
a remedy incidental to [a] cause of action, not a substantive
cause of action in and of themselves.”
Hassoun v. Cimmino, 126
F. Supp. 2d 353, 372 (D.N.J. 2000) (citation omitted).
As Count
X does not state an independent cause of action, this count will
be dismissed with prejudice.
13
Finally, Count XIII is a claim for respondeat superior
against Vanguard, for the actions of its employees.
Count XIII
also asserts a claim against Bohm and Ofsie for their own
actions, and as the owners and officers of Vanguard for the
actions of Vanguard’s employees.
To the extent Count XIII
asserts claims against Bohm and Ofsie for their own actions,
such claims would be subsumed within the other causes of actions
and are merely redundant, thus warranting dismissal.
Moreover, to the extent Count XIII asserts claims against
Vanguard, Bohm and Ofsie for the actions of their agents, the
claim fails because there is no separate cause of action for
respondeat superior.
The respondeat superior doctrine
“‘recognizes a vicarious liability principle pursuant to which a
master will be held liable in certain cases for the wrongful
acts of his servants or employees.’”
Allia v. Target Corp.,
Civ. A. No. 07-4130, 2008 WL 1732964, at *6 (D.N.J. Apr. 10,
2008) (internal citation omitted).
Plaintiff does not need to
plead respondeat superior as a separate cause of action, because
he has already availed himself of this doctrine.
By contending
that Vanguard employees have committed various acts against him,
and by bringing these claims against the employees, Bohm, Ofsie,
and Vanguard, Plaintiff has asserted claims based on respondeat
superior.
Consequently, a separate cause of action for
respondeat superior is simply redundant, and must be dismissed.
14
See Calkins v. Dollarland, Inc., 117 F. Supp. 2d 421, 434
(D.N.J. 2000) (dismissing plaintiff's separate respondeat
superior claim as redundant to hostile-environment harassment
claim because that claim was grounded in theory of vicarious
liability); Russo v. Ryerson, Civ. A. No. 01-4458, 2006 WL
477006, *28 n.24 (D.N.J. Feb. 28, 2006) (stating that respondeat
superior is basis for liability under Title VII and New Jersey
Law Against Discrimination, not separate cause of action).
V.
CONCLUSION
In sum, while Plaintiff filed his complaint in New Jersey
state court, the matter was removed to this Court and the
complaint is therefore subject to the pleading standards of
Federal Rule of Civil Procedure 8(a) and Twombly/Iqbal.
Other
than the defamation claim, the complaint fails to satisfy these
federal pleading requirements.
The Court will therefore dismiss
all claims other than the defamation claims and allow Plaintiff
an opportunity to refile his claims in accordance with the
standards set forth herein.
Only Plaintiff’s defamation claim
as set forth in Counts II, IV and VII will remain in this
action.
Plaintiff’s claim for breach of contract as contained
in Counts I and V, and any claims for economic loss arising from
the alleged defamatory conduct of Defendants, as contained in
Counts III, VI and VIII, will be dismissed without prejudice,
15
and the Court will grant Plaintiff leave to amend the complaint
to properly assert these claims.
Plaintiff’s claims for
negligence, punitive damages, and respondeat superior, as
contained in Counts IX, X and XIII respectively, will be
dismissed with prejudice. 5
Additionally, the Court recognizes that at this time
Plaintiff’s counsel seeks to withdraw from representing
Plaintiff, and a motion to withdraw is presently pending before
the Honorable Joel Schneider, United States Magistrate Judge.
In the event that Judge Schneider grants the request of
Plaintiff’s counsel to withdraw his representation of Plaintiff
in this matter, Plaintiff must file an amended complaint within
thirty days of the date on which he either enters an appearance
pro se or new counsel enters an appearance on Plaintiff’s
behalf.
If Judge Schneider denies the motion to withdraw as
counsel, Plaintiff must file an amended complaint within thirty
days of the date on which Judge Schneider enters his Order.
An Order consistent with this Opinion will be entered.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Dated: June 10, 2015
At Camden, New Jersey
5
Because the claims in Counts XI and XII against fictitious
entities and individuals are merely placeholder claims, the
Court does not address them in this Opinion and such claims will
not be subject to dismissal.
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