KENNEDY v. AMERICAN AIRLINES INC. et al

Filing 52

MEMORANDUM OPINION. Signed by Judge Jerome B. Simandle on 2/13/2018. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

WILLIAM HENRY KENNEDY,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action No.
15-8058 (JBS/KMW)

v.
ENVOY AIRLINES INC. and JOHN
DOE 1-10,

MEMORANDUM OPINION

Defendants.

SIMANDLE, District Judge:
This matter comes before the Court by way of four related
motions: Defendant Envoy Airlines Inc.’s (hereinafter, “Envoy”)
motion to dismiss the Third Amended Complaint pursuant to Fed.
R. Civ. P. 12(b)(6) [Docket Item 28]; pro se Plaintiff William
Henry Kennedy’s (hereinafter, “Plaintiff”) motion to amend the
Third Amended Complaint [Docket Item 29]; Plaintiff’s motion for
reconsideration of the Court’s July 20, 2016 Order [Docket Item
43]; and Plaintiff’s motion to add a party [Docket Item 44.] For
the reasons that follow, Defendant’s motion will be granted and
Plaintiff’s motions will be denied. The Court finds as follows:
1.

Factual Background.1 Plaintiff initially brought this

action against Envoy, American Airlines Inc., and John Doe 1-10

1

For purposes of the pending motion, the Court accepts as true
the version of events set forth in Plaintiff’s Third Amended
Complaint and construes Plaintiff’s pleading, as it must,
liberally. See Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir.

(collectively, “Defendants”) after he was fired as a flight
attendant for failing two on-the-job breathalyzer tests. [See
generally Docket Items 1 & 9.] In the operative Third Amended
Complaint,2 Plaintiff avers that, on March 3, 2014, he
accidentally overslept and reported late to work, “unshaven,
unwashed and with his hair disheveled, with his hypertension
setting in, coming in from the outside on one of the coldest
days of the year.” [Third Amended Complaint, Docket Item 25 at ¶
9.] Running through the airport and short of breath, Plaintiff
was briefly stopped by TSA agents who performed a thorough
search and questioned Plaintiff about his appearance. [Id. at ¶¶

2011) (describing the liberal construction required of pro se
submissions); Capogrosso v. Sup. Ct. of N.J., 588 F.3d 180, 184
(3d Cir. 2009) (per curiam) (same).
2

Plaintiff filed a Complaint and Amended Complaint in the
Superior Court of New Jersey, before Defendant removed the case
to this Court. [Docket Item 1.] Plaintiff then filed the Second
Amended Complaint as a matter of right under Fed. R. Civ. P.
15(a)(1). [Docket Item 9.] With leave of Court, Plaintiff filed
the Third Amended Complaint on August 9, 2016. [Docket Item 25.]
In this Circuit, an “amended complaint supersedes the original
and renders it of no legal effect” unless the amended complaint
“specifically refers to or adopts the earlier pleading.” West
Run Student Housing Assocs., LLC v. Huntington Nat'l Bank, 712
F.3d 165, 171 (3d Cir. 2013) (internal quotations omitted).
Here, the Third Amended Complaint does not specifically refer to
or adopt the Second Amended Complaint. The Third Amended
Complaint therefore supersedes the Second Amended Complaint. See
e.g., NL Indus., Inc. v. Old Bridge Twp, 2015 WL 12866996, at *1
(D.N.J. Feb. 27. 2015); Call v. Czaplicki, 2011 WL 2532712, at
*9 n.9 (D.N.J. June 23, 2011).
2

10-11.] Shortly thereafter, the TSA agents turned Plaintiff over
to Breath Alcohol Technician Terry Fritz. [Id. at ¶ 11.]
2.

At 9:19 A.M. that morning, Ms. Fritz performed the

first of two breathalyzer tests on Plaintiff, which reported he
had a blood alcohol concentration (“BAC”) of .135. [Id. at ¶
13.] Fifteen minutes later, Ms. Fritz performed a confirmation
test, which revealed a BAC of .083. [Id.] Ms. Fritz then wrote
on a Department of Transportation form that Plaintiff “had
impermissibly consumed alcohol in [a] breakroom for agents in
the Pittsburg [sic] airport.” [Id. at ¶ 15.]
3.

After terminating Plaintiff’s employment later that

day, Envoy employee Ellyn Kravette offered Plaintiff two
options: remain terminated indefinitely or enter Envoy’s
“rehabilitation facility.” [Id. at ¶¶ 15, 17.] Plaintiff states
that he was “coerced” into choosing the second option because he
“needed his job,” “relied upon the free and low-cost flights he
was able to take as his mother was from Guatemala,” and “because
[Kravette] demanded an immediate answer.” [Id. at ¶ 19.]
4.

Once admitted to the rehabilitation facility,

Plaintiff claims he was forced into acknowledging he had an
“alcohol problem” and to take “unnecessary, harmful
pharmaceuticals.” [Id. at ¶ 18.] Due to alleged “medical issues”
that arose while he was in treatment, Plaintiff left the
facility early and did not complete the rehabilitation program.
3

[Id.] Plaintiff alleges he was not offered an alternative
treatment program, despite the fact that Envoy apparently had a
“true alcohol rehabilitation facility [that] was reserved for
pilots with alcoholism.” [Id.]
5.

On April 26, 2014, Ms. Kravette issued a “DOT non-

compliance,” thereby permanently terminating Plaintiff from his
employment at Envoy. [Id.] In the aftermath of his discharge,
Plaintiff applied for, but was initially denied, New York
unemployment benefits. [Ex. A to Docket Item 25 at 3.] Plaintiff
subsequently appealed the denial of unemployment benefits, which
was granted by the Honorable Alison Ferrara of the New York
State Labor Board Unemployment Hearing Department based upon
concerns over the accuracy of the breathalyzer machine, and
because the breathalyzer technician’s testimony proved, by
itself, “insufficient to establish” Plaintiff’s intoxication for
purposes of denying unemployment benefits.3 [Id. at 5-6.]
According to Plaintiff, he has been “able to collect a small
amount of unemployment benefits.” [Docket Item 25 at ¶ 25.]
6.

Procedural Background. Defendants initially moved to

dismiss Plaintiff’s Second Amended Complaint under Fed. R. Civ.
P. 12(b)(6). [Docket Item 12.] On July 20, 2016, the Court

3

On February 24, 2015, the New York State Appeal Board affirmed
this decision. [See Ex. B to Docket Item 25.]
4

granted Defendants’ motion and dismissed all claims in the
Second Amended Complaint against American Airlines Inc. with
prejudice, Counts I, II, III, XIII, and XIV as to Envoy with
prejudice, and Counts IV, V, VI, VIII, IX, X, XI, and XII as to
Envoy without prejudice. [Docket Item 24.] In an accompanying
twenty-six-page Opinion, the Court explained that Plaintiff was
permitted to file a Third Amended Complaint within thirty (30)
days provided that Plaintiff “take note of the claim elements
and deficiencies outlined in this Opinion relative to Counts IV,
V, VI, VII, VIII, IX, X, XI, and XII, and then to re-assert only
those claims for which he can allege the necessary facts in
support of each essential element.” [Item 23 at 25-26] (emphasis
in original). Plaintiff timely filed a Third Amended Complaint,
in which he alleged a single count of fraud [Docket Item 25],
which Envoy moved to dismiss pursuant to Fed. R. Civ. P.
12(b)(6) [Docket Item 28] and Plaintiff seeks to amend again
pursuant to Fed. R. Civ. P. 15(a). [Docket Item 29.]
7.

On December 29, 2016, Plaintiff requested that this

case be stayed pending arbitration of his discharge from Envoy
pursuant to a collective bargaining agreement. [Docket Item 36.]
By Order of April 4, 2017 [Docket Item 37], the Court granted a
temporary stay pending resolution of Plaintiff’s grievance
process through his former union, and ordered that Envoy’s
motion to dismiss [Docket Item 28] and Plaintiff’s motion to
5

amend the Third Amended Complaint [Docket Item 29] be
administratively terminated pending the outcome of those
administrative proceedings. On August 2, 2017, Plaintiff, in
compliance with the Court’s prior Order, filed a status report,
which indicated that Plaintiff’s union representative had
informed him that his grievance could not proceed as long as the
DOT considered him ineligible to perform safety-sensitive
functions (i.e., he could not pursue arbitration until DOT
overturned his status). [Ex. E to Docket Item 38 & Docket Item
40.] On August 21, 2017, the Court dissolved the stay and
restored the case to active status. [Docket Item 41.] Plaintiff
subsequently filed a motion for reconsideration of the Court’s
July 20, 2016 Order [Docket Item 43] and a motion to add parties
to the Third Amended Complaint. [Docket Item 44.] The four
pending motions are now ripe for decision and will be addressed
by the Court in turn.
8.

Plaintiff’s Motion for Reconsideration. Plaintiff

filed a motion for reconsideration of the Court’s July 20, 2016
Order granting Defendants’ motion to dismiss the Second Amended
Complaint in its entirety and permitting Plaintiff to file a
Third Amended Complaint to cure the deficiencies noted in the
Court’s Opinion. [Docket Item 43.] For the following reasons,
Plaintiff’s motion for reconsideration will be denied.

6

9.

First, Plaintiff’s motion for reconsideration was not

timely filed. Local Civil Rule 7.1(i) requires that any motion
for reconsideration shall be served and filed within fourteen
(14) days following entry of the Order on the motion at issue.
Here, the time for seeking reconsideration expired on August 4,
2016, four months before this case was stayed. Plaintiff
ultimately filed his motion on October 31, 2017, which was
nearly sixteen (16) months after entry of the July 20, 2016
Order. Therefore, the Court finds that Plaintiff’s motion can be
denied on that ground alone. See Mitchell v. Twp. Of Willingboro
Mun. Gov’t, 913 F. Supp. 2d 62, 78 (D.N.J. 2012) (citing cases,
and denying a motion for reconsideration as untimely).
10.

Even if Plaintiff’s motion had been timely filed,

however, he has not met the high standard required for relief on
a motion for reconsideration. “A party seeking reconsideration
must show more than a disagreement with the Court's decision,
and ‘recapitulation of the cases and arguments considered by the
court before rendering its original decision fails to carry the
moving party's burden.’” P. Schoenfeld Asset Mgmt., LLC v.
Cendant Corp., 161 F. Supp. 2d 349, 353 (D.N.J. 2001) (quoting
G–69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990)). “A motion
for reconsideration is improper when it is used solely to ask
the court to rethink what it has already thought through—rightly

7

or wrongly.” Arista Records, Inc. v. Flea World, Inc., 356 F.
Supp. 2d 411, 415 (D.N.J. 2005).
11.

Plaintiff’s memorandum of law in support of his motion

for reconsideration constitutes little more than an expression
of disagreement with the Court’s prior decision to dismiss the
Second Amended Complaint or, in the alternative, a request that
the Court permit Plaintiff to add additional claims to the Third
Amended Complaint. [See generally Docket Item 43.] Indeed, in
his reply memorandum of law in support of reconsideration,
Plaintiff emphasizes that “Plaintiff’s Motion for
Reconsideration is not sought out to bring back the old
complaint but to please be allowed to use Breach of Contract
and, also, Negligence which was requested in the Plaintiff’s
Memorandum in Opposition for that Motion to Dismiss.” [Docket
Item 47 at 3] (emphasis in original). Thus, the Court
understands Plaintiff’s motion for reconsideration as a request
that the Court grant Plaintiff leave to add new claims to (i.e.,
amend) the Third Amended Complaint, which the Court addresses
next. For these reasons, the Court will not reconsider its July
20, 2016 Order.
12.

Plaintiff’s Motions to Amend and Add Parties. As

described supra, the Third Amended Complaint alleges a single
count of fraud against Envoy. [See generally Docket Item 25.]
Plaintiff has since filed motions to amend the Third Amended
8

Complaint, and thus a Fourth Amended Complaint, to add claims of
negligence [Docket Item 29] and civil conspiracy [Docket Item
48], and to add the Department of Transportation, the
Association of Flight Attendants, and Marworth Rehabilitation
Center as parties. [Docket Items 44, 45 & 48.] For the following
reasons, Plaintiff’s requests to add new claims and parties will
be denied.
13.

After amending once as a matter of course, a plaintiff

may amend a pleading only with leave of court or the written
consent of the opposing party, and “[t]he court should freely
give leave when justice so requires.” Fed. R. Civ. P. 15(a).
Moreover, “[o]n motion or on its own, the court may at any time,
on just terms, add or drop a party.” Fed. R. Civ. P. 21. Despite
these liberal standards, however, a district court may deny
leave to amend or add a party when amendment would be futile.
See Smith v. Nat'l Collegiate Athletic Ass'n, 139 F.3d 180, 190
(3d Cir. 1998), rev'd on other grounds, 525 U.S. 459 (1999); see
also Sutton v. New Century Fin. Serv., 2006 WL 3676306, at *1
(D.N.J. Dec. 11, 2006) (noting that the same standards apply
under Rule 15(a) and 21 with respect to adding a new party). An
amendment is futile if the amended complaint would not survive a
motion to dismiss for failure to state a claim upon which relief
could be granted. Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir.
2000).
9

14.

Plaintiff first asks this Court for leave to add facts

purporting to support an additional claim of negligence to the
Third Amended Complaint. [Docket Item 29; see also Docket Item
32 at 5.] Specifically, Plaintiff asks to add five (5)
paragraphs to the Third Amended Complaint which purport to
allege a claim of negligence (or “negligent testing”). [Docket
Item 29 at 2-3.] According to Plaintiff, “[t]he claim of
negligence was suggested in my opposition papers, however, in an
excess of caution, and because the Court did not state such
claim would be allowed[,] I did not include it in the [Third]
Amended Complaint.” [Id. at 3.] Because Plaintiff’s proposed
negligence claim against his employer is preempted by the New
Jersey Workers Compensation Act, N.J.S.A. § 34:15-8, however,
the Court finds Plaintiff’s attempt to add a negligence claim
would be futile.
15.

“The New Jersey Workers’ Compensation Act . . .

provides the exclusive remedy by which an employee may recover
for injuries caused by workplace negligence.” Smith v. Exxon
Mobil Corp., 374 F. Supp. 2d 406, 424 (D.N.J. 2005); see also
Rivera v. Crackel Barrel Old Cnty. Store, Inc., 2003 WL
21077965, at *5 (D.N.J. Mar. 3, 2003); Ditzel v. Univ. of Med. &
Dentistry, 962 F. Supp. 595, 608 (D.N.J. 1997). Thus, “[u]nder
[New] Jersey law an action in negligence against an employer is
barred by the New Jersey Workers Compensation Act.” Silvestre v.
10

Bell Atl. Corp., 973 F. Supp. 475, 486 (D.N.J. 1997); see also
Fregara v. Jet Aviation Bus. Jets, 764 F. Supp. 940, 954 n.8
(D.N.J. 1991); Wellenheider v. Rader, 49 N.J. 1, 9 (1967);
Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 165
(1985). Plaintiff’s proposed negligence claim is clearly
preempted by the New Jersey Workers Compensation Act. Permitting
Plaintiff to add this claim to a Fourth Amended Complaint would
be futile.4
16.

Plaintiff next asks this Court to add the Department

of Transportation and the Association of Flight Attendants as
parties in this case. [Docket Items 44 & 45.] Plaintiff argues
that adding the Department of Transportation as a party would
“assist in all matters before this Court in this case” and
“bolster the cause of action and Court’s ability to provide
relief.” [Docket Item 44-1 at 4] (emphasis in original).
According to Plaintiff, “once the DOT positive test is canceled,
plaintiff can utilize the RLA mechanism and not bother this
court anymore. . .” [Id.] (emphasis in original). Similarly,
Plaintiff asks the Court to add the Association of Flight
Attendants, his union, as a party because Plaintiff believes he
will be able to show he “did not have any means of remedy since

4

The Court notes that Plaintiff actually availed himself of the
unemployment benefits to which he was entitled under the New
Jersey Workers Compensation Act. [Docket Item 25 at ¶ 25; see
also Exs. A & B to Docket Item 25.]
11

the union and company prevented the plaintiff[] from the RLA
process.” [Docket Item 45 at 4.] But Plaintiff alleges no new
claims against the Department of Transportation or Association
of Flight Attendants, nor does he allege any facts specific to
Plaintiff’s single fraud claim in the Third Amended Complaint.
Thus, adding the Department of Transportation and Association of
Flight Attendants would be futile.
17.

Finally, in a memorandum of law filed in support of

his motions for leave to add a party and amend the Third Amended
Complaint, Plaintiff informally requests leave to add a claim
for civil conspiracy and to add Marworth Rehabilitation Center
as a party. [See Docket Item 48.] Essentially, Plaintiff avers
that Envoy conspired with Marworth Rehabilitation Center to
defraud him by way of an agreement to “override” a denial of
insurance coverage to ensure that Plaintiff had insurance
benefits to cover payment for some or all of his treatment. [Ex.
A to Docket Item 48.] In order to state a claim for civil
conspiracy under New Jersey law, Plaintiff must show: “(1) a
combination of two or more persons; (2) a real agreement or
confederation with a common design; (3) the existence of an
unlawful purpose to be achieved by unlawful means; and (4) proof
of special damages.” Huelas v. Wells Fargo Home Mort., Inc.,
2012 WL 3240166, at *5 (D.N.J. Aug. 7, 2012) (internal citation
omitted). Plaintiff must also independently assert a viable
12

underlying tort claim apart from the conspiracy itself. Dist.
1199P Health & Welfare Plan v. Janssen, L.P., 784 F. Supp. 2d
508, 533 (D.N.J. 2011) (“Under New Jersey law, a claim for civil
conspiracy cannot survive without a viable underlying tort.”)
For the reasons described supra, Plaintiff failed to adequately
plead negligence in his proposed Fourth Amended Complaint and,
for the reasons described below, Plaintiff does not state a
claim for fraud in the Third Amended Complaint. Because
Plaintiff has not plead a viable underlying tort claim apart
from the alleged conspiracy, Plaintiff’s effort to add a civil
conspiracy claim and to add Marworth Rehabilitation Center is
futile as a matter of New Jersey law. His request will,
therefore, be denied.
18.

Envoy’s Motion to Dismiss Pursuant to Rule 12(b)(6).

Under Federal Rule of Civil Procedure 12(b)(6), the court must
“accept all factual allegations as true, construe the Complaint
in the light most favorable to the plaintiff, and determine
whether, under any reasonable reading of the Complaint, the
plaintiff may be entitled to relief.” Fleisher v. Standard Ins.
Co., 679 F.3d 116, 120 (3d Cir. 2012) (internal citations
omitted). In applying this standard to pro se pleadings and
other submissions, as here, the Court must liberall y construe
the well-pleaded allegations, and draw all reasonable inferences
in favor of the pro se litigant. Higgs v. Atty. Gen. of the
13

U.S., 655 F.3d 333, 339 (3d Cir. 2011); Capogrosso v. The
Supreme Court of New Jersey, 588 F.3d 180, 184 (3d Cir. 2009).
Despite this liberality, however, a pro se complaint must still
“contain sufficient factual matter, accepted as true,” to “state
a [plausible] claim to relief.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)); see also Marley v. Donahue, 133 F. Supp. 3d 706,
714 (D.N.J. 2015) (explaining the same concept).
19.

In the Third Amended Complaint, Plaintiff alleges that

Defendant Envoy engaged in fraud. Under New Jersey law, a claim
for fraud requires the plaintiff to allege: “(1) a material
misrepresentation of fact; (2) knowledge or belief by the
defendant of its falsity; (3) [an] intention that the other
person rely on it; (4) reasonable reliance [on the material
misrepresentation] by the other person; and (5) resulting
damage.” Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir.
2007) (citing Gennari v. Weichert Co. Realtors, 691 A.2d 350
(N.J. 1997)). In making these assertions, the plaintiff must
then meet the “stringent” particularity requirements of Federal
Rule of Civil Procedure 9(b). Frederico, 507 F.3d at 200; see
also Fed. R. Civ. P. 9(b) (“all averments of fraud or mistake,
the circumstances constituting fraud or mistake shall be stated
with particularity”). In other words, “the plaintiff must plead
or allege the date, time and place of the alleged fraud or
14

otherwise inject precision or some measure of substantiation
into a fraud allegation.” Frederico, 507 F.3d at 200.
20.

Plaintiff fails to satisfy Rule 9(b)’s heightened

pleading requirement for several reasons. First, assuming that
the breathalyzer tests were, in fact, inaccurate (i.e., a
material misrepresentation of fact), Plaintiff has not alleged
any particularized facts which, if true, would demonstrate that
Ms. Fritz or any other Envoy employee actually knew that the
positive test results were false. This is especially so in light
of Plaintiff’s own admission that he was “unshaven, unwashed and
with his hair disheveled [and] . . . must have made quite a
sight as he rushed, headlong, through the morning crowd at the
airport.” [Docket Item 25 at ¶ 9.] Rather than point to specific
facts regarding Envoy’s knowledge of the supposed falsity of the
breathalyzer tests, Plaintiff simply states that, because “the
defendant, who through its agents, has administered thousands of
tests and is aware of the uniform and constant rate at which
alcohol is metabolized, either knew or should have knowing [sic]
the results of the tests administered to the plaintiff were
false positives.” [Id. at ¶ 14.] But such generalized and
conclusory statements are insufficient to establish knowledge of
falsity. See In re Suprema Specialties, Inc. Sec. Litig., 438
F.3d 256, 282 (3d Cir. 2006) (“[P]leading of scienter sufficient
to satisfy Rule 9(b) may not rest on a bare inference that a
15

defendant ‘must have had’ knowledge of the facts or ‘must have
known’ of the fraud given his or her position in the company.)
(internal citation and quotation marks omitted).
21.

Second, even assuming Plaintiff could make a case for

equitable fraud, which does not require a plaintiff to show that
the defendant knew that alleged misrepresentations were false,
Plaintiff has not alleged that he reasonably relied on Envoy’s
allegedly false statement that Plaintiff had improperly consumed
alcohol. See Joe Hand Promotions, Inc. v. Mills, 567 F. Supp. 2d
719, 727 (D.N.J. 2008) (“When pleading equitable fraud, a
plaintiff does not have to claim the defendant knew that the
alleged misrepresentation was false[,] . . . [but] a plaintiff
must still plead reasonable reliance on the alleged
misrepresentation.”) (internal citations omitted). Plaintiff
avers that the “coercive effect” of various statements made by
different Envoy employees forced him to enter a rehabilitation
facility, pay “fairly significant out-of-pocket costs,” and
forgo his right to arbitrate the dispute. [Docket Item 25 at ¶
20.] But Plaintiff, himself, knew whether or not he had actually
consumed alcohol prior to arriving at work on the morning of
March 3, 2014. Equipped with such knowledge, it would have been
unreasonable as a matter of law for Plaintiff to have relied on
an allegedly-false breathalyzer test (or any other Envoy
representation, for that matter) before entering an alcohol
16

rehabilitation program. See Joe Hand Promotions, Inc., 567 F.
Supp. 2d at 728 (noting that plaintiff cannot allege that it
relied on defendant’s accusations when plaintiff admitted it
always knew the accusations to be false); Golden v. Nw. Mut.
Life Ins. Co., 229 N.J. Super 405, 415 (App. Div. 1988) (“A
false representation made to a person who knows it to be false
is not in legal estimation a fraud.”). In other words, it is not
plausible that, if Plaintiff had truly consumed no alcohol, he
would rely upon another person’s statement that he had consumed
alcohol. Plaintiff himself was in the unique position to know
the true facts of his own alcohol consumption.
22.

In light of the foregoing, the Third Amended Complaint

does not state a claim for fraud. Having examined Plaintiff's
allegations stated and restated in four rounds of pleadings, the
Court finds that extending leave to amend yet again is futile.
Of note, Plaintiff opted not to accept the Court’s invitation to
correct any of the claim elements and deficiencies outlined in
the July 20, 2016 Opinion relative to Counts IV, V, VI, VII,
VIII, IX, X, XI, and XII of the Second Amended Complaint [Docket
Item 23 at 25-26], and instead chose to file a Third Amended
Complaint alleging a single count of fraud. “Allowing leave to
amend where ‘there is a stark absence of any suggestion by the
plaintiffs that they have developed any facts since the action
was commenced’ . . . would frustrate Congress's objective” to
17

filter out lawsuits that have no factual basis. Cal. Pub.
Employees’ Ret. Sys. v. Chubb Corp., 394 F.3d 126, 164 (3d Cir.
2004) (quoting GSC Partners CDO Fund v. Washington, 368 F.3d
228, 246 (3d Cir. 2004)). For these reasons, the Court will
dismiss Plaintiff's Third Amended Complaint with prejudice.
23.

Conclusion. For the foregoing reasons, the Court will

deny Plaintiff’s motions for reconsideration, to amend, and to
add a party, and the Court will grant Envoy’s motion to dismiss.
An accompanying Order shall be entered.

February 13, 2018
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

18