KAMDEM-OUAFFO v. TASK MANAGEMENT INC. et al

Filing 83

OPINION. Signed by Judge Noel L. Hillman on 7/9/2018. (rtm, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RICKY KAMDEM-OUAFFO, d/b/a
KAMDEM GROUP,

No. 1:17-cv-7506 (NLH/JS)

Plaintiff,
v.
TASK MANAGEMENT INC., STEFAN
MOHAN, LINDA HARISSON, CORIE
HESS, and CAMPBELL SOUP
COMPANY,
Defendants.

RICKY KAMDEM-OUAFFO,
Plaintiff,
v.
CAMPBELL SOUP COMPANY, TASK
MANAGEMENT INC., DENISE M.
MORRISON, CARLOS J. BARROSO,
SCOTT KELLER, CARY HAYES,
STEFAN MOHAN, CORIE HESS,
LINDA HARRISON, JONATHAN D.
WETCHLER, BERNARD E. JACQUES,
DUANE MORRIS (FIRM AND
AFFILIATE OFFICES), MCELROY,
DEUTSCH, MULVANEY & CARPENTER
LLP, DAYNE R. JOHNSON, and
TREVOR H. TANIGUCHI,
Defendants.

No. 1:18-cv-298 (NLH/JS)
OPINION

APPEARANCES:
RICKY KAMDEM-OUAFFO
1 RICHMOND STREET #2100
NEW BRUNSWICK, NJ 08901
Appearing pro se
DAYNE RASHARD JOHNSON
MCELROY DEUTSCH MULVANEY & CARPENTER
1300 MOUNT KEMBLE AVE
MORRISTOWN, NJ 07962-8100
On behalf of Defendants Task Management Inc., Stefan Mohan,
Linda Harrison, Corie Hess, Bernard Jacques, McElroy,
Deutsch, Mulvaney & Carpenter LLP, and Dayne Johnson
MICHAEL RATO
BERNARD E. JACQUES (admitted pro hac vice)
MCELROY DEUTSCH MULVANEY & CARPENTER LLP
1300 MT. KEMBLE AVENUE
P.O. BOX 2075
MORRISTOWN, NJ 07962
On behalf of Defendant McElroy, Deutsch, Mulvaney &
Carpenter
JONATHAN D. WETCHLER (admitted pro hac vice)
ALIZA R. KARETNICK (admitted pro hac vice)
DUANE MORRIS LLP
30 SOUTH 17TH STREET
PHILADELPHIA, PA 19103
On behalf of Defendants Campbell Soup Company, Denise
Morrison, Carlos Barroso, Scott Keller, Duane Morris LLP,
Jonathan Wetchler, and Trevor Taniguchi
TREVOR HARUO TANIGUCHI
DUANE MORRIS LLP
1940 ROUTE 70 EAST
CHERRY HILL, NJ 08003
On behalf of Defendants Campbell Soup Company, Denise
Morrison, Carlos Barroso, Scott Keller, Jonathan Wetchler,
and Duane Morris
AMBER M. SPATARO
LITTLER MENDELSON PC
ONE NEWARK CENTER
8TH FLOOR
NEWARK, NJ 07102
On behalf of Defendant Cary Hayes
2

HILLMAN, District Judge
This Opinion and its accompanying Order address two
separate but largely overlapping matters now pending before this
Court: Docket No. 17-7506 and Docket No. 18-298. 1

These cases

arise from Plaintiff’s overriding allegation that he lost his
job due to retaliation for filing various complaints.

Plaintiff

brings claims under Title VII and the New Jersey Law Against
Discrimination (NJLAD), as well as other statutory and common
law claims.

Between both dockets, before the Court are two

motions for preliminary injunction, several motions to dismiss,
several motions to strike, a motion to set aside entry of
default, and a motion to compel defendants to file an answer. 2
For the reasons that follow, the Court will allow
Plaintiff’s Title VII and NJLAD claims to proceed in part
against Task Management.
Plaintiff’s claims.

The Court will otherwise dismiss

Plaintiff is permitted to file a motion for

leave to amend his complaint to attempt to cure any deficiencies
the Court has identified in this Opinion.

1

These cases have been consolidated for discovery and case
management purposes only. The Court will now consolidate these
matters for all purposes to proceed under the 18-298 docket.
2

Plaintiff asks this Court to convert the motions to dismiss
into summary judgment motions. The Court will not consider
evidence outside the scope of a Rule 12(b)(6) motion, and the
Court declines, in its discretion, to so convert the motions.
3

I. Background
A. Plaintiff’s Factual Allegations
The Court takes its facts from Plaintiff’s January 8, 2018
Complaint in the 18-298 action. 3

On August 1, 2017, Linda

Harrison, a Senior Technical Recruiter at Task Management, 4
contacted Plaintiff to inquire whether Plaintiff had the skills
to take on a project with Task Management’s client, Campbell
Soup.
Plaintiff showed interest and Harrison submitted
Plaintiff’s resume to Campbell Soup.

Plaintiff was then

interviewed by Campbell Soup Senior Director Scott Keller.
Following the interview, Plaintiff was informed by Harrison that
he was selected for a contract role at Campbell Soup.

On August

10, 2017, Plaintiff entered into an agreement on behalf of the
Kamdem Group, his sole proprietor business, with Task Management
for a role as a consultant at Campbell Soup in its Flavor

3

While the Court must base its decision in the 17-7506
action on the facts alleged in the operative complaint in that
case, the underlying facts have little relevance in deciding the
pending motions in that case.
4

Plaintiff’s contract with Task Management states Task
Management “serves as a broker between individuals, companies
and corporations seeking individuals, companies and corporations
with various computer skills and individuals, companies and
corporations with those skills.”
4

Technology Unit (the “Task Management Agreement”). 5

It appears

the agreement was executed by Stephan Mohan, a director at Task
Management.

Under the agreement, termination would occur upon

the earlier of the following: (1) completion of the project or
(2) at the election of Plaintiff, Task Management, or Campbell
Soup. 6
Plaintiff began working with Campbell Soup on August 21,
2017 at its Camden location.

Plaintiff was assigned three

projects with Campbell Soup under the supervision of Keller.
Campbell Soup issued a work Purchase Order, approved and signed
by Carlos Barroso, 7 that showed that Campbell Soup disbursed
money to Task Management for every hour of work performed by

5

As this Court will later elaborate on, the Court considers
Plaintiff and the Kamdem Group to be one and the same. While
the contract is between Task Management and the Kamdem Group,
the Court will refer to Plaintiff as the party to the Task
Management Agreement in this Opinion.
6

The “Termination” provision of the Task Management
Agreement states:
Termination of this Agreement will occur at the earliest
of the following events.
A.

The Completion of the Assignment, that is the
project assigned to the Consultant, or

B.

at the election of the Company or the Client,
or the Consultant.

7

Carlos Barroso was Plaintiff’s next level Supervisor at
Campbell Soup.
5

Plaintiff.

Task Management issued a biweekly pay schedule for

Plaintiff.
Approximately eleven days after he started work, on
September 1, 2017, Plaintiff was informed by Harrison that
Campbell Soup had decided to suspend the projects Plaintiff had
been working on due to financial hardship and that Plaintiff was
not to return to work, nor contact Keller or any other Campbell
Soup employees.

Plaintiff alleges that after this call, he

remembered that he had been contacted earlier that day by a
recruiter who was looking to find someone to fill a role at
Campbell Soup.

Upon further conversations with the recruiter,

it became Plaintiff’s understanding that this open role was
identical to the one Plaintiff was informed by Harrison was
suspended.
Plaintiff pleads that around September 1, 2017, Campbell
Soup began searching for a person with Plaintiff’s
qualifications.

Plaintiff was contacted by multiple recruiters

regarding Campbell Soup’s search.

Plaintiff alleges two

recruiters contacted Cary Hayes, a Campbell Soup employee, about
Plaintiff and that Hayes told them to stop speaking and wasting
their time with Plaintiff.

Plaintiff pleads the job listing was

eventually removed from public viewing and that the process to
find Plaintiff’s replacement was taken up by a paid executive
search firm.
6

On September 8, 2017, following what appears to be several
unanswered e-mails to Harrison regarding his termination and
potential openings at Campbell Soup, Plaintiff inquired about
Task Management officially withdrawing its representation of
him.

Harrison responded that Task Management would withdraw its

representation of him for any further job postings through
Campbell Soup.

After this withdrawal, it appears Plaintiff

attempted in various ways to apply for his role at Campbell Soup
again, which had been relisted, but Plaintiff was not rehired or
given an opportunity to compete for the role.
Johnathan Wetchler, a legal representative of Campbell Soup
from the law firm Duane Morris, informed Plaintiff on November
15, 2017 that his previous position had been filled in October
2017.

Plaintiff argues this information contradicts the fact

that Campbell Soup had retained an executive search firm to look
for someone to fill the position.

Plaintiff pleads that Denise

Morrison, 8 Barroso, Keller, and Hayes asked Wetchler to
communicate to Plaintiff that his role at Campbell Soup had been
filled in October 2017.
Plaintiff learned from Corie Hess, Task Management’s Human
Resource Manager, that the contract with Task Management was
terminated because Task Management or Campbell Soup found out

8

Morrison is a “Senior Executive level employee of
Campbell’s Soup Company.” (Compl. ¶ 123).
7

Plaintiff had filed lawsuits with other employers.

Plaintiff

admits to filing lawsuits against previous employers.

On

September 22, 2017, Plaintiff reported to Scott, Mohan, and
possibly others that Hess had told him he was terminated because
of his previous lawsuits.

Plaintiff alleges Mohan, Morrison,

Barroso, Keller, and Hayes either made the decision or supported
the decision to terminate the Task Management Agreement and
encouraged subordinates to lie to Plaintiff about why the Task
Management Agreement was terminated.
Bernard Jacques is a legal representative for Task
Management from the law firm McElroy, Deutsch, Mulvaney &
Carpenter (“MDMC”).

Jacques sent Plaintiff an October 6, 2017

letter, which “threaten[ed] Plaintiff [with] criminal
prosecution.”

Plaintiff pleads Jacques initiated a private

citizen criminal prosecution against Plaintiff in Connecticut
and told Plaintiff that he “wanted to send Plaintiff for
psychiatry treatment.”

Plaintiff pleads he was contacted by a

Ridgefield, Connecticut detective by the name of Lou Kava.
Plaintiff pleads Campbell Soup and Task Management attempted to
induce the State of Connecticut to launch a criminal
investigation against him.
B. Procedural Posture in the 17-7506 action
Plaintiff initiated the 17-7506 action on September 25,
2017 with the filing of a 109-page complaint, containing 693
8

numbered paragraphs.

The initial complaint brought claims

against Task Management, Mohan, Harrison, Hess, and Campbell
Soup (listed as a “nominal defendant”).

Plaintiff asserted

federal question as his basis for jurisdiction.

The Court

issued an October 2, 2017 Order to Show Cause, finding
Plaintiff’s complaint did not raise a federal question, finding
Plaintiff’s complaint in violation of Federal Rule of Civil
Procedure 8(a), and allowing Plaintiff fifteen days to amend his
complaint to properly assert subject matter jurisdiction.
Plaintiff filed his Amended Complaint on October 10, 2017,
removing Campbell Soup as a defendant in what the Court
interpreted as an attempt to assert diversity jurisdiction.

The

Amended Complaint was 155 pages with 943 numbered paragraphs.
On October 11, 2017, the Court issued another Order to Show
Cause finding Plaintiff failed to sufficiently plead the
citizenship of Defendants.

The Court again found Plaintiff

violated Rule 8(a) and allowed Plaintiff fifteen days to file
another amended complaint.
Plaintiff filed a Second Amended Complaint on October 13,
2017, which was 154 pages and consisted of 953 numbered
paragraphs.

The Second Amended Complaint did not list Campbell

Soup as a defendant.

The Court issued an October 17, 2017 Order

to Show Cause, again finding Plaintiff failed to properly plead
citizenship, finding Plaintiff violated Rule 8(a), and allowing
9

Plaintiff fifteen days to file another amended complaint.

On

October 18, 2017, Plaintiff filed his Third Amended Complaint,
consisting of 164 pages and 990 numbered paragraphs.

The Third

Amended Complaint did not list Campbell Soup as a defendant.
Plaintiff filed an October 18, 2017 Motion for Preliminary
Injunction in the 17-7506 action.

This motion was denied as

moot by the Court, as Plaintiff thereafter filed a February 7,
2018 Motion for Preliminary Injunction.

Also before the Court

is a December 11, 2017 Motion to Dismiss.
C. Procedural Posture in the 18-298 Action
Plaintiff’s January 8, 2018 Complaint brings fifteen
counts.

Counts 1 and 2 bring Title VII claims, and Counts 3, 4,

5, and 6 bring NJLAD claims.

Counts 7 and 8 bring claims under

the New Jersey Conscientious Employee Protection Act (NJCEPA).
Plaintiff then brings the following common law claims: breach of
contract (Count 9); breach of the implied covenant of good faith
and fair dealing (Count 10); negligence, negligence per se, and
gross negligence (Count 11); slander, libel and defamation
(Count 12); wrongful termination (Count 13); intentional
infliction of emotional distress (Count 14); and tortious
interference with contract, business, and economic opportunities
(Count 15).
Before the Court are Plaintiff’s Motion for Preliminary
Injunction, several Motions to Dismiss, a Motion to Set Aside
10

Default, several Motions to Strike, and Plaintiff’s Motion
requiring Defendants to Answer the Complaint.
II. Motion to Dismiss in the 17-7506 Action
The sole argument advanced in Defendants Task Management,
Mohan, Hess, and Harrison’s Motion to Dismiss in the 17-7506
action is that this Court lacks diversity jurisdiction because
Campbell Soup is a citizen of New Jersey and there is an
ambiguity as to whether Campbell Soup is a party to the 17-7506
action.

The Court finds Campbell Soup has not been a party to

the 17-7506 action since Plaintiff filed his First Amended
Complaint.
While Campbell Soup was listed as a defendant in the
original complaint, the three amended complaints that followed
did not list Campbell Soup as a defendant.

The Court has read

Plaintiff’s papers moving for a preliminary injunction.

While

they seek relief against Campbell Soup, that does not alone make
Campbell Soup a party to this action; neither does Judge
Schneider’s December 4, 2017 Order and Campbell Soup’s
subsequent participation in litigating this matter following
that Order.

Judge Schneider’s December 4, 2017 Order stated

that “the Court f[ound] there is an ambiguity whether plaintiff
intends to include Campbell as a named defendant” and ordered
Campbell Soup to “attend all scheduled court conferences unless
otherwise Ordered by the Court or Campbell is formally dismissed
11

from the case.”

Finding that Campbell Soup is no longer a party

to this case, the Court will formally dismiss Campbell Soup from
the 17-7506 action and the Court will deny Defendants’ Motion to
Dismiss on this basis.
III. Subject Matter Jurisdiction
Finding Campbell Soup is not a party to the 17-7506 action,
the Court has diversity jurisdiction over the 17-7506 matter
pursuant to 28 U.S.C. § 1332.

The Third Amended Complaint

pleads that Plaintiff is a citizen of New Jersey.

It pleads

Task Management is incorporated in Connecticut and has its
principal place of business in Connecticut, making it a citizen
of Connecticut.

The Third Amended Complaint also pleads Mohan

is a citizen of New York, Hess is a citizen of Connecticut, and
Harrison is a citizen of Connecticut.

It similarly pleads an

amount in controversy in excess of $75,000, exclusive of
interest and costs, giving this Court diversity jurisdiction
pursuant to 28 U.S.C. § 1332.
The Court has federal question jurisdiction over the 18-298
matter pursuant to 28 U.S.C. § 1331, as Plaintiff asserts a
cause of action under Title VII.

The Court has supplemental

jurisdiction over the state law claims pursuant to 28 U.S.C.
§ 1367.

12

IV.

Plaintiff’s Motions for Preliminary Injunction

The Court will deny Plaintiff’s motion for preliminary
injunction in both the 17-7506 action and the 18-298 action.

“A

district court must consider four elements in determining
whether to grant a preliminary injunction: (1) reasonable
probability of success on the merits; (2) irreparable injury to
the moving party; (3) harm to the nonmoving party; and (4) the
public interest.”

Goodwin v. Castille, 465 F. App’x 157, 160

(3d Cir. 2012) (citing Iles v. de Jongh, 638 F.3d 169, 172 (3d
Cir. 2011)).

Regardless of the likelihood of success on the

merits, Plaintiff has not shown an irreparable injury.
“Irreparable injury has been defined as ‘potential harm
which cannot be redressed by a legal or an equitable remedy
following a trial.’”

Figueroa v. Precision Surgical, Inc., 423

F. App’x 205, 210 (3d Cir. 2011) (quoting Instant Air Freight
Co. v. C. F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir.
1989)).

“Indeed, such loss must not be merely economic, but ‘of

a peculiar nature, so that compensation in money cannot atone
for it.’”

Id. (quoting A. O. Smith Corp. v. F.T.C., 530 F.2d

515, 525 (3d Cir. 1976)); accord Beberman v. U.S. Dep’t of
State, 675 F. App’x 131, 134 (3d Cir. 2017) (“The preliminary
injunction must be the only way of protecting the plaintiff from
harm.” (quoting Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86,
91 (3d Cir. 1992))); Adams v. Freedom Forge Corp., 204 F.3d 475,
13

484-85 (3d Cir. 2000) (“The irreparable harm requirement is met
if a plaintiff demonstrates a significant risk that he or she
will experience harm that cannot adequately be compensated after
the fact by monetary damages.” (citing Frank’s GMC Truck Ctr.,
Inc. v. Gen. Motors Corp., 847 F.2d 100, 102-03 (3d Cir.
1988))).

“No less than a ‘clear showing of immediate

irreparable injury’ is required.”

Figueroa, 423 F. App’x at 210

(citing Ammond v. McGahn, 532 F.2d 325, 329 (3d Cir. 1976)).
Plaintiff’s Third Amended Complaint in the 17-7506 action
makes various requests for damages as well as for reinstatement
at his previous position.

Plaintiff’s “Demand for Relief” in

the 18-298 action similarly seeks damages and reinstatement.
The Court finds that, if Plaintiff can prove his claims,
monetary damages will be sufficient to compensate Plaintiff.
Plaintiff has not provided this Court with any convincing reason
why monetary damages would not sufficiently compensate him or to
justify the Court granting the extraordinary remedy of a
preliminary injunction.

See Issa v. Sch. Dist. of Lancaster,

847 F.3d 121, 131 (3d Cir. 2017) (“A preliminary injunction is
an extraordinary remedy granted in limited circumstances.”).
“Although irreparable injury is only one of four
‘factors,’ a moving party’s inability to establish irreparable
injury is, alone, fatal to the motion.”

Johnson & Johnson

Orthopaedics, Inc. v. Minn. Mining & Mfg. Co., 715 F. Supp. 110,
14

112 (D. Del. 1989) (citing Phillips Petroleum Co. v. U.S. Steel
Corp., 616 F. Supp. 335, 337-38 (D. Del. 1985)).

As Plaintiff

has failed to show irreparable injury, the Court will deny his
motions for a preliminary injunction.
V. Plaintiff’s Repeated Violations of Federal Rule of Civil
Procedure 8(a)
Federal Rule of Civil Procedure 8(a) states:
A pleading that states a claim for relief must contain:
(1)

a short and plain statement of the grounds for the
court’s jurisdiction, unless the court already has
jurisdiction
and
the
claim
needs
no
new
jurisdictional support;

(2)

a short and plain statement of the claim showing
that the pleader is entitled to relief; and

(3)

a demand for the relief sought, which may include
relief in the alternative or different types of
relief.

Rule 8(d)(1) further states: “Each allegation must be simple,
concise, and direct.”

Faced with Plaintiff’s 285-page initial

complaint in the 18-298 action, the Court finds Plaintiff has
unquestionably violated Rule 8.

In no way can Plaintiff’s

Complaint be described as “short and plain.” 9
Nonetheless, courts “tend to be flexible when applying
procedural rules to pro se litigants, especially when

9

The Court notes Plaintiff appears to recognize this rule in
his Complaint, despite his utter failure to abide by it. Page
68 of Plaintiff’s Complaint in the 18-298 action contains the
header: “SHORT AND PLAIN STATEMENT OF GROUNDS FOR RELIEF.”
15

interpreting their pleadings.”

Mala v. Crown Bay Marina, Inc.,

704 F.3d 239, 244 (3d Cir. 2013).

Indeed, this is an

“obligation” for district courts, “driven by the understanding
that ‘[i]mplicit in the right of self-representation is an
obligation on the part of the court to make reasonable
allowances to protect pro se litigants from inadvertent
forfeiture of important rights because of their lack of legal
training.’”

Higgs v. Attorney Gen. of the U.S., 655 F.3d 333,

339 (3d Cir. 2011) (alteration in original) (quoting Tristman v.
Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006)).
Plaintiff has been made aware of Rule 8 and how it can be
violated.

Prior to the filing of Plaintiff’s 18-298 Complaint,

this Court has reprimanded Plaintiff for repeated violations of
this important rule of civil procedure. 10

Nonetheless, in the

interest of reaching the merits of this case and moving this
case forward, and in consideration of Plaintiff’s pro se status,
the Court will not dismiss Plaintiff’s Complaint in either the
17-7506 or 18-298 matters for violation of Rule 8.

However, as

the Court will elaborate on in its consideration of Plaintiff’s
Amended Complaint below, which this Court refuses to consider,
the Court will no longer grant Plaintiff leniency in the filing

10

The Court issued Orders to Show Cause in the 17-7506 action
on October 2, 2017, October 11, 2017, and October 17, 2017, all
stating that Plaintiff violated Rule 8 and requiring amended
filings to adhere to Rule 8.
16

of unnecessarily long and repetitive filings in this case,
related matters, or any other matter before the undersigned.
Plaintiff has been repeatedly reminded of the requirements of
Rule 8, with this Opinion serving as Plaintiff’s final reminder.
VI. Plaintiff’s Amended Complaint in the 18-298 Action
Plaintiff filed an Amended Complaint on April 23, 2018.
After the various defendants filed their motions to dismiss,
Plaintiff requested an extension from the Court to respond to
the motions.

The Court’s March 20, 2018 Order stated that

Plaintiff’s opposition to the pending motions was extended to
April 23, 2018 and reset the motion day for May 7, 2018.

The

moving defendants appear to argue that this extension related
only to any opposition briefs Plaintiff might file, not to the
filing of an amended complaint.

Regardless of whether the

Court’s Order extended the time in which Plaintiff could file an
amended complaint as a matter of course, in no way did this
Court’s Order grant Plaintiff permission to file an Amended
Complaint consisting of 332 pages and 1200 paragraphs.
This Court has previously found a 139-paragraph amended
complaint “d[id] not provide a ‘short and plain statement’ of
the claims” as required by Rule 8.

Wilcher v. Potter, No. 08-

2723, 2009 WL 235497, at *2 (D.N.J. Jan. 29, 2009).

The length

of the Amended Complaint in this case more than doubles the
length of the amended complaint in Wilcher.
17

Similarly, in

Brejcak v. County of Bucks, No. 03-4688, 2004 WL 377675 (E.D.
Pa. Jan. 28, 2004), the court found a 45-page, 216-paragraph
amended complaint “runs afoul of the letter and spirit of the
Federal Rules.”

Id. at *2.

The court noted: “While there is no

precise algorithm that answers at what length a complaint
becomes objectionable, it is reasonable to conclude that 216
separate paragraphs are excessive under notice pleading, which
the Federal Rules require.”

Id. at *3.

The Complaint in this

action is much longer than the 45-page complaint in Brejcak.
The Court has no hesitation in concluding that a 332-page,
1200-pagaraph amended complaint is objectionable and a blatant
violation of both the explicit mandates and the spirit of the
Federal Rules.

This Court will not exert its valuable time and

resources, nor require Defendants to exert their time and
resources, reading, analyzing, and responding to an amended
complaint of this length, particularly after analyzing and
responding to an initial complaint consisting of 285 pages and
1581 paragraphs, which was replete with repetitive statements
this Court had to parse through.
Four Motions to Strike were filed with regard to
Plaintiff’s Amended Complaint.

On April 27, 2018, Defendants

Campbell Soup, Morrison, Barroso, Keller, Duane Morris, and
Wetchler moved to strike Plaintiff’s Amended Complaint in its
entirety.

Similarly, on May 4, 2018, Defendants Task
18

Management, Mohan, Hess, Harrison, Jacques, and MDMC also moved
to strike Plaintiff’s Amended Complaint.

On June 20, 2018,

Defendant Trevor Taniguchi and Defendant Dayne Johnson
separately moved to strike the Amended Complaint.
Federal Rule of Civil Procedure 12(f) provides:
The Court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter. The court may act:
(1)

on its own; or

(2)

on motion made by a party either before responding
to the pleading, or if a response is not allowed,
within 21 days after being served with the
pleading.

The Court will strike the purported Amended Complaint in its
entirety pursuant to Rule 8 and Rule 12(f).
As follows, the Court will dismiss most of Plaintiff’s
claims, but Plaintiff will be permitted to file a motion for
leave to amend his complaint, if he so chooses.

Any proposed

amended complaint must conform to Rule 8 and must take into
account the legal conclusions already made by this Court in this
Opinion and the accompanying Order.

If any proposed amended

complaint is found to violate Rule 8, the Court will not
hesitate to dismiss that complaint too, on motion of any
defendant or sua sponte.
Finally, the Court notes that Plaintiff clearly decided to
amend his complaint in lieu of filing opposition to the various

19

motions to dismiss in the 18-298 matter.

In the interest of

moving this matter forward, the Court will consider the merits
of these motions and of Plaintiff’s claims.

The Court concludes

Plaintiff will not be prejudiced by this course of action, as
Plaintiff is permitted to seek leave to file an amended
complaint to cure the noted deficiencies in his claims.
VII. Defendants’ Motions to Dismiss in the 18-298 Action
A. Rule 12(b)(6) Standard
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).

It is well

settled that 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).

“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do . . . .”

Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (alteration in original)
20

(citations omitted) (first citing Conley v. Gibson, 355 U.S. 41,
47 (1957); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc.,
40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)).
To determine the sufficiency of a complaint, a
court must take three steps.
First, the court must
“tak[e] note of the elements a plaintiff must plead to
state a claim.”
Second, the court should identify
allegations that, “because they are no more than
conclusions, are not entitled to the assumption of
truth.” Third, “whe[n] there are well-pleaded factual
allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an
entitlement for relief.”
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (alterations
in original) (citations omitted) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 664, 675, 679 (2009)).
A district court, in weighing a motion to dismiss, asks
“not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claim.”
Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhoades, 416
U.S. 232, 236 (1974)); see also Iqbal, 556 U.S. at 684 (“Our
decision in Twombly expounded the pleading standard for ‘all
civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final nail in
the coffin for the ‘no set of facts’ standard that applied to
federal complaints before Twombly.”).

“A motion to dismiss

should be granted if the plaintiff is unable to plead ‘enough

21

facts to state a claim to relief that is plausible on its
face.’”

Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at

570).
B. Plaintiff’s Pro Se Status
One of the arguments for dismissal in the 18-298 action is
based on Plaintiff’s pro se status.

It is argued that Plaintiff

is seeking to bring certain claims on behalf of the Kamdem
Group, which Task Management identifies as a New Jersey
corporation and as an “incorporated consulting business.”

Task

Management argues Plaintiff, a non-lawyer, cannot represent the
Kamdem Group in federal court.
The Court recognizes that a corporation must be represented
by a licensed attorney in federal court.

Indeed, “[i]t has been

the law for the better part of two centuries . . . that a
corporation may appear in the federal courts only through
licensed counsel.”

Rowland v. Cal. Men’s Colony, 506 U.S. 194,

201-02 (1993); accord United States v. Cocivera, 104 F.3d 566,
572 (3d Cir. 1996) (“[A] corporation may not be represented by
other than licensed counsel.”); Harrison v. Wahatoyas, 253 F.3d
552, 556 (10th Cir. 2001) (“As a general mater, a corporation or
other business entity can only appear in court through an
attorney and not through a non-attorney corporate officer
appearing pro se.” (citing Flora Constr. Co. v. Fireman’s Fund
Ins. Co., 307 F.2d 413, 414 (10th Cir. 1962))); Cohen v.
22

Birrane, No. 16-893, 2017 WL 2709566, at *1 n.1 (D. Del. June
23, 2017) (“Just as a business entity cannot represent itself in
court, Simbraw, Inc. v. United States, 367 F.2d 373, 373 (3d
Cir. 1966), neither may a shareholder acting on behalf of a
corporate entity.” (quoting Cohen v. Moore, No. 16-661, 2016 WL
7474815, at *2 (W.D. Pa. Dec. 29, 2016))).
However, it is not clear to this Court that the Kamdem
Group is a corporation.

Task Management cites page two of

Plaintiff’s Complaint for its assertion that the Kamdem Group is
a New Jersey corporation.

On page two of his Complaint,

Plaintiff pleads the Kamdem Group is “his sole proprietor
business name.”

(Compl. ¶ 6).

As the Court sees no allegations or evidence indicating
that the Kamdem Group is an incorporated entity, for the purpose
of deciding the pending motions, the Court takes this allegation
of the Kamdem Group’s legal existence as true and considers it
to be an unincorporated sole proprietorship. 11

“[I]t has been

recognized that a sole proprietorship has no legal existence
apart from its owner, and that an individual owner may represent
his sole proprietorship in a pro se capacity.”

RZS Holdings AVV

v. PDVSA Petroleo S.A., 506 F.3d 350, 354 n.4 (4th Cir. 2007);

11

The Court notes that the Task Management Agreement
identifies the Kamdem Group as a corporation. This does not
influence the Court’s decision on this issue at this time.
23

accord Lowery v. Hoffman, 188 F.R.D. 651, 653-54 (M.D. Ala.
1999) (“An individual owner may in general represent a sole
proprietorship, for a sole proprietorship and its owner are
essentially one and the same.”); Stone Harbor Recoveries v.
Fifarek (In re Fifarek), 370 B.R. 754, 758 (Bankr. W.D. Mich.
2007) (“[P]ersons operating a business as a sole proprietorship
need not be represented by an attorney in federal court
proceedings.”).

This Court finds Plaintiff’s pro se status does

not warrant dismissal of any of his claims at this time. 12
The Court further concludes that, through the sole
proprietorship, the claims that belong to the Kamdem Group may
be asserted by Plaintiff.

In Kerwin v. Cage Fury Fighting

Championships, No. 14-5159, 2015 WL 5000994 (E.D. Pa. Aug. 20,
2015), the Eastern District of Pennsylvania determined that a
purported plaintiff, Xtreme Caged Combat, was a sole
proprietorship and “ha[d] no legal existence apart from [the
individual to whom it was registered] and d[id] not have
standing to sue.”

Id. at *1.

Finding the sole proprietorship

was “incapable of bringing suit in its own right,” the court
found that the individual plaintiff, who was already a party,

12

The Court does not at this time reach the question of
whether an incorporated sole proprietorship must be represented
by licensed counsel in federal court.
24

“may assert in his own name the claims made by Xtreme Caged
Combat.”

Id.

The Court will allow similarly here.

C. Choice of Law
“In a federal question case such as this, a district court
entertaining pendant state claims should follow the choice of
law rules of the forum state.”

Talbot v. United States, No. 05-

768, 2005 WL 2917463, at *4 (D.N.J. Oct. 28, 2005); accord
Tantillo v. Citifinancial Retail Servs., No. 12-511, 2013 WL
622147, at *7 n.5 (D.N.J. Feb. 19, 2013).

Accordingly, the

Court will apply New Jersey choice of law rules.

The Court will

apply New Jersey state law to the claims against Campbell Soup
and the individual defendants.

The Task Management Agreement,

however, contains a choice of law provision.
“New Jersey choice-of-law rules provide that ‘[o]rdinarily,
when parties to a contract have agreed to be governed by the
laws of a particular state, New Jersey courts will uphold the
contractual choice.’”

Collins v. Mary Kay, Inc., 874 F.3d 176,

183-84 (3d Cir. 2017) (quoting Instructional Sys., Inc. v.
Comput. Curriculum Corp., 614 A.2d 124, 133 (N.J. 1992)).
Parties’ freedom to choose the law applicable to their
agreements is not without boundaries in New Jersey law.
New Jersey looks to Restatement § 187 to determine under
what circumstances a choice-of-law clause will not be
respected. Specifically, the Restatement provides that
the parties’ contractual choice will not govern if: “(a)
the chosen state has no substantial relationship to the
parties or the transaction and there is no other
reasonable basis for the parties’ choice, or (b)
25

application of the law of the chosen state would be
contrary to a fundamental policy of a state which has a
materially greater interest than the chosen state in the
determination of the particular issue and which . . .
would be the state of the applicable law in the absence
of an effective choice of law by the parties.”
Id. at 184 (quoting Instructional Sys., 614 A.2d at 133).
The Task Management Agreement states: “This Agreement and
the rights of the parties hereunder shall be interpreted in
accordance with the statutes and common law of the State of
Connecticut.”

Finding no reason not to respect this choice of

law provision, the Court will adhere to the choice of law
provision.
As to Task Management, Plaintiff’s breach of contract and
breach of the implied covenant of good faith and fair dealing
claims will be governed by Connecticut law.

Whether Plaintiff’s

statutory claims under New Jersey law can be asserted against
Task Management and what law applies to Plaintiff’s other common
law claims require more analysis.
The Court concludes that Plaintiff’s New Jersey statutory
claims under New Jersey law can proceed against Task Management.
In Nuzzi v. Aupaircare, Inc., 341 F. App’x 850 (3d Cir. 2009),
the Third Circuit considered whether a choice of law provision
barred certain New Jersey statutory claims.

The choice of law

provision stated: “This Agreement shall be governed and
construed in accordance with the laws of the State of California

26

. . . .”

Id. at 851.

The plaintiff argued the provision should

not apply to her New Jersey statutory tort claims because the
provision applied only to the contract claims arising out of the
agreement.

Id. at 852.

The Third Circuit relied on Garfinkel v. Morristown
Obstetrics & Gynecology Associates, P.A., 773 A.2d 665 (N.J.
2001) in determining that the choice of law provision did not
include the plaintiff’s statutory claims.

Id. at 852-53.

In Garfinkel, the Court decided that a mandatory
arbitration clause in an employment contract, which
stated that the employee agreed to arbitrate “any
controversy or claim arising out of, or relating to,
this Agreement or the breach thereof” did not include
the employee’s claims under the NJLAD. In so finding,
the Court explained that the provision “suggests that
the parties intended to arbitrate only those disputes
involving a contract term, a condition of employment, or
some other element of the contract itself” rather than
the employee’s statutory claim.
Perhaps more importantly, the Court also stated
that “the policies that support the [NJ]LAD and the
rights it confers on aggrieved employees are essential
to eradicating discrimination in the workplace,” and
that New Jersey courts should “not assume that employees
intend to waive [their rights under the NJLAD] unless
their agreements so provide in unambiguous terms.”
A
waiver of statutory claims requires that an employee “at
least . . . agree[] to arbitrate all statutory claims
arising out of the employment relationship or its
termination” and “reflect the employee’s general
understanding of the type of claims included in the
waiver, e.g., workplace discrimination claims.”
Id. at 852 (alterations in original) (quoting Garfinkel, 773
A.2d at 688, 672).

27

The Third Circuit concluded that the choice of law
provision was “not broad enough to encompass her statutory
claims under the NJLAD or NJFLA, and thus the choice of law
clause should not apply to them.”

Id. at 852-53.

The Third

Circuit “assume[d] that New Jersey would follow the Garfinkel
rationale in the choice of law context as well as the
arbitration context, and require an employee to waive her
statutory rights unambiguously in order to enforce a choice of
law provision against her.”

Id. at 853.

The District of New Jersey has concluded similarly since
the Nuzzi decision.

In Carrow v. Fedex Ground Package Systems,

Inc., No. 16-3026, 2017 WL 1217119 (D.N.J. Mar. 30, 2017), the
court considered the scope of a choice of law provision
providing that the contract would be “governed by and construed
in accordance with” Pennsylvania law.

Id. at *3.

The court

applied Pennsylvania law to a breach of the covenant of good
faith and fair dealing claim.

Id.

However, the plaintiff also

brought two statutory causes of action under New Jersey law.
Id. at *1.

The court recognized that “[t]he Third Circuit has

hesitated to construe a plaintiff’s assent to a choice of law
provision to constitute waiver of the right to pursue statutory
claims.”

Id. at *5.

proceed.

The Court allowed the statutory claims to

Id.

28

Similarly, an agreement in A. & M. Wholesale Hardware Co.
v. Circor Instrumentation Technologies, Inc., No. 13-475, 2014
WL 714938 (D.N.J. Feb. 24, 2014) similarly considered this
issue.

There, the choice of law provision provided that the

agreement was “to be governed and construed according to the
laws of the State of New York.”

Id. at *3.

The court found

“the choice of law provision [was] not sufficiently broad to
preclude [the] statutory claims.”

Id. at *4.

The Court will

follow these well-reasoned opinions and will consider the New
Jersey statutory claims as asserted against Task Management.
As to Plaintiff’s common law claims, the Court concludes
that all claims between Plaintiff and Task Management arising
from their relationship under the Task Management Agreement will
be governed by Connecticut law.

The choice of law provision

states “[t]his Agreement and the rights of the parties
hereunder,” (emphasis added), are to be interpreted in
accordance with Connecticut law.

The Court finds this to be a

broad choice of law provision, intended to cover not only the
interpretation of the contract itself and any breach of contract
claims, but also other common law claims that may arise between
the parties.
The choice of law provision in this case can be contrasted
with the choice of law provision in Black Box Corp. v. Markham,
127 F. App’x 22 (3d Cir. 2005), which stated that the agreement
29

“will be governed by, and construed and enforced in accordance
with, the laws of the Commonwealth of Pennsylvania.”
n.1.

Id. at 23

The Third Circuit found this was “narrowly drafted to

encompass only the underlying merger agreement itself, and not
necessarily the entire relationship between [the parties].”
at 25.

Id.

Similarly, the court in Board of Education of Cherry

Hill v. Human Resources Microsystems, Inc., No. 09-5766, 2010 WL
3882498 (D.N.J. Sept. 28, 2010) found a choice of law provision
using the phrase “governed by” referred “only to the law
governing the Agreement.”

Id. at *4.

The court reasoned that,

“[g]enerally, when a choice-of-law provision is intended to
apply not only to interpretation and enforcement of the contract
but also to any claims related to the contract, the language
used is broader.”

Id.

The language in this case, stating that

the agreement as well as “the rights of the parties” is
sufficiently broad, and clearly intended to encompass more than
just the law governing the Task Management Agreement.

All

common law claims against Task Management will be assessed
pursuant to Connecticut law.
D. Plaintiff’s Claims Against Bernard Jacques, McElroy,
Deutsch, Mulvaney & Carpenter, Jonathan Wetchler, and Duane
Morris
Under the litigation privilege, the Court concludes that
the claims asserted against Jacques, MDMC, Wetchler, and Duane
Morris (the “Law Defendants”) will be dismissed with prejudice.
30

“New Jersey’s litigation privilege applies to ‘any communication
(1) made in judicial or quasi-judicial proceedings; (2) by
litigants or other participants authorized by law; (3) to
achieve the objects of the litigation; and (4) that have some
connection or logical relation to the action.’”

Allen v.

LaSalle Bank, 629 F.3d 364, 369 (3d Cir. 2011) (quoting Hawkins
v. Harris, 661 A.2d 284, 289 (N.J. 1995)).
Plaintiff appears to assert Counts 11 through 15 against
the Law Defendants.

These counts bring claims for negligence,

defamation, wrongful termination, intentional infliction of
emotional distress, and tortious interference with contract and
economic opportunities.

It also appears Plaintiff asserts NJLAD

claims against the Law Defendants.

“In New Jersey, the

litigation privilege protects attorneys not only from defamation
actions, but also from a host of other tort-related claims.”
Giles v. Phelan, Hallinan & Schmieg, L.L.P., 901 F. Supp. 2d
509, 523 (D.N.J. 2012) (quoting Loigman v. Twp. Comm. of the
Twp. of Middletown, 889 A.2d 426, 436 (N.J. 2006)).
“Consequently, New Jersey courts have applied the litigation
privilege to intentional and negligent infliction of emotional
distress, material misrepresentation, and negligent
misrepresentation, fraud, and malicious interference with
prospective economic advantage.”

Id. at 524 (first citing

Rabinowitz v. Wahrenberger, 966 A.2d 1091, 1096 (N.J. Super. Ct.
31

App. Div. 2009); then citing Commercial Ins. Co. of Newark v.
Steiger, 928 A.2d 126, 131-32 (N.J. Super. Ct. App. Div. 2007);
and then citing Ruberton v. Gabage, 654 A.2d 1002 (1995));
accord Giles, 901 F. Supp. 2d at 545 (finding a defendant to an
NJLAD claim could invoke the litigation privilege (citing
Peterson v. Ballard, 679 A.2d 657 (N.J. Super. Ct. App. Div.
1996))); Rickenbach v. Wells Fargo Bank, N.A., 635 F. Supp. 2d
389, 402 (D.N.J. 2009) (“[T]he litigation privilege may be
applied to tort claims of negligence and the breach of a duty of
good faith and fair dealing.”); Thomason v. Norman E. Lehrer,
P.C., 183 F.R.D. 161, 169 (D.N.J. 1998) (intentional infliction
of emotional distress).

The Court finds all claims against

these defendants are subject to the litigation privilege.

See

generally Giles, 901 F. Supp. 2d at 524 (“[I]t appears under New
Jersey law that the only state law claim from which defendants
expressly cannot seek protection through the litigation
privilege is malicious prosecution.

Essentially, the New Jersey

Supreme Court has emphasized that the litigation privilege is
intended to be broadly applicable, particularly when statutes do
not specifically abrogate it.” (citation omitted) (citing
Loigman, 889 A.2d at 436 n.4)).
The Court considers the nature of the allegations made
against the various attorneys and law firms in this matter.

The

Court first considers those allegations made against Jacques and
32

MDMC.

Plaintiff pleads that Jacques is a legal representative

for Task Management.

(Compl. ¶ 240).

The Complaint references

an October 6, 2017 letter from Jacques.

(Compl. ¶ 246).

Plaintiff also references an e-mail sent by Jacques, which this
Court believes to be the e-mail sending the October 6, 2017
letter, which states it was provided via e-mail.
713, 839, 949, 1048).

(Compl. ¶¶

Plaintiff alleges Jacques sent him

“distressing e-mail communications threatening Plaintiff of
criminal prosecution under the criminal laws of the State of
Connecticut.”

(Compl. ¶¶ 713, 839, 949, 1048).

Plaintiff

alleges Jacques “and other legal representatives” researched
incriminating information on him online.

(Compl. ¶ 669).

Plaintiff pleads he “felt threatened and intimidated by” this.
(Compl. ¶ 675).
Plaintiff pleads Jacques “initiated private citizen
criminal prosecution” of Plaintiff in Connecticut.
¶ 665).

(Compl.

Plaintiff further pleads Jacques told Plaintiff that

“he and the defendants wanted to send Plaintiff for psychiatry
treatment.”

(Compl. ¶ 667).

Plaintiff also makes various

conclusory allegations that Jacques and MDMC aided and abetted
in the alleged retaliation against him.

(Compl. ¶ 250).

The Court has reviewed the referenced October 6, 2017
letter, which appears to largely be the basis for Plaintiff’s

33

claims against Jacques and MDMC. 13

The letter begins by

referencing Plaintiff’s communications with Task Management.
Jacques stated that Plaintiff’s conduct was “intentionally set
out to ‘harass, annoy or alarm’ Task, its employees and its
client.”

Jacques referenced the Connecticut Criminal Code and

stated: “The commission of a Class C misdemeanor in Connecticut
can result in imprisonment up to three months and a fine.

Also,

a person found to have violated that harassment statute can be
ordered to be examined by a psychiatrist.”

Jacques also noted

civil liability that could result from Plaintiff’s actions.

The

letter concluded as follows:
Task has also learned that you have bombarded
Campbell Soup with emails. It is Task’s understanding
that Campbell Soup may initiate its own action against
you.
However, you should know that you contacting
Campbell Soup is in violation of your written agreement
with Task. Task is prepared to seek damages for your
breach of the agreement, as well as injunctive relief.
I understand that you have filed an action in the
United States District Court for the State of New Jersey
against Task alleging various constitutional violations.
Task will respond to those allegations in accordance
with the Federal Rules of Civil Procedure.
Although Task has blocked all emails from you to
reduce the distraction and disturbance you seek, it has
made arrangements to capture those emails to be used as
evidence. So you should know that Task can and will use
your recent harassing conduct in questioning your
13

“In deciding motions to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6), courts generally consider only the
allegations in the complaint, exhibits attached to the
complaint, matters of public record, and documents that form the
basis of a claim.” Lum v. Bank of Am., 361 F.3d 217, 221 n.3
(3d Cir. 2004). These letters clearly form the basis of
Plaintiff’s claims against these defendants.
34

credibility in your lawsuit. You should also know that
the court could review your conduct and, as an
appropriate remedy, dismiss your lawsuit or limit the
evidence that you may introduce.
If you do not cease your harassing conduct directed
at Task, its employees and its client, Campbell’s Soup,
and any of its staff, Task will take all legal avenues
available to it to seek proper redress. Task will not
provide you with any further notice of its intended legal
actions.
The Court finds this communication protected by the litigation
privilege.

First, as to whether the communication was made in

judicial or quasi-judicial proceedings, the Court notes that
“[t]he litigation privilege is not limited to statements made in
a courtroom during a trial; ‘it extends to all statements or
communications in connection with the judicial proceeding.’”
Hawkins, 661 A.2d at 289 (quoting Ruberton, 654 A.2d 1002).
“The protection extends to pre-lawsuit communications about
threatened or contemplated action,” including pre-litigation
demand letters.

Id.

The Court finds the October 6, 2017 letter

to be a mix between a pre-litigation demand letter and a letter
made in connection with the pending 17-7506 action.

On the

whole the Court finds the letter to be made in a “judicial or
quasi-judicial proceeding” or in anticipation of such
proceedings.
As an attorney on behalf of Task Management, Jacques and
MDMC are clearly participants in such proceedings.

See

DeNicholas v. Centene Corp., No. 17-924, 2017 WL 7542616, at *2

35

(D.N.J. Oct. 20, 2017) (“Statements made by lawyers, judges,
witnesses, and parties fall within the privilege’s absolute
protection.”).

The Court further finds the letter seeks to

achieve the objects of litigation and has a logical relation to
the action, both the 17-7506 action and the potential action for
breach of contract and relating to Plaintiff’s alleged
harassment.

See generally Thomason v. Norman E. Lehrer, P.C.,

183 F.R.D. 161, 167 (D.N.J. 1998) (“New Jersey courts have found
defamatory, even threatening statements by attorneys, and others
only tangentially associated with the litigation, to have
litigation as their objective.”).
The Court finds this to be the case even in light of what
appears to be threatened criminal action against Plaintiff.
the context of applying the litigation privilege to comments
made in a settlement conference, the New Jersey Appellate
Division stated:
[D]uring such conferences an attorney must be free to
advance the strengths of his or her client’s case in a
candid and objective way, unfettered by the fear that
the attorney may be the subject of a tort action, whether
sounding in defamation or any other “action under a
different label.” Indeed, during the conference counsel
may well report that investigation has disclosed the
fact that the adverse party had committed wrongdoings.
Such disclosure by counsel may be in support of a defense
to the adverse party’s affirmative action, or may tend
to minimize that party’s damage claim.
If these
wrongdoings are undeniably criminal in nature, counsel
should not be gagged from commenting on them by fear of
civil suit.

36

In

Ruberton, 654 A.2d at 1007 (citation omitted) (quoting Rainer’s
Dairies v. Raritan Valley Farms, Inc., 117 A.2d 889, 895 (N.J.
1955)).

The litigation privilege will apply to all claims

asserted against Jacques and MDMC.
The Court next considers those allegations made against
Wetchler and Duane Morris.

Plaintiff pleads Wetchler, a legal

representative for Campbell Soup, wrote a letter to Plaintiff on
November 15, 2017 to inform him that his role at Campbell Soup
had been filled in October 2017.

(Compl. ¶¶ 27, 230, 739).

Plaintiff argues this information “contradicted the fact that
Campbell’s Soup Company had retained and paid an executive
search firm to look for a person with Plaintiff’s skill set.”
(Compl. ¶¶ 191, 232).

Plaintiff pleads Wetchler “helped and

encouraged” Campbell Soup and Task Management “to lie and coverup forbidden unlawful employment practices against Plaintiff.”
(Compl. ¶ 235).

As with Jacques and MDMC, Plaintiff also makes

conclusory allegations that Wetchler and Duane Morris aided and
abetted in the alleged retaliation against him.

(Compl. ¶¶ 236-

69).
Wetchler’s November 15, 2017 letter, which this Court has
reviewed, informed Plaintiff “that the temporary role that [he]
performed at Campbell’s Soup Company was filled in October.”
also referenced Plaintiff’s Complaint in the 17-7506 action,

It

stating “Campbell Soup Company unequivocally denies that [his]
37

work ended because of any Title VII or other employment
discrimination charge” and that “Campbell Soup Company is not a
party to [the] contract with Task Management.”
The Court finds the litigation privilege applicable here as
well.

Wetchler references the 17-7506 action and represents

Campbell Soup, at one point a party to the 17-7506 action and,
even when Plaintiff amended his complaint to remove Campbell
Soup, Campbell Soup was required to participate by Court Order.
The letter was clearly both logically related to the 17-7506
action and sought to achieve the objects of that litigation for
Campbell Soup – disclaiming any Title VII liability.
As to all the Law Defendants, the Court further finds any
claims of aiding and abetting or encouraging other Defendants to
lie or coverup unlawful employment practices, even if
sufficiently pleaded, must fail under the litigation privilege.
See, e.g., Allia v. Target Corp., No. 07-4130, 2008 WL 1732964,
at *8-9 (D.N.J. Apr. 10, 2008) (“To allow defendants to be
liable for communications made within the course of their
representation of their client in a judicial proceeding would
defeat the ‘unfettered expression’ that is critical to the
administration of justice.”).

The Law Defendants will be

dismissed as parties from this action.

38

E. Plaintiff’s Claims
1. Title VII
42 U.S.C. § 2000e-3(a) provides:
Discrimination
for
making
charges,
testifying,
assisting, or participating in enforcement proceedings.
It shall be an unlawful employment practice for an
employer to discriminate against any of his employees or
applicants for employment[ or] for an employment agency
. . . to discriminate against any individual . . .
because he has opposed any practice made an unlawful
employment practice by this title, or because he has
made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing
under this title.
Plaintiff alleges Title VII violations against both Campbell
Soup and Task Management.

The Court interprets Plaintiff’s

claims to be two Title VII retaliation claims: one for his
termination (Count 1) and the other for discrimination against
him as an applicant after his termination (Count 2).
“To establish a prima facie case of retaliation under Title
VII . . . , a plaintiff must produce ‘evidence that: (1) she
engaged in activity protected by Title VII; (2) the employer
took an adverse employment action against her; and (3) there was
a causal connection between her participation in the protected
activity and the adverse employment action.’”

Tourtellotte v.

Eli Lily & Co., 636 F. App’x 831, 852 (3d Cir. 2016) (quoting
Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir.
2006)).

39

a. Title VII Claims Against Campbell Soup
The Court will dismiss Plaintiff’s Title VII claims against
Campbell Soup.

The Court first considers whether Campbell Soup

is considered an employer under Title VII.

“In determining

whether an entity is an ‘employer’ for purposes of Title VII,
[the Third Circuit] consider[s] the factors articulated in
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24
(1992).”
2014).

Plaso v. IJKG, LLC, 553 F. App’x 199, 203-04 (3d Cir.
“The essence of the Darden test is whether the hiring

party has the ‘right to control the manner and means by which
the product is accomplished.’”
U.S. at 323).

Id. at 204 (quoting Darden, 503

The Third Circuit “ha[s] held that courts

applying Darden may focus on three indicia of control: (1) which
entity paid plaintiff; (2) who hired and fired plaintiff; and
(3) who ‘had control over [plaintiff’s] daily employment
activities.’”

Id. (second alteration in original) (quoting

Covington v. Int’l Ass’n of Approved Basketball Officials, 710
F.3d 114, 119 (3d Cir. 2013)).
The court may consider the following non-exhaustive list
of factors: (1) “the skill required”; (2) “the source of
the instrumentalities and tools”; (3) “the location of
the work”; (4) “the duration of the relationship between
the parties”; (5) “whether the hiring party has the right
to assign additional projects to the hired party”; (6)
“the extent of the hired party’s discretion over when
and how long to work”; (7) “the method of payment”; (8)
“the
hired
party’s
role
in
hiring
and
paying
assistants”; (9) “whether the work is part of the regular
business of the hiring party”; (10) “whether the hiring
40

party is in business”; (11) “the provision of employee
benefits”; and (12) “the tax treatment of the hired
party.”
Id. at 204 n.3 (quoting Darden, 503 U.S. at 323-24).

The Third

Circuit has approved of a district court “engag[ing] in a
detailed, considered discussion of the three Covington indicia”
without detailed analysis of the twelve-factor Darden test.
at 204.

Id.

“However, ‘[s]ince the common-law test contains “no

shorthand formula or magic phrase that can be applied to find
the answer, . . . all of the incidents of the relationship must
be assessed and weighed with no one factor being decisive.”’”
Fausch v. Tuesday Morning, Inc., 808 F.3d 208, 214 (3d Cir.
2015) (alterations in original) (quoting Darden, 503 U.S. at
324). 14
The Court looks to the three Covington indicia first.
Campbell Soup was not the entity paying Plaintiff.

Rather, the

Task Management Agreement provided that Task Management would
pay Plaintiff “at a rate of $73.00 per hour for every hour
approved by [Campbell Soup].”

It further provided, however,

that Task Management was “only obligated to pay [Plaintiff] for
those hours that are approved by [Campbell Soup].”

14

Thus, while

The statutory guidance on this issue is virtually
nonexistent. 42 U.S.C. § 2000e(f) states: “The term ‘employee’
means an individual employed by an employer . . . .” The
definition is one of “magnificent circularity.” Broussard v.
L.H. Bossier, Inc., 789 F.2d 1158, 1160 (5th Cir. 1986).
41

payment came from Task Management, Campbell Soup’s approval of
Plaintiff’s hours certainly played a role in the process.

While

it appears from Plaintiff’s Complaint that it was Task
Management who hired and ultimately fired Plaintiff, Plaintiff
did interview with Campbell Soup on its request before obtaining
the position.

More importantly, the Task Management Agreement

gave Campbell Soup the authority to terminate the agreement,
effectively firing Plaintiff.

Further, it is clear to the Court

that Plaintiff’s allegations show Campbell Soup controlled
Plaintiff’s daily employment activities.

Plaintiff was given

his assignments from Campbell Soup employees, (Compl. ¶ 438),
and he had various supervisors at Campbell Soup.
152).

(Compl. ¶¶ 72,

His various proposals on the projects were submitted to

his supervisors.

(Compl. ¶ 457).

Considering the more exhaustive twelve-factor test, the
Court discerns the following relevant facts from Plaintiff’s
Complaint.

As to the location of the work (factor two),

Plaintiff worked at a Campbell Soup facility in Camden, New
Jersey.

(Compl. ¶ 437).

As to the source of the

instrumentalities and tools (factor three), Campbell Soup
provided him with a work laptop, an office space, an e-mail
address, and an electronic access key.

(Compl. ¶ 443).

Keller

further informed Plaintiff he was attempting to obtain a company
credit card for Plaintiff to assist with travel connected to his
42

projects.

(Compl. ¶ 495).

As to whether Campbell Soup had the

right to assign additional projects to Plaintiff (factor five),
Plaintiff pleads he was informed by Keller “that there were
additional Projects to be assigned to Kamdem Group.”
¶ 900).

(Compl.

As the Court previously indicated, Plaintiff also

pleads involvement of Campbell Soup in the payment process
(factor seven).

As to whether the work was part of Campbell

Soup’s regular business (factor nine), Plaintiff pleads the
Flavor Technology unit is “vital for the Company product lines”
and is therefore likely part of the regular business of Campbell
Soup.

(Compl. ¶ 463).

Plaintiff’s work was also integrated

with other Campbell Soup employees.

(Compl. ¶¶ 460-62).

While the Court notes a lack of information as to some
other factors (factors eleven and twelve, for instance), and
while the Court notes the duration of the relationship weighs
against finding an employment relationship (factor four), the
Court finds Plaintiff’s allegations, together with the
information provided in the Task Management Agreement, are
sufficient to find Campbell Soup is an employer under Title VII
at this stage of the litigation, where this Court is constrained
to accept Plaintiff’s factual allegations as true and make all
reasonable inferences in favor of Plaintiff.
Despite this finding, the Court finds Plaintiff has failed
to plead a causal connection as to Campbell Soup on either of
43

his Title VII theories.

Plaintiff has not shown Campbell Soup

was aware of any prior Title VII lawsuit, that Campbell Soup
played a part in his termination, or that Campbell Soup’s
decision not to rehire him was in any way related to any
protected conduct.

Plaintiff’s Title VII claim against Campbell

Soup will be dismissed.
b. Title VII Claims Against Task Management
The Court finds sufficient evidence that Task Management
constitutes an employment agency at this stage.

Task

Management’s briefing is dedicated to objecting to a finding
that Task Management is Plaintiff’s employer.

However, it is

clear to this Court that Plaintiff is resting his Title VII
claims against Task Management in its capacity as an employment
agency.

(Compl. ¶ 49 (“Task Management is an ‘Employment

Agency’ as defined in 42 U.S.C. § 2000e-(c).”)).
42 U.S.C. § 2000e states: “The term ‘employment agency’
means any person regularly undertaking with or without
compensation to procure employees for an employer or to procure
for employees opportunities to work for an employer and includes
an agent of such a person.”

“[T]he definition of ‘employment

agency’ . . . ‘require[s] that, in order to be an “employment
agency,” the entity must regularly do business with an
“employer,” and the term “employer” as used in the definition of
“employment agency” is limited to those employers that fall
44

within the definition of “employer.”’”

Kemether v. Pa.

Interscholastic Ath. Ass’n, 15 F. Supp. 2d 740, 763 (E.D. Pa.
1998) (quoting Jones v. Se. Ala. Baseball Umpires Ass’n, 864 F.
Supp. 1135, 1138 (M.D. Ala. 1994)).
The Task Management Agreement states that Task Management
“serves as a broker between individuals, companies and
corporations seeking individuals, companies and corporations
with various computer skills and individuals, companies and
corporations with those skills.”

Its “Privacy Policy” further

states: “Task Management . . . is in the business of permanent
and temporary placement and recruitment of information
technology specialists.”

It is clear from the Task Management

Agreement that Campbell Soup, an employer under Title VII, is a
client of Task Management.

This is sufficient at this stage for

the Court to find Task Management regularly does business with
an employer.

Accordingly, the Court finds Task Management is an

employment agency as defined by Title VII.
The Court finds Plaintiff has sufficiently pleaded a Title
VII claim based on his termination.

Plaintiff has proffered

sufficient allegations of participation in protected activities.
Plaintiff pleads he has “sued some former employers on protected
grounds.”

(Compl. ¶ 609).

He specifically pleads he has “sued

his previous employer under Title VII of Civil Rights Act” in
the Southern District of New York.
45

(Compl. ¶ 1228).

He states

this lawsuit was based on discrimination against him for his
religious practices.

(Compl. ¶ 362).

The Court finds at the

motion to dismiss stage that this allegation is sufficient to
show a protected activity. 15

Plaintiff has further sufficiently

pleaded an adverse employment action.

It is axiomatic that

termination constitutes an adverse employment action.

Finally,

Plaintiff sufficiently pleads a causal connection as to Task
Management in alleging that Corie Hess explicitly told him the
reason he was terminated was because of his previous lawsuits.
(Compl. ¶ 34). 16
On his not being rehired, however, on September 8, 2017,
Plaintiff ceased to be represented by Task Management for job
postings for Campbell Soup, upon Plaintiff’s prompting.
¶¶ 546-47).

(Compl.

Thus, Plaintiff not being rehired for a position at

15

Plaintiff’s retaliation claim stemming from his termination
has its basis in proceedings with former employers, not Task
Management or Campbell Soup. However, “Title VII prohibits an
employer from retaliating against an employee for participating
in a separate Title VII proceeding against a previous employer.”
Chatterjee v. Mathematics, Civics & Sciences Charter Sch., No.
01-5626, 2008 WL 2929061, at *10 n.20 (E.D. Pa. July 30, 2008)
(citing Second Circuit, Seventh Circuit, and Ninth Circuit
precedent).
16

The Court notes that Plaintiff also pleads additional
lawsuits that do not appear to have been brought based on a
Title VII unlawful employment practice. However, at the motion
to dismiss stage, the Court finds Plaintiff has sufficiently
pleaded a causal connection to his termination in his pleading
of a previous Title VII suit and Hess’s communication that his
termination was related to at least one of his previous
lawsuits, even if the lawsuits were not specifically identified.
46

Campbell Soup lacks a causal connection to Task Management.

The

Court will allow Plaintiff’s Title VII claim to proceed against
Task Management based solely on his termination.

His Title VII

claims will otherwise be dismissed.
2. NJLAD
The Court finds Plaintiff has failed to sufficiently plead
a cause of action under the NJLAD against all defendants except
Task Management.

The NJLAD provides:

It shall be an unlawful employment practice, or, as the
case may be, an unlawful discrimination . . . [f]or any
person to take reprisals against any person because that
person has opposed any practices or acts forbidden under
this act because that person has filed a complaint,
testified or assisted in any proceeding under this act
or to coerce, intimidate, threaten or interfere with any
person in the exercise of enjoyment of, or on account of
that person having aided or encouraged any other person
in the exercise or enjoyment of, any right granted or
protected by this act.
N.J.S.A. 10:5-12(d).

“[T]o establish a prima facie case of

discriminatory retaliation, plaintiffs must demonstrate that:
(1) they engaged in a protected activity known by the
[defendant]; (2) thereafter their employer unlawfully retaliated
against them; and (3) their participation in the protected
activity caused the retaliation.”

Tartaglia v. UBS PaineWebber,

Inc., 961 A.2d 1167, 1193 (N.J. 2008) (quoting Craig v. Suburban
Cablevision, Inc., 660 A.2d 505, 508 (N.J. 1995)).
The NJLAD also imposes liability for aiding and abetting in
unlawful discrimination practices.
47

N.J.S.A. 10:5-12(e) states:

“It shall be an unlawful employment practice, or, as the case
may be, an unlawful discrimination . . . [f]or any person,
whether an employer or an employee or not, to aid, abet, incite,
compel or coerce the doing of any of the acts forbidden under
this act, or to attempt to do so.”

There are three elements for

an NJLAD aiding and abetting claim:
(1) the party whom the defendant aids must perform a
wrongful act that causes an injury; (2) the defendant
must be generally aware of his role as part of an overall
illegal or tortious activity at the time that he provides
the assistance; [and] (3) the defendant must knowingly
and substantially assist the principal violation.
Bobo v. Wildwood Pub. Sch. Bd. of Educ., No. 13-5007, 2014 WL
7339461, at *16 (D.N.J. Dec. 23, 2014) (quoting Hurley v. Atl.
City Police Dep’t, 174 F.3d 95, 126 (3d Cir. 1999)).
Plaintiff appears to assert his NJLAD claims against all
Defendants.

Unlike N.J.S.A. 10:5-12(a)-(c), which are

applicable only to employers (subsection a), labor organizations
(subsection b), and employers or employment agencies (subsection
c), N.J.S.A. 10:5-12(d) applies broadly to “persons,” as does
the aiding and abetting provision in N.J.S.A. 10:5-12(e).
“Person” is defined in N.J.S.A. 10:5-5(a) as “one or more
individuals, partnerships, associations, organizations, labor
organizations, corporations, legal representatives, trustees,
trustees in bankruptcy, receivers, and fiduciaries.”
defendants in this case qualify as “persons.”

48

All

See Hargrave v.

County of Atlantic, 262 F. Supp. 2d 393, 436 (D.N.J. 2003)
(providing that both N.J.S.A. 10:5-12(d) and N.J.S.A. 10:5-12(e)
“expressly contemplate direct liability for individual
supervisory employees”). All are therefore subject to N.J.S.A.
10:5-12(d) and (e).
For the same reason the Court will dismiss Plaintiff’s
Title VII claim against Campbell Soup, the Court will also
dismiss Plaintiff’s NJLAD claim against Campbell Soup.

As to

Task Management, the Court will allow Plaintiff’s NJLAD claim to
proceed, again solely based on his termination. 17

As to the

individual defendants, the Court finds Plaintiff’s pleadings
wholly inadequate.

Plaintiff largely makes the same allegations

as to each defendant.
and conclusory.

His allegations are broad, unspecific,

A statement that an individual supported a

decision and a vague statement that an individual lied or helped
coverup an unlawful employment practice is insufficient to plead
a claim under the NJLAD.

The Court will dismiss Plaintiff’s

NJLAD claims against all defendants other than Task Management.

17

With regard to Plaintiff’s Title VII claim, The Court found
Plaintiff sufficiently pleaded protected activity in stating he
had sued a previous employer under Title VII based on religious
discrimination. While Plaintiff does not plead that any of his
previous lawsuits were based on NJLAD violations, the NJLAD also
proscribes religious discrimination. The Court finds
Plaintiff’s allegations of protected conduct sufficient to
withstand this motion to dismiss.
49

3. NJCEPA
The Court will dismiss Plaintiff’s cause of action under
NJCEPA, as the Court finds this is not a whistleblower case.

“A

plaintiff asserting a CEPA violation must show: (1) a reasonable
belief that her employer’s conduct violated a law, rule, or
regulation; (2) a whistle-blowing activity; (3) an adverse
employment action; and (4) a causal connection between her
whistle-blowing activity and the adverse employment action.”
Smith v. Township of East Greenwich, 519 F. Supp. 2d 493, 510
(D.N.J. 2007).

While Plaintiff asserts a claim under the

NJCEPA, it is clear to this Court that this is not a
whistleblower case.

Rather, Plaintiff is (1) alleging

retaliation based on complaints filed regarding other employers
and (2) alleging retaliation, after his termination, based on a
complaint regarding these employers, alleging failure to rehire.
“[R]etaliatory action . . . [is] a required CEPA element.”
Kanafani v. Lucent Techs. Inc., No. 07-11, 2009 WL 3055363, at
*12 (D.N.J. Sept. 18, 2009).

Importantly, a plaintiff alleging

an NJCEPA violation must show “a reasonable belief that her
employer’s conduct violated a law, rule, or regulation.”
519 F. Supp. 2d at 510.

Smith,

Plaintiff’s claim arising from his

termination is based on complaints filed regarding other
employers and does not fall within the NJCEPA’s confines.
Further, “[a] retaliatory action is defined as ‘the discharge,
50

suspension or demotion of an employee, or other adverse
employment action taken against an employee in the terms and
conditions of employment.’”

Id. (quoting N.J.S.A. 34:19-2(e)).

“Therefore, actions taken after an employee’s termination cannot
support a CEPA claim.”

Id. (citing Beck v. Tribert, 711 A.2d

951, 955-56 (N.J. Super. Ct. App. Div. 1995)); accord Beck, 711
A.2d at 956 (“[T]he Legislature intended to include under CEPA
only adverse employment actions that are taken against an
employee while he or she is still an employee, and not after
termination.”).

Consequently, Plaintiff’s claims arising from

his not being rehired also do not fall within the confines of
the NJCEPA. 18

18

The Court notes that it will not apply the NJCEPA’s waiver
provision to bar any of Plaintiff’s other claims, despite
Plaintiff’s inclusion of a cause of action under the NJCEPA.
The NJCEPA’s waiver provision states:
Nothing in this act shall be deemed to diminish the
rights, privileges, or remedies of any employee under
any other federal or State law or regulation or under
any collective bargaining agreement or employment
contract; except that the institution of an action in
accordance with this act shall be deemed a waiver of the
rights and remedies available under any other contract,
collective bargaining agreement, State law, rules or
regulation or under the common law.
(emphasis added).
“[T]he waiver provision applies only to those causes of
action that require a finding of retaliatory conduct that is
actionable under CEPA.” Young v. Schering Corp., 660 A.2d 1153,
1160 (N.J. 1995). The Court recognizes that “[t]he waiver
provision applies to claims upon the institution of a CEPA
claim, therefore a claim will not be saved merely because a
51

4. Breach of Contract and the Implied Covenant of Good Faith
and Fair Dealing
The Court next considers Plaintiff’s breach of contract
claim, asserted against both Campbell Soup and Task Management.
The only agreement Plaintiff references to which he is a party
is the Task Management Agreement.

It appears Plaintiff is

resting the breach of contract claim against Campbell Soup on
its position as an apparent “beneficiary” of the contract.
However, Campbell Soup remains a nonparty to that contract, and
it is axiomatic that one cannot breach a contract he is not a
party to.

The breach of contract claim against Campbell Soup

must be dismissed, as must the claim of breach of the implied
covenant of good faith and fair dealing.

See, e.g., Noye v.

Hoffmann-La Roche Inc., 570 A.2d 12, 14 (N.J. Super. Ct. App.
Div. 1990) (“In the absence of a contract, there can be no
breach of an implied covenant of good faith and fair dealing.”

court dismisses the underlying CEPA claim.” Espinosa v. County
of Union, No. 01-3655, 2005 WL 2089916, at *11 (D.N.J. Aug. 30,
2005); accord Lynch v. New Deal Delivery Serv., 974 F. Supp.
441, 456 (D.N.J. 1997) (“[B]ecause it is the institution of the
CEPA claim that triggers the waiver provision, Lynch’s claim of
intentional infliction of emotional distress would not be saved
by this Court’s dismissal of the underlying CEPA action for
failure to comply with the statute of limitations.” (citing
Flaherty v. The Enclave, 605 A.2d 301 (N.J. Super. Ct. Law Div.
1992))). However, the Court finds the NJCEPA wholly
inapplicable, no matter how well-pleaded by Plaintiff. See
generally Young, 660 A.2d at 1159 (“The internal structure of
the waiver provision . . . supports its narrow application.”).
The Court will not apply NJCEPA’s waiver provision here.
52

(citing McQuitty v. Gen. Dynamics Corp., 499 A.2d 526, 529 (N.J.
Super. Ct. App. Div. 1985); Brunner v. Abex Corp., 661 F. Supp.
1351, 1356 (D.N.J. 1986))).
The breach of contract claim against Task Management will
also be dismissed.

Under Connecticut law, “[t]he elements of a

breach of contract claim are the formation of an agreement,
performance by one party, breach of the agreement by the other
party, and damages.”

Meyers v. Livingston, Adler, Pulda,

Meiklejohn & Kelly, P.C., 87 A.3d 534, 540 (Conn. 2014).
The “Termination” provision of the Task Management
Agreement, Section 2.03, states:
Termination of this Agreement will occur at the earliest
of the following events.
A.

The completion of the Assignment, that is the
project assigned to the Consultant, or

B.

at the election of the Company or the Client,
or the Consultant.

(emphasis added).

The Task Management Agreement clearly

provides that it could be terminated by either party, or by
Campbell Soup, for any reason.

The Court will dismiss

Plaintiff’s breach of contract claim against Task Management as
well.
The Court will also dismiss Plaintiff’s claim for breach of
the implied covenant of good faith and fair dealing.

“[I]t is

axiomatic that the . . . duty of good faith and fair dealing is

53

a covenant implied into a contract or a contractual
relationship.”

De Law Concha of Hartford, Inc. v. Aetna Life

Ins. Co., 849 A.2d 382, 387 (Conn. 2004) (second alteration in
original) (quoting Hoskins v. Titan Value Equities Grp., Inc.,
749 A.2d 1144, 1146 (Conn. 2000)).

“In other words, every

contract carries an implied duty ‘requiring that neither party
do anything that will injure the right of the other to receive
the benefits of the agreement.’”

Id. at 388 (quoting Gaudio v.

Griffin Health Servs. Corp., 733 A.2d 197, 221 (Conn. 1999)
(Callahan, C.J., dissenting)).

“The covenant of good faith and

fair dealing presupposes that the terms and purpose of the
contract are agreed upon by the parties and that what is in
dispute is a party’s discretionary application or interpretation
of a contract term.”

Id. (quoting Celentano v. Oaks Condo.

Ass’n, 830 A.2d 164 (Conn. 2003)).

“To constitute a breach of

[the implied covenant of good faith and fair dealing], the acts
by which a defendant allegedly impedes the plaintiff’s right to
receive benefits that he or she reasonably expected to receive
under the contract must have been taken in bad faith.”

Id.

(alteration in original) (quoting Alexandru v. Strong, 837 A.2d
875, 883 (Conn. 2004)).
“Most courts decline to find a breach of the covenant apart
from a breach of an express contract term.”
925 A.2d 334, 344 (Conn. Ct. App. 2007).
54

Landry v. Spitz,

“Stated otherwise,

‘the claim [that the covenant has been breached] must be tied to
an alleged breach of a specific contract term, often one that
allows for discretion on the part of the party alleged to have
violated the duty.’”

Id. (quoting S. Williston, Contracts

§ 63.22 (4th ed. Lord 2000)).
of contract claim here.

The Court does not find a breach

There was further no standard provided

for terminating Plaintiff that could be exercised in bad faith.
Under the Task Management Agreement, the contract could be
terminated without reason.
“[A] plaintiff bringing a claim for violation of the
covenant of good faith and fair dealing must also establish that
she does not otherwise have an adequate means of vindicating
that public policy.”

Bennett v. Beiersdorf, Inc., 889 F. Supp.

46, 49 (D. Conn. 1995) (citing Atkins v. Bridgeport Hydraulic
Co., 501 A.2d 1223, 1226 (Conn. Ct. App. 1985)).

The Court

finds Title VII provides such an adequate means.

See, e.g., Cox

v. Namnoun, No. 95-37, 1996 U.S. Dist. LEXIS 22586, at *28-29
(D. Conn. Sept. 26, 1996) (“Title VII provides a specific remedy
against an employer who violates the public policy
considerations involved in sex discrimination.”).

Plaintiff’s

breach of contract and breach of the implied covenant of good
faith and fair dealing claims will be dismissed.

55

5. Negligence, Negligence Per se, Gross Negligence
Plaintiff’s claims of negligence, negligence per se, and
gross negligence will be dismissed with prejudice.

"In New

Jersey, . . . it is widely accepted that a negligence cause of
action requires the establishment of four elements: (1) a duty
of care, (2) a breach of that duty, (3) actual and proximate
causation, and (4) damages."

Jersey Cent. Power & Light Co. v.

Melcar Util. Co., 59 A.3d 561, 571 (N.J. 2013); accord Lee v.
Won Il Park, No. 12-7437, 2016 WL 3041845, at *3 (D.N.J. May 26,
2016).

In Connecticut, the elements are identical: “duty;

breach of that duty; causation; and actual injury.”

Sturm v.

Harb Dev., LLC, 2 A.2d 859, 870 (Conn. 2010) (quoting Jagger v.
Mohawk Mountain Ski Area, Inc., 849 A.2d 813, 822 n.13 (Conn.
2004)).

It is entirely unclear to this Court which of

Plaintiff’s factual allegations are intended to support its
negligence claims, nor is the Court able to discern a
meritorious claim for negligence on its own from Plaintiff’s
allegations.

Plaintiff has failed to plead a cause of action

for negligence or gross negligence.
Further, “[u]nder New Jersey law, a negligence per se claim
is supported by a violation of a statute or regulation when said
statute or regulation ‘serve[s] to impose direct tort
liability.’”

Lee, 2016 WL 3041845, at *2 (alteration in

original) (quoting Chelsea Check Cashing, L.P. v. Toub, No. 0256

5557, 2006 WL 54303, at *3 (D.N.J. Jan. 9, 2006)).

To begin the

analysis of a negligence per se claim, “the Court must first
look to the statute or regulation that was violated.”

Id.

Connecticut law provides similarly: “Under Connecticut law,
negligence per se is a separate cause of action from negligence
and enables plaintiffs to establish as a matter of law that the
defendant’s conduct constituted a breach of duty, so that only
causation and damages need be proved.”

Anchundia v. Ne. Utils.

Serv. Co., No. 07-4446, 2010 WL 2400154, at *4 (E.D.N.Y. June
11, 2010).

“Where plaintiff fails to identify the statute upon

which the claim is based, it is impossible . . . to assess
whether the defendant breached a duty imposed by statute.”
at *5.

Id.

Plaintiff has not pointed to any such statute or

regulation.

To the extent Plaintiff was attempting to rely on

Title VII or the NJLAD, the Court rejects that theory.

See

Black v. Cmty. Educ. Ctrs., Inc., No. 13-6102, 2014 WL 859313,
at *5 (E.D. Pa. Mar. 4, 2014).

Further, while Plaintiff cites

the New Jersey Unemployment Compensation Law throughout his
Complaint, the Court sees no relevance of this law for
Plaintiff’s negligence per se claim.

These claims will be

dismissed with prejudice.
6. Defamation
The Court will dismiss Plaintiff’s claim for defamation.
“In New Jersey, an action for defamation requires the plaintiff
57

to establish: ‘(1) the assertion of a false and defamatory
statement concerning another; (2) the unprivileged publication
of that statement to a third party; and (3) fault amounting to
at least negligence by the publisher.’”

Marino v. Westfield Bd.

of Educ., No. 16-361, 2017 WL 216691, at *6 (D.N.J. Jan. 18,
2017) (quoting DeAngelis v. Hill, 847 A.2d 1261, 1267-68 (N.J.
2004)).

“Libel is defamation by written or printed words, or by

the embodiment of the communication in some tangible or physical
form, while slander consists of the communication of a
defamatory statement by spoken words, or by transitory
gestures.”

Id. (quoting W.J.A. v. D.A., 43 A.3d 1148, 1153

(N.J. 2012)).

The law is similar in Connecticut.

See Simms v.

Seaman, 69 A.3d 880, 893-94 (Conn. 2013) (“A defamation action
is based on the unprivileged communication of a false statement
that tends either to harm the reputation of another by lowering
him or her in the estimation of the community or to deter others
from dealing or associating with him or her.” (quoting Woodcock
v. Journal Publ’g Co., 646 A.2d 92, 105 (Conn. 1994) (Berdon,
J., concurring))).
Plaintiff alleges various individual defendants, including
at least Mohan, Hess, Harrison, Morrison, Barroso, Keller, and
Hayes, “slandered, libeled, and/or defamed Plaintiff as a bad
person, unfit to work for Campbell’s Soup Company or anybody
else.”

Plaintiff alleges these statements were made to
58

employees at Task Management and Campbell Soup.

Plaintiff

further pleads these individuals defamed him by stating that he
“is a criminal and a dangerous mentally disordered person to be
compelled to psychiatry confinement/treatment.”

Plaintiff

pleads this statement was communicated to the Ridgefield,
Connecticut police.

Plaintiff alleges these statements led to

his removal from the Campbell Soup projects.
Plaintiff appears to allege three distinct defamatory
statements: (1) that he is a “bad person”; (2) that he is “unfit
to work for Campbell’s Soup Company or anybody else”; and (3)
that he “is a criminal and a dangerous mentally disordered
person to be compelled to psychiatry confinement/treatment.”
However, Plaintiff alleges these identical statements were made
by every defendant identified.

Plaintiff further fails to

provide sufficient allegations to put Defendants on notice, such
as whether they were written or spoken and who, in particular,
these statements were communicated to.

The Court will dismiss

Plaintiff’s defamation claim.
7. Wrongful Termination
The Court will dismiss Plaintiff’s claim for wrongful
termination against all Defendants.

“Under New Jersey law ‘an

employee has a cause of action for wrongful discharge when the
discharge is contrary to a clear mandate of public policy.’”
Lawrence v. Nat’l Westminster Bank, 98 F.3d 61, 73 (3d Cir.
59

1996) (quoting Pierce v. Ortho Pharm. Corp., 417 A.2d 505, 512
(N.J. 1980)).

“The sources of public policy include

legislation; administrative rule, regulations or decisions; and
judicial decisions.”

Id. (quoting Pierce, 417 A.2d at 512).

However, “[c]ommon law claims for wrongful termination are preempted when a statutory remedy exists.”

Parikh v. UPS, 491 F.

App’x 303, 307 (3d Cir. 2012) (stating dismissal was proper
where a “wrongful termination claim was based on the same set of
facts as [a] discrimination claim[]”); accord Lawrence, 98 F.3d
at 73 (“Because the sources of public policy [the plaintiff]
relies on are conterminous with his statutory claims, he cannot
advance a separate common law public policy claim.”).
is true under Connecticut law.

The same

Vera v. Waterbury Hosp., No. 10-

1417, 2010 WL 4736278, at *2 (D. Conn. Nov. 16, 2010) (“Where an
employee has a statutory remedy, however, the common law claim
of wrongful discharge is unavailable.” (citing Atkins v.
Bridgeport Hydraulic Co., 501 A.2d 1223, 1226 (Conn. Ct. App.
1985))).

Plaintiff’s wrongful termination claim will be

dismissed.
8. Intentional Infliction of Emotional Distress
The Court will also dismiss Plaintiff’s claim for
intentional infliction of emotional distress as to all
Defendants.

“Under New Jersey law, a claim of intentional

infliction of emotional distress requires a plaintiff to
60

establish intentional and outrageous conduct by the defendant,
proximate cause, and distress that is severe.”

Sarlo v. Wells

Fargo Bank, N.A., 175 F. Supp. 3d 412, 428-29 (D.N.J. 2015)
(citing Taylor v. Metzger, 706 A.2d 685, 694 (N.J. 1998);
Buckley v. Trenton Sav. Fund Soc’y, 544 A.2d 857, 863 (N.J.
1988)).

Connecticut law requires similarly.

See Aviles v.

Wayside Auto Body, Inc., 49 F. Supp. 3d 216, 228-29 (D. Conn.
2014) (“Connecticut law requires a plaintiff to establish the
following four elements: ‘(1) that the actor intended to inflict
emotional distress or that he knew or should have known that
emotional distress was the likely result of his conduct; (2)
that the conduct was extreme and outrageous; (3) that the
defendant’s conduct was the cause of plaintiffs distress; and
(4) that the emotional distress sustained by the plaintiff was
severe.’” (quoting Appleton v. Bd. of Educ. of Town of
Stonington, 757 A.2d 1059, 1062 (Conn. 2000))).
“[U]nder New Jersey law, intentional infliction of
emotional distress comprehends conduct ‘so outrageous in
character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.’”

Edmond v.

Plainfield Bd. of Educ., 171 F. Supp. 3d 293, 316 (D.N.J. 2016)
(alteration in original) (quoting Subbe-Hirt v. Baccigalupi, 94
F.3d 111, 114 (3d Cir. 1996)); accord Mercado v. PRRC, Inc., No.
61

15-637, 2015 WL 6958012, at *2 (D. Conn. Nov. 10, 2015)
(“Liability is imposed ‘only where the conduct has been so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.’”
(quoting Appleton, 757 A.2d at 1062)).
Plaintiff has failed to sufficiently plead outrageous
conduct on the part of any of the defendants.

It is less than

clear, but from the Court’s reading of Plaintiff’s Complaint,
the basis for Plaintiff’s claim of outrageous conduct lies in
his termination.

“[I]t is extremely rare to find conduct in the

employment context that will rise to the level of outrageousness
necessary to provide a basis for recovery for the tort of
intentional infliction of emotional distress.”

Edmond, 171 F.

Supp. 3d at 316 (alteration in original) (quoting Cox v.
Keystone Carbon Co., 864 F.2d 390, 395 (3d Cir. 1988)).
Further, under Connecticut law, “[f]iring an employee, in spite
of any allegedly wrongful motive, does not qualify as extreme or
outrageous conduct.”

Credle-Brown v. Connecticut, 502 F. Supp.

2d 282, 300 (D. Conn. 2007) (providing that, under Connecticut
law, “the court must assess whether the employer’s conduct, not
the employer’s motive, was extreme or outrageous”).

Plaintiff’s

intentional infliction of emotional distress claim will be
dismissed.
62

9. Tortious Interference with Contract, Business and Economic
Opportunities
“Under New Jersey law, the elements of tortious
interference with a contractual relationship claims and tortious
interference with a prospective economic advantage claims are
nearly identical.”
714938, at *8.

A. & M. Wholesale Hardware Co., 2014 WL

“To state a claim for tortious interference with

a contractual relationship, the plaintiff must allege 1) a
protectable right, i.e., a contract; 2) intentional and
malicious interference with a protectable right 3) that causes a
loss with resulting damages.”

Id. (citing Printing Mart-

Morristown v. Sharp Elecs. Corp., 563 A.2d 31, 37 (N.J. 1989)).
“Similarly, tortious interference with a prospective economic
advantage claims must essentially allege the same elements.”
Id.

“The only distinction is that it must allege a prospective

economic advantage as the protectable right, as opposed to a
contract.”

Id.

The law is similar in Connecticut.

Am. Diamond

Exch., Inc. v. Alpert, 28 A.3d 976, 986 (Conn. 2011) (“It is
well established that the elements of a claim for tortious
interference with business expectancies are: (1) a business
relationship between the plaintiff and another party; (2) the
defendant’s intentional interference with the business
relationship while knowing of the relationship; and (3) as a
result of the interference, the plaintiff suffers actual loss.”

63

(quoting Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 761 A.2d 1268,
1273 (Conn. 2000))).
The Court assumes the tortious interference with contract
claim concerns the termination of the Task Management Agreement
and the tortious interference with prospective economic
advantage claim concerns Plaintiff not being rehired for the
position at Campbell Soup.
“[A] tortious interference with contract claim cannot be
directed at a person or entity that is a party to the contract.”
Ross v. Celtron Int’l, Inc., 494 F. Supp. 2d 288, 305 (D.N.J.
2007) (citing Emerson Radio Corp. v. Orion Sales, Inc., 253 F.3d
159, 173 (3d Cir. 2001)); accord Boulevard Assocs. v. Sovereign
Hotels, 72 F.3d 1029, 1035 (2d Cir. 1995) (“[T]here can be no
tortious interference of contract by someone who is directly or
indirectly a party to the contract.” (quoting Baum v. United
Cable Television Corp. of E. Conn., No. 90-44673, 1992 WL
175119, at *4 (Conn. Super. Ct. July 20, 1992))).

“Thus, ‘[a]n

employee working for the corporation with which the plaintiff
allegedly had a contract cannot serve as the third-party
necessary for the tripartite relationship, unless the employee
acted outside the scope of his employment.’”

Id. (quoting

Silvestre v. Bell Atl. Corp., 973 F. Supp. 475, 486 (D.N.J.
1997)); accord Miller v. Praxair, Inc., No. 05-402, 2009 WL
1748026, at *12 (D. Conn. June 18, 2009) (“[I]ndividual
64

defendants cannot be held liable for tortious interference with
their employer’s contract.” (citing Boulevard Assocs., 72 F.3d
at 1035)).

Plaintiff appears to assert this cause of action

against all Defendants.
The Court begins by recognizing that a tortious
interference with contract claim cannot be maintained against
Task Management – a party to the contract.

Further, all Task

Management employees similarly cannot have this claim asserted
against them, as Plaintiff’s allegations do not show any of them
were acting outside the scope of their employment.

Thus, the

tortious interference with contract claim must be dismissed
against Task Management, Mohan, Hess, and Harrison. 19
That leaves the claim against Campbell Soup, Morrison,
Barroso, Keller, and Hayes.

However, Plaintiff fails to plead

this cause of action against these defendants.

Plaintiff pleads

the various defendants “made the decision or supported the
decision” to terminate the Task Management Agreement.

He also

pleads the various defendants “helped and encouraged” the
coverup of the allegedly unlawful employment practices.

19

These

Mohan, Hess, and Harrison are all identified as Task
Management employees in Plaintiff’s Complaint. (Compl. ¶¶ 70,
88, 105). Morrison, Barroso, Keller, and Hayes are all
identified as employees of Campbell Soup. (Compl. ¶¶ 123, 152,
177, 202-07).
65

allegations are too broad to support Plaintiff’s claims, and
they do not distinguish between each defendant.
The Court finds similarly with reference to Plaintiff’s
tortious interference with economic advantage claim, in which
the economic advantage was a position with Campbell Soup.

This

claim must initially be dismissed as asserted against Campbell
Soup, Morrison, Barroso, Keller, and Hayes, leaving only Task
Management, Mohan, Hess, and Harrison.

Plaintiff has failed to

sufficiently plead his cause of action against the remaining
defendants, as he has not shown any of the remaining defendants
in any way interfered with Plaintiff being hired by Campbell
Soup after his termination.

The tortious interference claims

will be dismissed.
VIII. Setting Aside Entry of Default
The Clerk of the Court entered default against Cary Hayes
on April 19, 2018 upon Plaintiff’s April 18, 2018 request.
Hayes now asks this Court to set aside the entry of default.
Federal Rule of Civil Procedure 55(c) provides: “The court may
set aside an entry of default for good cause . . . .”
In exercising its discretion to set aside a default, a
district court must consider (1) whether the plaintiff
will be prejudiced; (2) whether the defendant has a
meritorious defense, that is, whether the defendant’s
allegations, if established at trial, would constitute
a complete defense to the action; and (3) whether the
default was the result of the defendant’s culpable
conduct.

66

Dambach v. United States, 211 F. App’x 105, 109 (3d Cir. 2006)
(citing United States v. $55,518.05 in U.S. Currency, 728 F.2d
192, 194 (3d Cir. 1984)).
The Court first addresses Hayes’s argument that Plaintiff’s
Amended Complaint voided the entry of default against her.

The

Court agrees with the basic principle behind Hayes’s argument.
Typically, a Clerk’s entry of default on an original complaint
is rendered moot where an amended complaint supersedes the
original complaint.

See, e.g., Morris v. United States, No. 12-

2926, 2013 U.S. Dist. LEXIS 180321, at *3 (D.N.J. Dec. 13,
2013); Enigwe v. Gainey, No. 10-684, 2012 WL 213510, at *3 (E.D.
Pa. Jan. 23, 2012) (“The filing of the Second Amended Complaint
rendered the earlier Amended Complaint a nullity, and
[Plaintiff]’s request for an entry of default . . . as to the
Amended Complaint became moot.” (citation omitted)).

This is

because “[a]n amended complaint super[s]edes the original
version in providing the blueprint for the future course of a
lawsuit.”
Cir. 2002).

Snyder v. Pascack Valley Hosp., 303 F.3d 271, 276 (3d
Plaintiff’s Amended Complaint, if validly filed,

renders the entry of default moot.

The Court does not render a

decision on the effect of this Court’s refusal to consider
Plaintiff’s Amended Complaint on this doctrine, as the Court
finds, in any event, that the Third Circuit’s factor test for
vacating an entry of default favors vacatur.
67

First, the Court is not convinced prejudice would result to
Plaintiff from setting aside the Clerk’s entry of default.

The

Clerk’s entry of default occurred just over four months after
Plaintiff’s Complaint was filed, and Hayes moved to set aside
the entry of default days after its entry. 20
lack of prejudice to Plaintiff here.

The Court finds a

See, e.g., Dambach, 211 F.

App’x at 109 (“[T]he defaults were entered not long after the
filing of the complaints, and as Defendants moved to vacate the
defaults shortly after their entry, the Dambachs were not
prejudiced by the order vacating the entries of default.”).
Second, it is clear to this Court that Hayes has a
meritorious defense, as this Court will be dismissing all of
Plaintiff’s pending claims asserted against Hayes.

Third, the

Court finds Hayes’s default was not the result of his culpable
conduct, but rather a misunderstanding regarding service. 21

The

Court can discern no “willful or bad faith conduct or deliberate
trial strategy” used by Hayes.

Id. at 109-10.

20

The Clerk entered default on April 19, 2018. Hayes moved
to set aside the entry of default on April 23, 2018.
21

The Court does not address this service issue beyond
finding it shows a lack of culpable conduct in the context of
the motion to set aside entry of default.
68

IX. Hayes’s Motion to Dismiss for Lack of Personal Jurisdiction
The Court has already determined that all claims against
Hayes will be dismissed.
Hayes’s motion as moot.

Consequently, the Court will deny
Hayes is permitted to move to dismiss

for lack of personal jurisdiction in the event the Court later
in this litigation allows Plaintiff to file an amended complaint
that asserts claims against Hayes. 22
X. Motion Requiring Defendants to Answer Complaint
In the 18-298 action, Plaintiff filed a motion asking the
Court to order Defendants to “format their Rule 12(b)(6) Motion
into” an answer followed by a Rule 12(c) motion, in the interest

22

To the extent Plaintiff seeks leave to amend his complaint
and assert claims against Hayes, the Court notes the following.
In his opposition brief, Plaintiff appears to argue that,
because Hayes has admitted to working in North America, she has
submitted to personal jurisdiction in New Jersey. He argues:
“Defendant Hayes admits that Defendant Hayes[‘s]
responsibilities cover[] ‘North America’. The State of New
Jersey is without dispute geographically situated in North
America. Therefore, even without regard to the ongoing Action,
Defendant Hayes has admitted that Defendant Hayes has ongoing
business activities in the State of New Jersey.” Plaintiff
misunderstands what is required for a court to have personal
jurisdiction over a defendant. The defendant must have
sufficient contacts with the particular state, New Jersey in
this case, for the court to assert its jurisdiction.
Plaintiff also seems to argue that the Court has
jurisdiction over Hayes on federal diversity or “supplemental
grounds.” A court must have both subject matter jurisdiction
over a matter and personal jurisdiction over each defendant.
Diversity jurisdiction, a method of obtaining subject matter
jurisdiction, is not a means of asserting personal jurisdiction,
which requires a separate inquiry into the minimum contacts a
defendant has with a particular state.
69

of efficiency and to avoid burdening the Court.
deny this motion.

The Court will

Under the Federal Rules of Civil Procedure,

it is within a defendant’s discretion to file a motion to
dismiss in lieu of filing an answer.
otherwise.

The Court will not require

Plaintiff’s motion will be denied.
XI. Motions to Strike

A. Motion to Strike Plaintiff’s June 1, 2018 Letter
On June 13, 2018, Campbell Soup and Morrison moved to
strike Plaintiff’s May 21, 2018 letter, filed on June 1, 2018.
In his letter, Plaintiff sought to inform the Court of the
departure of Morrison from her role as CEO of Campbell Soup.
Plaintiff cited news reports stating her departure was sudden
and unexpected, and that Morrison provided no explanation for
her departure.

Plaintiff attempts to convince this Court that

Morrison’s departure was a result of an earlier report by
Plaintiff to the EEOC regarding “discrimination or retaliation
based upon sexual intercourse.”

Plaintiff appears to claim he

will be bringing a new lawsuit with regard to this claim.
Plaintiff’s letter further argues that news reports of “changing
consumer tastes” provides “an unbiased credibility to
Plaintiff’s allegations that Campbell’s had determined that
Flavor Technology was vital to the company’s business.”
Plaintiff ends his letter by comparing Morrison to “sexual
intercourse felons such as Comedian Bill Cosby and Dr. Larry
70

Nassar.”

In what this Court interprets as Plaintiff’s request

for relief from this Court, Plaintiff states that “[t]hese facts
should show to the Court that Defendants’ acts against Plaintiff
were as malicious and as vicious as it could possibly be under
the heavens.”
The Court begins by noting the moving defendants have cited
no legal authority for their motion.

The Federal Rules of Civil

Procedure provide for motions to strike solely in the context of
pleadings.

Fed. R. Civ. P. 12(f) (“The court may strike from a

pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.”).

Courts have repeatedly

denied applying Rule 12(f) to matters outside the pleadings.
See, e.g., SEPTA v. Orrstown Fin. Servs., No. 12-993, 2016 WL
7117455, at *7 (M.D. Pa. Dec. 7, 2016); South Annville Township
v. Kovarik, No. 13-1780, 2014 WL 199020, at *5 (M.D. Pa. Jan.
16, 2014); Walthour v. Tennis, No. 06-86, 2008 WL 318386, at *8
(M.D. Pa. Feb. 4, 2008); United States v. Viola, No. 02-9014,
2003 WL 21545108, at *3 (E.D. Pa. July 10, 2003).
The Court will not strike Plaintiff’s letter.

However, the

Court finds the letter inappropriate and irrelevant to the Court
deciding this matter.
its entirety.

The Court will disregard the letter in

See, e.g., SEPTA, 2016 WL 7117455, at *7.

71

The

motion to strike is denied. 23

The Court will further order

Plaintiff not to file informal letters with this Court that seek
relief from the Court or seek to supplemental Plaintiff’s motion
papers.

Plaintiff must seek permission from the Court if he

seeks to supplement his motion papers.
B. Motion to Strike Hayes’s Motion to Dismiss
Plaintiff filed a Motion to Strike Hayes’s Motion to
Dismiss on May 31, 2018.

The Court will not strike this motion.

That an entry of default had been declared against Hayes, and
that the Court had not yet ruled on the pending motion to vacate
the entry of default, is not grounds for striking the motion.
See, e.g., Heartland Payment Sys. v. Park, No. 06-3456, 2007
U.S. Dist. LEXIS 26734 (D.N.J. Apr. 10, 2007).

In any event, no

prejudice will result to Plaintiff in denying his motion to
strike, as the Court will be denying the motion as moot.

23

Plaintiff, who himself has alleged to be a victim of
defamation, is cautioned against making statements on this
Court’s public docket that are irrelevant and potentially
defamatory, such as comparing a defendant to sex offenders.
Plaintiff is reminded of this Court’s inherent authority to
sanction not only attorneys, but pro se litigants. Rule 11
grants district courts “the power to sanction abusive pro se
litigants.” Thomas v. Conn. Gen. Life Ins. Co., No. 02-136,
2003 WL 22953189, at *3 (D. Del. Dec. 12, 2003) (quoting Ketchum
v. Cruz, 775 F. Supp. 1399, 1403 (D. Colo. 1991), aff’d, 961
F.2d 916 (10th Cir. 1992)). While Rule 11 sanctions are
“intended to be used only in ‘exceptional’ circumstances,”
Ferreri v. Fox, Rothschild, O’Brien & Frankel, 690 F. Supp. 400,
405 (E.D. Pa. 1988), if Plaintiff’s contact throughout this case
shows to be “exceptional,” this Court will not hesitate to
sanction Plaintiff.
72

XII. Consolidation
The Court will sua sponte consolidate these matters for all
purposes.

Federal Rule of Civil Procedure 42(a) provides: “If

actions before the court involve a common question of law or
fact, the court may . . . consolidate the actions.”

On January

19, 2018, Judge Schneider consolidated these matters “for
discovery and case management purposes only.”
The Court will now consolidate for all purposes.

This case will

proceed under the 18-298 docket.
XIII. Conclusion
The Court will allow Plaintiff’s Title VII and NJLAD claim
to proceed against Task Management on his termination theory.
Plaintiff’s claims will otherwise be dismissed. 24
The Court must also consider the impact these rulings have
on Plaintiff’s Third Amended Complaint in the 17-7506 matter.
All of the 17-7506 Defendants are also Defendants in the 18-298
matter.

Further, all of the claims asserted in the 17-7506

24

The Court recognizes that this Opinion and its accompanying
Order will be filed prior to the full briefing of some of the
motions in the 18-298 matter, namely the motions to strike. The
Court has also reviewed Plaintiff’s requests for an extension of
time to respond to those motions. In light of the Court’s
decision to allow Plaintiff to move as appropriate for leave to
amend, additional briefing from the parties will not affect the
Court’s decision on these motions.
73

matter are also asserted in the 18-298 matter. 25

The Court has

sua sponte assessed Plaintiff’s claims under the 17-7506 action
and finds all of its holdings applicable there.

The Court will

proceed with the original 18-298 Complaint as the only operative
Complaint as of the filing of this Opinion and its accompanying
Order.
Plaintiff is permitted to file a motion seeking leave to
amend in light of this Court’s Opinion and Order.

Plaintiff

must attach a proposed amended complaint to such a motion.

The

Court will strike any purported amended complaint filed without
a motion seeking leave to amend.
Federal Rule of Civil Procedure 8.

Plaintiff must abide my
Any amended complaint must

seek to cure the deficiencies outlined by the Court in this
Opinion.

An amended complaint should not contain long

recitations of the contents of federal or state statutes.

This

Court is acquainted with these statutes, and their contents are
not to be pleaded in any amended complaint.

Plaintiff is

directed to treat each defendant as an individual, and not
merely cut and paste allegations and replace a defendant’s name.

25

The Third Amended Complaint in the 17-7506 matter asserts
two NJLAD claims, an NJCEPA claim, and claims for breach of
contract, breach of the implied covenant of good faith and fair
dealing, negligence, defamation, wrongful termination,
intentional infliction of emotional distress, and tortious
interference with contract and economic advantage.
74

Plaintiff is not to file letters with the Court seeking the
Court to grant him relief or to supplement any motion papers;
such requests must be made in an appropriate motion.

Further,

if, in the future, Plaintiff seeks permission to file an overlength brief, he is directed to file a separate letter request
before the deadline for the filing of his brief, not in the same
document as the brief on the day the brief is filed.
An appropriate Order will be entered.

Date: July 9, 2018
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

75