ROBINSON v. HORIZON BLUE CROSS BLUE SHIELD OF NEW JERSEY et al

Filing 104

OPINION & ORDER granting in part and denying in part Pltf's Motion to Amend, which shall be filed by 3/1/15; etc. Signed by Magistrate Judge Joseph A. Dickson on 2/24/15. (sr, )

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

---i
KENNETH E. ROBINSON, JR.,

Plaintiff,

Civil Action No. 2:12-cv-02981
(MCA) (JAD)

OPINION AND ORDER

v.
HORIZON BLUE CROSS-BLUE SHIELD
OF NEW JERSEY, VICTORIA WRIGHTGIBSON,
CHERYL
CONCANNON,
COLETTE WHITE, and BEATRIZ MEZA
Defendants.

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______________________________________________________________________________________!
JOSEPH A. DICKSON, U.S.M.J.
This matter comes before this Court upon Plaintiff Kenneth E. Robinson, Jr.'s "Motio

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Amend." 1 (ECF No. 50). Pursuant to Federal Rule of Civil Procedure 78, no oral argument
heard. Upon consideration of the parties' submissions, and for the reasons stated below, Plainti

'

Motion to Amend is DENIED in part and GRANTED in part.

1

Plaintiff filed a "Brief in support of Motion to further Amend the Complaint" on April 19, 20
(ECF No. 50). Plaintiffs submission shall be referred to as the "Motion to Amend."
categorization of Plaintiff's submission as a "Brief' instead of a "Motion" greatly affected e
timeliness of its resolution, as discussed below.
1

I.

BACKGROUND
Plaintiff filed a Complaint in this Court on May 18, 2012 alleging disparate/adv

treatment on the basis of race and sex, retaliation, wrongful termination, intentional infliction f
emotional distress, fraud/deceit, breach of fiduciary duty, and negligent hiring, supervision,
training. (Complaint, ECF No. 1). Plaintiff then filed an Amended Complaint on June 5, 20 2.
(Amended Complaint, ECF No. 4). The amendment in its entirety stated,
In accordance with Local Rule 11.2, the following sentence is hereby added to the
end of the Representation to the Court located on Page 18 of the Complaint, as
follows: "4. No matter in controversy stated in the Complaint is the subject of any
other action ending in any court, or of any pending arbitration, or of any
administrative proceeding."
(Id. at 1). Horizon Blue Cross-Blue Shield of New Jersey ("Horizon"), Victoria Wright-Gib n
("Wright-Gibson"), Cheryl Concannon ("Concannon"), Colette White ("White"), and Bea
Meza (improperly identified as "Beatriz Mesa" in the Complaint) ("Meza") (collectiv
"Defendants"), filed an Answer on July 24, 2012. (Answer, ECF No. 10). Plaintiff then file a
"Motion to Strike the Entire Answer and/or Defendants' Separate Defenses to the Amen
Complaint" on July 27, 2012 arguing that Defendants failed "to satisfy the pleading requireme ts
of the Federal Rules of Civil Procedure and the Local Civil Rule [sic]." (Motion to Strike, E F
No. 11, at 6).
Following the filing of that Motion, Defendants submitted a letter to the Honorable Est r
Salas, U.S.D.J. on August 1, 2012 requesting that Plaintiffs Motion be stricken given Plainti

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failure to obtain leave of Court. (ECF No. 12, at 1). Plaintiff responded the same day not
Defendants' alleged deficiencies and requested "guidance on the Motion to Strike." (ECF No.
at 2). On August 3, 2012 Magistrate Judge Cathy L. Waldor issued an Order setting an Ini al
Conference for August 23, 2012, (ECF No. 15), and stated that the Court would discuss Plainti
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Motion at that time. (ECF No. 16). Following said conference, Judge Waldor issued at On er
denying Plaintiff's Motion to Strike and allowed him to refile his Motion "in accordance with ie
Court's oral instructions." (ECF No. 17). On September 19, 2012 Plaintiff re-filed his Motion to
Strike Defendants' Answers pursuant to Federal Rule of Civil Procedure or in the alternative a
Motion for More Definite Statements pursuant to Federal Rules of Civil Procedure 12(e) and 12( ).
(ECF No. 19). Plaintiff further requested sanctions in the same Motion. (See id.).
Defendants opposed the Motion on October 1, 2012, arguing that motions to str ice
affirri:iative defenses are disfavored, (ECF No. 21, at 2), that all of their defenses were prope y
pied pursuant to Federal Rule of Civil Procedure 8(b)(l)(A),

fut at 4-8),

that should the Co lrt

grant Plaintiffs Motion in whole or in part, Defendants should be afforded the opportunity o
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amend their pleadings, (id. at 8), and finally, Plaintiffs request for sanctions should be den

because Plaintiff did not seek leave of Court to move for sanctions. (Id. at 8-10). Plain ff
submitted a reply brief on October 9, 2012 asserting that Defendants' defenses were imprope y
pied and that "FRCP 12(g) provides that 'A [sic] motion under this rule may be joined with a ~y
other motion allowed by this rule.' Since the Court granted Plaintiff leave to 'refile his Motio ; '
therefore, this motion requesting sanctions is proper." (ECF No. 22, at 7).
On December 11, 2012, the case was reassigned to Magistrate Judge Steven C. Mannie n.
(See Docket Entry on December 11, 2012). Pursuant to the Pretrial Scheduling Order entered 1y
Judge W aldor on August 23, 2012, "[a]ny motion to add new parties, whether by amended or thi 1party complaint, must be returnable no later than 10/31/12." (ECF No. 18, at 1). In a letter o
Judge Mannion dated January 30, 2013, Plaintiff requested that "the deadline of 10/31/12, o
amend the pleadings and to add new parties, be amended/extended to March 13, 2013." (ECF }I o.
36, at 1). Judge Mannion issued an Order on March 12, 2013 extending Plaintiffs deadline to

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his Motion for leave to Amend his Complaint to March 18, 2013. (ECF No. 37). Plain ff
submitted a letter to Judge Mannion on March 15, 2013 seeking, among other things, the Co
grant Plaintiffs "Motion" for leave to Amend. 2 (ECF No. 39, at 3). In a letter dated April 1, 20 3,
Plaintiff reiterated, among other things, his request that the Court grant his request to file a Sec
Amended Complaint. (ECF No. 43). Judge Mannion entered an Order on April 9, 2013 sett g
forth the briefing schedule for the informal requests for leave to file motions, (ECF Nos. 38, 9,
40, 41, 42, and 43), including Plaintiffs Motion to Amend. (ECF No. 46). Plaintiff was gran d
leave to file his Motion by April 19, 2013. (Id.). On April 19, 2013 Plaintiff filed a "Brie
support of Motion to further Amend the Complaint and join additional parties FRCP 15(a)
FRCP 20(a)," (hereinafter "Motion to Amend"). (ECF No. 50). Defendants filed their opposit n
to Plaintiffs Motion to Amend on April 30, 2013. (ECF No. 54). Plaintiff filed his reply on

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7, 2013. (ECF No. 56).
On June 17, 2013, Judge Mannion heard oral arguments on the Motion to Strike, (ECF

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19), as well as other motions, but not Plaintiffs Motion to Amend. (See Minute Entry or
proceedings held before Magistrate Judge Steven C. Mannion on June 17, 2013). Judge M

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denied the Motion to Strike during the oral argument and stated,
I'm relying on the case by the Chief Judge from this District, Judge Simandle's
decision in Federal Trade Commission v. Hope Now Modifications, Civil Action
Number 09-1204, 2011 U.S. Dist. LEXIS cite 24657, where under Rule 12(f),
District Judge Simandle states: This court joins the other districts in the Circuit that
have addressed this issue by holding that the heightened pleading standard of
Twombly and Iqbal does not apply to affirmative defenses. The court finds
persuasive the textual analysis demonstrating that the Federal Rules of Civil
Procedure distinguish the level of pleading required between a plaintiff asserting a
claim for relief under Rule 8(a) and a defendant asserting an affirmative defense
under Rule 8(c).
2

It is important to note that Plaintiff had not yet filed a formal Motion to Amend, yet sou
a
Court Order granting his request. (ECF No. 39). In the same submission, Plaintiff submitte to
chambers a Proposed Amended Complaint and a Proposed Order. (llh).

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(Transcript of Proceedings held on June 17, 2013 before Judge Mannion, ECF No. 71, at 8).
The matter was then reassigned to this Court on September 13, 2013. (See Docket En
on September 13, 2013). The Court held an in person status conference on November 18, 20 3.
(See Minute Entry on November 18, 2013). On December 23, 2013 this Court issued an Opi
on the properly filed pending Motions, 3 (ECF No. 73), and entered an Order on December
2013. (ECF No.74). Plaintiff appealed this Court's decision on January 9, 2014. (ECF No.
After having considered the parties' submissions, Judge Salas affirmed this Court's Opinion
Order on July 21, 2014. (ECF Nos. 80 and 81). On September 9, 2014 this Court scheduled
person conference on October 9, 2014. (ECF No. 82). On October 9, 2014 Plaintiff filed, w at
appears to be, his personal notes, and also requested that the matter be referred to ano
Magistrate Judge. (ECF No. 83). In Plaintiffs submission, the proposed Amended Compl
was referenced for the first time, as far as this Court can tell, since the matter was reassigne
this Court. (Id.).
II.

LEGAL STANDARD

Federal Rule of Civil Procedure 15(a) governs requests for leave to amend, allowing a p
to amend its pleadings after obtaining the Court's leave or the written consent of its advers
Under this liberal rule, the Court must "freely give leave when justice so requires." Fed. R.
P. 15(a)(2); see also Wright & Miller section 1484, at 676 ("Subdivision (a)(2) encourages
court to look favorably on requests to amend."). This lenient standard ensures that "a partic
claim will be decided on the merits rather than on technicalities." Dole v. Arco Chem. Co.,
F.2d 484, 487 (3d Cir. 1990) (internal citation omitted); see also Sabatino v. Union Township,

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Defendants' Motions to Compel, Plaintiff's Motion to Compel, and Defendants' Cross- Mo
for a Protective Order. (ECF Nos. 48, 49, and 53).
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2013 WL 1622306, at *6 (D.N.J. April 15, 2013) (internal citations omitted) (discussing that' if
the underlying facts relied upon by a party might be a proper subject of relief, that party shot d
have the opportunity to test its claims on the merits.").
The decision to grant or deny leave to amend under Rule 15(a) is "committed to the sou d
discretion of the district court." Arab African Int'l Bank v. Epstein, 10 F.3d 168, 174 (3d C r.
1993). While courts have broad discretion to decide motions to amend, they are to "heed R1 e
15(a)'s mandate that amendments are to be granted freely in the interests of justice." Voilas et tl.
v. General Motors Corp., et al., 173 F.R.D. 389, 396 (D.N.J. 1997) (internal citations a id
quotations omitted). In the absence of unfair prejudice, futility of amendment, undue delay, 1 td
faith, or dilatory motive, the court must grant a request for leave to amend. Gravson v. Mavvi w
State Hosp., 292 F. 3d 103, 108 (3d Cir. 2002); see also Arthur v. Maersk, Inc., 434 F. 3d 196, : )4
(3d Cir. 2006) (stating that generally, leave to amend should be granted ''unless equita le
considerations render it otherwise unjust."). The non-moving party has the burden of
demonstrating substantial or undue prejudice. Hevl & Peterson International. Inc. v. F.D. R ch
Housing, Inc, 663 F. 2d 419, 426 (3d Cir. 1981).
However, leave to amend a pleading may be denied where the court finds: (1) undue de y;
(2) undue prejudice to the non-moving party; (3) bad faith or dilatory motive; or (4) futilit) of
amendment. Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). A motion for leave to am1 nd
will be denied for futility if the proposed amended complaint ''would fail to state a claim U] pn
which relief could be granted." Id. Thus, "[i]n assessing 'futility' the District Court applies the
same standard oflegal sufficiency as applies under Rule 12(b)(6)." To survive dismissal u11 er
Federal Rule of Civil Procedure 12(b)(6), a complaint "must contain sufficient factual ma

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accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129
Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
III.

DISCUSSION

Plaintiff argues that 1) his "Proposed Second Amended Complaint Complies with Rule "
@ at 8); 2) his proposed amendment does not unduly prejudice Defendants because there are ' o
new issues, nor new theories contemplated nor envisioned - only new facts learned via the rece
of discovery, which are incorporated into the proposed Seconded [sic] Amended Complaint,"
at 13); 3) that Defendants "do not have clean hands" and that "[b]ecause of Defendants' ... host e
holding of their discovery responses until/unless Plaintiff capitulated, Plaintiff was jeopardi
regarding his ability to read, digest and react to Defendants' discovery responses by the 10/31
motion date." (Id.). Plaintiff further asserts that Defendants "should be hard-pressed to ar

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undue delay since it was their unreasonable actions, by refusing to provide the Discov
documents to which Plaintiff was entitled, that caused the need for this proposed Amendme

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(Id. at 14); and 4) Plaintiff states that his "motive is well founded. [He] simply seeks to add to

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Complaint facts and information that have come to light as a result of the recent receipt
Discovery." @).
Defendants opposed the Motion arguing first, that Plaintiff's proposed Amen
Complaint does not comply with Federal Rule of Civil Procedure 8; second, that Plainti

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amendments would be futile; and third, that Defendants would suffer prejudice as a result
Plaintiffs proposed amendments. (ECF No. 54, at 3). Defendants assert that Plaintiff fails to
the standard because the proposed Second Amended Complaint "is a rambling, excess e

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combination of accusations as to individuals' motivations for certain actions and citations o
documents produced in discovery."4 (ECF No. 50, at 4). Federal Rule of Civil Procedure 8 stat s,
(a) Claim for Relief. 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
Fed. R. Civ. P. 8. Defendants assert that Plaintiff"seeks to assert common law claims against
Defendants for: 1) Negligent Supervision (Counts II, VI); 2) Defamation Per Se (Count III)

Intentional Infliction of Emotional Distress/Fraud/Deceit (Count IV); and 4) Negli

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Training/Breach of Covenant of Good Faith and Fair Dealing (Counts I, II, VI)." (ECF No. 5
8) (citing Krause Cert., Ex. D, Deposition Transcript of Kenneth E. Robinson ("Robinson Dep '),
57:8-58:5) (emphasis in original). What Defendants fail to note is that in Plaintiff's ori · al
Complaint5 he asserts claims for disparate/adverse treatment, hostile work environment, breac
the convenient of good faith and fair dealing, retaliation, wrongful termination, intenti

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infliction of emotional distress/fraud/deceit, breach of fiduciary duty, and negligent hi · g,
supervision, and training. (Complaint, ECF No. 1). While many of the "claims" in Plainti

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Defendants seem to take issue with the fact that Plaintiffs proposed Second Amended Compl ·nt
arises as a result of the discovery exchanged between the parties. (ECF No. 54, at 1) (Plainti s
Second Amended Complaint "does not conform to the requirements of Fed. R. Civ. P. 8, as it
rambling and bombastic combination of allegation, argument and verbatim quotation from
documents already produced to him by Defendants during the course of discovery"). Federal
of Civil Procedure 15, however, allows for amendments to pleadings obtained during the co
of discovery.
5
While Plaintiff filed an Amended Complaint as a matter of course, (ECF No. 4), the Amen ed
Complaint contained a one sentence amendment. The Court's reference to Plaintiffs ori al
Complaint, shall, therefore, include that amendment.
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original Complaint seem like mere headings, they were technically pled in the original Complai .
Although not many facts were pled in the original Complaint to support the claims asserted, t e
claims were nevertheless included and Plaintiff now seems to be adding facts to bolster th e
claims.

a. Defendants' Legal Arguments
Defendants first argue that "[t]he LAD and Title VII preempt common law causes of acti n
when the statutory claim already provides a remedy for the alleged wrong." @) (citing Kuilan
Sodexo Inc., No. 11-4567 SDW, 2012 WL 1964492, at *8 (D.N.J. May 31, 2012) (Plainti

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"breach of contract claim is predicated on the same set of facts as her LAD claim and seeks
same remedies. Therefore, her breach of contract claim is barred because it is duplicative of
LAD claim"; Gurchensky v. Potter, No. 06-5760 (JLL), 2010 WL 2292171, at *6 (D.N.J. May
2010) ("Plaintiffs common law breach of contract claim arises out of the same set of facts as
Federal anti-discrimination claims, namely that he had the right to be free from discriminat n
based on age and race. As such, his contract claim is duplicative of his ADEA and Title VII clai s
and is thus preempted"). Defendants assert that because the "relief Plaintiff seeks for his co
law claims is duplicative of the reliefhe seeks for his LAD and Title VII claims," the common 1 w
claims are preempted. (ECF No. 54, at 6).
The Motion before this Court is not a Motion to Dismiss, but rather a Motion to Ame d.
While Defendants may ultimately be correct that some of Plaintiffs claims are preempted,

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alleged preempted claims were pled in the original Complaint. (See Complaint, ECF No. 1).

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only new claim Plaintiff adds is a claim for defamation. (Proposed Amended Complaint, ECF
50, at 44). Defendants do not argue that Plaintiffs defamation claim is preempted. The Court
not engage in a preemption analysis at this time. The claims that Defendants seek to deny Plai

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the right to plead were in the original Complaint. To require Plaintiff to take those claims out f
his proposed Amended Complaint would ignore well established rules of pleadings and moti n
practice. See Fed. R. Civ. P. 8, 12, 12(c), 15.
Defendants next argue that Plaintiff's common law claims are futile for reasons other t
preemption. (ECF No. 54, at 12).

b. Intentional Infliction of Emotional Distress
Defendants assert that "Plaintiff's allegations do not rise to the level required to adequat y
state an intentional infliction of emotional distress ('IIED') claim, which he asserts in Count

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which explains that in order to establish a claim for IIED, the conduct must be "so outrageou
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to e
regarded as atrocious, and utterly intolerable in a civilized community." 111 N.J. 355, 366 (19 8)
(internal citation omitted). Defendants argue that Plaintiff's proposed amendments regarding is
IIED claim are "conclusory assertions" and "are insufficient to warrant approval of the reque

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amendment." (ECF No. 54, 12). In support of their assertion, Defendants state,
Plaintiff's deposition testimony confirms the lack of sufficiency in his allegations:
Plaintiff admits: 1) he is not suffering any mental or physical health issues resulting
from Defendants' conduct; and 2) he did not see or hear any statements that he
considered overtly discriminatory. Krause Cert., Ex. D, Robinson Dep., 81:12;
108:8; 124:13-22. As to his conflict with Meza that gives rise to Count V, Plaintiff
testified that this incident was a single telephone conversation with Meza where he
alleges Meza wrongly accused him of yelling at her. Id., [sic] 167:10-168:21. This
is not the stuff of a viable IIED claim.
(ECF No. 54, at 12-13). Defendants' argument that Plaintiff's allegations fail to rise to the 1
required to adequately state a claim for IIED asks too much for a Motion to Amend. Sue
argument may very well prevail on a motion for summary judgment, which is not before the Co rt.
As with the majority of Plaintiff's other claims, the IIED claim was pied in the original Compl
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The amendments merely add additional facts bolstering his IIED claim. Because Plaintiffs II
claim was pled in the original Complaint, and Defendants did not move to dismiss them,
amendment adding facts are not now futile and, therefore, shall be permitted.
c. Covenant of Good Faith and Fair Dealing; Negligence; Breach of Fiduciary Duty

Next, Defendants argue that Plaintiffs claims for the breach of the covenant of good f:
and fair dealing, any claims grounded in negligence, and claims for the breach of fiduciary dut s
against Wright-Gibson are futile for multiple reasons. 6 (See ECF No. 54, at 8-9). The Court not s,
however, that Plaintiff does not seek to add new claims for the breach of the covenant of g
faith and fair dealing, negligence, or breach of fiduciary duty to his Second Amended Compla
As noted above, these claims existed in his original Complaint. (See ECF No. 1). Defend
filed an Answer on July 24, 2012, in which they either affirmed or denied all of Plaintiffs clai
(ECF No. 10). Defendants did not file a Motion to Dismiss in lieu of an Answer. The claims
Plaintiff initially pied, while they may have been deficient from the start, were unchalleng .
Therefore, the legal sufficiency of those claims are not before the Court in connection
Plaintiffs Motion to Amend. 7 At this juncture, Plaintiff is simply seeking to add additional f:
with regard to his breach of covenant of good faith and fair dealings claim, negligence claims,

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Defendants assert that "New Jersey law does not recognize a claim for breach of the covenan
good faith and fair dealing in an at-will employment context", which Defendants allege Plai
was. (ECF No. 54, at 8). Defendants also argue that the New Jersey Worker's Compensation
bars Plaintiffs negligence claims. (Id.) (citing DeMaria v. The Home Depot, No. 97-5987, 1
WL 1750127, at *3 (D.N.J. Mar. 31, 1998) ("New Jersey courts have made it clear that, in ligh
the WCA, an employee cannot sue her employer in negligence"). Additionally, Defendants ar
that Plaintiffs claim for breach of fiduciary duty against Wright-Gibson is futile because she i
at-will employee. (ECF No. 54, at 8).
7
Such arguments may have been appropriate under Federal Rule of Civil Procedure 12(c), w
states "[a] fter the pleadings are closed-but early enough not to delay trial-a party may move
judgment on the pleadings." This, however, is not before the Court at this time. The argum
Defendants make are simply improper in the context of Plaintiffs Motion to Amend and
original Complaint.
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of
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ct
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breach of fiduciary duty claims. He does not assert new claims against the preexisting Defend

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nor are these claims new. Adding facts to claims already pied in the original Complaint is entir y
permissible, which is precisely why this Court shall allow Plaintiff to amend his Complaint o
include these additional facts. As a result, this Court will allow Plaintiff to amend his Compla' t,
which already includes these claims.
d. Defamation
Plaintiff seeks to add one new claim for defamation. (ECF No. 50, at 44).
Defendants here do not specifically address Plaintiffs defamation claim, the Court must
engage in the futility analysis in order to determine whether or not Plaintiffs Complaint should e
Amended to include it. "In New Jersey, the cause of action of defamation is composed oft
elements: (1) the assertion of a false and defamatory statement concerning another; (2)

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unprivileged publication of that statement to a third party; and (3) fault amounting at leas
negligence by the publisher." Moriarty v. Classic Auto Gm., Inc., No. 13-5222, 2014 WL 8847 1,
at *2 (D.N.J. Mar. 6, 2014) (citing Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 585, 969 A
1097 (2009)(quotingDeAngelis v. Hill, 180 N.J. 1, 13, 847 A.2d 1261 (2004))(intemal quotati

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omitted). If Plaintiffs proposed amendment alleges the elements necessary to establish a cl
for defamation, then the inclusion of this claim is not futile and should be permitted. See Pallad o
ex rel. U.S. v. VNA of S. New Jersey, Inc., 68 F. Supp. 2d 455, 477 (D.N.J. 1999) ("Plainti

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"proposed amendment to the Amended Complaint alleges all of the elements of defamation
a clearly sufficient degree of specificity; the proposed amendment would not be futile, and
Court will grant leave to amend as requested").
Plaintiffs proposed Amended Complaint includes the following statements, w
Plaintiff claims rise to the level of defamation:

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"Sandi, I am assuming he is reaching out because we have had conversations where
is [sic] has told me when he receives a contract, he passes it to Rob Spataro, Tom
Graziano and Scott Forys for technical assessment. My response has been to him,
what value do you add? I told him, he should have that IT knowledge and only go
for technical concurrent when needed, as do Parvin and Colette ... Again, what do I
do here?"
(ECF No. 50, at 45) (internal citation omitted). Plaintiff claims that this is "a false, misleadi

,

and defamatory statement for a number of reasons. For example, Colette does not have a techni
background as noted in her resume when applying for her position with Horizon." (.llh). Plain
goes on to describe specific scenarios, which do not seem to support a claim for defamation.
also notes that Defendant White ''took exception" to the following comment:
Recently, and especially upon your arrival, Colette has done, in my view, the utmost
to hold me, or portray me, in a bad light. I don't care whether her motive is pandering or
not, but I am addressing this issue in another forum. I view myself as a polished
professional and I seek to maintain a high level of professionalism however, nothing is
absolute. To smile and greet someone glowing who, is tum, [sic] is smiling at me while
simultaneously stabbing me in the back is not my style.
(ECF No. 50, at 49). Plaintiff went on to state,
"Colette, The plot thickens. I pray I live long enough to show my excellent
backhand," which Colette forwarded to Cheryl proclaiming, "FYI - I can only
guess what he means by this." Naturally, Cheryl forwarded into [sic] Sandra Marten
and Victoria exclaiming, "Sandi and Victoria, I am not comfortable with this at all."
However, Colette knew what Plaintiff meant by this reference because he and
Colette often had numerous conversations whereby Plaintiff boasted about his twohanded tennis backhand.
(Id. at 49-50) (internal citation omitted).
It is impossible to establish that based on the facts provided, the statements were both £

and defamatory.

Although Plaintiff may have been embarrassed by the statements an

disagreed with them, they do not rise to the level of "false and defamatory" statements. In or er
to "qualify as a defamatory statement, the statement must be able to be proven true or fa e.
Statements of pure opinion do not satisfy this requirement because such statements only 'refle a

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state of mind,' and therefore generally 'cannot be proved true or false."' Man an v. Co or e
Synergies Grp., Inc., 834 F. Supp. 2d 199, 204-05 (D.N.J. 2011) (internal citation omitted).
The statements that Plaintiff claims were defamatory were opinions at best. Moreover,

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Court can find nothing derogatory, let alone defamatory about the statements Plaintiffhighli
If anything, the statements were critical of his work performance, which are opinions. Opinio ,

generally, are not defamatory. Edelman v. Croonquist, No. 09-1938, 2010 WL 1816180, at 3
(D.N.J. May 4, 2010) ("Determining whether a statement is defamatory requires the Court o
consider the content, verifiability, and context of the challenged statements. The verifiabi
determination goes to whether the statement is one of fact or opinion, because statements f
opinion and name-calling, which cannot be proved true or false, are not actionable) (int
citation and quotations omitted).
Because "[a]n amendment is futile if it would not survive a motion to dismiss," Gre o
Admin. Office of the Courts of State ofNew Jersey, 168 F. Supp. 2d 319, 325 (D.N.J. 2001),

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Court will deny Plaintiffs Motion to Amend his Complaint to include a claim for defamation.

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considering a motion to dismiss under Rule 12(b)(6), the Court may dismiss a complaint i it
appears certain that the plaintiff cannot prove any set of facts in support of its claims which wo ld
entitle it to relief." Gregoryv. Admin. Office of the Courts of State ofNew Jersey, 168 F. S

p.

2d 319, 326 (D.N.J. 2001) (internal citation omitted). In addition to Plaintiffs defamation cl
not being able to survive a motion to dismiss, Plaintiff failed to satisfy all the elements require to
establish a claim for defamation.

e. Additional Parties
In addition to the defamation claim, Plaintiffs proposed Amended Complaint seeks to
additional individual defendants, Susan Berkenbush, (Director, Sourcing and Sup

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Management Department), and Deborah Collins, (Contract Specialist, Sourcing and Suppl r
Management Department). (Motion to Amend, ECF No. 50).
Plaintiff did not learn the extent of Susan Berkenbush's, Deborah Collins', and
other members of their department, with whom Plaintiff interacted throughout the
day every day, treating Plaintiff as a sport and a source of their amusement, as
evidenced by their racially negative stereotypical e-mails, until he received their
e-mails, among the voluminous amount of Discovery received from Defendants
made possible by, and pursuant to, the Amended Scheduling Order.
(Id. at 12) (emphasis in original). Defendants argue that the Court should not allow Plaintiff o
add these new defendants, first, because the common law claims are futile. (ECF No. 54, at ).
As noted above, while the claims may not be able to withstand a potential Motion to Dismiss,
claims were nevertheless pied in the original Complaint. Additionally, Defendants argue t t
"neither Berkenbush nor Collins supervised, evaluated, terminated, or denied Plaintiff altemaf e
work arrangements. Indeed, Collins has no supervisory authority whatsoever." (Id.) (inte

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citation omitted).
In order to determine whether or not Berkenbush and Collins should be added

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defendants, the Court must first determine which causes of action are brought against them. It
seems unclear from Plaintiffs Proposed Second Amended Complaint which claims are agai st
which Defendants, until the Prayer for Relief. (See ECF No. 50, at 56). Plaintiff asserts that

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First, Third, and Fourth Causes of Action are against "all Defendants" and that they are "sever

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and jointly liable." (Id.).

The Second Cause of Action specifically references Defend

"Horizon, Victoria, and Cheryl." (Id. at 57). And finally, the Fifth and Sixth Causes of Action

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specifically against "Horizon and Victoria." (Id.). The only claims, therefore, that the Court n d
to consider in regards to potential defendants Berkenbush and Collins are the First, Third,

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Fourth Causes of Action, which include disparate/adverse treatment, hostile work environm
breach of the covenant of good faith and fair dealing, wrongful termination, and intentio al
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infliction of emotional distress. The ultimate determination of whether or not Berkenbush

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Collins shall be added as defendants will depend on whether or not Plaintiff is able to assert th e
causes of actions against them.
Turning first to the claim of disparate/adverse treatment.
"Disparate treatment" ... is the most easily understood type of discrimination. The
employer simply treats some people less favorably than others because of their race,
color, religion, sex, or national origin. Proof of discriminatory motive is critical,
although it can in some situations be inferred from the mere facts of differences in
treatment. Undoubtedly disparate treatment was the most obvious evil Congress
had in mind when it enacted Title VII.
Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 398 (2005) (internal citation omitted);
also Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) ("In a disparate treatment case, liabi ty
depends on whether the protected trait ... actually motivated the employer's decision) (emph
added). In order to maintain a claim for disparate/adverse treatment, the claim must be m

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against the employer. This Court will deny that claim to be brought against Berkenbush
Collins, because, as stated above, neither of them exercised power over Plaintiff.
Also encompassed in Plaintiffs First Cause of Action is hostile work environment.
Third Circuit has articulated five factors that must be proven in order to establish a hostile w rk
environment under Title VII:
Specifically, plaintiff must prove: (1) that she suffered intentional discrimination
because of her race or sex; (2) that the discrimination was pervasive and regular;
(3) that the discrimination detrimentally affected her; (4) that the discrimination
would detrimentally affect a reasonable person of the same race or sex in that
position; and (5) the existence of respondeat superior liability.
Hargrave v. Cnty. of Atl., 262 F. Supp. 2d 393, 411(D.N.J.2003) (internal citation and quotati ns
omitted). In addition, the elements of a LAD hostile work environment claim "closely res
the first four elements of the Title VII hostile work environment claim." Watkins v. Nab' co
Biscuit Co., 224 F. Supp. 2d 852, 864 (D.N.J. 2002). Defendants note that "almost every e16

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relied upon by Plaintiff in his [proposed Second Amended Complaint] at Paragraphs 39-70 o
support his hostile work environment claim are e-mails in which Plaintiff is not copied on

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allegedly offensive email." (ECF No. 54, at 14). Defendants are correct. In order for conduct o
contribute to a hostile work environment, Plaintiff must be aware of it. See Fitz erald v. Stanl
Roberts. Inc., 186 N.J. 286, 319 (2006) ("Although harassment of other women witnessed
plaintiff may contribute to her experience of a hostile work environment, harassment of whic a
plaintiff is entirely unaware cannot contribute to that environment because plaintiff does
experience it"). As a result, Plaintiffs request to bring a cause of action against Berkenbush
Collins for hostile work environment is denied.
Next, Plaintiffs claim for breach of the covenant of good faith and fair dealing cannot e
asserted against Berkenbush and Collins. In order to maintain a claim for the breach of coven
of good faith and fair dealing, there must be a valid employment contract.

As stated abo

Defendants properly assert that "New Jersey law does not recognize a claim for breach of

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covenant of good faith and fair dealing in an at-will employment context." (ECF No. 54, at
(citing Hitchens v. Aptium Oncology, Inc., No. 10-571, 2012 WL 570344, at *9 (D.N.J. Feb.
2012) ("Plaintiff was an at will employee, and Defendant Aptium could let Plaintiff go at any ti e
for a nondiscriminatory reason. Plaintiff cannot succeed with a claim for breach of the coven
of good faith and fair dealing against Defendants"). Because Plaintiff was an at will employ ,
his claim against Berkenbush and Collins for breach of the covenant of good faith and fair deal
has no legal merit. It will be stricken.
Plaintiffs Third Cause of Action is for wrongful termination.
facie case of age discrimination under the New Jersey Law Against Discrimination "on the b
of wrongful termination, a plaintiff must show that: (1) plaintiff was a member of a protec

17

group; (2) plaintiffs job performance met the employer's legitimate expectations; (3) plaintiff"

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terminated; and (4) the employer replaced, or sought to replace, the plaintiff." Bratek v. TD Bar

k:.

N.A., No. 11-3049, 2012 WL 5404398, at *2 (D.N.J. Nov. 5, 2012) (citingZive v. StanlevRobe1

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Inc., 182 N.J. 436, 867 (N.J. 2005)). Neither Berkenbush nor Collins can be held accountable or
Plaintiffs termination as neither of them supervised or terminated Plaintiff. (See Krause Ce .,
Ex. D, Robinson Dep., 86:2-7). As a result, this Court denies Plaintiffs request to bring a cla m
against either of them for wrongful termination.
Finally, Plaintiff seeks to assert a claim of intentional infliction of emotional distr ss
against Berkenbush and Collins. "Generally speaking, to establish a claim for intentional inflict m
of emotional distress, the plaintiff must establish intentional and outrageous conduct by ie
defendant, proximate cause, and distress that is severe." Bucklev v. Trenton Savini:! Fund Sc ".,
111 N.J. 355, 366 (1988). In addition, as stated above, the conduct must be "so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to 'e
regarded as atrocious, and utterly intolerable in a civilized community." Id. Plaintiff fails to s1 te
exactly what conduct by Berkenbush and Collins rises to the level of"outrageous" and "extren e"
as to hold them liable for IIED. Furthermore, under the Fourth Cause of Action for II1 D,
Berkenbush and Collins are not mentioned at all. The Court finds, therefore, the proposed Secc ti.d
Amended Complaint simply does not allege enough facts to allow such a claim to surviv a
12(b)(6) Motion against these individuals. The claim is futile. The Second Amended Comph nt
shall not include claims against Berkenbush and Collins.

f. Prejudice to Defendants
Finally, Defendants argue that the proposed Amended Complaint should be denied i11 its
entirety because it unduly prejudices Defendants. (ECF No. 54, at 10). Defendants assert 1 iat

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Plaintiff's proposed Second Amended Complaint "is yet another effort to delay examination of e
actual merits of his claims, which are sorely lacking, by seeking to have Defendants in
additional expenses in discovery." (Id.). While Defendants may be correct that Plaintiff
request to engage in further discovery based on the amendments, that in itself is not enou
prejudice Defendants and prevent this Court from granting Plaintiff's Motion. In fact, Fed
Rule of Civil Procedure 15 necessitates that courts "freely give leave when justice so requir

"

The Court finds that justice so requires the amendment of Plaintiff's Complaint here.
The Court must further note that that this Motion, for reasons explained above, comes
time when the pre-trial process is complete. As a result, absent a showing of good cause, th e
will be no further discovery taken. This Motion to Amend, as argued by Plaintiff, seeks to confo
the pleadings to the discovery that Plaintiff alleges has been developed. The Court must point
that the bulk of Plaintiff's proposed amendments are mere allegations. It appears as though th e
allegations have been uncovered during the discovery phase.

The Federal Rules of Ci i1

Procedure, however, allow amendments to pleadings even at trial. See Fed. R. Civ. P. 15(b).

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a result, the Court finds that it is not futile to allow Plaintiff to amend his Complaint to incl

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these new allegations.
IV.

CONCLUSION

The Court, therefore, having considered the parties' submissions, finds that Plainti

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Motion to Amend should be DENIED in part and GRANTED in part. Plaintiff's propo
amendments, which seek to include the new Count for defamation and the addition ofBerkenb
and Collins as defendants is DENIED. Plaintiff's proposed amendments, which include

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addition of facts to Plaintiff's pre-existing claims, is GRANTED. Plaintiff shall file his Sec
Amended Complaint by March 1, 2015 in compliance with this Opinion and Order.

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defamation Count shall be excised, together with the new proposed defendants. The Sec d
Amended Complaint shall be identical to Plaintiff's proposed Second Amended Complaint,
the exception of the redactions set forth above. Plaintiff shall not plead any additional facts.

SO ORDERED

cc:

Hon. Madeline C. Arleo, U.S.D.J.

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