A. & M. WHOLESALE HARDWARE CO., INC. v. CIRCOR INSTRUMENTATION TECHNOLOGIES, INC. et al

Filing 42

OPINION. Signed by Judge Susan D. Wigenton on 2/24/14. (jd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

A. & M. WHOLESALE HARDWARE CO.,
INC., D/B/A A&M INDUSTRIAL, A NEW
JERSEY CORPORATION,

Civil Action No. 13-0475 (SDW) (MCA)

Plaintiff,
v.

OPINION

CIRCOR INSTRUMENTATION
TECHNOLOGIES, INC., D/B/A HOKE,
DEL VAL CONTROLS, INC., STEPHEN
GREEN, ROBERT TAYLOR, RICHARD
NOHA, AND MICHAEL TERRELL,

February 24, 2014

Defendants.
WIGENTON, District Judge.
Before this Court are two Motions to dismiss the Amended Complaint filed by Plaintiff A.
& M. Wholesale Hardware Co., Inc., d/b/a A&M Industrial, a New Jersey Corporation (“A&M”),
pursuant to Federal Rule of Civil Procedure 12(b)(6). One motion was filed by Defendants Circor
Instrumentation Technologies, Inc., d/b/a Hoke (“Hoke”); Robert Taylor (“Taylor”); Richard Noha
(“Noha”); and Michael Terrell (“Terrell”) (collectively, the “Hoke Defendants”). The other
motion was filed by Del Val Controls, Inc. (“Del Val”) and Stephen Green (“Green”) (collectively,
the “Del Val Defendants,” and together with the Hoke Defendants, the “Defendants”). The Court
has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1332(a)(1). Venue
is proper under 28 U.S.C. § 1391(b)(2). This Court, having considered the parties’ submissions,
decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the
reasons stated below, the Defendants’ Motions to Dismiss are DENIED.

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I.

BACKGROUND
A.

The Parties

Plaintiff A&M is a New Jersey corporation engaged in the business of delivering
maintenance, repair and operations products and services. (Am. Compl., ¶ 1.) A&M is owned by
David and Arnold Young (the “Youngs”), who are Jewish. (Id. at 24(l).) Defendant Hoke is a
New York corporation engaged in the manufacturing of precision fluid control solutions. (Id. ¶
2.) Defendant Del Val is a Pennsylvania corporation engaged in the business of distributing
instrumentation and process control products. (Id. ¶ 3.) Defendant Green is a citizen of the state
of Pennsylvania and is the owner of Del Val. (Id. ¶ 4.) Defendant Noha is a citizen of the state of
New York and is employed by Hoke as a Product Technical Specialist. (Id. ¶ 5.) Defendant Taylor
is a citizen of the state of South Carolina and is employed by Hoke as an Officer and Sales
Executive. (Id. ¶ 6.) Defendant Terrell is a citizen of the state of California and is employed by
Hoke as the Vice President of Sales. (Id. ¶ 7.)
B.

Factual Allegations

On or about June 19, 2003, A&M entered into a Domestic Distributor Agreement (the
“Agreement”) with Hoke whereby A&M became a distributor of Hoke products in a specified
territory encompassing certain counties in northern New Jersey and certain New York counties in
the New York metropolitan area. (Id. ¶¶ 10, 13, 14.) Pursuant to Section 13.1 of the Agreement,
A&M was to distribute Hoke products within those counties for a period of one year with the
ability to renew the Agreement for additional one year terms subject to the approval of both Hoke
and A&M. (Id. ¶¶ 11, 14.)
The Agreement was renewed by Hoke and A&M on an annual basis for each successive
year after June 2003 through 2011. (Id. ¶ 12.) According to the Amended Complaint, during

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A&M’s nine (9) and one-half year tenure with Hoke, Hoke never “complained to A&M about
A&M’s duties or obligations under the Agreement nor did it send A&M any written notices of
default.” (Id. ¶ 18.) Pursuant to Section 3.4 of the Agreement, A&M retained a “Hoke Product
Specialist” who developed an expertise in, and was almost exclusively dedicated to, the sale and
promotion of the Hoke line of products.” (Id. ¶ 17.) The salesperson specifically hired to serve in
this position was Ram Hashemi (“Hashemi”). (Id.)
On or about August 1, 2011, Hashemi entered into a Confidentiality/Non-Competition
Agreement (the “Non-Compete Agreement”) with A&M precluding Hashemi from, among other
things, disclosing confidential and proprietary information pertaining to “(a) the identity of
existing and prospective . . . customers and business associates; (b) trade secrets . . . ; (c) pricing
information . . . ; (d) financial information . . . ; market strategies . . . ; and (f) sources from which
products are purchased by A&M, to any person or entity without prior written consent of A&M.”
(Id. ¶¶ 19-20.) The Non-Compete Agreement also precluded Hashemi from accepting a position
as an employee or independent contractor with any A&M competitor conducting business within
a one hundred fifty (150) mile radius of A&M’s principal place of business for a period of eighteen
(18) months following the termination of his employment with A&M. (Id. ¶ 21.)
During Hashemi’s employment at A&M, Hashemi successfully sold the Hoke product line
and aided A&M in meeting the sales quotas established by Hoke. (Id. ¶¶ 15, 24 (b).) The Amended
Complaint alleges that in or around 2012 as a result of this success, Hoke and its employees Taylor,
Noha, and Terrell (the “Individual Hoke Defendants”), conspired with the Del Val Defendants to
poach Hashemi from A&M and to obtain A&M’s proprietary and confidential information in order
to expedite Del Val becoming the new distributor of the Hoke product line in A&M’s territory.
(Id. ¶¶ 22-24.)

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By letter dated November 29, 2012, Hoke terminated the Agreement pursuant to Section
13.2 of the Agreement. (Id. ¶ 25.) The termination was to take effect thirty (30) days after the
letter’s date. (Id.) According to A&M, during the thirty-day period after notice but before the
termination became effective, Hoke breached the Agreement by failing to timely supply orders
A&M made. (Id. ¶ 27.) A&M alleges that as a result of Hoke’s failure to timely supply orders, it
lost business and good will. (Id. ¶ 28.)
II.

PROCEDURAL HISTORY
On January 24, 2013, A&M filed a Complaint against the Defendants alleging various

causes of action. (Dkt. No. 1.) The Defendants then filed motions to dismiss the original
Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) on April 11,
2013. (Dkt. Nos. 11, 14.) In response, Plaintiff filed an Amended Complaint on May 2, 2013.
(Dkt. No. 17.) Defendants filed the instant Motions to Dismiss on June 11, 2013. (Dkt. Nos. 25,
26.)
III.

LEGAL STANDARD
The adequacy of pleadings is governed by Federal Rule of Civil Procedure 8(a)(2), which

requires that complaints allege “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
This Rule “requires more than labels and conclusions, and a formulaic recitation of the elements
of a cause of action . . . . Factual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555 (internal citation omitted); see also Phillips v. Cnty.
of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (stating that “Rule 8 requires a showing, rather
than a blanket assertion, of entitlement to relief” (quoting Twombly, 550 U.S. at 555 n.3) (internal
quotation marks omitted)).

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In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
Court must “accept all factual allegations as true, construe the complaint in the light most favorable
to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff
may be entitled to relief.” Phillips, 515 F.3d at 233 (quoting Pinker v. Roche Holdings Ltd., 292
F.3d 361, 374 n.7 (3d Cir. 2002)) (internal quotation marks omitted). However, “the tenet that a
court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555). If the “well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct,” the complaint should be dismissed for failing to show “‘that
the pleader is entitled to relief’” as required by Rule 8(a)(2). Id. at 679 (quoting Fed. R. Civ. P.
8(a)(2)).
In Fowler v. UPMC Shadyside, the Third Circuit directed district courts to conduct a twopart analysis. 578 F.3d 203, 210 (2009). First, the court must separate the factual elements from
the legal conclusions. See id. The court “must accept all of the complaint’s well-pleaded facts as
true, but may disregard any legal conclusions.” Id. at 210-11 (citing Iqbal, 556 U.S. at 678).
Second, the court must determine if “the facts alleged in the complaint are sufficient to show that
the plaintiff has a ‘plausible claim for relief.’” Id. at 211 (quoting Iqbal, 566 U.S. at 679). “In
other words, a complaint must do more than allege the plaintiff’s entitlement to relief. A complaint
has to ‘show’ such an entitlement with its facts.” Id. (citing Phillips, 515 F.3d at 234-35).
IV.

DISCUSSION
A.

Choice of Law Provision

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As a threshold matter, the Hoke Defendants argue that A&M is precluded from asserting
New Jersey statutory law claims because the Agreement contains a New York choice of law
provision. (Hoke Defs.’ Br. 9.) A&M retorts that its New Jersey statutory claims are not
encompassed within the scope of the Agreement. (Pl.’s Br. 25-28.) The Agreement’s choice of
law provision states as follows: “APPLICABLE LAW. This Agreement is to be governed and
construed according to the laws of the State of New York, excluding its conflict of laws.” (Hoke
Defs. Ex. A, Domestic Distributor Agreement ¶ 15.8, June 19, 2003.)
Federal courts sitting in diversity apply the choice of law rules of the forum state when
determining the enforceability of contractual choice of law provisions. Homa v. Am. Express Co.,
558 F.3d 225, 227 (3d Cir. 2009) (citations omitted). In general, New Jersey courts enforce
contractual choice of law clauses as long as they do not violate New Jersey’s public policy. Alcman
Servs. Corp. v. Samuel H. Bullock, P.C., 925 F. Supp. 252, 259 (D.N.J. 1996) (citation omitted).
The choice of law provision at issue here does not violate New Jersey’s public policy and is
therefore enforceable.
This gives rise to the issue of whether the Agreement’s choice of law provision precludes
A&M from asserting its statutory claims. Under New Jersey law, “a party’s waiver of statutory
rights ‘must be clearly and unmistakably established, and contractual language alleged to
constitute a waiver will not be read expansively.’”

Garfinkel v. Morristown Obstetrics &

Gynecology Assocs., P.A., 168 N.J. 124, 132 (2001) (quoting Red Bank Reg’l Educ. Ass’n v. Red
Bank Reg’l High Sch. Bd. of Educ., 78 N.J. 122, 140 (1978)). To be sure, the New Jersey Supreme
Court articulated the following in the employment discrimination context:
[W]e do not suggest that a party need refer specifically to the LAD
or list every imaginable statute by name to effectuate a knowing and
voluntary waiver of rights. To pass muster, however, a waiver-ofrights provision should at least provide that the employee agrees to

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arbitrate all statutory claims arising out of the employment
relationship or its termination. It should also reflect the employee’s
general understanding of the type of claims included in the waiver,
e.g., workplace discrimination claims.
Id. at 135.
The Third Circuit’s opinion in Nuzzi v. Aupaircare, Inc., 341 F. App’x 850 (3d Cir. 2009),
is instructive. In Nuzzi, the Third Circuit determined that a similar choice of law clause did not
bar plaintiff’s statutory claims. The choice of law clause at issue in Nuzzi stated as follows: “This
Agreement shall be governed and construed in accordance with the laws of the State of California
and any claims or disputes arising out of, or related to this Agreement will be determined by
binding arbitration upon the petition of either party in San Francisco, California.” Id. at 851. Citing
to Garfinkel, the Third Circuit found that the choice of law language was not broad enough to
encompass plaintiff’s statutory claims and those claims could proceed. Id. at 852-53. Similarly,
the choice of law provision here is not sufficiently broad to preclude A&M’s statutory claims.
B.

A&M’s New Jersey Law Against Discrimination Claims

A&M asserts two causes of action that arise under the New Jersey Law Against
Discrimination (the “LAD”). In Count I, A&M alleges that Hoke terminated the Agreement
because A&M’s owners, the Youngs, are Jewish, in violation of subsection l of the LAD. (Am.
Compl., ¶¶ 31-36.) Count II alleges Taylor, Noha, and Terrell aided and abetted Hoke’s unlawful
discrimination against A&M in violation of the LAD. (Id. ¶¶ 37-42.)
The Hoke Defendants argue that A&M failed to state a claim pursuant to subsection l of
the LAD because this subsection does not apply to the termination of contracts. (Hoke Defs.’ Br.
10-13.) A&M counters that the Hoke Defendants’ reading of the statute is unduly narrow and has
been expressly rejected by New Jersey courts. (Pl.’s Br. 28-33.)
In pertinent part, the LAD states:

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It shall be an unlawful discrimination: . . . (l) For any person to
refuse to buy from, sell to, lease from or to, license, contract with,
or trade with, provide goods, services or information to, or otherwise
do business with any other person on the basis of the race, creed,
color, national origin, ancestry. . . of such other person or of such
other person’s spouse, partners, members, stockholders, directors,
officers, managers, superintendents, agents, employees, business
associates, suppliers, or customers . . . .
N.J.S.A.§ 10:5-12(l). The statute is clear that it is unlawful discrimination to refuse to contract
with or do business with a person on the basis of a protected characteristic. The Hoke Defendants’
argument that the statute is inapplicable here is without merit. They maintain that this subsection
does not apply to ending a contractual relationship because the statute specifies “contract with”
and does not use the phrase “termination of a contract.” The Hoke Defendants’ arguments to the
contrary notwithstanding, the New Jersey Appellate Division’s opinion in Rubin v. Chilton
Memorial Hospital, 359 N.J. Super. 105 (App. Div. 2003), has already determined that this
subsection of the LAD applies to the termination of contracts. The court states as follows in Rubin:
To distinguish between a refusal to enter into a contract and the
termination of a contract where the motivation is illegal
discrimination would mock the beneficial goals of the LAD,
remedial legislation which should be liberally construed to advance
its beneficial purposes. If, for example, an organization refused to
enter into a contract with an architect solely because the architect
was a woman, violation of N.J.S.A. 10:5-12(l) could not be doubted.
The same result must follow if the architect’s contract is terminated
solely because the architect is a woman.
Id. at 111-12. Therefore, subsection l of the LAD clearly applies to the termination of
contracts and A&M has sufficiently stated a claim pursuant to it.
With respect to Count II, in order for A&M to state a claim that Noha, Terrell, and Taylor
aided and abetted Hoke’s violation of the LAD, A&M must allege the following three elements:
“(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

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time that he provides the assistance; [and] (3) the defendant must knowingly and substantially
assist the principal violation.” Tarr v. Ciasulli, 181 N.J. 70, 84 (2004) (citing Hurley v. Atlantic
City Police Dep’t, 174 F.3d 95, 127 (3d Cir.1999), cert. denied, 528 U.S. 1074 (2000)).
In support of its motion, Hoke asserts that A&M has failed to plead sufficient facts to
establish that “Terrell or Noha had any discriminatory intent or that they were aware that Taylor
had any discriminatory intent.” (Def. Hoke Br. 14) Hoke apparently concedes that the Amended
Complaint adequately states an aiding and abetting claim against Taylor and limits its arguments
to the roles of Terrell and Noha. (Id.)
The Amended Complaint sufficiently pleads that Taylor made anti-Semitic remarks,
professed his hatred for the Youngs, and announced his desire to terminate Hoke’s relationship
with A&M and the Youngs. (Am. Comp. ¶¶ 24(cc), (jj), (mm).) The Amended Complaint also
alleges that both Noha and Terrell were aware of Taylor’s role and assisted in Hoke’s
discriminatory termination of the Agreement. (Id. ¶¶ 40, 41.) Further, the Amended Complaint
alleges that in approximately June 2012, Noha was the first defendant to raise with Hashemi the
topic of Del Val taking over A&M’s Hoke distribution business. (Id. ¶ 24(a).) It also describes
how Noha was instrumental in attempting to recruit Hashemi to go work for Del Val. (Id. ¶¶ 24(z),
(aa).) The Amended Complaint further alleges that “Terrell and Taylor were prepared to get good
lawyers to go around any illegalities and find legal loopholes” relating to Hoke’s efforts to obtain
A&M’s confidential and proprietary customer information. (Id. ¶ 24(t).)

Additionally, the

Amended Complaint discusses Terrell’s role in giving advice on the timing of Hashemi’s departure
from A&M’s employ and Del Val’s indemnification of Hashemi should he leave A&M. (Id. ¶
24(aaa).) The Amended Complaint concludes that Taylor, Noha, and Terrell “knowingly and
substantially” assisted Hoke with terminating the Agreement. (Id. ¶ 41.) Therefore, the Amended

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Complaint adequately states a claim against Taylor, Noha, and Terrell for aiding and abetting
Hoke’s LAD violation.
C.

Section 1981 Claim

In pertinent part, 42 U.S.C. § 1981 (a) provides that “all persons . . . shall have the same
right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence,
and to the full and equal benefit of all laws and proceedings for the security of persons and
property. . . .” The statute defines “make and enforce contracts” as including “the making,
performance, modification, and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981 (b).
A&M’s claim under § 1981 is governed by the burden-shifting principles set forth by the
Supreme Court:
First, the plaintiff has the burden of proving by the preponderance
of the evidence a prima facie case of discrimination. Second, if the
plaintiff succeeds in proving the prima facie case, the burden shifts
to the defendant “to articulate some legitimate, nondiscriminatory
reason for the employee’s rejection.” Third, should the defendant
carry this burden, the plaintiff must then prove by a preponderance
of the evidence that the legitimate reasons offered by the defendant
were not its true reasons, but were a pretext for the discrimination.
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (quoting McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). “To establish a right to relief under § 1981,
a plaintiff must show (1) that he belongs to a racial minority; (2) ‘an intent to discriminate on the
basis of race by the defendant; and (3) discrimination concerning one or more of the activities
enumerated in’ § 1981, including the right to make and enforce contracts.” Pryor v. Nat’l
Collegiate Athletic Ass’n, 288 F.3d 548, 569 (3d Cir. 2002) (quoting Brown v. Phillip Morris, Inc.,
250 F.3d 789,797 (3d Cir. 2001)).

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In support of its motion, Hoke argues that the only allegations in the Amended Complaint
regarding discriminatory intent are Taylor’s reference to A&M’s owners as “cheap bastards” and
Taylor asking Hashemi whether he was a “f---ing Jew,” which, they maintain, are insufficient to
plead a § 1981 claim. (Hoke Defs.’ Br. 14-15.) Contrary to Hoke’s assertions, in addition to the
anti-Semitic statements, A&M alleges that Taylor expressed a long-felt desire to terminate Hoke’s
relationship with the A&M due to the Youngs being Jewish. (Id. ¶¶ 24(cc), (jj), (mm).) The
Amended Complaint’s allegations of the anti-Semitic slurs coupled with A&M’s apparent success
in distributing Hoke’s products (id. ¶ 16), sufficiently plead a violation of § 1981.
D.

Breach of Contract and Breach of Implied Covenant of Good Faith and Fair
Dealing Claims

In Count IV and Count V, A&M alleges that Hoke breached the Agreement and breached
the implied covenants of good faith and fair dealing, respectively. For a plaintiff to sufficiently
plead a breach of contract claim, he must allege the “(1) formation of a contract between plaintiff
and defendant; (2) performance by plaintiff; (3) defendant’s failure to perform; and (4) resulting
damage. See Clearmont Prop., LLC v. Eisner, 872 N.Y.S.2d. 725, 728 (N.Y. App. Div. 2009)
(internal quotation marks and citation omitted).
In support of its motion, Hoke argues that A&M has failed to plead sufficient facts to
establish a breach of contract claim because of A&M’s failure to adequately plead a breach of the
Agreement and failure to allege damages. (Hoke Defs.’ Br. 15-16.) A&M counters that it
adequately alleged breach of the Agreement by specifying that “Hoke failed to timely supply
orders during the one-month period after it gave notice of termination but before the termination
took effect.” (Pl.’s Br. 39.) A&M maintains that Hoke’s failure to timely supply the orders was
arbitrary and capricious. (Id.) With respect to damages, A&M points out that “the Amended

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Complaint specifically identifies the damages A&M suffered and explains, factually, how those
damages were caused by Hoke’s breach.” (Id. at 40.)
Hoke’s position that it cannot be held liable for breaching the Agreement by failing to
timely supply orders during the thirty-day period between notice and the notice’s effective date
because the Agreement gives it the discretion to accept or reject orders is without merit. Under
New York law, “[w]here the contract contemplates the exercise of discretion, this pledge includes
a promise not to act arbitrarily or irrationally in exercising that discretion.” Fishoff v. Coty Inc.,
634 F.3d 647, 653 (2d Cir. 2011) (citing Dalton v. Educ. Testing Serv., 87 N.Y.2d 384, 389 (1995)).
Irrationally or arbitrarily exercising this discretion is a breach of contract. Id. Here, the Amended
Complaint specifically alleges that Hoke breached the Agreement by failing to timely supply
orders during the one-month period after Hoke gave notice of termination. (Am. Compl., ¶¶ 27,
48-49.) A finder of fact could determine that Hoke acted arbitrarily and irrationally in its failure
to timely fill the orders.
As for damages, the Amended Complaint states as follows:
As a result of Hoke’s actions in, among other things, failing to
timely supply orders made by A&M, A&M was unable to supply its
customers with those goods previously and contemporaneously
ordered and thus suffered the loss of good will with its existing
customers, as well as the loss of business and income from both
existing and potential customers.
(Id. ¶ 49.) The Amended Complaint also specifies that A&M is in possession of approximately
$120,000 of Hoke products that it is unable to sell. (Id. ¶ 29.) As such, the Amended Complaint
adequately alleges breach of contract and resulting damages.
Furthermore, under New York law, a breach of the implied duty of good faith and fair
dealing is considered a breach of the underlying contract. Nat’l Mkt. Share, Inc. v. Sterling Nat’l
Bank, 392 F.3d 520, 525 (2d Cir. 2004) (citing Fasolino Foods Co. v. Banca Nazionale del Lavoro,

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961 F.2d 1052, 1056 (2d Cir. 1992)). The duty is implied in every contract, and is “a pledge that
neither party shall do anything which will have the effect of destroying or injuring the right of the
other party to receive the fruits of the contract.” Fishoff, 634 F.3d at 653 (quoting 511 West 232nd
Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 153 (2002)). The Amended Complaint
alleges that Hoke attempted to lure Hashemi away from A&M prior to Hoke’s termination of the
Agreement. (Am. Compl., ¶ 53.) The Amended Complaint further alleges that prior to the
Agreement’s termination, Hoke attempted to acquire confidential and proprietary customer
information for A&M’s existing Hoke accounts. (Id.) It goes on to allege that Hoke shared
A&M’s confidential and proprietary information with Del Val and Green and encouraged Hashemi
to breach the Non-Compete Agreement. (Id.) Hoke’s argument that it was privileged to divulge
A&M’s confidential and propriety information under the terms of the Agreement is unavailing.
(Hoke Defs.’ Br. 18-19.) New York law is clear that where, as here, there is a long-standing
distributorship agreement between a manufacturer and distributor that requires the distributor to
disclose its proprietary and confidential information, a parallel duty on the part of the manufacturer
is created to not use the distributor’s information in a manner detrimental to the distributor. See
Abernathy-Thomas Eng’g Co. v. Pall Corp., 103 F. Supp. 2d 582, 602-04 (E.D.N.Y. 2000) (citing
A.S. Rampell, Inc. v. Hyster Co., 3 N.Y.2d 369 (1957); (Zimmer-Masiello, Inc. v. Zimmer, Inc.,
552 N.Y.S.2d 935 (App. Div., 1st Dep’t 1990)). Furthermore, for this reason Count X of the
Amended Complaint adequately alleges that Hoke breached a fiduciary duty to A&M to not
disclose its propriety and confidential information.
Finally, in contrast to Hoke’s arguments, the Amended Complaint sufficiently alleges
damages. It states that as a consequence of Hoke’s breach of the implied covenant of good faith
and fair dealing, A&M has suffered substantial damages, including loss of revenues. (Am. Compl.,

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¶ 57.) Accordingly, the Amended Complaint properly pleads a breach of the implied covenant of
good faith and fair dealing claim.
E.

Tortious Interference with Contract and Tortious Interference
with Prospective Economic Advantage Claims

Count VI of the Amended Complaint alleges tortious interference with A&M’s contractual
rights against Defendants Del Val, Green, Taylor, Noha, and Terrell. (Am. Compl., ¶¶ 58-67.)
Count VII alleges tortious interference with A&M’s prospective economic advantage against the
same defendants. (Id. ¶¶ 68-76.) As an initial matter, the Hoke Defendants argue that New York
law governs adjudication of these two claims pursuant to the Agreement’s choice of law provision.
A&M retorts that New Jersey law governs, and the Del Val Defendants are in agreement that New
Jersey law governs. While under certain circumstances non-signatories to a contract could be
bound by its terms, this typically occurs when the non-signatories are third-party beneficiaries.
See Costal Steel Corp. v. Tilghman Wheelabrator, Ltd., 709 F.2d 190, 203 (3d Cir. 1983), cert.
denied, 464 U.S. 938 (1983). Those facts are not present here. Del Val and Green are certainly
not third-party beneficiaries of the Agreement. They are alleged to be A&M’s competitors and
allegedly sought to replace A&M as Hoke’s exclusive distributor in the region specified in the
Agreement. Additionally, there is no indication that Taylor, Noha, and Terrell are third-parties
beneficiaries of the Agreement. Their status as employees of Hoke, without more, does not
transform them into third-party beneficiaries. As such, the Agreement’s New York choice of law
provision is inapplicable and New Jersey law governs the tortious interference claims.
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.
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 the protectable

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right 3) that causes a loss with resulting damages. See Printing Mart-Morristown v. Sharp Elecs.
Corp., 116 N.J. 739, 751-52 (1989). Similarly, tortious interference with a prospective economic
advantage claims must essentially allege the same elements. The only distinction is that it must
allege a prospective economic advantage as the protectable right, as opposed to a contract. See
Macdougall v. Weichert, 144 N.J. 380, 403-04 (1996) (citing Printing Mart-Morristown, 116 N.J.
at 751-52); see also Carpet Group Int’l v. Oriental Rug Importers Ass’n, Inc., 256 F. Supp. 2d.
249, 288 (D.N.J. 2003), aff’d, 173 F. App’x 178 (3d Cir. 2006) (“The requirements for each claim
are identical except that the tortious interference with contractual relations claim requires proof of
an existing contract.”).
The Del Val Defendants argue that A&M has not alleged the existence of any contract or
prospective economic advantage with which they interfered. (Del Val Defs.’ Br. 7-9.) The
Individual Hoke Defendants likewise assert that the Amended Complaint fails to allege the breach
of any contract or any prospective economic advantage with a third party with which they
interfered. (Hoke Defs.’ Br. 20, 23.) These arguments are unpersuasive. As detailed supra, the
Amended Complaint sufficiently pleads a breach of contract claim by describing how Hoke failed
to timely supply orders during the one-month period after Hoke gave notice of termination but
before the termination’s effective date. (Am. Compl., ¶¶ 48-49.) The Amended Complaint also
chronicles how the Individual Hoke Defendants and the Del Val Defendants instituted a campaign
to sabotage A&M’s business by attempting to illicitly acquire A&M’s proprietary and confidential
information and key employee. (See generally, Am. Compl.) The Amended Complaint further
alleges that the conduct of these Defendants “was far in excess of the general accepted standards
of business and reasonable and fair competition.” (Id. ¶ 65.) The Amended Complaint alleges that
these actions resulted in Hoke terminating the Agreement and left A&M with approximately

15

$120,000 in unsellable Hoke inventory. (See generally, Am. Compl.) Thus, the Amended
Complaint adequately asserts that A&M possessed a protectable right, both in contract and in
prospective economic advantage.
The Individual Hoke Defendants, citing to Saltiel v. GSI Consultants, Inc., 170 N.J. 297
(2002), argue that A&M’s tortious interference claims fail because such claims are contract claims
that cannot be converted into tort claims by suing Hoke’s corporate employees. (Hoke Defs.’ Br.
20-22.) The Individual Hoke Defendants’ reliance on Saltiel is misplaced. In Saltiel, the plaintiff
brought negligence claims against the defendant corporate officers alleging that the officers
negligently performed the contractual task. Saltiel, 170 N.J. at 300-01. The New Jersey Supreme
Court reinstated the trial court’s grant of summary judgment to the defendants, holding that the
individual corporate defendants did not have an independent duty to plaintiff outside the scope of
the contract. Id. at 315, 318. As such, plaintiff could not maintain negligence claims against the
individual corporate defendants. Id. at 315, 316. While the facts and issues presented in Saltiel
are inapposite to the instant matter, DiMaria Construction, Inc. v. Interarch, 351 N.J. Super. 558
App. Div. 2001), aff’d, 172 N.J. 182 (2002), is instructive.
In DiMaria, plaintiff brought a tortious interference claim against, inter alia, defendant
officer for the officer’s role in getting plaintiff’s contract with another entity terminated. DiMaria
Constr., Inc., 351 N.J. Super. at 563-66. A jury returned a verdict in favor of plaintiff on its tortious
interference cause of action. Id. at 566. The appellate court affirmed, opining that
[A] clear-cut consensus has emerged that if an employee or agent is
acting on behalf of his or her employer or principal, then no action
for tortious interference will lie. . . If, on the other hand, the
employee or agent is acting outside the scope of his or her
employment or agency, then an action for tortious interference will
lie.

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Id. at 568-69 (citations omitted). The appellate court determined that the evidence presented at
trial supported the jury’s conclusion that the officer acted outside the scope of her employment.
Id. at 570. Significantly, the Third Circuit has advised that an agent or “employee who acts for
personal motives, out of malice, beyond his authority, or otherwise not ‘in good faith in the
corporate interest’” is acting outside the scope of his or her agency or employment. Varrallo v.
Hammond Inc., 94 F.3d 842, 849 n.11 (3d Cir. 1996) (quoting George A. Fuller Co. v. Chicago
College of Osteopathic Med., 719 F.2d 1326, 1333 (7th Cir. 1983)).
The Amended Complaint contains allegations that the Individual Hoke Defendants acted
for personal motives, out of malice, or not in good faith of corporate interest. For example, the
Amended Complaint details how Taylor repeatedly made anti-Semitic comments in reference to
A&M’s owners. (Am. Compl., ¶¶ 24(jj), (mm).) It also describes Taylor’s long-felt desire to
terminate Hoke’s relationship with A&M because of A&M’s owners’ religion. (Id. ¶ 24(cc).)
Further, the Amended Complaint alleges that Taylor believed he was in serious jeopardy if
Hashemi was unsuccessful with Del Val because Taylor had sold the idea to Green. (Id. ¶ 24(jj).)
Additionally, the Amended Complaint alleges that Noha and Taylor were acting for personal
motives as Noha, Taylor, and Green were personal buddies and could be considered “brothers.”
(Id. ¶¶ 24(f), (aa).) The Amended Complaint also describes how Terrell advised Green not to give
Hashemi written confirmation of indemnification for Hashemi’s breach of the Non-Compete
Agreement as it would implicate Del Val in future legal battles with A&M. (Id. ¶ 24(aaa).) It goes
on to discuss Terrell counseling Green on the timing and circumstances surrounding Hashemi
leaving A&M’s employ. (Id.)

Thus, the Amended Complaint adequately alleges that the

Individual Hoke Defendants acted outside the scope of their employment and therefore,
sufficiently states tortious interference claims.

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For their part, the Del Val Defendants argue that A&M failed to plead that their malicious
interference caused A&M’s loss. (Del Val Defs.’ Br. 10-16.) In the tortious interference context,
“malice is defined to mean that the interference was inflicted intentionally and without justification
or excuse.” DiMaria Constr., Inc., 351 N.J. Super. at 567 (citing Printing Mart-Morristown, 116
N.J. at 751). Malice “is determined on an individualized basis, and the standard is flexible, viewing
the defendant’s actions in the context of the facts presented.” Lamorte Burns & Co., Inc. v.
Walters, 167 N.J. 285, 306 (2001). When “[r]educed to its essence, the relevant inquiry is whether
the conduct was sanctioned by the ‘rules of the game.’” Ideal Dairy Farms, Inc. v. Farmland Dairy
Farms, Inc., 282 N.J. Super. 140, 199 (App. Div. 1995) (citing Harper-Lawrence Inc. v. United
Merchants & Mfrs. Inc., 261 N.J. Super. 554, 558 (App. Div. 1993)). In a tortious interference
action brought by a competitor, “the line clearly is drawn at conduct that is fraudulent, dishonest,
or illegal and thereby interferes with a competitor’s economic advantage.” Id. at 204. Causation,
on the other hand, is adequately pled when the complaint alleges that “if there had been no
interference there was a reasonable probability that the victim of the interference would have
received the anticipated economic benefit.” Id. at 199.
Based upon the allegations in the Amended Complaint, it can reasonably be inferred that
the Del Val Defendants’ actions were malicious and caused A&M’s loss. For example, the
Amended Complaint details numerous instances in which Green and Del Val attempted to pressure
Hashemi into divulging A&M’s confidential and proprietary information. (Am. Compl., ¶ 24(r),
(s), (t), (oo), (ss), (tt).) The Amended Complaint discusses an occasion when a Del Val employee
instructed Hashemi to leave Hashemi’s laptop with the employee so that the employee could
surreptitiously take A&M’s confidential and propriety information without detection. (Id. ¶
24(oo).)

The Amended Complaint specifies how Green forwarded to Hashemi Hoke’s

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commitment letter to Del Val, before Hoke terminated the Agreement, and how Green demanded
Hashemi provide him with A&M’s confidential and proprietary information. (Id. ¶ 24(ss).) It also
details how Green chastised Hashemi for his failure to provide A&M’s information. (Id. ¶ 24(tt).
Additionally, the Amended Complaint alleges that Green explained to Hashemi that he need not
worry about breaching any duties to A&M because Terrell and Taylor were prepared to retain
good attorneys to circumvent any illegalities. (Id. ¶ 24(t).) When the allegations in the Amended
Complaint are considered in totality, a reasonable inference can be drawn that Green and Del Val
acted with malice.
With respect to causation, the Amended Complaint alleges that it was Hashemi’s
responsibility to ensure that Del Val and Green were prepared to assume control of A&M’s Hoke
distribution territory. (Id. ¶ 24(ff).) It also states that Hoke had been waiting years for an
opportunity to terminate its relationship with A&M. (Id. ¶ 24(bb).) Based upon these allegations,
it can therefore be inferred that if there had not been interference from the Del Val Defendants,
A&M would have remained Hoke’s distributor. Thus, the Amended Complaint adequately pleads
causation vis-à-vis the Del Val Defendants, and A&M’s tortious interference counts are
cognizable.
F.

Civil Conspiracy to Commit Tortious Interference with
Contractual Relations and Prospective Economic Advantage

In Counts VIII and IX, the Amended Complaint alleges that Green, Taylor, Terrell, and
Noha engaged in a civil conspiracy to commit tortious interference with A&M’s contractual
relations and with A&M’s prospective economic advantage. Under New Jersey law, a civil
conspiracy is “‘a combination of two or more persons acting in concert to commit an unlawful act,
or to commit a lawful act by unlawful means, the principal element of which is an agreement
between the parties to inflict a wrong against or injury upon another, and an overt act that results

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in damage.’” Banco Popular N. Am. v. Gandi, 184 N.J. 161, 177 (2005) (quoting Morgan v. Union
Cnty. Bd. of Chosen Freeholders, 268 N.J. Super. 337, 364 (App. Div. 1993)). Importantly, a civil
conspiracy claim is cognizable only if the underlying offense is also actionable. Id.
The Individual Hoke Defendants argue that A&M’s claim must fail since their underlying
tortious interference claims must fail. (Hoke Defs.’ Br. 24-25.) Similarly, Green primarily argues
that since A&M’s tortious interference claims must be dismissed, its civil conspiracy claims must
be dismissed as well. (Del Val Defs.’ Br. 16-17.) These argument are without merit. As discussed
supra, A&M’s tortious interference claims are adequately pled and thus, its civil conspiracy claims
are cognizable.
Green additionally argues that A&M failed to allege an agreement between him and
another defendant to engage in tortious conduct. (Del Val Defs.’ Br. 17-18.) Contrary to Green’s
assertion, the Amended Complaint is replete with allegations that permit an inference that he and
the Individual Hoke Defendants agreed to interfere with A&M and Hoke’s business relationship.
(Am. Compl. ¶¶ 24(a), (d), (f), (l), (n), (q), (r), (t), (aa), (dd), (ff), (gg), (hh), (ii), (rr), (xx), (yy),
(zz), (aaa).) Accordingly, this Court finds that A&M has pled sufficient facts to maintain its civil
conspiracy claims.
V.

CONCLUSION
For the foregoing reasons, the Hoke Defendants and the Del Val Defendants’ Motions to

Dismiss are denied.

s/ Susan D. Wigenton, U.S.D.J
Orig:
cc:

Clerk
Judge Arleo
Parties

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