GHULAM, et al v. 7-ELEVEN, INC. et al
OPINION & ORDER granting 32 Motion to Dismiss, and as to deft 7-Eleven only, the First Amended Complaint is dismissed in its entirety ; granting 33 Motion to Dismiss as to deft Issa only, Counts II,III,IV & V of the First Amended Complaint are dismissed. Signed by Judge Stanley R. Chesler on 6/2/15. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 14-2540 (SRC)
OPINION & ORDER
7-ELEVEN, INC. et al.,
This matter comes before the Court on two motions to dismiss the First Amended
Complaint (“FAC”) for failure to state a claim upon which relief may be granted, pursuant to FED.
R. CIV. P. 12(b)(6), one by Defendant 7-Eleven, Inc. (“7-Eleven”), and one by Defendant Ibrahim
A. Issa (“Issa”). The motions are unopposed. For the reasons stated below, both motions to
dismiss will be granted.
7-Eleven had previously moved to dismiss three claims in the Complaint for failure to state
a valid claim. On July 10, 2014, this Court granted the motion to dismiss and dismissed Counts II,
III, and IV with prejudice. Count II of the Complaint asserted a claim against 7-Eleven for breach
of contract; Count III, a claim against 7-Eleven for quantum meruit; and Count IV, a claim against
7-Eleven for breach of the implied covenant of good faith and fair dealing. After Plaintiff filed a
First Amended Complaint, 7-Eleven and Issa filed the motions to dismiss presently before the
The FAC asserts five claims. Count II asserts a claim for breach of contract against 7Eleven; Count III asserts a claim against 7-Eleven for quantum meruit; and Count IV asserts a
claim against 7-Eleven for breach of the implied covenant of good faith and fair dealing. 7-Eleven
first moves to dismiss Counts II, III, and IV on the ground that they were previously dismissed
with prejudice. Because these claims were already dismissed with prejudice, they are a nullity.
They cannot be dismissed again.
7-Eleven also argues that the FAC fails to state a claim against it because it fails to plead
sufficient facts to raise an inference of an employment relationship between Plaintiff and itself.
This is correct. The Complaint alleges that 7-Eleven employed Plaintiff, but it also alleges that
Defendant Issa was owner, operator, or franchisee of the 7-Eleven location at issue. (FAC ¶ 21.)
The Complaint pleads no specific facts which make plausible the inference that any of the 7Eleven entity Defendants employed Plaintiff.
Consider, for contrast, the case of Naik v. 7-Eleven, Inc., 2014 U.S. Dist. LEXIS 107139
(D.N.J. Aug. 5, 2014). In Naik, the Court found that the Complaint alleged sufficient facts to
support a claim against 7-Eleven as an employer under the FLSA. Id. In that case, however,
unlike the instant one, the Court found that the Complaint alleged nine categories of specific facts
which supported a claim regarding an employment relationship between the plaintiff and 7-Eleven.
Id. at *7. In the instant case, the allegation that 7-Eleven employed Plaintiff is purely conclusory.
The FAC fails to state a claim against 7-Eleven because it fails to plead sufficient facts to
raise an inference of an employment relationship between Plaintiff and 7-Eleven. Plaintiff has
now amended the Complaint twice and has failed to state any valid claim against 7-Eleven. This
Court finds that further amendment is futile, and the Complaint against Defendant 7-Eleven is
hereby dismissed with prejudice in its entirety.
Defendant Issa moves to dismiss Counts II through V on the ground that these common
law claims are pre-empted by the FLSA, citing this Court’s recent decision in Marroquin v. 7Eleven, Civil Action No. 2:14-cv-1609 (D.N.J. Nov. 20, 2014). In that decision, this Court
examined the relevant case law and held: “These cases, while not controlling authority, persuade
this Court that common law claims are covered by the FLSA, are preempted, and are thus barred.”
Id. at 2. For the same reasons, this Court finds in the present case that the common law claims are
pre-empted by the FLSA. Counts II through V in the FAC, against Defendant Issa, will be
dismissed with prejudice.
Thus, the only claim that survives these motions to dismiss is the FLSA claim against
For these reasons,
IT IS on this 2nd day of June, 2015,
ORDERED that Defendant 7-Eleven’s motion to dismiss the First Amended Complaint
(Docket Entry No. 32) is GRANTED, and, as to Defendant 7-Eleven only, the First Amended
Complaint is DISMISSED with prejudice in its entirety; and it is further
ORDERED that Defendant Issa’s motion to dismiss the First Amended Complaint (Docket
Entry No. 33) is GRANTED, and, as to Defendant Issa only, Counts II, III, IV, and V of the First
Amended Complaint are DISMISSED with prejudice.
s/ Stanley R. Chesler
Stanley R. Chesler, U.S.D.J.
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