STAMPONE v. WALKER et al

Filing 62

OPINION. Signed by Judge Jose L. Linares on 2/8/17. (DD, ) N/M

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
FREDERICK STAMPONE,
Plaintiff,

Civil Action No.: 15-6956 (JLL)
OPINION

v.
MATTHEW WALKER (DIRECTOR OF
OPERATIONS), and NEW YORK CITY
DISTRICT COUI’1CIL OF CARPENTERS,
Defendants.

LINARES, District Judge.
This matter comes before the Court by way of Defendants Matthew Walker (Director of
Operations) (“Director”) and New York City District Council of Carpenters’ (“the Union”)
(collectively “Union Defendants”) Motion to Dismiss pro se Plaintiff Frederick Stampone’s
Second Amended Complaint (“SAC”) pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure (ECF No. 50.), Defendants George Laufenberg (“Manager”) and Northeast Carpenters
Funds’ (collectively “Funds Defendants”) Motion to Dismiss Plaintiffs Second Amended
Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (ECf No. 49), and
Defendant New York City District Council of Carpenters Benefit Funds’ (“Defendant NYC
funds”) Motion to Dismiss Plaintiffs Second Amended Complaint pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure (ECF No. 51). Plaintiff has filed a “Motion to Stay and Enter
Order for Discovery and Answer/Opersition (sic) to Defendants (sic) Motion to Dismiss.” (ECF
No. 52).

The Court has reviewed the purported Motion, and has ascertained that the relief

requested therein is simply a request to deny the three aforementioned Motions to Dismiss.

Accordingly, the Court will treat Plaintiffs submission as an opposition to which Defendants’
have replied. (ECF Nos. 53, 56, 58). The Court has considered the parties’ submissions and
decides this matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil
Procedure. F or the reasons set forth below, the Court grants the Motions to Dismiss and dismisses
Plaintiffs Complaint without prejudice.

Plaintiff, a 62-year-old resident of New Jersey, has been a member of the United
Brotherhood of Carpenters since 1978 and a member of the Union for over ten years. (ECF No.
(“SAC” at 3, see sections “Cause of Action,” unnumbered

¶

1, “Damages, Claim Stated and

Allegations,” ¶ 1)). He has also been a Certified Carpenter Steward for over six years. (Id.). While
holding a position as a Carpenter Steward, Plaintiffs last day of work was “on or about June 17,
2015.” (Id.).

Afier being out of town from June 2015 to September 2015, Plaintiff called the Union’s
out of work list on September 8, 2015 and discovered that his Steward Skill was removed from the
list. (SAC at 3, see section “Cause of Action,” unnumbered ¶2). Plaintiff subsequently “put in a
complaint with the Inspector General Office” and was informed that his Steward Skills were
suspended for failing to attend a meeting on August 27, 2015 and being found guilty of”[u]nethical
[p]ractice for not reporting hours on [his hours-reporting] device.” (Id.). Plaintiff alleges that he
was unaware of the August 27, 2015 meeting. (Id.).
On September 9, 2015, Plaintiff sent a letter to Director Matthew Walker and the Union in
order to give them a “chance to settle [the] case.” (SAC at 3, see section “Cause of Action,”

This background is derived from Plaintiffs Complaint, which the Court must accept as true at this stage of the
proceedings. See Aiston v. Countiywicle Fin. Corp., 585 F.3d 753, 758 (3d Cir. 2009).

2

unnumbered

¶ 3). On September 16, 2015, Plaintiff called the Pension Benefit fund and was

informed that he could “not retire because the was] not vested.” (SAC at 3, see section “Damages,
Claim Stated and Allegations,” ¶ 1). According to the First Amended Complaint and the SAC, in
order to be vested, a Union member must have five credits. (Id.). Specifically, Plaintiff alleges
that he was informed that 300 hours equals one-fourth of a credit, 600 hours equals one-half of a
credit, and 870 hours equals 1 credit. (Id.). Pension Benefit Fund’s records reflect that Plaintiff
has worked a total of 4,756 hours as a Union member and has two and one-half credits. (Id.).
Plaintiff commenced this action on September 18, 2015. (See ECF No. 1 (“Compi.”)). On
November 9, 2015, Plaintiff filed an Amended Complaint claiming numerous causes of action and
related issues, including: “440 Other Civil Rights;” violation of the Racketeer Influenced and
Corrupt Organization (“RICO”) Statute; “Slander, Defonuation of Character, Harassment and 360
Other Personal Injury;” denial of the right to a skill; age discrimination; whistleblowing; and loss
of wages. (First Amended Complaint at 2, see section “Jurisdiction,”

¶ 3-10). On January 19,

2016, Defendants moved to dismiss the amended complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). (ECF No. 9).

On March 8, 2016, this Court dismissed Plaintiffs First

Amended Complaint pursuant to Rule 12(b)(6).
Thereafter, Plaintiff filed the SAC on February 19, 2016, which purportedly addressed the
pleading deficiencies of the first Amended Complaint. (ECF No. 18). Plaintiffs SAC is nearly
identical to the first Amended Complaint. The Court notes Plaintiff seems to have added an
additional cause of action for “Liable” (sic).
Allegations” at

(SAC at 4; see “Damages, Claims States and

¶ 2). Additionally, Plaintiff has increased his demand from $10,000,000 to

$100,000,000. (SAC at 6; see “Demand/Relief’ at ¶ 2).
3

LEGAL STANDARD

To withstand a motion to dismiss for failure to state a claim, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim of relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ati. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 67$ (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to

a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id.

To detennine the sufficiency of a complaint under Twonthly and Iqbal in the Third Circuit,
the court must take three steps: first, the court must take 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; finally, where 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. See Connelly v. Lane Const. Corp., $09 F.3d 780, 787 (3d
Cir. 2016) (citations omitted). “In deciding a Rule 1 2(b)(6) motion, a court must consider only
the complaint, exhibits attached to the complaint, matters of the public record, as well as
undisputedly authentic documents if the complainant’s claims are based upon these documents.”
Mayer v. Belichick, 605 f.3d 223, 230 (3d Cir. 2010).
The Court also notes that pleadings submitted by pro se litigants are subject to liberal
construction. See Higgs v. Att’v Gen., 655 F.3d 333, 339 (3d Cir. 2011). The Court is required to
accept a pro se plaintiffs well-pleaded factual allegations as true while drawing reasonable

4

inferences in his or her favor. Capogrosso v. Sttp.Ct. ofNi, 588 F.3d 180, 184 (3d Cir. 2009).
However, a pro se complaint must still contain sufficient factual matter to state a claim to relief
GMAC Mortgage, 523 F. App’x 172, 173 (3d Cir.

that is plausible on its face. See Franklin
2013).

ANALYSIS

As mentioned, Plaintiff purports

to

assert a variety of claims throughout the SAC.

Construing the SAC in a light most favorable to Plaintiff, the Court understands that Plaintiffs
causes of action arise out of his pension credits and the removal of his steward skill. Below, the
Court individually addresses the various causes of action it is able to discern and dismisses the
SAC without prejudice.
A. ERISA Related Claims

In the SAC and Opposition, Plaintiff alleges that he is questioning Pension Fund rules and
being denied Pension hours.2 (SAC at 2, see section “Jurisdiction,” ¶ 2-1 1; “Cause of Action” at
4 unnumbered

¶

1; “Damages, Claims States and Allegations” at ¶JJl-2).

As with the First

Amended Complaint, the SAC makes no explicit reference to the Employee Retirement Income
Security Act (“ERISA”). However, ERISA is the governing statute regarding pension-related
issues and governs the issue between the parties herein. See 29 U.S.C. §sS 1002(3), 1003(a) (2014).
An employee seeking pension benefits may bring an action under ERISA to “recover
benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan,
or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C.
However,

prior to

§

1 132(a)(1)(B).

filing a claim in federal court, “[u]nder ERISA a party must exhaust all of the

Plaintiff seeks “an extra 3 [Pension fund] Credits,” but Plaintiff has not established how the Court could fashion
such a remedy. (SAC at 6, see section “Demand/Relief,” ¶ 4.)

2

5

administrative remedies available under the plan.” Henshaw v. Roofers Local No. 4 Pension Fttnd,
2006 WE 2715138, at *2 (D.N.J. Sept. 19, 2006). See also I’Ve/don v. Kraji, Inc., $96 F.2d 793,
$00 (3d Cir. 1990) (“Except in limited circumstances

.

.

.

,

a federal court will not entertain an

ERISA claim unless the plaintiff has exhattsted the remedies available under the plan.”); Wofv.
Nctt’l Shopmen Pension Fund, 72$ f.2d 182, 185 (3d Cir. 1984) (noting that “the federal courts
have generally not entertained [ERISA actions] where the party bringing the action has failed to
exhaust administrative remedies”); Zipf v. Amer. Tel. and Tel. Co., 799 f.2d 889, 892 (3d Cir.
1986) (explaining that claims based on the denial of benefits cannot initially be brought in a federal
court).
An exception to administrative remedy exhaustion arises when “it appears that application
through the administrative process would be futile.” Henshaw, 2006 WE 271513$, at *2. In
detennining futility, a court may consider:
(1) whether plaintiff diligently pursued administrative relief; (2) whether plaintiff
acted i-easonably in seeking immediate judicial review under the circumstances; (3)
existence of a fixed policy denying benefits; (4) failure of the benefit plan
administrator to comply with his own internal administrative procedures; and (5)
testimony of plan administrators that any administrative appeal would he futile.
Id. (citing Harrow v. Prudential Ins. Co. ofAm., 279 F.3d 244, 250 (3d Cir. 2002)).

In this case, Plaintiff has failed to allege that he exhausted any or all administrative
procedures under the Pension Fund prior to commencing this action in federal court. In fact,
Plaintiff concedes that he has not exhausted the aforementioned administrative remedies. (SAC at
2; see “Jurisdiction and Legel (sic)Argument” at

J 5). There, Plaintiff states that he “has filed a

claim against all defendants and nothing has been done about his claim. Defendants have clearly
demonstrated that they will do anything to even try to settle Plaintiffs claims and have showed

6

(sic) this [C]ourt that applications through the administrative process would be futile.” (Id.). Thus,

Plaintiff admits that he has not utilized the administrative process and seems to aver that same
would be futile, thereby excusing him from attempting to resolve the matter through the
administrative process and proceed with this action.
However, aside from the above quote regarding futility, the SAC contains no additional
allegations regarding the futility. Plaintiff does not assert that he has attempted to even start the
process nor has he pled that Defendants’ have a fixed policy denying benefits. Similarly, there are
no allegations that the plan administrator has failed to comply with the plan’s internal policies.
Hence, Plaintiff’s bare conclusion that pursuing and exhausting his administrative remedies would
be futile is insufficient to qualify for the exception set forth above. Thus, the Court finds that all
claims relating to Plaintiff’s his pension must be dismissed for failure to exhaust the appropriate
administrative remedies under ERISA.
B. Age Discrimination Claim

Plaintiffs SAC asserts that he “is over 62 years old and claiming Age Discrimination
against [Defendant] Matthew Walker (Director of Operations), and [Defendant] New York City
District Council of Carpenters, as a direct result from [s]uspending Plaintiff (sic) Shop Steward
Skill.” (SAC at 5; see “Damages, Claims Stated and Allegations”

¶ 4). Claims related to age

discrimination in employment are governed by the Age Discrimination in Employment Act
(“ADEA”). 29 U.S.C. §sS 621, 623 (2015). Specifically, the ADEA provides, inter alia, that it
“shall be unlawful for an employer to fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s age.”
7

§ 623. Prior to commencing a

civil action, a plaintiff must first “exhaust his or her administrative remedies.” Hildebrand v.
Allegheny Cty., 757 f.3d 99, 111 (3d Cir. 2014). The ADEA mandates that “[n]o civil action may
be commenced by an individual under this section until 60 days after a charge alleging unlawful

§ 626(d)( 1).

discrimination has been filed with the Equal Employment Opportunity Commission.”

Therefore, “[a] plaintiffs obligation to timely file with the EEOC is a condition precedent to filing
suit under the ADEA.” Hildebrand, 757 F.3d at 111.
In the instant action, Plaintiff has failed to allege that he exhausted any or all administrative
remedies prior to file an age discrimination claim in the federal court. As was the case with
Plaintiffs First Amended Complaint, the SAC fails to provide any information concerning efforts
made by Plaintiff to file charges with the Equal Employment Opportunity Commission. Plaintiff
has not fulfilled the condition precedent necessary to bring a civil action under the ADEA and,
accordingly, the age discrimination claim shall be dismissed.
C. Suspension of Plaintiff’s Steward Skill Claim
1. Violation of Union Constitution
Plaintiff claims that Union Defendants violated the Union Constitution by allegedly

removing his Steward Shop Skill. (SAC at 5; see “Damages, Claims Stated and Allegations” ¶ 3).
As this Court previously noted, Section 301 of the LMRA authorizes union members to bring suit
in their individual capacities against labor unions for violations of collective-bargaining
agreements, union constitutions, and other forms of contracts. 29 U.S.C.

§

185(a); see also

Wooddelt v. Int’l Broth. of Elec. I’Vorkers, Local 7], 502 U.S. 93, 101 (1991) (explaining that
“union constitutions are an important form of contract between labor organizations
union members] may bring suit on these contracts under

8

§

.

.

.

[and that

301.”). Furthermore, “the policy of

forestalling judicial interference with internal union affai;-s.

.

.

has been strictly limited to disputes

arising over internal union matters such as those involving the interpretation and application of a
union constitution.” Clayton v. Int’l Union, United Auto Workers, 451 U.S. 679, 687-88 (1981).
Thus, an aggrieved plaintiff is encouraged to exhaust internal union remedies prior to filing suit
for challenging contractual violations. See Orlando v. Interstate Container Corp., 100 F.3d 296,

299 (3d Cir. 1996) (explaining that “before resorting to a section 301 suit, an employee ‘must
attempt to exhaust any exclusive grievance and arbitration procedures established by

.

.

.

[a

contractual] agreement”) (internal citation omitted). The failure to exhaust internal remedies may
be excused by a court acting with discretion to evaluate:
first, whether union officials are so hostile to the employee that he could not hope
to obtain a fair hearing on his claim; second, whether the internal union appeals
procedures would be inadequate either to reactivate the employee’s grievance or to
award him the full relief he seeks under § 301; and third, whether exhaustion of
internal procedures would unreasonably delay the employee’s opportunity to obtain
a judicial hearing on the merits of his claim.
Id. at 689.

In so far as Plaintiff attempts to argue that the suspension of his Steward Skill contravened
the Union’s internal constitution and/or by-laws in violation of the LMRA, Plaintiff once again
does not point to any specific Union documents or contractual agreements. The SAC, just as the
First Amended Complaint, simply fails to mention any Union-related documents. Further, Plaintiff
has failed to demonstrate that he attempted to exhaust internal remedies regarding a violation of
the Union constitution, as encouraged by courts in the Third Circuit. Though the Plaintiff put in a
“complaint” with the Inspector General Office and submitted a letter to Defendant Walker
requesting an “appeal,” there is no information concerning internal remedies, in general, and
Plaintiff does not demonstrate his attempts to exhaust such internal remedies. Plaintiff also does
9

not identify any relevant factors that could aid the Court in excusing his failure to exhaust internal
remedies, aside from the general claims that Defendants “refuse to compensate [P]laintiff for his
damages or even try to settle this case.” (Id. at

¶ 9). However, the refusal to settle a matter does

not excuse Plaintiff from pursuing the necessary administrative remedies. Thus, this cause of
action must be dismissed.
2. Improper Disciplinary Action
Plaintiff also seems to assert that the removal of his Steward Skill was an improper
disciplinary action for which he is due compensation. (SAC at 5; sec “Damages, Claims Stated
and Allegations”

¶ 3). The LMRDA provides that no labor organization member “may be fined,

suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization
or by any officer thereof unless such member has been (A) served with written specific charges;
(B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.” 29 U.S.C.

§ 41 1(a)(5) (2015). Section 41 1(a)(5) of the LMRDA “deals with the union-member relationship
and in no way supports jurisdiction of a suit involving the employer (union)-employee (business
agent) relationship.” Sheridan u. United Bd. of Carpenters cind Joiners ofA inerica, Locctl No. 626,

306 F.2d 152, 157 (3d Cir. 1962) (citation omitted). InMirra

V.

Highway & Locctt Motor freight

Drivers, Local Union 70, 1964 U.S. Dist. LEXIS 7525, at *3..4 (D.N.J. Feb. 10, 1964), the court

explicitly held that the removal of the plaintiff as a shop steward did not constitute a disciplinary
action because “removal from union office, such as business agent, is not disciplinary action within
the meaning of Section 41 1(a)(5).” Therefore, suit under Section 41 1(a)(5) of the LMRDA for
improper disciplinary action is only proper when a plaintiff seeks to litigate issues concerning the
union-member relationship.

10

Even when the SAC construed in a light most favorable to Plaintiff, the removal of
Plaintiffs Steward Skill does not qualify as a disciplinary action under the LMRDA. Plaintiff, an
employee/business agent, seeks to bring suit against the Union as his employer for removing his
Steward Skill. However, such action is simply improper under Section 41 1(a)(5) of the LMRDA
because Plaintiff is not bringing suit in response to actions relating to a union-member relationship.
See Mirra, 1964 U.S. Dist. LEXIS 7525, at *34,

As a whole, Plaintiffs claim relating to the suspension of his Steward Skill fails both under
the Labor Management Relations Act and the Labor-Management Reporting and Disclosure Act.
As such, this claim shall be dismissed.
D. RICO Claim

The SAC also contains a claim for RICO violations.3 (SAC at 2; see “Jurisdiction and
Legel (sic) Argument”

¶ 9; see also

SAC at 4 “Damages, Claims Stated and Allegations” at

¶

1).

According to Plaintiff, “[t]his case is about [d]ebt by [d]eception and [e]xhaustion of [f]unds and
falls under the RICO statute.”

(SAC at 2; see “Jurisdiction and Legel (sic) Argument”

¶

9).

Accordingly, Plaintiff ailges that he “is claiming [d]ebt [b]y [d]eception and [e]xhaustion of
[f]unds that falls (sic) under the RICO Statute for missing [p]ension [m]oney [c]redits.” (SAC at
4; see “Damages, Claims Stated and Allegations” at

¶

1).

Aside from these statements, Plaintiff

makes no substantive RICO related allegations.
Section 1962(c) of the federal RICO statute provides that “[lit shall be unlawful for any

3Plaintiff does not specifically address whether he is bringing suit under the federal or state RICO statutes. As such,
the Court will address both the federal and state RICO statutes regarding Plaintiffs claim concurrently. See In re
Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 245 (3d Cir. 2012) (holding that the
“Complaint’s federal and New Jersey RICO Claims parallel each other, and because the two RICO statutes are
intended to be coextensive, we follow the District Court’s approach and analyze the two claims concurrently”).

11

person employed by or associated with any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of
such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.”4
18 U.S.C.

§ 1962(c) (2015). An “unlawful debt” is defined as a debt “(A) incurred or contracted

in gambling activity which was in violation of the law.

.

.

and (B) which was incurred in connection

with the business of gambling in violation of the law of the United States

.

.

.

or the business of

lending money or a thing of value at a rate usurious under State or federal law.”
“Racketeering activity” is defined to include a large variety of predicate acts.

§ 1961(6).

§ 1961(1).

Specifically, a RICO violation requires: “(1) conduct (2) of an enterprise (3) through a
pattern (4) of racketeering activity.” Sedima, S.F.R.L. v. Irnrex Co., Inc., 473 U.S. 479,496 (1985).
“A pattern of racketeering activity requires at least two predicate acts of racketeering.” Lum v.
Bank of America, 361 F.3d 217, 223 (3d Cir. 2004). See also

§ 196 1(5). further, to “prove a

pattern of racketeering activity a plaintiff or prosecutor must show that the racketeering predicates
are related, and that they amount to or pose a threat of continued criminal activity.” Ff1 Inc., v.
Nortlnvestent Bell Telephone Co., 492 U.S. 229, 239 (1989). The Supreme Court has explained
that “‘continuity’ is both a closed- and open-ended concept, referring either to a closed period of
repeated conduct, or to past conduct that by its nature projects into the future with a threat of
repetition.” Id. at 241. Also, a plaintiff only has standing to bring a RICO suit “if, and can only
recover to the extent that, he has been injured in his business or property by the conduct
constituting the violation of RICO.” Maio v. Aetna, Inc., 221 F. 3d 472, 483 (3d Cir. 2000).

The New Jersey RICO statute is nearly identical to the federal statute as it provides that “it shall be unlawful for any
person employed by or associated with any enterprise engaged in or activities of which affect trade or commerce to
conduct or participate, directly or indirectly, in the conduct of the enterprise’s affairs through a pattern of racketeering
activity or collection ofunlawfiul debt.” N.J.S.A. 2C:41-2 (1981).

12

Here, Plaintiffs RICO claim once again falls short of the statutory requirements. First, the
Court notes that Plaintiff has not made any substantial changes to the allegations relating to RICO
in the SAC. Additionally, since Plaintiff has not alleged gambling activities, it is presumed that

he intends his allegations to be construed as predicate acts within Section 1961(1). However, the
allegations of “Debt by Deception” and “Exhaustion of funds” still do not constitute predicate acts
nor are they similar to predicate acts described in the statute. See

§ 1961(1). The allegations in the

SAC remain conclusory and they fail to provide specific acts in violation of RICO. Also, although
Plaintiff argues that the “Debt by Deception” practice demonstrates an ongoing occurrence, he
once again fails to provide any specific information demonstrating a pattern of ongoing
racketeering activity as required by Section

§ 196 1(5). Again, Plaintiffs allegation of an ongoing

occurrence is conclusory and unsupported by detailed information. Plaintiffs federal and state
RICO claims shall be dismissed.
I. Defamation and Slander Claims

The SAC also contains a claim for “Liable (sic), Slander, [and] Deformation (sic) of
Character.” (SAC at 4; see “Damages, Claims Stated and Allegations” at

¶ 2).

To succeed in a

defamation action, a plaintiff “must prove three essential facts: (1) that defendants made a false
and defamatory statement concerning [the plaintiffi; (2) that the statement was communicated to
another person (and not privileged); and (3) that defendants acted negligently or with actual
malice.” G.D. v. Kenny, 205 N.J. 275, 292-93 (2011). Generally, a defamatory statement is “one
that subjects an individual to contempt or ridicule [or] one that harms a person’s reputation by
lowering the community’s estimation of him or by deterring others from wanting to associate or
deal with him.” Id. (internal citations omitted). Statements that are substantially true, however,

13

are not defamatory. Birch v. Wa/-Mart Stores, Inc., 2015 WL 5490938, at *3 (D.N.J. Dec. 9,
2015).

A plaintiff must not assert a “vague conclusory allegation” of defamation. Birch, 2015 WL
8490938, at *4• See also Zoneraich v. OverlookHosp., 212 NJ. Super. 83, 101 (App. Div. 1986).
Instead, a plaintiff “must plead facts sufficient to identify the defamatory words, their utterer and
the fact of their publication.” Birch, 2015 WL $490938, at *4 Slander specifically involves the
verbal communication of a defamatory statement to a third person. Gnapinsky v. Goldyn, 23 N.J.
243, 252 (N.J. 1957). Without the “essential element” of communication to a third person, slander
is not shown. See id.; Fatouros e. Lambrakis, 2015 WL 5574413, at *3 n.6 (3d Cir. Sept. 23,
2015).

Here, Plaintiff has failed to correct the deficiencies identified in relation to these claims as
he has not pled “facts sufficient to identify the defamatory words, their utterer and the fact of their
publication.” Birch, 2015 WL 8490938, at *4 first, Plaintiffhas failed to identify any defamatory
words or remarks made by the Defendants. Plaintiff simply states that the suspension of his
Steward Skill on his record results in “liable (sic),” “slander” and “deformation (sic) of character.”
However, Plaintiffs suspension on his record represents a true statement of fact, and true
statements are not defamatory. See Birch, 2015 WL 8490938, at *3
Moreover, the SAC contains no allegations to indicate that the alleged defamatory words
or remarks were communicated to another individual orally, as required for slander, or in writing.
finally, as Plaintiff has not demonstrated communication to a third party, Plaintiff has failed to
plead that Defendants acted negligently or with actual malice. Therefore, Plaintiff has failed to
adequately plead his defamation and slander claims with sufficient factual allegations and his

14

claims shall be dismissed.
F. Whistleblowing Claim

Plaintiff also purports to assert a whistleblowing claim. (SAC at 3; see “Jurisdiction and
Legel (sic) Argument” at ¶J 13). Plaintiff asserts “[t]his case is Whistle Blowing (sic),” and that he
“is claiming Whistle Blowing (sic), Harassment, and 360 Other Personal Injury.” (Id.; see also
SAC at 5, “Damages, Claims Stated, and Allegations at ¶ 6). Aside from these statements, Plaintiff
makes no substantive whistleblowing related allegations.
In New Jersey, whistle-blower activity includes, inter alia, disclosing to a “supervisor or
to a public body an activity, policy or practice of the employer

.

.

.

that the employee reasonably

believes” violates a law or is fraudulent or criminal. See N.1S.A. §34:19-3(a)(1)-(2). Furthermore,
an employer must take “retaliatory action against an employee” in order for there to be an
actionable whistle-blowing claim. Id. 34:19-3(a).
As with Plaintiffs First Amended Complaint, Plaintiffs purported whistleblower claim is
implausible as alleged. Plaintiff asserts that he was terminated as a “direct result” of filing the
Amended Complaint. However, while Plaintiffs Steward Skill was suspended at some point prior
to September 8, 2015, Plaintiff did not file the Amended Complaint until November 9, 2015. (Am.
Compl., at 2, see section “Cause of Action,” unnumbered ¶ 2.) To the extent that Plaintiff intended
to refer to the Original Complaint, that argument fails as well, as the Original Complaint was filed
after his “termination” on September 21, 2015. (See Compl.) Thus, the whistleblower claim
temporally does not pass muster.
Further, just as with the first Amended Complaint, the SAC contains no allegations
regarding whom he “blew the whistle” to or what activity he “blew the whistle” on. Plaintiffs

15

whistleblowing claim remains inadequate and shall be dismissed.
G. Intentional Infliction of Emotional Distress

The SAC also seems to contain a claim for Intentional Infliction of Emotional Distress.
(SAC at 5; see “Damages Claims, Stated and Allegations” at ¶J 5,$),5 “Under New Jersey law, to
prevail on a common law cause of action for intentional infliction of emotional distress, ‘[t]he
plaintiff must establish intentional and outrageous conduct by the defendant, proximate cause, and
distress that is severe.” fidanzato v. Somerset, 2012 WL 4508008, at *11 (D.N.J. Sept. 28, 2012)
(quotingBitcktey v. Trenton SavingFund Soc v, 111 N.J. 355, 366 (N.J. 198$). A defendant “must
intend both to do the act and to produce emotional distress.”

Buckley, 111 N.J. at 366.

Additionally, “the emotional distress suffered by the plaintiff must be so severe that no reasonable
man could be expected to endure it.” Id. (internal citation and quotation marks omitted).

Plaintiffs claim of intentional infliction of emotional distress cannot succeed as he once
again has failed to plead “intentional and outrageous” conduct by the Defendants and the severity
of his distress. As noted by this Court when it dismissed Plaintiffs First Amended Complaint,
Plaintiffs claim of “Pain and Suffering” due to Defendants’ alleged refusal to settle the case, in
particular, cannot provide the basis for an intentional infliction of emotional distress claim. See
fidctnzato, 2012 WL 450800$, at *11 (“The Court has not found any case law that supports the
preposterous notion that filing of court documents [in furtherance of a lawsuit] is both extreme and
outrageous in the context of intentional infliction of emotional distress.”). Accordingly, Plaintiff
has not adequately plead a claim for intentional infliction of emotional distress and the claim shall

The Court acknowledges that Plaintiff did not explicitly claim “intentional infliction of emotional distress” by
Defendants. However, Plaintiffs claim of “emotional stress as a direct result of the damages created by Defendants,
Lack of Income, and the refusal to settle” will be construed as an attempt to claim intentional infliction of emotional
distress. (SAC at 4, see “Damages, Claim Stated and Allegations” at 5,8.)

16

be dismissed.
H. Harassment Claim

Plaintiff has also purported to assert a claim for “harassment.” (SAC at 5; see “Damages
Claims, Stated and Allegations” at ¶ 5). In New Jersey, “harassment” is not recognized as “free
standing civil cause of action for damages.” Hodge v. McGrath, 2014 WL 6909499, at *1 (App.
Div. Dec. 10,2014). See also Greenblattv. Klein, 2015 WL 1034633, at *5 (D.N.J. Mar. 10, 2015),
aff’d, 2015 WL 8598245, at *2 (3d Cir. Dec. 14, 2015) (holding that a plaintiff failed to establish

“any facts sufficient to sustain a cause of action for harassment” when he failed to cite “any federal
law or statute under which his harassment claim may arise”).
Here, Plaintiffs generalized claim of “harassment” must fail as he has not remedied his
prior pleading deficiencies with regards to this claim. Plaintiff still fails to identify any specific
harassment statutes that have been violated by Defendants and fails to identify why the suspension
of his Steward Skill amounts to harassment.
dismissed.

As such, Plaintiffs harassment claim shall be

6

CONCLUSION

For the reasons above, the Court grants the Motions to Dismiss and dismisses Plaintiffs
SAC. Given Plaintiffs pro-se status, the SAC is dismissed without prejudice. Plaintiff shall have
until Friday, March 3, 2017 to file a Third Amended Complaint to address the deficiencies
identified herein. The Third Amended Complaint is to include a separate section for each cause

6

The Plaintiff also asserts a claim of “360 Other Personal Injury.” (Am. Compl. at 2, see section “Jurisdiction,” ¶ 6.)
However, Plaintiffs claim appears to correspond to a claim of “Personal Injury” on the Civil Cover Sheet. Plaintiff
fails to allege facts demonstrating that he suffered any injury to his person resulting from actions of the Defendants.
Thus, this claim shall also be dismissed. The Court further acknowledges that various individual Defendants have
separately argued that they are inappropriately named as Defendants because they cannot be subject to personal
liability. Since the Court finds the SAC to be deficient for other reasons, the Court declines to address the arguments
and denies this portion of the Motions as moot with right to re-raise in due course.

17

Each section shall contain separate numbered paragraphs with

of action being asserted.

substantive facts relating to the cause of action being asserted. Failure to comply with these
instructions shall result in a dismissal with prejudice. An appropriate Order accompanies this
Opinion.

DATED: February

7

/

,Z9SE L. LINARES
R1N ITED STATES DISTRICT JUDGE

18