STAMPONE v. WALKER et al

Filing 87

OPINION. Signed by Chief Judge Jose L. Linares on 7/20/17. (DD, ) N/M

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

FREDERICK STAMPONE,
Civil Action No.: 15-6956 (JLL)

Plaintiff,

OPINION

V.

MATTHEW WALKER (DIRECTOR OF
OPERATIONS), et al.,
Defendants.
LINARES, Chief 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 Third
Amended Complaint (“TAC”) (ECF No. 74), Defendants George Laufenberg (“Manager”) and
Northeast Carpenters Funds’ (collectively “Funds Defendants”) Motion to Dismiss Plaintiffs
TAC (ECF No. 73), and Defendant New York City District Council of Carpenters Benefit Funds’
(“Defendant NYC Funds”) Motion to Dismiss Plaintiffs TAC (ECF No. 75), all of which are
made pursuant to Rule 1 2(b)(6) of the Federal Rules of Civil Procedure. Plaintiff has a “Motion
to Stay, Motion to Dismiss Defendants’ Motions to Dismiss, Motion for Discovery” which this
Court construes as Plaintiffs Opposition to Defendants’ Motions to Dismiss. (ECF No. 85). 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. For the reasons set forth below, the
Court grants the Motions to Dismiss and dismisses Plaintiffs Complaint with prejudice.

1

I.

BACKGROUND1

Plaintiff, a 64-year-old resident of New Jersey, has been a member of the United
Brotherhood of Carpenters since 197$ and a member of the Union for over ten years. (TAC at 56, see sections “Statement of Undisputed Facts,”

J

2, “Background History,” unnumbered

¶

1).

He has also been a Certified Carpenter Steward for over eight years. (Id.). While holding a
position as a Carpenter Steward, Plaintiffs last day of work was “on or about June 17, 2015.”
(Id.).
After 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. (TAC at 5, see section “Background History,” 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.), and that it was “Brother Cavanagh” who was
meant to attend said meeting. (TAC at 7, see section “Statement of Undisputed F acts,”

¶ 8).

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.” (TAC at 5, see section “Background History,”
unnumbered

¶

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

informed that he could “not retire because [he was] not vested.” (TAC at 10, see section “Legal
Argument,” unnumbered

¶

9). According to all four versions of Plaintiffs Complaints, a Union

member must have five credits in order to be vested. (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,

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

2

and $70 hours equals 1 credit. (Id.). Pension Benefit Fund’s records reflect that Plaintiff has
woiked a total of 4,756 hours as a Union member and has two and one-half credits. (Id.). On
March 22, 2016 Plaintiff sent a letter to Northeast Carpenters funds requesting retirement forms.
which he purportedly completed and returned. (TAC at 6, see section “Background History,”
unnumbered ¶ 4). He allegedly received more forms from Northeast Carpenters Funds informing
him that if he retires at 62 he cannot work as a Union Carpenter in another state, but that if he
retires at 65 he could do so. (Id.).
Plaintiff commenced this action on September 1$, 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; “SI ander, Defonriation 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). (ECF No. 15). The Court granted Plaintiff leave
to file a Second Amended Complaint. (Id.).
Thereafter, Plaintiff filed his Second Amended Complaint (“SAC”) on April 19, 2016,
which purportedly addressed the pleading deficiencies of the First Amended Complaint. (ECF
No. 18). Plaintiffs SAC was nearly identical to the First Amended Complaint. The Court noted
that Plaintiff added an additional cause of action for “Liable” [sic]. (SAC at 4; see “Damages,
Claims States and Allegations” at

¶

2).

Additionally, Plaintiff increased his demand from

$ 10,000,000 to $100,000,000. (SAC at 6; see “Demand/Relief’ at ¶ 2). On February 8, 2017, this

3

Court dismissed Plaintiffs Second Amended Complaint pursuant to Rule 12(b)(6), finding that
Plaintiffs SAC did not remedy the deficiencies identified in its March 8, 2016 Opinion. (ECF No.
62). The Court, once again, provided Plaintiff with leave to file a Third Amended Complaint and
explicitly stated that “[fjailure to comply with [the Court’s] instructions shall result in dismissal
vL’ith prejudice.” (Td.)(emphasis in original).

On May 1, 2017, Plaintiff has since filed a TAC. (ECF No. 72). Plaintiffs TAC contains
much of the same language as his SAC and excerpts from this Court’s February 2017 Opinion.
Plaintiff seems to have added additional causes of action under the Fourteenth Amendment of the
United States Constitution, the Occupational Safety and Health Act (“OSHA”), and a vague
reference to “missing benefit hours.” (TAC at 4, see section “Cause of Action, Damages, and
Claim Stated,”

¶ 2(c); TAC at 8,

see section “Statement of Undisputed Facts,”

¶ 14). Plaintiff

concedes that he does not have a whistleblowing, claim but maintains that he will have grounds
for such a claim if his TAC is dismissed. (TAC at 13, see section “Conclusion,” unnumbered ¶ 1).
The demand for relief remains the same. (TAC at 13, see section “Demand/Relief’).
II.

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 At!. 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 678

(citing

Twornbty, 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.

4

To determine the sufficiency of a complaint under Twombly 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 Comic//v v. Lane Constr. Coip., $09 F.3d 780, 787 (3d

Cir. 2016) (citations omitted). “In deciding a Rule 12(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. Be/ichick, 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
inferences in his or her favor. apogrosso v. Sttp.Ct. of N.J. 588 F.3d 180, 184 (3d Cir. 2009).
However, a pro se complaint must still contain sufficient factual matter to state a claim for relief
that is plausible on its face. See Franklin v. GMAC Mortgage, 523 F. App’x 172, 173 (3d Cir.
2013). Drawing upon his status as apro se litigant, Plaintiff requests that the Court “add in rules
and site [sic] cases missing from his Brief.” (ECF No. 85). While the Court construes motions by
pro se litigants liberally, the Court is limited in its ability to provide the assistance Plaintiff seeks.

As such, the Court is not a liberty to write Plaintiffs brief for him or to add on to the allegations
posed in his brief

5

III.

ANALYSIS

Plaintiff purportedly asserts a variety of claims throughout the TAC. Interpreting the TAC
in the light most favorable to Plaintiff, the Court understands that Plaintiffs causes of action arise
out of his pension plan and the removal of his steward skill.

In Plaintiffs Opposition to

Defendants’ Motions to Dismiss, Plaintiff also asks the Court to clarify if the Defendants have
been properly served, yet Plaintiff himself acknowledges Defendants’ Motions to Dismiss which
obviates any guidance from this Court, as it is apparent Defendants are in receipt of, and have
moved to dismiss, Plaintiffs TAC. (See ECF No. 85 at 2). for the following reasons, the Court
dismisses the TAC with prejudice.
A. ERISA Related Claims

In the TAC, Plaintiff alleges that he is challenging Pension Fund rules and was wrongfully
denied Pension hours.2 (TAC at 5, see section “Cause of Action, Damages, and Claim Stated,”

¶

I; “Damages, Claims Stated, and Allegations” at ¶J1-2; TAC at 6, see section “Background
History,” unnumbered ¶ 4). Unlike the original complaint as well as the SAC, the TAC makes an
explicit reference to the Employee Retirement Income Security Act (“ERISA”). (TAC at 9, see
section “Allegations,” ¶J 5, 6, 9). ERISA is the governing statute regarding pension-related issues
and governs the issue between the parties herein. See 29 U.S.C.

§

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.

§

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

However, prior to filing a claim in federal court, “[u]nder ERISA a party imtst exhaust all oft/ic
administrative remedies available under the plan.” Henshaw v. Roofers Local No. 4 Pension Fund,

2

Plaintiff seeks “an extra 3 [Pension fund] Credits,” but Plaintiff has not established how the Court could fashion
such a remedy. (TAC at 11, see section “Legal Argument,” unnumbered ¶jf 1-2.)

6

2006 WL 2715138, at *2 (D.N.J. Sept. 19, 2006) (emphasis added). See also Wetcton v. Kraft,
Inc., $96 f.2d 793, 800 (3d Cir. 1990) (“Except in limited circumstances.

.

.

,

a federal court will

not entertain an ERISA claim unless the plaintiff has exhausted the remedies available under the
plan.”); Wolf i’. Nat’! Shopmeiz Pension fund, 72$ F.2d 1 82, 1 85 (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”): Zipfv. 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 WL 2715138, at *2. In
determining futility, a court may consider:
(1) whether plaintiff diligently pursued administrative relief; (2) whether plaintiff
acted reasonably in seeking immediate judicial review Ltnder 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 be fcttile.
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. 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 not do anything to even try to settle P1aintiffs
claims and have showed [sic] this [C]ourt that applications through the administrative process
would be futile.” (TAC at 2, see section “Jurisdiction and Legel [sic] Arguernent [sic],”

¶

5).

Plaintiff does not claim to have utilized the administrative process and seems to aver that same
would be futile, thereby excusing him from attempting to resolve the matter through the

7

administrative process and proceed with this action.
However, aside from the above quote regarding futility, the TAC contains no additional
allegations regarding 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, Plaintiffs 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 Plaintiffs pension must be dismissed for failure to exhaust the appropriate
administrative remedies under ERISA.
B. Age Discrimination Claim
Plaintiffs TAC asserts that “Defendants Northeast Carpenters Pension funds, [and]
George Laufenberg, [have] a pension plan that discriminates against age.” (TAC at 4; see “Cause
of Action, Damages, and Claims Stated”

¶

2(C)).

He also claims that Union Defendants

discriminated against him “by trying to get rid of Plaintiff because he is over 63 years old with
trumped up charges or blame him for something that someone else [has] done.” (TAC at 9; see
section “Allegations,”

¶ 4).

Claims related to age discrimination in employment are governed by

the Age Discrimination in Employment Act (“ADEA”).

29 U.S.C.

§

621, 623 (2015).

Specifically, the ADEA provides, inter a/ia, 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.”

§

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

8

until 60 days after a charge alleging unlawful discrimination has been filed with the Equal
Employment Opportunity Commission.”

§ 626(d)( 1). Therefore, “[a] plaintiffs obligation to

timely file with the EEOC is a condition precedent to filing suit under the ADEA.” Hildebranci,
757 F.3dat lii.
In the instant action, Plaintiff has failed to allege that he exhausted any or all administrative
remedies prior to fIling his age discrimination claim in this Court. As was the case with Plaintiffs
prior complaints, the TAC fuils 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 Plaintiffs Steward Skill Claim

1. Violation of Union Constitution
Plaintiff claims that Union Defendants violated the Union Constitution by allegedly
removing his Steward Skill. (TAC at 5; see “Cause of Action, Damages, and Claims Stated,”

¶

H). As this Court previously noted in its prior Opinion, Section 301 of the Labor Management
Relations Act of 1947 (“LMRA”) authorizes union members to bring suit in their individual
capacities against labor unions for violations of collective-bargaining agreements, union
constitutions, and other fonns of contracts. 29 U.S.C.

§ 185(a); see also Wooddelt v. hit ‘1 Broth.

of Elec. Workers, Local 7], 502 U.S. 93. 101 (1991) (explaining that “union constitutions are an
important form of contract between labor organizations.

[and that union members] may bring

§ 301 .“). furthermore, “the policy of forestalling judicial interference

suit on these contracts under
with internal union affairs

. .

.

.

.

has been strictly limited to disputes arising over internal union

matters such as those involving the interpretation and application of a union constitution.” Clayton

9

v. Int’l Union, UnitedAuto Workers, 451 U.S.. 679, 687-82 (1921). 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 procedtires would unreasonably delay the employee’s opportunity to obtain
a judicial hearing on the merits of his claim.
Id. at 689.

In ofar 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 asserts “No
where is it stated in the Constitution of the United Brotherhood of Carpenters and Joiners of
America or Bylaws of District Council for New [York] City and Vicinity of the United
Brotherhood for Carpenters and Joiners of Arnerica[] that a member may be suspended or found
guilty for not attending a meeting.” (TAC at 6, see “Background History,” unnumbered

¶ 2).

Nonetheless, Plaintiff does not allege that such laws contain a provision prohibiting suspension on
the aforementioned grounds. Further, Plaintiff has failed to demonstrate that he attempted to
exhaust internal remedies regarding a violation of the Union constitution, as encouraged by the
Third Circuit. Though Plaintiff put in a “complaint” with the Inspector General Office and
submitted a letter to Defendant Walker requesting an “appeal,” there is no inforniation concerning
internal remedies, in general, and Plaintiff does not demonstrate his attempts to exhaust such

10

internal remedies. Plaintiff also does 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 “settle this case.” (Id. at

¶ 3).

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. (TAC at 6, see “Background History,”
unnumbered

¶

2).

The Labor-Management Reporting Disclosure Act of 1959 (“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 frill and fair hearing.” 29 U.S.C.

§ 411 (a)(5).

Section 411 (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.” S/i erictan v. United
Bd. of Carpenters and Joiners of Am., LoccilNo. 626, 306 F.2d 152, 157 (3d Cir. 1962) (citation
omitted). In Mirra v. Highway & Local 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 411(a)(5).”
Therefore, suit under Section 411 (a)(5) of the LMRDA for improper disciplinary action is only
proper when a plaintiff seeks to litigate issues concerning the union-member relationship.
Even when the TAC is interpreted in the light most favorable to Plaintiff, the removal of

11

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 l(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 *3.4
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 TAC also contains a claim for RICO violations.3 (TAC at 3; see “Jurisdiction and
Legel [sic] Argument” ¶ 9; see also TAC at 4 “Cause of Action, Damages, and Claims Stated,” at

¶ B).

According to Plaintiff, “[t]his case is about [d]ebt by [d]eception and [e]xhaustion of[flunds

and falls under the RICO statute.” (TAC at 3; see “Jurisdiction and Legel [sic] Argument” ¶ 9).
Accordingly, Plaintiff alleges that he has been denied the correct amount of pension money. (TAC
at 4; see “Cause of Action, Damages, and Claims Stated,” at

¶ B).

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
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 enterprises’ affairs through a pattern of racketeering activity or collection of unlawful debt.”4

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/Ternodar Consttrner 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”).
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
‘

12

18 U.S.C.

§ 1962(c). 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 inculTed 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).

§ 196 1(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. Imrex Co., Inc., 473 U.S. 479, 496 (1985).
“A pattern of racketeering activity requires at least two predicate acts of racketeering.” Litm v.
Bank ofAm., 361 F.3d 217, 223 (3d Cir. 2004); see also 1$ U.S.C.

§ 1961(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.”
H.i Inc., v. Northwestern Bell Tel. 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).
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 his TAC. 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

conduct or participate, directly or indirectly, in the conduct of the enterprise’s affairs through a pattern of racketeering
activity or collection of unlawful debt.” N.J.S.A. 2C:41-2.

13

nor are they similar to predicate acts described in the statute. See 18 U.S.C.

§ 1961(1). The

allegations in the TAC remain conclusory and they fail to provide specific acts in violation of
RICO. 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

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

ongoing racketeering activity as required by Section

ongoing occurrence is conclusory and unsupported by detailed information.

For this reason,

Plaintiffs federal and state RICO claims shall be dismissed.
E. Defamation and Slander Claims

The TAC also contains a claim for “Slander, [and] Deformation [sic] of Character.” (TAC
at 3; see “Jurisdiction and Legel [sic] Argument,” at

¶ 10). To succeed in a defamation action, a

plaintiff “must prove three essential facts: (1) that defendants made a false and defamatory
statement concerning [the plaintiffj; (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 (N.J. Sup. Ct. 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, are not
defamatory. Birch v. Wa/-Mart Stores, Inc., 2015 WL 849093$, at *3 (D.N.J. Dec. 9, 2015).
A plaintiff must not assert a “vague conclusory allegation” of defamation. Birch, 2015 WL
$490938, at *4• See a/so Zoneraich v. Overlook Hosp., 212 N.J. Super. 83, 101 (N.J. Super Ct.
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 8490938, at *4•

Slander

specifically involves the verbal communication of a defamatory statement to a third person.

14

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.; fatottros v. Lain brakis, 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 849093$, at *4 First, Plaintiff has 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.”
(TAC at 12, see “Legal Argument,” unnumbered

¶

17). However, Plaintiff’s suspension on his

record represents a true statement of fact, and true statements are not defamatory. See Birch, 2015
WL 849093$, at *3•
Moreover, the TAC 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
claims shall be dismissed.
F. Whistleblowing Claim

Plaintiff also purports to assert a whistleblowing claim. (TAC at 3; see “Jurisdiction and
Legel [sic] Argument” at

¶

13).

Plaintiff then concedes that he does not presently have a

whistleblowing case, but asserts that “If this court dismiss[es] Plaintiffi’s] Amended

3id

Complaint, then Defendants will just get rid of Plaintiff all together and Plaintiff will have [such a
case.]” (TAC at 13, see “Conclusion,” unnumbered

15

¶

1). Aside from these statements, Plaintiff

makes no substantive whistleblowing related allegations.
In New Jersey, whistleblower activity includes, inter a/ia, 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.J.S.A. 34:19-3(a)(l)-(2). Furthermore,
an employer must take “retaliatory action against an employee” in order for there to be an
actionable whistleblowing claim. Id. 34:19-3(a).
As with Plaintiffs previous complaints, Plaintiffs purported whistleblower claim is
implausible as alleged. Plaintiff cannot bring a claim when there is no injury in fact and no claim
has yet accrued. He cannot bring a claim on the basis that he suspects Defendants will retaliate
against him in the future. Further, just as with the previous complaints, the TAC contains no
allegations regarding to whom, or on what activity, he “blew the whistle.”

Plaintiffs

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

The TAC also seems to contain a claim for Intentional Infliction of Emotional Distress.
(TAC at 3; see “Cause of Action, Damages, and Claims Stated,” at

¶

(A), (B)).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.” Ficlanzato

i

Somerset, 2012 WL 450800$, at *11

(D.N.J. Sept. 2$, 2012) (quoting Bttck/ev v. Trenton Saving Fund Soc y, 111 N.J. 355, 366 (N.J.
Sup. Ct. 198$)). 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

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. (TAC at 3-4, see “Cause of Action, Damages, and Claim Stated” at ¶ 2(A), 2(3).)

16

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 Plaintiff’s 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
fidanzctto, 2012 WL 4508008, 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 pled a claim for intentional infliction of emotional distress and the claim shall
be dismissed.
H. Harassment Claim

Plaintiff also purports to assert a claim for “harassment.” (TAC at 3; see “Jurisdiction and
Legel [sic] Argument,” at ¶ 10). In New Jersey, “harassment” is not recognized as “free-standing
civil cause of action for damages.” Hodge v. McGrctth, 2014 WL 6909499, at * I (N.J. Super. Ct.
App. Div. Dec. 10, 2014). See also Greenblattv. Klein, 2015 WL 1034633, at *5 (D.N.J. Mar. 10,
2015), aff’d, 634 F. App’x 66 (3d Cir. 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 concerning this claim.

Plaintiff still fails to identify any specific

harassment statutes that have been violated by Defendants and fails to identify why the suspension

17

of his Steward Skill amounts to harassment.

As such, Plaintiffs harassment claim shall be

dismissed. 6
I.

Fourteenth Amendment and OSHA Claim

Inasmuch as Plaintiff raises a Fourteenth Amendment claim and/or claim under OSHA,
Plaintiffs complaint cannot survive under either. Plaintiff alleges that Union Defendants violated
the Fourteenth Amendment by suspending him without an appeal. (TAC at 8-9, see “Allegations,”

¶

1, 2). He then adds, “[a]lso act to protect worker rights” (Id.) which may be a reference to the

Occupational Safety and Health Act of 1970 (“OSHA”), a portion of which Plaintiff appended to
the TAC. (TAC at 31, see Exhibit R). In terms of the Fourteenth Amendment claim, Defendants
herein are not state actors and therefore cannot be sued under Fourteenth Amendment. See Halsey
v. Ffeiffer, 750 F.3d 273, 290 (3d Cir. 2014). Nor does Plaintiff allege that Defendants have
deprived him of any right. Id. Thus, his Fourteenth Amendment claim shall be dismissed.
Moreover, O$HA refers to “safe and healthful working conditions,” which is not the basis
of Plaintiffs claim. 29 U.S.C.

§

651(b). Even if he had alleged a violation of OSHA, “OSHA

violations do not themselves constitute a private cause of action for breach.” See Am. Fed. ofGovt.
Emps., AFL-CIO v. Rumsfeld, 321 F.3d 139, 143 (D.C. Cir. 2003) (quoting Crane

i

Conoco, Inc.,

41 F.3d 547, 553 (9th Cir. 1994)). Therefore, should this Court construe the complaint to raise
such a cause of action, it cannot survive.

6

Plaintiff also asserts a claim of “360 Other Personal Injury.” (TAC at 3, see section “Cause of Action, Damages, and
Claim Stated,” ¶ 2(A)). 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 as a result of
Defendants’ actions. 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 TAC to be deficient for other reasons, the Court declines to address the
arguments.

18

J. Missing Benefit Hours Claim

Finally, Plaintiff asserts that he is “missing Benefit Hours from last year.” (TAC at $

¶

1).

He does not explain the legal basis for relief and merely states that he sent a letter to the Inspector
General regarding his missing benefit hours. (Id.). Such allegations fail to apprise Defendants, let
alone this Court, as to what claim Plaintiff is raising with regards to same, inconsistent with this
Court’s clear directive contained in the February 2017 opinion. As such, the Court must dismiss
this claim.
IV.

CONCLUSION

For the reasons above, the Court grants the Motions to Dismiss and dismisses Plaintiffs
TAC. While generally a Court will show deference to apro se litigant, Plaintiff has

not

corrected

the deficiencies in his earlier Complaint, despite the fact that the Court provided Plaintiff with
numerous opportunities to do so. Accordingly, the Court believes that “further amendment would
be ftttile” and dismisses the TAC with prejudice. See Harris v. Governor ofPennsylvania, 57$ F.
App’x 105, 107 (3d Cir. 2014) (finding that dismissal of apro se litigant’s complaint with prejudice
is appropriate when the District Court allows the litigant numerous opportunities to file a viable
complaint to no avail). An appropriate Order and Judgment accompanies this Opinion.

DATED: July2U, 2017
ios4 LINAES
C94ude United States District Court

19