O'TOOLE v. TOFUTTI BRANDS, INC. et al
OPINION fld. Signed by Judge John Michael Vazquez on 8/26/16. (sr, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 15-8841
TOFUTTI BRANDS, INC. & DAVID MINTZ,
John Michael Vazguez, U.S.D.J.
THIS MATTER comes before the Court by way of the Motion for Summary Judgment
filed by Defendants Tofrtti Brands, Inc. (“Toffitti” or the “Company”) and David Mintz
(collectively “Defendants”), which was filed in lieu of answering Plaintiff Renee O’Toole’s
Complaint and without leave of the Court. D.E. 8. Plaintiff opposed the motion (D.E. 17-19) and
Defendants filed a reply (D.E. 21). The parties also submitted supplemental letter briefs regarding
jurisdiction. D.E. 28, 32. No discovery has been taken in this matter. The Court reviewed all
submissions made in support and in opposition to the motion, and considered the motion without
oral argument pursuant to L. Civ. R. 78.1(b). For the reasons stated below, Defendants’ motion is
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff began working as a laboratory technician at Toflitti on September 15, 2008.
12, D.E. 1. In November 2008, Defendants also hired Plaintiff to prepare meals for
Defendant Mintz, Toffitti’s founder and CEO, at his home twice a week. Id.
16. “Due to her
positive performance as a laboratory technician,” Plaintiff was promoted to Director of Research
and Development in 2012. Id.
14. As the Director, she supervised testing and was responsible
for the food formula laboratory. Id.
15. Plaintiff reported directly to Mintz both in her capacity
as his personal chef and as the Director of Research and Development. Id.
17. Plaintiffs four
count complaint against Defendants alleges that Mintz sexually harassed and subjected her to a
hostile work environment. Plaintiff contends that Mintz made “near daily” discriminatory remarks
and engaged in repeated discriminatory behavior due to her gender. Id. 11120-25. Plaintiff alleges
that she was ultimately terminated on February 11, 2015 “because she rebuffed Defendant Mintz’s
sexual advances and complained about his regular sexual harassment.” Id.
Plaintiffs complaint asserts that this Court has federal subject matterjurisdiction over the
matter due to a Title VII retaliation claim (Count One) and a Title VII hostile work environment
claim (Count Two) against Tothtti. Id.
33-44. Plaintiffs complaint also asserts two counts
pursuant the New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1, et seq, against
Toffitti and Mintz as employers, and against Mintz individually for aiding and abetting the
discriminatory conduct (Counts Three and Four). Id.
Plaintiffs complaint asserts that
this Court has supplemental jurisdiction, pursuant to 28 U.S.C. § 1367(a), over the LAD claims.
Defendants filed this motion for summary judgment in lieu of answering the complaint.
Defendants state that
“[ut is in-effitable that Toffitti did not employ more than fourteen employees
during any twenty-week period for the relevant years.” Defs’ Br. at 8. To support this argument,
Defendants provided payroll records only from the fourth quarters of 2014 and 2015, but failed to
include any payroll records (or other information) for the complete time period covering the
alleged hostile work environment or for all of 2014 and 2015. See Affidavit of Steven Kass (“Kass
Aff.”) Exs. 1,4 (D.E. 8-4, 8-7). Defendants argue that this evidence establishes that Toffitti is not
a covered employer under Title VII so Plaintiffs Title VII claims must be dismissed. Defs’ Br. at
9-10. Defendants further argue that because the Title VII claims are not viable, the Court should
not retain supplemental jurisdiction over Plaintiffs LAD claims. As a result, the complaint should
be dismissed in its entirety. Id. at 10-Il. In the alternative, Defendants argue that the LAD claims
against Mintz in his individual capacity must be dismissed because he is not an “employer”
pursuant to the LAD and cannot be personally liable because he could have not aided and abetted
his own conduct. Id. at 12-17.
Plaintiff argues that Defendants’ motion for summary judgment is premature and that she
should be provided with an opportunity to conduct discovery regarding the number of people
employed by Toffitti. PIt’s Br. at 10-14. Plaintiff argues that discovery is needed to properly
oppose Defendants’ motion, noting that no discovery has been taken because Defendants filed this
motion in lieu of answering the complaint. See Certification of Corey M. Stein (Stein Cert.)
10 (D.E. 17); Certification of Renee O’Toole (O’Toole Cert.)
11 (D.E. 18). Further, Plaintiff
alleges that she worked with people in Tofiatti’s lab who “were not listed on the pay records that
Defendants submitted with their Motion for Summary Judgment.” O’Toole Cert.
alleges that at least one of these individuals, a lab technician named Sara Schenker. “worked on
Defendants’ premises, us[ed] Defendants’ equipment, and w[as] directed in [her] job duties by
8. As result, Plaintiff argues that she has provided a legitimate basis for
requesting leave to take discovery and that Defendants’ assertion that it is not a covered employer
‘In their reply brief, Defendants allege that Ms. Schenker “worked at Toftitti as an independent
contractor and was never employed by nor served as an employee of Toffitti.” Defs’ Reply at 1-2
(D.E. 21); see also Supplemental Affidavit of Steven Kass ¶‘1 2-8 (RE. 21-1).
is without merit or, at best, premature. Pit’s Br. at 11-14. Plaintiff also argues that Mintz can be
liable under the LAD as an employer and for aiding and abetting his own conduct. Id. at 15-21.
After the motion for summary judgment was fl.illy briefed, the parties filed a “Consent to
Submit Supplemental Argument,” requesting leave for Plaintiff to file an additional brief alleging
that the Court also has diversity jurisdiction over Plaintiffs LAD claims, although diversity
jurisdiction was not asserted in the Complaint. D.E. 25. The Court granted this request and also
gave Defendants leave to file a brief in opposition. D.E. 26. Plaintiff filed a supplemental letter
brief arguing that this Court has diversity jurisdiction over the state law claims, pursuant to 28
1332(a), because at the time of filing the parties were completely diverse and the amount
in controversy exceeded $75,000. Because the Court has diversity jurisdiction, Plaintiff argued
that the LAD claims should not be dismissed on jurisdictional grounds. PIt’s Ltr. Br. at 1-2 (D.E.
28). Plaintiff also requested leave to amend her Complaint, pursuant to Fed. R. Civ. P. 15, to plead
diversity jurisdiction. 16 at 2. Defendants filed a letter brief opposing Plaintiffs argument as to
diversity jurisdiction, stating that parties are not diverse. Specifically, Defendants alleged that
“there is evidence that Plaintiff  resided in New Jersey throughout her employment with Toftitti.”
Defs’ Ltr. Br. at 2 (D.E. 32).
SUMMARY JUDGMENT STANDARD
A moving party is entitled to summary judgment where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A fact in dispute is material when it “might affect the outcome of the suit
under the governing law” and is genuine “if the evidence is such that a reasonable jury could return
a verdict for the non-moving party.” Anderson
Libern’ Lobby, Inc., 477 U.S. 242, 248 (1986).
Disputes over irrelevant or unnecessary facts will not preclude granting a motion for summary
judgment. Id. “In considering a motion for summary judgment, a district court may not make
credibility determinations or engage in any weighing of the evidence; instead, the non-moving
party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.”
Marino v Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.s. at
255)). A court’s role in deciding a motion for summary judgment is not to evaluate the evidence
and decide the truth of the matter but rather “to determine whether there is a genuine issue for
trial.” Anderson. 477 U.S. at 249.
A party moving for summary judgment has the initial burden of showing the basis for its
motion and must demonstrate that there is an absence of a genuine issue of material fact. Celotex
Corp. v. Catrets, 477 U.S. 317, 323 (1986). After the moving party adequately supports its motion,
the burden shifts to the nonmoving party to “go beyond the pleadings and by her own affidavits,
or by the depositions, answers to interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). To
withstand a properly supported motion for summary judgment. the nonmoving party must identify
specific facts and affirmative evidence that contradict the moving party. Anderson. 477 U.S. at
250. Ultimately, there is “no genuine issue as to any material fact” if a party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case.” Celotex
Corp., 477 U.S. at 322-23. “If reasonable minds could differ as to the import of the evidence,”
however, summary judgment is not appropriate. See Anderson. 477 U.S. at 250-5 L
A. TITLE VEI CLAIMS (COUNTS ONE AND TWO)
Title VII only applies to entities that qualify as an “employer” as defined by the statute.
An “employer” is “a person engaged in an industry affecting commerce who has/i/teen or more
employees for each working day in each of twenty or more calendar weeks in the current or
preceding calendar year.” 42 U.S.C.
2000e(b) (emphasis added). Whether an employer has the
requisite number of employees is a substantive element of a Title VII cI aim. Arbaugh r. Y & H
C’orp., 546 U.S. 500, 516 (2006); see also Nesbit v. Gears Unlimited, Inc.. 347 F.3d 72,83 (3d Cir.
2003). A plaintiff has the burden to establish that her employer had at least fifteen employees
during the requisite time period, such that it is subject to Title VII liability. Rifr v. Borough of
Dauphin, 647 F. Supp. 2d 431, 442 (M.D. Pa. 2009). If a plaintiff does not satisfy her burden, a
court should grant summary judgment for the defendant.
See, e.g., id. (granting summary
judgment for defendant because it never employed fifteen or more people).
Defendants state that “it is irrefutable that Toftatti did not employ more than fourteen
employees during any twenty-week period for the relevant years.” Defs’ Br. at 8. Defendants
assert that Toffitti’s payroll records establish that it only had fourteen employees in 2015. SOMF
(D.E. 8-1); Kass Aff. Ex. 4. In 2014, Defendants assert that there were only twelve weeks in
which Toftitti had more than fourteen employees on the payroll. SOMF
7-10; Kass Aff. Ex. 1.
Defendants also assert that all of Tofutti’s employees are directly employed by the company.
As a result, Defendants argue that “in light of the unequivocal documentary
evidence,” Plaintiffs Title VII claims must be dismissed because Toffitti is not subject to Title VII
liability. Defs’ Br. at 9. As noted, Defendants produced evidence only for the period pertaining
to the alleged retaliatory conduct, the firing, and not for the entire period of the alleged hostile
Moreover, as to the years in which Defendants did provide payroll
information, 2014 and 2015, they did not provide complete data. Instead they provided payroll
information for only a single quarter for each of the two years.
Plaintiff argues that summary judgment is premature and she should be provided with an
opportunity to conduct discovery as to the number of individuals employed by Toftitti. PIP s Br.
at 10-14. In opposing this motion, Plaintiff submitted a certification explaining that she worked
with individuals at Toftitti that do not appear on the Company’s payroll records. O’Toole Cert.
6-8. Plaintiffs attorney’s certification explains that the parties have not conducted any discovery
because Defendants filed this motion in lieu of answering the complaint, and sets forth the scope
of discovery that is necessary to determine how many individuals were employed by Toftitti. Stein
7, 10-17. Plaintiff argues that the information she seeks through discovery “is directly
related to whether Defendants had 15 or more employees as required by Title VII,” and that
“[w]ithout this information, Plaintiff is unable to adequately present facts essential to her
opposition of Defendants’ Motion for Summary Judgment.” Id.
“It is well estabLished that a court is obliged to give a party opposing summary judgment
an adequate opportunity to obtain discovery.” Shelton v. Bledsoc, 775 F.3d 554, 565-66 (3d Cir.
2015) (quoting Doe
Abington Friends Sc/i., 480 F.3d 252, 257 (3d Cir. 2007)). Moreover, Fed.
R. Civ. P. 56(d) provides that “if a nonmovant shows by affidavit or declaration that... it cannot
present facts essential to justife its opposition, the court may (1) defer considering the motion or
deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any
other appropriate order.” Fed. R. Civ. P. 56(d). To request an opportunity to take additional
discovery pursuant to Rule 56(d), a party may submit an affidavit or declaration setting forth “what
particular information is sought; how, if disclosed, it would preclude summary judgment; and why
it has not been previously obtained.” Shelton, 775 F.3d at 56$ (quoting Dowling v. CUr of
Philadephia, 855 F.2d 136, 140 (3d Cir. 198$)). Of course, in this case, Plaintiff is not merely
seeking additional discovery
she is seeking discovery in the first instance. Courts grant properly
filed requests to take additional discovery “as a matter of course.” Id. at 568. “[I]f discovery is
incomplete, a district court is rarely justified in granting summary judgment, unless the discovery
request pertains to facts that are not material to the moving party’s entitlement to judgment as a
matter of law.” Id.; see also Pepe
Caval,y SPVL LLC, No. 15-8634, 2016 WL 3027335, at *3
(D.N.J. May 26, 2016) (denying motion for summary judgment where motion was filed “merely
twelve days after serving [defendant] with the Complaint; [and] discovery remains incomplete as
to several material facts.”).
At the outset, the Court denies Defendants’ motion as it pertains to the hostile work
environment claim as Defendants have utterly failed to produce any evidence regarding the entire
As discussed, for Title VII purposes an “employer” is “a person engaged in an industry
affecting commerce who has fifteen or more employees for each working day in each of twenty or
more calendar weeks in the current or preceding calendar year.” 42 U.S.C.
have determined that the current calendar year is the year in which the alleged discrimination
occurred. Pasquale v. Ge,i. Scis., Inc., No. 09-1735, 2010 WL 1558717, at *5 (E.D. Pa. Apr. 19,
2010) (citing Kornoroiiski v. Town!Inc Mini-Mart & ResL. 162 F.3d 962, 965 (7th Cir. 1998)). In
this instance, Plaintiff alleges that she was subject to a hostile work environment during her entire
period of employment with Tofutti, from 2008 to 2015. Compl.
5. 20-22. Toftitti, however,
only provided a portion of its payroll records forjust two of the years she was employed.2
Defendants represent that the fourth quarter payroll records that they provided “reflects all
individuals employed by Toftatti” in 2014 and 2015. Kass Aft ¶1 7, 12. Even if this statement is
true, Plaintiff should be provided with an opportunity to conduct discovery and test the accuracy
of Defendants’ statement. And while this motion would still be denied for the reasons stated
below, the better practice would have been for Defendants to produce payroll records from all four
quarters for every applicable year.
As to the Title VII retaliation claim, Defendants provided evidence of the number of
employees Toffitti employed for only a single quarter of 2014 and 2015, the two relevant years for
this alleged discriminatory act. On this basis alone, the failure to provide complete information,
the Court denies Defendants’ motion.
However, even if Defendants had provided data for the Ml two years, Plaintiffs request
for additional discovery pursuant to Rule 56(d) is proper. The affidavits submitted in opposition
to the motion for summary judgment establish that Plaintiff seeks discovery regarding the number
of ToThtti’s employees, that this information could preclude granting summary judgment for
Defendants, and provides a legtimate basis as to the need for discovery, namely that Plaintiff
worked with individuals at Toftitti that do not appear on the payroll records. O’Toole Cert.
8; Stein Cert.
10-17. Plaintiff also establishes that because Defendants filed their motion for
summary judgment instead of answering the complaint, the parties have not engaged in any
discovery. O’Toole Cert.
11; Stein Cert. ¶j3 7, 10-17. Because discovery is incomplete (indeed,
non-existent), the Court denies Defendants’ motion as to the Title VII claims and will permit
discovery into the number of Toffitti’s employees during the applicable time period set forth in the
To be clear, the discovery will include the period of the alleged hostile work
environment and the calendar year prior to its onset, as required by Title VII. Further, the Court
denies Defendants’ request that this discovery be limited to vIs. Schenker’s employment. Defs’
Reply at 12 (D.E. 21).
The Court ffirther disagrees with Defendants’ argument that discovery regarding the
number of employees would be thtile because “the court is required to follow the payroll
approach.” Id. at 11-12. The Supreme Court has stated that courts should use the “payroll
method,” which looks at how many empLoyees appear on a defendant’s payroll records for the
applicable year, to determine whether the defendant has the requisite number of employers under
Title VII. Walters v. Metro. Ethic. Enters., Inc., 519 U.S. 202,207,211(1997). However, while
the payroll method may be the primary method employed, it is not necessarily the only one. Id. at
211-12. The Supreme Court recognized that “the ultimate touchstone.
is whether an employer
has employment relationships” based on principles of agency law. H: see also Clackamas
Gasrroe;zterolog-t’Assocs., P.C. v. Wells, 538 U.S. 440.445 (2003) (concluding that courts should
look to common-law agency principles to determine whether an individual is an employee). As a
result. “[a]ppearance on the payroll
is not dispositive” to the determination of whether a
defendant has the required number of employees. Babich v. Mgrnt. & Tech. Resources, Inc., No.
06-1502, 2008 WL 356480, at *3 (W.D. Pa. Feb. 6, 2008).
Consequently, a court must use
principles of agency law to ascertain whether an employer is subject to Title VII liability. See,
e.g., Pasqimle, 2010 WL 1558717, at *7_li (applying Dart/en factors3 to conclude that two
individuals on defendant’s payroll were independent contractors and not employees for Title VII
B. SUPPLEMENTAL JURISDICTION OVER PLAINTIFF’S STATE LAW
CLAIMS (COUNTS THREE AND FOUR)
In Natjonitjde Mitt. Ins. Co.
Dart/en, the Supreme Court outlined a common-law test that
incorporated “traditional agency law principles” to determine whether an individual is an
employee for the Employee Retirement Income Security Act (“ERISA”). 503 U.S. 318, 323
(1992). Dart/en provides a non-exhaustive list of relevant factors for courts to use to make this
determination. The factors include: (1) the skill required; (2) the source of the instrumentalities
and tools; (3) the location of the work; (4) the duration of the relationship between the parties; (5)
whether the hiring party has the right to assign additional projects to the hired party; (6) the extent
of the hired party’s discretion over when and how long to work: (7) the method of payment; (8)
the hired party’s role in hiring and paying assistants; (9) whether the work is part of the regular
business of the hiring party; (10) whether the hiring party is in business; (II) the provision of
employee benefits; and (12) the tax treatment of the hired party. Paush v. Tuesday Morning. Inc.,
808 F.3d 208, 214 (3d Cir. 2015). The Third Circuit has applied the Dart/en factors in the Title
VII context. Id. at 213.
Defendants argue that if the Court dismisses Plaintiffs Title VII claims it should not retain
supplemental jurisdiction over Plaintiffs state law LAD claims. Defs’ Br. at 10-Il. Supplemental
jurisdiction, pursuant to 28 U.S.C.
§ 1367(a), allows federal courts to hear state law claims “when
they are so related to claims in the action within such original jurisdiction that they form part of
the same case or controversy.” Wis. Dept of Con’.
Schacht. 524 U.S. 381, 387 (1998); see also
Nat ‘I Cm’ Mortg. C’o. v. Stephen. 647 F.3d 78, 85 (3d Cir. 2011) (stating the “a court may exercise
[supplemental] jurisdiction over related matters arising out of the case in which it has initial
Supplemental jurisdiction, however, is discretionary.
A court may decline to
exercise us jurisdiction jfk “has dismissed all claims over which it has original jurisdiction.” 28
Plaintiffs LAD claims clearly arise from the same conduct that form the basis of her Title
VII claims. As a result, supplemental jurisdiction is proper. See Nat? City Mortg., 647 F.3d at 85
(concluding that court had supplemental jurisdiction over closely related state law claims).
Defendants do not appear to dispute this point. Because the Court is not dismissing Plaintiffs
Title VII claims, it will continue to exercise supplemental jurisdiction and will not dismiss the
Consequently, Defendants’ motion for summary judgment is denied as to this
After this motion was fully briefed, the parties were given leave to file supplemental briefs
addressing whether the Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). D.E. 26.
In her supplemental brief, Plaintiff alleged that there is complete diversity between the parties and
that the amount in controversy exceeds S75,000. As a result. Plaintiff requested that the Court
grant her leave to amend the Complaint to properly plead diversityjurisdiction. D.E. 28. Fed. R.
Civ. P. 1 5(a)(2) provides that a party may amend her pleadings if (I) her adversary consents or (2)
with the court’s leave. “The court should freely give leave when justice so requires.” Fed. R. Civ.
P. 15(a)(2). Pursuant to this liberal standard, a court should grant leave to amend where there is
an absence of undue delay, bad faith, prejudice or futility. Long v. Wilson, 393 F.3d 390, 400 (3d
Cir. 2004). In this instance, there is no indication of undue delay, bad faith, prejudice or fritility
C. NEW JERSEY LAW AGAINST DISCRLMATION CLAIMS (COUNTS
THREE AND FOUR)
Defendants argue that Plaintiffs LAD claims against Mintz in his individual capacity must
be dismissed because an individual cannot be liable under the LAD for his own discriminatory
Defendants contend that an individual can only be personally liable for aiding and
abetting prohibited conduct and that an individual cannot aid and abet his own conduct. Defs’ Br.
The LAD, through N.J.S.A. 10:5-12(a), prohibits unlawful employment practices and
discrimination by an employer.
CiasuilL 181 N.J. 70. 83 (N.J. 2004). An employer
“includes one or more individuals, partnerships. associations, organizations, labor organizations,
corporations, legal representatives. trustees in bankruptcy, receivers, and fiduciaries.” N.J.S.A.
10:5-5(a). (e). The definition of employer does not include an individual supervisor. Tarr, 181
N.J. at 83. “[l]ndividual liability of a supervisor for acts of discrimination or for creating or
maintaining a hostile environment can only arise through the aiding and abetting mechanism.”
Morris Cry. Sheriff’s Office. 194 N.J. 563, 594 (N.J. 2008).
Pursuant to N.J.S.A. 10:5-12(e), it is unlawful “[for any person, whether an employer or
to aid, abet, incite, compel or coerce any of the acts forbidden under [the LAD].”
To conclude that an individual person is liable under an aiding and abetting theory there must be
“active and purposeful conduct.” Tarr, 181 N.J. at 83. Specifically,
a plaintiff must show that (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 time that he provides the assistance; and (3) the
defendant must knowingly and substantially assist the principal violation.
of amendment. As a result, Plaintiff is granted leave to amend her pleadings to assert diversity
jurisdiction if she chooses to do so.
Id. at 84 (quoting Hurley v. ML City Police Dept, 174 F.3d 95, 127 (3d Cir. 1999)) (internal
quotations marks and brackets omitted).
In addition, courts construe the aiding and abetting theory broadly, such that an individual
supervisor can aid and abet his own conduct. “Based on the ‘broad and pervasive’ reach of the
LAD, and the requirement that it be liberally construed to effectuate its purpose, any suggestion
that N.J.S.A. 10:5-12(e) permits individual liability for a supervisor who encourages or facilitates
another employee’s harassing conduct, while precluding individual liability for the supervisor
based on his or her own discriminatory or harassing conduct, appears to us to be untenable.”
Rowan v. Hanford Plaza Lid, No. A-0107-l 1T3. 2013 WL 1350095, at *8 (N.J. App. Div. Apr.
5, 2013); see also DeSantis v. N.J. Transit, 103 F. Supp.3d 583, 591 (D.NJ. 2015) (“New Jersey
courts have held that an individual can aid and abet, not only the conduct of another person, but
that person’s own conduct.”); Mann
Estate ofMeyers, 61 F. Supp. 3d 508, 529-30 (D.N.J. 2014)
(concluding that supervisor was a proper party under the LAD because “an individual can be held
liable under the aiding and abetting provision even where the individual perfonted the acts of
discrimination himself’). The clear weight of authority demonstrates that Mintz can be personally
liable under the LAD.
Defendants argue that this Court should not follow Rowan because it is an unpublished
decision that “cannot be cited for precedential purposes.” Defs’ Reply at 15. While the Court is
not bound to follow Rowan, the Court finds it persuasive and adopts its ruling here. As the court
in Rowan observed, it would indeed lead to a perverse result if a supervisor could be liable for
aiding and abetting another employee but completely escape liability for his own, independent
wrongful conduct. The LAD is a remedial statute and, as a result, it is to be interpreted liberally
to reach the prohibited conduct of workplace discrimination. 2013 WL 1350095, at 8
Defendants argue that this Court must instead follow the test for aiding and abetting
liability as established by Cou’her i’. Carson & Roberts, 425 N.J. Super. 285 (N.J. App. Div. 2012).
Defs’ Reply at 14. However, despite Defendants’ contentions to the contrary, Cow/icr does not
address the issue in this case: whether a supervisor can aid and abet his own conduct. Cowher
addressed the fact that a supervisor must be actively involved in the aiding and abetting; it does
not address whether an individual can aid and abet his own conduct.
In Cow/icr, the court
determined that the question of whether two supervisors who both allegedly engaged in wrongful
conduct could be liable under the aiding and abetting theory was for the jury. Cowher, 425 N.J.
Super. at 304. The Appellate Division, however, squarely addressed whether a supervisor could
aid and abet himself in Rowan. 2013 WL 1350095, at *8. Although Rowan is not binding on this
Court. it is the only Appellate Division case that deals with this issue head on and has been
affirmatively cited by numerous courts in this district. See. e.g.. Maizit, 61 F. Supp. 3d at 529;
Eado v. Kiniber Mfg., Inc., No. 11-4772, 2016 WL 3912852, at *8_9 (D.N.J. July 18, 2016);
Roche Diagnostics Corp., No. 10-5984. 2013 WL 3793622, at *7 (D.N.J. July
13, 2013). Ronmz and the cases in this district demonstrate that Plaintiffs theory of relief as to
Mintz in his individual capacity is actionable.5 As a result, Defendants’ Motion for Summary
Judgment to the extent it deals with the individual claims asserted against Mintz is denied.
Defendants cite to a number of decisions from courts in the District of New Jersey which held
that a supervisor cannot be individually liable for aiding and abetting his own conduct. Defs’ Br.
at 15. These eases, however, were all decided before Ron’an. And as discussed, “[c]ourts in this
district have found the reasoning in Rouwz persuasive and followed its holding.” Godfrey v.
Thermco, No. 13-4750, 2013 WL 5952046, at *6 (D.N.J. Nov. 4,2013) (denyingmotion to dismiss
LAD claim based on an argument that a supervisor cannot aid and abet his own conduct).
For the foregoing reasons and for good cause shown Defendants’ Motion for Summary
Judgment (D.E. 8) is DENIED without prejudice. An appropriate fonTi of order accompanies this
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