LI v. METROPOLITAN LIFE INSURANCE COMPANY et al
Filing
23
MEMORANDUM OPINION. Signed by Judge Kevin McNulty on 9/26/2016. (JB, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 16-4845 (KM)
YANHONG LI,
:
Plaintiff,
MEMORANDUM OPINION
V.
METROPOLITAN LIFE
INSURANCE COMPANY and
JOHN BUCSEK,
Defendants.
MCNULTY, U.S.D.J.:
The plaintiff, Yanhong Li, brings this action against her former employer,
defendant Metropolitan Life Insurance Company (“MetLife”), and the Managing
Partner who was her supervisor, John Bucsek. Now before the Court is the
defendants’ motion (ECF no. 8) to dismiss Counts 3 and 5 of the Complaint.
The motion will be denied as to Count 3 and granted without prejudice as to
Count 5.
I.
FED.
APPLICABLE STANDARD
R. Civ. P. 12(b)(6) provides for the dismissal of a complaint, in whole
or in part, if it fails to state a claim upon which relief can be granted. The
moving party bears the burden of showing that no claim has been stated.
Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion
to dismiss, a court must take all allegations in the complaint as true and view
them in the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.s.
490, 501 (1975); Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140
F.3d 478, 483 (3d Cir. 1998); see also Phillzs v. County of Allegheny, 515 P.3d
224, 231 (3d Cir. 2008) (“reasonable inferences” principle not undermined by
later Supreme Court Twombly case, infra).
FED. R. Civ. p. 8(a) does not require that a complaint contain detailed
factual allegations. Nevertheless, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief requires more than labels and
conclusions, and formulaic recitation of the elements of a cause of action will
not do.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual
allegations must be sufficient to raise a plaintiff’s right to relief above a
speculative level, such that it is “plausible on its face.” See id. at 570; see also
Umland v. PLANCO Fin. Seru., Inc., 542 F’.3d 59, 64 (3d Cir. 2008). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). While “[t]he plausibility standard is not akin to a
‘probability requirement’
...
it asks for more than a sheer possibility.” Iqbal, 556
U.S. at 678 (2009).
III.
DISCUSSION
A.
Count 3
—
Quid pro quo sexual harassment under NJLAD
Defendants move to dismiss Count 3, which alleges quid pro quo sexual
harassment in violation of the New Jersey Law Against Discrimination
(“NJLAD”), N.J. Stat. Ann.
§ 10:5—i et seq.
Defendants contend, correctly, that NJLAD primarily imposes liability on
an “employer,” a definition that fits MetLife, but not Bucsek. Unlike federal law,
however, NJLAD does impose individual liability, albeit through the awkward
route of “aiding and abetting.” NJLAD makes it unlawful for “any person,
whether an employer or an employee or not, to aid, abet, incite, compel or
coerce the doing of any of the acts forbidden under this act.” N.J. Stat. Ann.
§ 10:5-12(e). See also Cicchetti v. Morris Cnty. Sheriffs Office, 947 A.2d 626,
645 (2008) (“individual liability of a supervisor for acts of discrimination or for
2
creating or maintaining a hostile environment can... arise through the ‘aiding
and abetting’ mechanism.”).
To hold an employee liable as an aider and abettor, Plaintiff must show:
(1) the employer whom the defendant aided performed a wrongful act causing
an injury; (2) the defendant was generally aware of his role as part of an overall
illegal or tortious activity at the time that he provided the assistance; and (3)
the defendant knowingly and substantially assisted the principal violation.
Cicchetti, 947 A.2d at 645 (citing Hurley v. Atlantic City Police Dep’t, 174 F.3d
95, 127 (3d Cir. 1999)).
It is true, as defendants point out, that Count 3 does not explicitly cite
N.J. Stat. Ann.
§
10:5-12(e), and does not in so many words allege aiding and
abetting. The complaint does, however, cite the NJLAD, N.J. Stat. Ann.
§
10:5-
1 et seq., which would encompass the following sections within the statute.
And it does set forth facts that might, if proven, establish aiding and abetting
liability under the Cicchetti standard.
The complaint alleges that on multiple occasions, Bucsek called Li into
his office, invited her to restaurants, and touched her sexually. When she
refused his advances, Bucsek retaliated by accusing her of misconduct. (Cplt.
¶
12) The Human Resources investigation, conducted by someone who worked
closely with Bucsek, was allegedly biased. (Cplt.
involved MetLife’s upper management. (Cplt.
¶
¶
14) The conduct allegedly
31) Count 3 seeks judgment
against “Defendants,” i.e., both MetLife and Bucsek.
That is a sufficient allegation. The motion is denied insofar as it seeks to
dismiss Count 3.
B.
Count 5
-
Defamation
Count 5 of the Complaint asserts a claim of defamation against MetLife
only.
Traditional common law defamation has three essential elements: “(1) the
assertion of a false and defamatory statement concerning another; (2) the
unprivileged publication of that statement to a third party; and (3) fault
3
amounting at least to negligence by the publisher.” Leang v. Jersey City Bd. of
Educ., 198 N.J. 557, 585, 969 A.2d 1097 (2009) (quoting DeAngelis v. Hill, 180
N.J. 1, 13, 847 A.2d 1261 (2004)); see also G.D. v. Kenny, 984 A.2d 921, 927—
28 (N.J. Super. Ct. App. Div. 2009), affd, 15 A.3d 300 (N.J. 2011). “A
defamatory statement is one that is false and ‘injurious to the reputation of
another’ or exposes another person to ‘hatred, contempt or ridicule’ or subjects
another person to ‘a loss of the good will and confidence’ in which he or she is
held by others.” Romaine v. Kallinger, 537 A.2d 284, 287 (N.J. 1989) (quoting
Leers v. Green, 131 A.2d 781, 787 (N.J. 1957)). Whether a statement is
defamatory is an issue of law, but one that depends on the “content,
verifiability, and context of the challenged statements.” Ward v. Zelikovsky, 643
A.2d 972, 978 (N.J. 1994).
The factual allegations of the complaint relating to defamation are, in
their entirety, as follows:
17. Following her termination, MetLife contacted Plaintiff’s clients
and informed them that she was terminated and, including but not
limited to, no longer a licensed advisor. As recent as one (1) month
before the filing of this Complaint, MetLife was continuing to
defame Plaintiff by knowingly communicating false, unprofessional
statements to Plaintiff’s former clients.
(Cplt.
¶
17)
MetLife’s brief cites state case law requiring that the complaint plead
“when, where, by which defendant and by what words, written or oral, plaintiff
was defamed.” Zoneraich v. Overlook Hosp., 212 N.J. Super. 83, 101 (App. Div.
1986). The Federal Rules, not state law, control pleading standards in this
court. Nevertheless, I think that the Twombly/Iqbal standards require more
than this complaint gives us. The allegations of this complaint are simply too
general they fail to plausibly set forth facts supporting the elements of
defamation. The speaker is not identified. The time frame is stated only
generally as “[f]ollowing [Li’s] termination.” The “clients” are not identified. One
portion of the statement (that Li was terminated) does not appear on its face to
4
be false. Other statements, identified only as “false, unprofessional
statements,” are too vague to be evaluated.
In her brief in response to the motion, Li attempts to identify more
specifically the statements of which she complains. But “[s]ince a ‘complaint
may not be amended by the briefs in opposition to a motion to dismiss’, the
Court must disregard these allegations. Car Carriers, Inc. v. Ford Motor Co., 745
F.2d 1101, 1107 (7th Cir. 1984); see also Commonwealth of Pennsylvania v.
PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (same).” Eli Lilly & Co. v.
Roussel Corp., 23 F. Supp. 2d 460, 493 (D.N.J. 1998). Such statements
do, however, suggest that Li may wish to attempt to amend her allegations.
Because there has been no prior dismissal, I will enter the dismissal of Count 5
without prejudice. See Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)
(where a complaint is dismissed on Rule 12(b)(6) grounds, “a District Court
must permit a curative amendment, unless an amendment would be
inequitable or futile.”)
III.
CONCLUSION
Accordingly, the defendants’ motion to dismiss is denied as to Count 3
and granted as to Count 5. The dismissal of Count 5 is without prejudice to the
submission of an amended complaint within 30 days. An appropriate order
accompanies this Opinion.
J
Dated: September 26, 2016
HON. KEVIN MCNULTY,
5
.S. .J.
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