ABELARD et al v. CLEAN EARTH, INC. et al

Filing 23

OPINION. Signed by Magistrate Judge Michael A. Hammer on 2/14/17. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
:
:
:
:
:
Plaintiffs,
:
:
v.
:
:
CLEAN EARTH INC., SANDVIK,
:
INC., and ABC CORPS. 1-10.,
:
:
Defendants.
:
____________________________________:
JEAN ABELARD and GUERDA
ABELARD as Administrators ad
Prosequendum for the Estate of
MARVIN ABELARD,

I.

Civil Action No. 16-5276 (KM)

OPINION

INTRODUCTION
This matter comes before the Court on Plaintiffs’ cross-motion for leave to file an

Amended Complaint. See Pl.’s Cross-Mot. to Amend, D.E. 18. Plaintiffs, Jean and Guerda
Abelard, as administrators ad prosequendum for the Estate of Marvin Abelard, seek to amend their
Complaint to add a claim of intentional wrongdoing against Defendant Clean Earth, Inc. (“Clean
Earth”), the former employer of decedent Marven Abelard (“Marven”). See Am. Compl. ¶19-24,
Exh. to Pls.’ Cross-Mot. to Amend, D.E. 18-3.

Defendant Clean Earth opposes the motion,

arguing that the Proposed Amended Complaint lacks sufficient facts to support Plaintiffs’ claim
of intentional wrongdoing and only asserts legal conclusions. Def.’s Reply, D.E. 20. Pursuant to
Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1, the Court decided this motion
without oral argument. For the reasons set forth below, the Court will grant Plaintiff’s motion.

II.

BACKGROUND
In 2015, Marven was hired by Defendant Intelligent Resources Group (“Intelligent

Resources”), a temporary employment agency. Prop. Am. Compl. ¶4. 1

Marven was assigned

by Intelligent Resources to work at Clean Earth’s facility in Carteret, New Jersey. Id. Clean Earth
is “one of the largest processors of contaminated soils, dredged sediments, drill cuttings, industrial
non-hazardous waste, aerosol cans, consumer commodities, and hazardous wastes.” Id. at ¶1.
Marven, whom Plaintiffs describe as a “low-skill laborer,” started work at Clean Earth as a
“picker,” responsible for sorting and separating waste by hand. Certification of Reynauld BienAime ¶5-8, D.E. 18-4. At some point in March 2016, Marven was directed to begin working in
close proximity to the Sandvik QE440 machine, a “scalping screener with a conveyer belt.” Id. at
¶6, 9. The manufacturer of the machine, Sandvik, Inc. is also named as a Defendant in this case.
Prop. Am. Compl. ¶2. Marven’s main task was “to use a metal scraper on a wooden handle to
knock debris off a component of the [Sandvik] QE440 while the machine was in use and
operating.” Bien-Aime Cert. ¶9.
conveyer belt.” Id. at ¶10.

Marven was also tasked with “cleaning the rollers of the

Plaintiffs allege that Marven lacked the proper training to use this

machine. Prop. Am. Compl. ¶22. On May 2, 2016, Marven was directed by Clean Earth to work
alone with the Sandvik machine. Id. At some point that day, Marven became entangled in the
Sankvik QE440 and “sucked into the machine and subsequently asphyxiated to death.” Id. at ¶4.
On July 25, 2016, Plaintiffs filed a wrongful death action in the Superior Court of New
Jersey seeking compensatory damages.

Compl., Exh. A. to Not. of Removal, D.E. 1-1.

1

For the purposes of the motion to amend, the Court must accept as true all well pleaded
allegations in the proposed amended complaint. See Fowler v. UPMC Shadyside, 578 F.3d 203,
210-11 (3d Cir. 2009).
2

Defendants removed the action to this Court on August 30, 2016, on the basis of diversity
jurisdiction.

Not. of Removal, D.E. 1.

Defendant Clean Earth then moved the dismiss the

original Complaint, arguing that because Plaintiffs timely collected benefits under Intelligent
Resources’ workers’ compensation insurance, any claim against Clean Earth was therefore barred
under the New Jersey Workers’ Compensation Act, N.J.S.A. 34:15-8. Def.’s Opp’n, D.E. 10.
Plaintiffs have opposed the motion, arguing that Marven was actually an employee of Intelligent
Resources, not Clean Earth; therefore, Clean Earth is not protected by the Workers’ Compensation
Act and Plaintiffs are entitled to pursue a wrongful death claim against Clean Earth. Pl.’s CrossMot. at 15-31, D.E. 18-1.

Furthermore, Plaintiffs cross-moved to amend their Complaint to

include a claim of intentional wrongdoing. Id. at 32 to 39. As Plaintiffs explain, even if Clean
Earth is deemed to have been Marven’s employer, a claim of intentional wrongdoing is considered
an exception to the workers’ compensation bar, and their wrongful death claim should be permitted
to proceed. Id.

III.

DISCUSSION
Under Fed. R. Civ. P. 15, a plaintiff may amend his complaint once as of right, and “courts

may grant subsequent amendments ‘when justice so requires.’” Fraser v. Nationwide Mut. Ins.
Co., 352 F.3d 107, 116 (3d Cir. 2003) (quoting Fed. R. Civ. P. 15(a)). The Court may deny leave
to amend the pleadings only where there is (1) undue delay, (2) bad faith or dilatory motive, (3)
undue prejudice, (4) repeated failures to cure deficiencies, or (5) futility of amendment. Foman v.
Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Long v. Wilson, 393 F.3d 390, 400
(3d Cir.2004) (“We have held that motions to amend pleadings [under Rule 15(a)] should be
liberally granted.”) (citations omitted); Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d

3

Cir.2002). Here, Clean Earth asserts that the Court should deny Plaintiffs’ motion for leave to file
an Amended Complaint because of the futility of Plaintiffs’ proposed amendment adding a claim
of intentional wrongdoing. Def.’s Reply Br. at 13-18, D.E. 20. Because Clean Earth does not
argue that there is undue delay, bad faith, undue prejudice, or repeated failure to cure deficiencies,
the Court will base its determination on whether to grant Plaintiffs’ motion to amend solely on
whether it would be “futile” to allow their proposed new claim to proceed. See Assadourian v.
Harb, 2008 WL 4056361, at *3 (D.N.J. 2008) (“The futility of amendment, or the failure of the
plaintiff to articulate a claim, may also serve as a basis for denying a motion to amend.”).
A court will consider an amendment futile if it “is frivolous or advances a claim or defense
that is legally insufficient on its face.” Harrison Beverage Co. v. Dribeck Imps., Inc., 133 F.R.D.
463, 468 (D.N.J. 1990) (citations omitted) (internal quotations marks omitted).

To determine

whether an amendment is insufficient on its face, the Court employs the standard applied to Rule
12(b)(6) motions to dismiss. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d
Cir. 1997). Under this standard, the question before the Court is not whether the movant will
ultimately prevail, but whether the complaint sets forth “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Hishon v. King &
Spalding, 467 U.S. 69, 73 (1984) (establishing that a “court may dismiss a complaint only if it is
clear that no relief could be granted under any set of facts that could be proved consistent with the
allegations”); Harrison Beverage, 133 F.R.D. at 468 (“‘Futility’ of amendment is shown when the
claim or defense is not accompanied by a showing of plausibility sufficient to present a triable
issue.”). A two-part analysis determines whether this standard is met. Fowler, 578 F.3d at 210
(citing Ashcroft v. Iqbal, 556 U.S. 662, 629, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).

4

First, a court separates the factual and legal elements of a claim. Fowler, 578 F.3d at 210.
All well-pleaded facts set forth in the pleading and the contents of the documents incorporated
therein must be accepted as true, but the Court may disregard legal conclusions. Id. at 210–11;
West Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 97 n. 6 (3rd Cir.2010); see also
Iqbal, 556 U.S. at 678 (noting that a complaint is insufficient if it offers “labels and conclusions,”
a “formulaic recitation of the elements of a cause of action,” or “naked assertions” devoid of
“further factual enhancement”) (alterations omitted) (internal quotations marks omitted).
Second, as stated above, a court determines whether the plaintiff's facts are sufficient “to
state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. As the Supreme
Court instructed in Iqbal, “[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.” 556 U.S. at 678. The plausibility standard is not a “probability requirement,” but the
well-pleaded facts must do more than demonstrate that the conduct is “merely consistent” with
liability so as to “permit the court to infer more than the mere possibility of misconduct.” Id. at
678–79 (citations omitted) (internal quotation marks omitted). This “context-specific task ...
requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.
In New Jersey the worker’s compensation system has been characterized an a “trade-off
whereby employees relinquish their right to pursue common law remedies in exchange fro
automatic entitlement to certain, but reduced, benefits whenever they suffered injuries by accident
arising out of and in the course of employment. " Millison v. E.I. du Pont de Nemours & Co., 101
N.J. 161, 174 (1985). However, there are a certain number of exceptions to this so-called “tradeoff.” The New Jersey Workers' Compensation Act provides that "[i]f an injury or death is
compensable under this article, a person shall not be liable to anyone at common law or otherwise

5

on account of such injury or death for any act or omission occurring while such person was in the
same employ as the person injured or killed, except for intentional wrong." N.J.S.A. 34:15-8
(emphasis added); see also Laidlow v. Hariton Mach. Co., Inc., 170 N.J. 602, 605 (2002) ("[A]n
employer who causes the death or injury of an employee by committing an 'intentional wrong' will
not be insulated from common-law suit.").

Therefore, if this Court finds that Clean Earth

committed an “intentional wrong” which caused Marven’s death, then Plaintiff’s will be permitted
to proceed with their wrongful death common-law suit.
New Jersey courts have developed a two prong test to determine whether an employer
committed an "intentional wrong."

In order to satisfy the first prong of the test, the so-called

“conduct” prong, a plaintiff must establish that the employer knew that the actions which caused
the accident were “substantially certain to result in injury or death to the employee.” Id. at 617. In
order to satisfy the second prong of the test, the so-called “context” prong, a plaintiff must show
that “the resulting injury and the circumstances of its infliction on the worker must be (a) more
than a fact of life of industrial employment and (b) plainly beyond anything the Legislature
intended the Workers’ Compensation Act to immunize.” Id.
In regards to the “conduct” prong of the test, Plaintiffs must demonstrate that Clean Earth
knew that directing Marven to work alone, without proper training, and in close proximity to the
Sandvik QE440 machine was "substantially certain to result in injury or death to the employee."
Laidlow, 170 N.J. at 617. New Jersey courts have sought to define the conduct prong in a number
of different cases. For example, in Millison, 101 N.J. at 174, the New Jersey Supreme Court
determined that although “defendants' conduct in knowingly exposing plaintiffs to asbestos clearly
amount[ed] to deliberately taking risks with employees' health…the mere knowledge and
appreciation of a risk — even the strong probability of a risk — [comes] up short of the 'substantial

6

certainty' needed to find an intentional wrong resulting in avoidance of the exclusive-remedy bar
of the compensation statute."

By contrast, in Laidlow, 170 N.J. at 620-21, the New Jersey

Supreme Court, upon consideration of persuasive evidence that defendant company kept a safety
guard inactive at all times and that plaintiff and another employee had previously experienced
“close calls” with the same machine which ultimately caused plaintiff’s severe hand injury, found
"that [defendant] knew not only that injury was substantially certain to occur, but also that when
it did occur it would be very serious." Thus, the “conduct” prong was deemed satisfied in Laidlow.
Id. Similarly, in Mull v. Zeta Consumer Prods., 176 N.J. 385, 387-92 (2003), the New Jersey
Supreme Court found that the conduct prong was satisfied because plaintiff, whose hand was
injured while using an industrial machine, presented evidence that defendant company had
disabled the machine’s safety device and had also been cited by OSHA for failing to properly train
employees for use of the machine. The Court in Mull was influenced by the plaintiff’s submission
of an export report which concluded that the “hazardous operating conditions created a virtual
certainty of injury to the machine's operators.” Id. at 389 (internal quotation marks omitted).
In order to satisfy the “context” prong of the test, Plaintiffs must demonstrate that "the
resulting injury and the circumstances of its infliction on the worker [were] (a) more than a fact of
life of industrial employment and (b) plainly beyond anything the Legislature intended the
Workers' Compensation Act to immunize." Laidlow, 170 N.J. at 617. As this Court concluded in
Blackshear v. Syngenta Crop Prot., Inc., 2011 U.S. Dist. LEXIS 125505 (D.N.J. 2011), “[a] review
of the New Jersey Supreme Court's application of this prong reveals that it operates as an inquiry
into whether the injury occurred as a result of ordinary foreseeable work hazards in the plaintiff's
field or as a result of some abnormally unsafe employer practice.” For example, in both Laidlow,
170 N.J. at 622, and Mull, 176 N.J. at 393, the New Jersey Supreme Court determined that an

7

employer’s act of removing a safety device on a dangerous industrial machine, in combination
with other unsafe practices, was plainly beyond what the Legislature, in enacting the Worker’s
Compensation Act, would have considered to “constitute simple facts of industrial life.”
In this case, the Proposed Amended Complaint alleges that “during the time that Plaintiff
worked at Clean Earth, he was instructed by Clean Earth’s safety officer to keep a distance of
several hundred feet away from the Sandvik QE440 machine…[and] also advised to stay away
from the Sandvik QE440 when it was in use.” Prop. Am. Compl. ¶21. Furthermore, the Proposed
Amended Complaint alleges that “the Sandvik QE440 Operator’s Manual provides that a worker
must be properly trained and that there in a risk of ‘death or serious injury’ with the machine.” Id.
The warnings in the Sanvik QE440’s Operating Manual included the following: “all work
involving the equipment MUST ONLY be performed by trained, competent, reliable and
authorized persons only;” “NEVER work alone;” and “PERONSAL HAZARD! Working in close
proximity to running machine could cause serious injury or death.” Id.

Significantly, the

Proposed Amended Complaint goes on to allege that “in direct contravention of these warnings”
Clean Earth directed Marven, who was a “low skilled laborer” and “not properly trained,” to work
alone, and in close proximity, to the Sanvik QE440 “while it was in use and operating.” Id ¶2124. Plaintiffs allege that all of these factors combined create the reasonable inference that “Clean
Earth knew with substantial certainty that [Marven] would be injured if he continued to work in
this dangerous environment.” Id. ¶23.
Based on the facts alleged in the Proposed Amended Complaint, the Court concludes that
Plaintiffs’ proposed claim for intentional wrongdoing sets forth “enough facts to state a claim to
relief that is plausible on its face.” See Bell Atl. Corp, 550 U.S. at 570. Similar to the circumstances
of Laidlow and Mull, in which defendant companies removed safety devices on dangerous

8

industrial machines and were found to have committed intentional wrongs, Plaintiffs here allege
that Clean Earth greatly deviated from accepted safety practices by directing Marven, a low skilled
laborer, to work alone, and in close proximity, to a dangerous industrial machine for which he had
no proper training. The totality of the circumstances alleged in the Proposed Amended Complaint
satisfies the “conduct” prong of the intentional wrong test, because the facts alleged make plausible
the inference that Clean Earth knew its actions were “substantially certain to result in injury or
death to the employee.” See Laidlow, 170 N.J. at 617. The “context” prong of the test is also
satisfied because Plaintiffs allege that Clean Earth’s conduct in regards to the Sandvik QE440
machine was in direct contravention of proper safety protocol, thus making plausible the inference
that Clean Earth’s conduct was plainly outside what the Legislature would have considered
"simple facts of industrial life." Id. at 622. Therefore, Plaintiffs’ cross motion to amend its
complaint [D.E. 18] to add a claim of intentional wrongdoing against Clean Earth is granted.

s/ Michael A. Hammer
United States Magistrate Judge

Dated: February 14, 2017

9