REGO v. CONTINENTAL AIRLINES, INC. et al

Filing 14

MEMORANDUM OPINION. Signed by Magistrate Judge Tonianne J. Bongiovanni on 7/8/2013. (gxh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RUSSELL REGO,
Plaintiff,
v.
CONTINENTAL AIRLINES, INC., et al.,
Defendants.

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Civil Action No. 13-1871 (MLC)

MEMORANDUM OPINION

This matter comes before the Court upon Plaintiff Russell Rego’s (“Plaintiff”) request for
leave to file a First Amended Complaint [Docket Entry No. 12] to assert violations of the New
Jersey Conscientious Employee Protection Act (“CEPA”), breach of contract, and a violation
under the New Jersey State Constitution by the Defendant Continental Airlines, Inc. (“CAI”).
CAI opposes Plaintiff’s Motion to Amend [Docket Entry No. 13]. The Court has fully reviewed
and considered all arguments made in support of, and in opposition to, Plaintiff’s motion. The
Court considers Plaintiff’s motion without oral argument pursuant to L.CIV.R. 78.1(b). For the
reasons set forth more fully below, Plaintiff’s motion is DENIED.
I.

Background and Procedural History
This case involves CAI’s alleged violations of CEPA, breach of contract, and a violation of

the Plaintiff’s rights under the New Jersey State Constitution. (See Plaintiff’s Notice of Motion at
2; Docket Entry No. 12). All relevant procedural history is taken from the District Court’s Order
(“Order”) dated May 7, 2013 [Docket Entry No. 9]. Plaintiff first filed this action in the Superior
Court of New Jersey, Middlesex Division against CAI and several other individual defendants on
February 10, 2011. On September 2, 2011 the Middlesex Superior Court sua sponte dismissed

the Plaintiff’s Complaint for failure to serve a party. On August 10, 2012 the Middlesex Superior
Court reinstated the action in its entirety based on a motion by Plaintiff. However, Plaintiff’s
Complaint was dismissed again sua sponte by the Middlesex Court on December 14, 2012 because
Plaintiff failed to serve any of the parties.
On February 22, 2013 the Middlesex Superior Court reinstated the action insofar as the
action was brought against CAI only and none of the individual defendants who were earlier
named. CAI then removed this action to federal court pursuant to 28 U.S.C. §§ 1332 and 1441.
Subsequent to the action being removed, Plaintiff filed an amended complaint (“State Court
Amended Complaint”) in Middlesex Superior Court, but failed to file one with this Court. In the
interim, CAI filed a motion to dismiss. By Order dated May 7, 2013, the Honorable Mary L.
Cooper denied CAI’s motion to dismiss without prejudice and ordered Plaintiff to move before
this Court for leave to file an amended complaint. Moreover, Judge Cooper required that the
proposed amended complaint list CAI as the sole defendant, contain allegations solely against
CAI, and include a statement as to the amount of damages Plaintiff seeks. (See Order at 3).
Plaintiff was further advised “to refrain from simply restating the contents of the amended
pleading” that was filed in the Middlesex Superior Court “as that pleading is insufficient.” (Id.)
Additionally, the District Court warned that if Plaintiff failed to file a motion for leave to amend
and if he failed to include a statement of damages in accordance with the Federal Rules of Civil
Procedure and the Local Civil Rules in the proposed amended complaint, that the remaining claims
in the action would be dismissed. (Id. at 4).
Plaintiff now seeks leave to file an Amended Complaint pursuant to the District Court’s
Order as well as Fed.R.Civ.P. 15(a)(2). Plaintiff argues that the Court should “freely grant leave

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‘when justice so requires.’” (Plaintiff’s Notice of Motion at 2). Further, Plaintiff asserts that leave
is generally granted unless there is undue delay, prejudice, bad faith, dilatory motive, repeated
failures through deficiencies through previous amendments, or futility. (Id.) Plaintiff submits that
none of the above factors are present here and thus Plaintiff’s motion should be granted.
CAI opposes Plaintiff’s motion. CAI asserts the motion does not satisfy the District
Court’s Order and additionally argues that the proposed amended pleading does not satisfy
Fed.R.Civ.P.15(a)(2). (CAI’s Letter Brief in Opposition at 1; Docket Entry No. 13). CAI argues
the Plaintiff failed to comply with the District Court’s Order because the proposed Amended
Complaint does not contain a statement as to the amount of damages Plaintiff seeks. (Id. at 2).
Moreover, CAI contends that, with the exception of a few additional factual statements, Plaintiff
has essentially restated the State Court Amended Complaint filed in Middlesex County. (Id.)
Furthermore, CAI argues the Plaintiff failed to satisfy Fed.R.Civ.P.15(a)(2) because the
amendment would be futile. (Id.) CAI asserts that the remaining counts which appear in the
proposed Amended Complaint are “substantially identical” to counts of the State Court Amended
Complaint, which was dismissed as being insufficient, and that, therefore, the proposed Amended
Complaint “contains the same infirmities as the prior pleading[.]” (Id. at 3). CAI believes the
proposed amendment would be futile because if leave to amend was granted, CAI would promptly
re-file a motion to dismiss pursuant to Fed.R.Civ.P.12(b). (Id.)
II.

Analysis
Pursuant to Fed.R.Civ.P.15(a)(2), leave to amend the pleadings is generally granted freely.

See Foman v. Davis, 371 U.S. 178, 182 (1962); Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000).
Nevertheless, the Court may deny a motion to amend where there is “undue delay, bad faith or

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dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, [or] futility of the amendment.” Id. However, where there is an absence of undue
delay, bad faith, prejudice or futility, a motion for leave to amend a pleading should be liberally
granted. Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004).
An amendment is futile if it “is frivolous or advances a claim or defense that is legally
insufficient on its face.” Harrison Beverage Co. v. Dribeck Imp., Inc.,, 133 F.R.D. 463, 468
(D.N.J. 1990) (internal quotation marks and citations omitted). To evaluate futility the District
Court uses “the same standard of legal sufficiency” as applied for a motion to dismiss under Rule
12(b)(6). Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). “Accordingly, if a claim is
vulnerable to dismissal under Rule 12(b)(6), but the plaintiff moves to amend, leave to amend
generally must be granted unless the amendment would not cure the deficiency.” Id.
Here, CAI asserts that Plaintiff’s motion should be not be granted because the proposed
pleadings do not comply with the District Court’s Order. The Court finds CAI’s argument
persuasive. Plaintiff failed to comply with the clear requirements of the Order in that the
proposed Amended Complaint does not include a statement as to the amount of damages and
hardly differs in substance from the Complaint that was filed in Middlesex County Superior Court.
Upon the Court’s review, with the exception of a few additional factual allegations and some
counts being removed, the proposed Amended Complaint is essentially the same as the Complaint
that was filed in Middlesex County. Because this Court finds that Plaintiff failed to comply with
the District Court’s May 7, 2013 Order, the Court shall decline to address CAI’s futility argument.
Therefore, Plaintiff’s motion for leave to file an Amended Complaint is DENIED.1
1

Although not raised by CAI, the Court also finds that it noteworthy that Plaintiff’s submission does not

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III.

Conclusion

For the reasons set forth above, Plaintiff’s Motion to Amend is DENIED. An appropriate
Order follows.
Dated: July 8, 2013

s/ Tonianne J. Bongiovanni
HONORABLE TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE

appear to comply with L.Civ.R.7.1. Local Civil Rule 7.1(d) (4) states “[i]n lieu of filing any brief pursuant
to L.Civ.R.7.1(d)(1), (2) or (3), a party may file a statement that no brief is necessary and the reasons
therefore.” The Plaintiff has not filed a brief with his motion, nor has the Plaintiff asserted that no brief is
necessary. Courts have denied a motion for failure to comply with the Local Civil Rules. Santos v. Bledsoe,
NO. 3:10-CV-1599, 2011 U.S. Dist. LEXIS 94260, at *8-10 (M.D. Pa. Aug. 23, 2011) (denying movant’s
motion in part because movant did not file a brief with the movant’s motion); Lamberty v. Rosenberg, No.
05-227, 2008 U.S. Dist. LEXIS 25873 (D.N.J. Mar. 31, 2008) (Mem.) (denying movant’s motion because
the movant failed to comply with L. Civ. R. 7.1(d)). However, in light of the above, the Court is not relying
on this consideration in formulating its decision.

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