MARRIN v. CAPITAL HEALTH et al

Filing 19

OPINION filed. Signed by Judge Freda L. Wolfson on 1/29/2015. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
JANICE MARRIN.
:
:
Plaintiff,
:
:
Civil Action No. 14-2558 (FLW)(LHG)
v.
:
:
OPINION
CAPITAL HEALTH SYSTEMS, INC.,
:
et al.
:
:
Defendant(s). :
___________________________________ :
WOLFSON, United States District Judge:
This case arises out of a twelve-Count Second Amended Complaint filed by Janice
Marrin (“Plaintiff”) against Capital Health Systems, Inc.1 (“Capital Health”), Joan Duvall
(“Duvall”), and Carolann Bass (“Bass”) (collectively “Defendants”). Marrin, in essence, asserts
that she was fired from her position with Capital Health Systems without cause, in retaliation for
reporting on improper procedures, and as a result of a disability, fibromyalgia. The Complaint
asserts: (Count 1) Conscientious2 Employee Protection Act; (Count 2) Family Medical Leave
Act; (Count 3) tortious inference with economic advantage; (Count 4); tortious interference with
contractual relations; (Count 5) Law Against Discrimination—Retaliation; (Count 6) Law
Against Discrimination—Disability Discrimination; (Count 7) Breach of the Employees

1
The Corporate Defendant is listed on the Amended Complaint as “Capital Health Systems, Inc.,
d/b/ Capital Health, d/b/a Capital Health – Hamilton, Capital Health Regional Medical Center,
Capital Health – Hopewell.” As noted by Defendants, Capital Health Systems, Inc. is the only
one of those names which is a legal entity in New Jersey. Def. Br. at 4; Def. Ex. A. The
Complaint should be amended to reflect the proper party.
2

Plead as “Consciousness Employee Protection Act.”
1 

Handbook (contract and tort); (Count 8) Covenant of Good Faith and Fair Dealing; (Count 9)
Negligent Misrepresentation; (Count 10) Civil Conspiracy; (Count 11) Punitive Damages;
(Count 12) Attorney Fees and Litigation Expenses.
Defendants filed a Motion to Dismiss Counts 3, 4, 6, 7, 8, 9, 10, 11 and 12. In addition to
opposing the Motion, Plaintiff filed a Motion for Leave to file a Third Amended Complaint. For
the reasons set for below, Defendants’ Motion is granted in part and denied in part. Specifically,
Defendants’ Motion to Dismiss Counts 3 (tortious interference with economic advantage) and 4
(tortious interference with contractual relations); Counts 7 (breach of employee handbook) and 8
(breach of covenant of good faith and fair dealing); Count 9 (negligent misrepresentation); Count
10 (civil conspiracy); and Counts 11 (punitive damage) and 12 (attorney fees) are granted.
Plaintiff’s Motion to Amend the Complaint is denied with respect to Counts 3, 4, 7, 8, 9, 10, 11,
and 12. Plaintiff’s Motion to Amend the Complaint is granted with regard to Count 6 (Law
Against Discrimination—disability discrimination) and Defendants’ Motion to Dismiss Count 6
of the Second Amended Complaint is denied as moot.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The facts described here come from Plaintiff’s Second Amended Complaint, and
documents which are integral to the Complaint, and are assumed to be true for the purpose of
these motions. Plaintiff was a laboratory technician in the Microbiology Laboratory Department
of Capital Health. 2d Am. Compl. at ¶ 1-4.3 Bass was the supervisor of the Microbiology
Laboratory Department, and Plaintiff’s direct supervisor; Duvall was the supervisor of the

3
As the numbering of the paragraphs in the Complaint restarts for each Count, the citations are
labeled by the Count, and the paragraph number within the Count.
2 

Laboratory Department. Id. at ¶ 1-2 to 1-4. According to the Complaint, Plaintiff complained to
Duvall and Bass, as well as other supervisors, that “employees were not following proper
procedure in the Microbiology Laboratory Department.” Id. at ¶ 1-6. Plaintiff asserts that she
was terminated in retaliation for reporting these procedures to her supervisors. Id. at ¶1-10.
Plaintiff further asserts she suffers from “fibromyalgia syndrome.” Id. at ¶ 5-2. She states
that she made a request for intermittent leave to accommodate her fibromyalgia, which was
approved. Id. at ¶¶ 2-2; 6-9. However, Plaintiff alleges that “Defendants deliberately created
intolerable working conditions, interfered with Plaintiff’s leave, and terminated the Plaintiff
under the guise of their progressive discipline program.” Id. at ¶ 2-6. Plaintiff further asserts that
her disability “was a determinative factor in the Defendant’s decision to intentionally provide the
Plaintiff with unwarranted progressive discipline to justify her termination.” Id. at ¶ 5-3.
According to Plaintiff, Defendants did not engage her in any interactive process, and failed to
reasonably accommodate her disability. Id. at ¶ 6-3. Additionally, Plaintiff states that on
February 4, 2013, and February 6, 20144, Defendants failed to advise her of the proper procedure
to call in sick. Id. at ¶ 9-2.
Capital Health has a written manual, which sets forth their policies and procedures,,
including a progressive discipline policy. Id. at ¶ 7-2. Plaintiff alleges that this manual “created a
contract between the Plaintiff and the Defendant Capital Health.” Id. at ¶ 7-3. Plaintiff further
alleges that the Defendants did not comply with the terms and conditions of the written manual;
namely by disciplining Plaintiff improperly and terminating her.5 Id. at ¶¶ 7-5 to 7-6. Plaintiff

Plaintiff’s opposition brief to the Motion to Dismiss states that Plaintiff was disciplined for
failure to follow the call-out procedure on February 12, 2013, which suggests that the 2014 date
given in the Amended Complaint is incorrect.

4

5

The Second Amended Complaint does not give the date of Plaintiff’s termination.
3 

additionally states that Defendants negligently carried out the policies in the handbook. Id. at ¶ 78.
Plaintiff asserts that Duvall and Bass acted in concert and outside the scope of their
employment to terminate her. Id. at ¶ 10-2.
On March 20, 2014, Plaintiff filed an Amended Complaint6 in the Superior Court of New
Jersey, Law Division of Mercer County, against all Defendants. Defendants removed the case to
this Court on April 22, 2014, and filed a partial Motion to Dismiss on May 9, 2014. Plaintiff filed
a Second Amended Complaint on May 18, 2014, and an opposition to the Motion to Dismiss on
May 19, 2014.The Court, in response to a letter from Defendants, terminated the initial Motion
to Dismiss as moot. On June 2, 2014, Defendants filed the present Motion to Dismiss. In addition
to filing an Opposition to the Motion to Dismiss, Plaintiff filed a Cross-Motion to Amend the
Complaint, attaching a proposed Third Amended Complaint.

II. STANDARD OF REVIEW
A. Motion to Dismiss
Defendants move to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
When considering a motion to dismiss a complaint for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), a court must accept all well-pleaded
allegations in the complaint as true and view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well settled that a pleading is sufficient
if it contains “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). However, “[a]lthough the Federal Rules of Civil Procedure do not

6
The papers do not indicate when the initial Complaint was filed.
4 

require a claimant to set forth an intricately detailed description of the asserted basis for relief,
they do require that the pleadings give defendant fair notice of what the plaintiff’s claim is and
the grounds upon which it rests.” Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149–50
n. 3 (1984) (quotation and citation omitted). A district court, in weighing a motion to dismiss,
asks “‘not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer
evidence to support the claim.’” Bell Atlantic v. Twombly, 550 U.S. 544, 583 (2007) (quoting
Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft v. Iqbal, 556 U.S. 662, 684
(2009) (“Our decision in Twombly expounded the pleading standard for all civil actions.”)
(internal citations omitted); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(“Iqbal . . . provides the final nail-in-the-coffin for the ‘no set of facts’ standard that applied to
federal complaints before Twombly.”).
Following the Twombly/Iqbal standard, the Third Circuit applies a two-part analysis in
reviewing a complaint under Rule 12(b)(6). First, a district court must accept all of the
complaint’s well-pleaded facts as true, but may disregard any legal conclusions. Fowler, 578
F.3d at 210. Second, a district court must determine whether the facts alleged in the complaint
are sufficient to show that the plaintiff has a “plausible claim for relief.” Id. A complaint must do
more than allege the plaintiff’s entitlement to relief. Id. However, this standard “‘does not
impose a probability requirement at the pleading stage,’ but instead ‘simply calls for enough
facts to raise a reasonable expectation that discovery will reveal evidence of’ the necessary
element.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly,
127 U.S. at 1965); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d
114, 118 (3d Cir. 2013) (“[A] claimant does not have to set out in detail the facts upon which he
bases his claim . . . . The pleading standard is not akin to a probability requirement, . . . to

5 

survive a motion to dismiss, a complaint merely has to state a plausible claim for relief.”
(citations omitted)). Nonetheless, a court need not credit either “bald assertions” or “legal
conclusions” in a complaint when deciding a motion to dismiss. In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1429–30 (3d Cir. 1997). The defendant bears the burden of showing
that no claim has been presented. Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr
Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
Finally, a court in reviewing a Rule 12(b)(6) motion must only consider the facts alleged
in the pleadings, the documents attached thereto as exhibits, and matters of judicial notice. 7
Southern Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir.
1999). However, “a court may consider an undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.”
Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). To
the extent that the documents relied on by the Complaint contradict the factual allegations
alleged in the complaint, the documents will control. Goldenberg v. Indel, Inc. 741 F. Supp. 2d
618, 624 (D.N.J. 2010) (citing ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 n.8 (3d Cir.1994)).
B. Motion to Amend Complaint
Under Fed. R. Civ. Proc. 15(a), a party may amend her pleading once as a matter of
course. Therefore, before amending again, the party must obtain either leave of the court or

Plaintiff has attached various documents to its Opposition to the Motion to Dismiss, including,
inter alia, a proposed Third Amended Complaint (Ex. 3), a certification from Plaintiff alleging
specific facts relevant to the Complaint (Ex. 1) and disciplinary action notices relating to
Plaintiff (Ex. 4). While the proposed Third Amended Complaint will be used to evaluate
Plaintiff’s Motion to Amend, the remaining exhibits have not been attached to any pleadings. To
the extent that the Complaint refers to the disciplinary action notices, they may be considered;
the remaining documents, however, are outside the record for both the Motion to Dismiss and the
Motion to Amend.
7

6 

written consent from the opposing party; the court is instructed to “freely give leave when justice
so requires.” Id. When considering a motion to amend, “[t]he Supreme Court has instructed that
although ‘the grant or denial of an opportunity to amend is within the discretion of the District
Court, . . . outright refusal to grant the leave without any justifying reason appearing for the
denial is not an exercise of discretion; it is merely an abuse of that discretion and inconsistent
with the spirit of the Federal Rules.’ ” Shane v. Fouver, 213 F.3d 113, 115 (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962)). Nonetheless, a court may deny a plaintiff leave to amend for a
variety of reasons, including undue delay, bad faith, dilatory motive, prejudice and futility. In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997); Alston v. Parker, 363
F.3d 229, 235 (3d Cir. 2004). Under Third Circuit precedent, a “futile” amendment is one that
fails to state a claim upon which relief could be granted. Burlington, 114 F.3d at 1434; Grayson
v. Mayview State Hospital, 293 F.3d 103, 113 (3d Cir. 2002). Thus, in determining whether a
complaint, as amended, is futile, the District Court must apply the sufficiency standard set forth
under Rule 12(b)(6). Shane, 213 F.3d at 115. “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.

III. DISCUSSION
A. Breach of Contract and Breach of Good Faith and Fair Dealing
Defendants assert that the Employee Handbook did not create a contract between Capital
Health and Plaintiff, because the Handbook specifically states in multiple locations that it does
not create such a contract. Def. Br. at 6–7. Because Plaintiff cannot point to an enforceable

7 

contract, Defendants argue that both the breach of contract claim (Count 7) and the breach of the
covenant of good faith and fair dealing claim (Count 8) must be dismissed.
Plaintiff alleges that while she signed a Handbook Acknowledgment Page for an
Employee Handbook in 2005, Capital Health issued a new Handbook in 2010. Pl. Br. at 7–8.
Plaintiff contends that she was not “reoriented” to the disclaimer provisions in the 2010
Handbook. Id. at 8. Plaintiff further argues that the disclaimers in the Handbook are not valid
because they are not bold-faced, underlined, or otherwise set apart from the rest of the text. Pl.
Br. at 8.
An employment manual which provides terms and conditions of employment, including
grounds and procedures for dismissal, may create an employment contract; however, the manual
must contain “some provision or language in the employment manual that guarantees the
employee will not be terminated except for good cause.” Doll v. Port Auth. Trans-Hudson Corp.,
92 F. Supp. 2d 416, 422–23 (D.N.J. 2000) aff'd, 261 F.3d 491 (3d Cir. 2001) (citing Woolley v.
Hoffmann-LaRoche, Inc., 99 N.J. 284 (1985)). “Moreover, the Woolley decision permits an
employer to negate an implied contract by the inclusion of a clear and prominent disclaimer in
the employment manual.” Id. at 423. However, “[d]isclaimers in employee manuals fail for lack
of prominence when the text is not set off in such a way as to bring the disclaimer to the attention
of the reader.” Nicosia v. Wakefern Food Corp., 136 N.J. 401, 415, 643 A.2d 554, 561 (1994).
See also Clarke v. Essex Valley Health Care, Inc., No. A-3876-12T3, 2014 WL 4843972, at *6
(N.J. Super. Ct. App. Div. Oct. 1, 2014) (holding that the multiple disclaimers in a handbook ,
which were on the first and last page of the handbook, with bolded titles, “more than satisfy the
requirements of Woolley.”).

8 

Although Plaintiff asserts that she was not “reoriented” as to the 2010 Handbook, the
document attached as Exhibit A to the Second Amended Complaint contains pages from that
Handbook; the previous Handbook was not attached to or referred to by the Second Amended
Complaint. Thus, Plaintiff is relying on the 2010 Handbook to make the claim that she had a
contract. The 2010 Handbook8 states:
No one is authorized to provide you with an employment contract
or special arrangement concerning terms or conditions of
employment unless the contract or arrangement is in writing and
signed by the Chief Executive Officer or designee. You or Capital
Health may terminate your employment with Capital Health at any
time, with or without cause or notice.
[Def. Br. Ex. B. at iii.]
This statement is in bold font, on its own page, at the beginning of the handbook. Similarly, the
final page of the Handbook is a “Receipt of Handbook” acknowledgment, which states, in all
capital letters “I recognize that neither the Handbook nor any other communication, either
written or oral . . . is intended to create an employment contract.”9 Id. These warnings are
therefore adequately set off to bring them to the attention of the reader. Plaintiff has cited no law
whatsoever to support her assertion that an employer is required to “reorient” an employee to
disclaimers contained in an employee handbook when a new version is issued. Indeed, Plaintiff
does not allege that the 2005 Handbook did not include similar disclaimer language, further
making it clear that no “reorientation” was necessary. As a matter of law, the Employee

8
Because these claims are expressly based on the Employment Handbook, I may properly
consider the document attached to Defendants’ Brief, which Plaintiff concedes is applicable. Pl.
Br. at 8.
9

 Defendants attached a “Receipt of Handbook” page, signed by Plaintiff in 2005. Def. Ex. C. I
note that the 2005 and 2010 “Receipt of Handbook” pages are identical, and both state that the
handbook does not create an employment contract. 

9 

Handbook did not create an enforceable employment contract. Count 7, for breach of contract, is
therefore dismissed.10
Defendants further argue that there is no implied covenant of good faith and fair dealing
in an employment context unless an employment contract exists. Def. Br. at 9. Plaintiff argues,
however, that even in the absence of an employment contract, where there is a disciplinary
policy given to employees, there is still an enforceable commitment that the company will
endeavor to avoid termination. Pl. Opp. at 11 (quoting Geldreich v. American Cyanamid Co.,
299 N.J. Super. 478, 486 (App. Div. 1997)).
In general, there is no covenant of good faith and fair dealing between an employer and
an “at-will” employee. Varallo v. Hammond, Inc., 94 F.3d 842, 848 (3d. Cir. 1996); see also
Clarke, No. A-3876-12T3, 2014 WL 4843972, at *6 (holding that where there is no actual or
implied contract, there is no implied covenant of good faith and fair dealing). However, “‘[t]his
does not mean that an implied obligation of good faith is inapplicable to those aspects of the
employer-employee relationship which are governed by some contractual terms, regardless [of]
whether that relationship is characterized generally as being at will.’” Peck v. Imedia, Inc., 293
N.J. Super. 151, 168 (App. Div. 1996) (quoting Nolan v. Control Data Corp., 243 N.J. Super.
420, 429 (App. Div. 1990)). In Peck, for example, an at-will employee had a cause of action
based on the breach of good faith and fair dealing “attributable to any delay in expressing the

Count 7 additionally asserts a claim in tort, stating that “Defendants were also negligent in
carrying out the policies in the handbook by terminating the Plaintiff even though the Plaintiff
cooperated with an investigation.” Am. Compl. at ¶7-8. The initial inquiry in any negligence
action is whether the defendant has breached a duty owed to the plaintiff, which if observed,
would have averted plaintiff's injuries. Kulas v. Public Service Electric and Gas Co., 41 N.J.
311, 316 (1964). In the absence of an enforceable contract, Plaintiff cannot show that Defendants
owed her any duty to carry out the policies in the handbook, and cannot therefore maintain a
claim in tort.

10

10 

decision to terminate the relationship.” Id. Similarly, in Geldreich, the New Jersey Appellate
Division found an “enforceable commitment” where an employee manual contained “unqualified
requirements” for employee termination, and there was a “separate generalized disclaimer”
which “[fell] short of passing muster under Woolley.” 299 N.J. Super. at 486.
These cases, however, are not applicable here. First, the claim here is directly related to
Plaintiff’s status as an at-will employee. In addition, while there is a more generalized disclaimer
at the beginning of the document, the section of the Employee Handbook describing the
Progressive Discipline System has a specific disclaimer:
Capital Health, however, retains the authority to skip any of the steps
set forth below in order to accelerate the disciplinary process or to
immediately discharge you without following any of the steps set
forth below based on the severity of the offense. The establishment
of the Progressive Discipline System in no way abrogates the at-will
aspects of your employment.
[Def. Br. Ex. B. at 16.]
The same section states “Listed below are the steps typically followed in the Progressive
Discipline System.” Id. (emphasis added). The Handbook’s language therefore ensures that an
employee cannot reasonably treat it as a contract. Without any indication of an enforceable
commitment, Plaintiff cannot claim that any covenant of good faith and fair dealing applied to
her. Count 8, for breach of the covenant of good faith and fair dealing, is thus dismissed.
Plaintiff’s proposed Third Amended Complaint does not, in fact, amend these Counts in
any way. The Motion to Amend Counts 7 and 8 of the Complaint is therefore denied as futile.
B. Tortious Interference
Defendants assert that both Counts 3 (tortious interference with economic advantage) and
4 (tortious interference with contractual relations) must be dismissed. First, Defendants state that
Plaintiff did not have a contract with Capital Health, Def. Br. at 10 and this Court has so found.
11 

Defendants further note that, as the claims are made against all Defendants, it is illogical to assert
that Capital Health interfered with its own contract or economic relationship with Plaintiff. Id. at
11. Finally, Defendants argue that the Complaint itself shows that the individual Defendants
were acting within the scope of their employment by disciplining Plaintiff. Id. at 11. Plaintiff
argues that the law in New Jersey is unclear as to whether actions by an employee (the
individual Defendants) can constitute tortious interference with a relationship between an
employer and a third party (the plaintiff). Pl. Br. at 13. Plaintiff further asserts that the individual
Defendants were acting outside the scope of their employment. Id. at 14–15.
As Plaintiff had no employment contract with Capital Health, Plaintiff cannot maintain a
claim of tortious interference with contractual relations by any of the named Defendants. Any
amendment to this claim, in the absence of evidence of an enforceable contract, would be futile.
Count 4 is therefore dismissed.
Plaintiff likewise cannot maintain a claim of tortious interference with economic
advantage against Capital Health. “It is fundamental to a cause of action for tortious interference
with a prospective economic relationship11 that the claim be directed against defendants who are
not parties to the relationship.” Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J.
739, 752 (1989). Plaintiff is asserting an interference with her relationship with Capital Health;
Capital Health cannot tortiously interfere with its own relationship. Thus, Count 3 is dismissed as
to Capital Health.

11
The New Jersey Courts use the claims “tortious interference with economic advantage,”
“tortious interference with prospective economic relationship” and “tortious interference with
prospective business relations” interchangeably. See, e.g., Lamorte Burns & Co. v. Walters, 167
N.J. 285, 305, 770 A.2d 1158, 1170 (2001) (defining claim for “tortious inference with economic
advantage” as “tortious interference with a prospective business relation,” (citing Printing MartMorristown.))

12 

While the law is clear that no tortious interference with an employment relation can be
asserted against an employer, the law is more complex regarding tortious interference claims
against fellow employees. The New Jersey Supreme Court in Printing Mart-Morristown
expressly declined to resolve this question. Id. at 763. However, the courts of this Circuit have
held that “only when an employee asserts that a supervisor was acting outside the scope of his
employment and/or for his own personal gain may the employee go forward with a claim for
tortious interference.” Marrero v. Camden Cnty. Bd. of Soc. Servs., 164 F. Supp. 2d 455, 478
(D.N.J. 2001) (internal quotation marks and citation omitted); see also Emerson Radio Corp. v.
Orion Sales, Inc., 253 F.3d 159, 173 (3d Cir. 2001). New Jersey state courts have held the same
way. See Clarke, No. A-3876-12T3, 2014 WL 4843972, at *7 (holding that supervisors “were
not strangers to [the plaintiff’s] employment relationship and, consequently, cannot be said to
have tortiously interfered with it.”).
The Amended Complaint states in vague terms that “Defendant’s actions . . . were
outside the scope of their employment and not for the good of their corporate Defendant
employer, Capital Health Systems.” ¶ 3-8. Ordinarily, supervisors who discipline employees are
acting within the scope of their employment, even if they act with an improper motive. Marrero,
164 F. Supp. 2d at 478. Moreover, without descriptions of specific actions by Defendants Bass
and Duvall, the claim for tortious interference must be dismissed under the pleading
requirements of Iqbal.
Plaintiff’s proposed Third Amended Complaint asserts that “Defendants harassed the
Plaintiff to disclose to them who provided to her confidential emails that were provided to the
Human Resources Department,” and that “Defendants terminated the Plaintiff for failing to
disclose to them who provided her confidential emails.” 3d Am. Compl. at¶ ¶ 3-9, 3-10. This

13 

amendment to the Complaint, however, still fails to provide sufficient facts to “raise a reasonable
expectation that discovery will reveal evidence of the necessary element.” Phillips, 515 F.3d at
234 (3d Cir. 2008) (internal quotation marks omitted). Indeed, Plaintiff’s Exhibit 4 shows that
Duvall and Bass were acting in accordance with an internal investigation. The fact that the
individual Defendants terminated Plaintiff for failing to cooperate with an internal investigation,
does not place their conduct outside of the scope of their employment.
Thus, Defendants’ Motion to Dismiss Counts 3 and 4 is granted as to all Defendants.
Plaintiff’s Motion to Amend is denied.
C. Law Against Discrimination: Failure to Accommodate
Defendants argue that Count 6, Law Against Discrimination—Disability Discrimination,
must be dismissed because Plaintiff merely recites legal conclusions rather than facts. Def. Br. at
13. Defendants further assert that Plaintiff has acknowledged that her request for an
accommodation was granted. Id. at 14. Plaintiff, in response, requests leave to amend the
complaint to clarify that “Plaintiff could not comply with the alleged sick leave policy,” which
required Plaintiff to “speak to a supervisor or tech-in-charge,” rather than leave a voicemail
message. Pl. Br. at 18. Defendants respond that Plaintiff does not specify in the proposed 2nd
Amended Complaint why she could not call back later if a supervisor was not available. Def.
Repl. At 20.
A complaint for failure to accommodate under the New Jersey Law Against
Discrimination has four elements: “(1) [plaintiff] was disabled and his employer knew it; (2)
[plaintiff] requested an accommodation or assistance; (3) [plaintiff’s] employer did not make a
good faith effort to assist; and (4) [plaintiff] could have been reasonably accommodated.”
Armstrong v. Burdette Tomlin Mem. Hosp.,438 F.3d 240, 246 (3d Cir. 2006). Plaintiff’s

14 

proposed Third Amended Complaint alleges that while Plaintiff was “granted an accommodation
. . . for intermittent leave,” 3d Am. Comp. at ¶ 6-9, “Plaintiff was not provided an
accommodation in connection with the call-in procedure”; that under the new policy, “Plaintiff
was required to speak to a supervisor or tech-in-charge and not permitted to leave a message”;
that “To the extent that there is no supervisor or tech-in-charge available to speak to, the Plaintiff
is forced to appear for work, sick, and in violation of the family medical leave act”; and finally
that “Defendants’ failure to accommodate the Plaintiff by providing her alternative telephone
numbers or allowing her to leave a message was a violation of the family medical leave act,” id.
at ¶¶ 6-14 to 6-17.
Plaintiff’s proposed Amended Complaint sufficiently alleges a claim under the Law
Against Discrimination. The Complaint alleges that Plaintiff had a disability, fibromyalgia
syndrome, 3d Am. Compl at ¶ 6-2; that her employer did not make a reasonable accommodation,
id. at ¶ 6-17; and that a reasonable accommodation, namely being given an alternate phone
number, was available, id. Although Plaintiff does not specifically state that she requested
alternative phone numbers or permission to leave a voicemail, the facts as stated in the proposed
Amended Complaint are sufficient for the court to infer that such a request was made. See Iqbal,
556 U.S. at 678 (“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.”). Defendants’ assertion that an alternative phone number is not a reasonable
accommodation, Def. Repl. at 20, is a legal conclusion, and requires facts outside the pleadings
to establish.

15 

Thus, Plaintiff’s Motion to Amend the Complaint as to Count 6, Law Against
Discrimination—Disability Discrimination, is granted. Defendants’ Motion to Dismiss Count 6
is denied as moot.
D. Negligent Misrepresentation
Defendants argue that Plaintiff has failed to provide sufficient facts to adequately state a
claim for negligent misrepresentation. Def. Br. at 14–15. Plaintiff asserts that in 2005, she was
told the procedure for calling out sick; that she was disciplined for failing to follow a new
procedure in 2013; and that she was never told of the new procedure. Pl. Br. at 20–21. In
response, Defendants note that Plaintiff has not attached either the old or new call-out policies,
nor abided by the heightened pleading standard for fraud required by Fed. R. Civ. Proc. 9(b).
Def. Repl. at 22.12
To state a claim for negligent misrepresentation, Plaintiff must allege that “defendant
negligently provided false information and that plaintiff incurred damages proximately caused by
its reliance on that information.” Highlands Ins. Co. v. Hobbs Grp., LLC., 373 F.3d 347, 351 (3d
Cir. 2004). In addition, the New Jersey Supreme Court has recognized a cause for negligent
misrepresentation where a party fails to provide information which it has a duty to disclose. Karu
v. Feldman, 119 N.J. 135, 148 (1990). Although Defendants assert that the heightened pleading
requirements of Rule 9(b) apply to claims of negligent misrepresentation, this is only true where
the claim “sounds in fraud.” In re Suprema Specialties, Inc. Sec. Litig.,438 F.3d 256, 272–73 (3d

Defendants also assert in their reply that “Plaintiff cannot demonstrate the fourth element . . . .
that Defendants’ supposedly false statements caused her harm.” Repl. Br. at 23. Because this
argument was first raised in the reply brief, the Court will not consider it. “A moving party may
not raise new issues and present new factual materials in a reply brief that it should have raised
in its initial brief.” Ballas v. Tedesco, 41 F. Supp. 2d 531, 533 n.3 (D.N.J. 1999) (citing
International Raw Materials, Ltd. v. Stauffer Chem. Co., 978 F.2d 1318, 1327 n.11 (3d Cir.
1992) (refusing to consider an issue raised for the first time in a reply brief)).

12

16 

Cir. 2006) (“where the claims are expressly premised on negligence rather than fraud, Rule 9(b)
has been held inapplicable”); see also Donachy v. Intrawest U.S. Holdings, Inc., No. 10-4038,
2012 WL 869007, at *5 (D.N.J. Mar. 14, 2012) (“because Plaintiffs' negligent misrepresentation
claim is specifically alleged as a separate claim [from the fraud claims], it is not subject to Rule
9(b)'s heightened pleading requirements, notwithstanding the significant overlap in allegations
between the claims.”); Rawson Food Servs., Inc. v. TD Bank, N.A., No. 13-3084, 2014 WL
809210, at *5 (D.N.J. Feb. 28, 2014) (“Rule 9(b) does not apply to a freestanding negligence
claim”). Thus, the ordinary pleading standards of Rule 8 apply here.
Plaintiff’s opposition to the Motion to Dismiss relies almost entirely on facts outside the
record, namely a certification from Plaintiff. See Pl. Br. at 20–21. Plaintiff’s factual allegations
in the Second Amended Complaint are limited to an assertion that Defendants “fail[ed] to advise
her of the proper procedure to call in sick,” 2d. Am. Compl. at ¶ 9-2, and that as a result of this
failure “Plaintiff suffered damages.” Id. at ¶ 9-3. Even under the lenient standards of Rule 8,
these allegations do not contain sufficient factual content for “the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Rather,
the allegations are merely “naked assertions devoid of further factual enhancement.” Id. The
proposed Third Amended Complaint makes no changes to this section.
Thus, on Count 9, negligent misrepresentation, Plaintiff’s Motion to Amend is denied,
and Defendants’ Motion to Dismiss is granted.
E. Civil Conspiracy
Defendants assert that Count 10, civil conspiracy, must be dismissed. First, Plaintiff
argues that “the fact that two supervisors issued written disciplinary notices for improper
behavior . . . hardly qualifies as a conspiracy.” Def. Br. at 17. Second, Defendants notes that

17 

individual Defendants cannot conspire with their employer. Id. Plaintiff asserts that the
Defendants acted together to commit an unlawful act, namely by terminating Plaintiff so they
would not have to provide her with intermittent medical leave. Pl. Br. at 21.
To state a claim for civil conspiracy, a plaintiff must allege “a combination of two or
more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful
means, the principal element of which is an agreement between the parties to inflict a wrong
against or injury upon another, and an overt act that results in damage.” Banco Popular N. Am. v.
Gandi, 184 N.J. 161, 177 (2005) (quoting Morgan v. Union County Bd. of Chosen Freeholders,
268 N.J. Super. 337, 364 (App. Div. 1993)). However, in New Jersey, it is well settled that a
“corporation which acts through authorized agents and employees . . . cannot conspire with
itself.” Sun Pharm. Indus., Inc. v. Core Tech Solutions, Inc., A–0646–11T4, 2013 WL 1942619
(N.J. Super. Ct. App. Div. May 13, 2013) (quoting Tynan v. Gen. Motors Corp., 248 N.J. Super.
654, 668 (App.Div.1991), rev'd in part on other grounds, 127 N.J. 269 (1992)); see Johnson v.
Baker, 445 F.2d 424, 427 (3d Cir. 1974) (“a corporation cannot conspire with itself anymore
than a private individual can, and it is the general rule that the acts of the agents are the acts of
the corporation.”); see also Sunkett v. Misci, 183 F.Supp.2d 691, 722 (D.N.J .2002) (“When the
officers of a corporation are acting in their corporate capacity, they cannot conspire with the
corporation alone.”).
Because it is undisputed that the individual Defendants were employees of Capital
Health, no claim for conspiracy between the individual Defendants and Capital Health can be
stated. Furthermore, as discussed in the claim for tortious interference, supra, Plaintiff has failed
to state facts that show that the individual Defendants were acting outside the scope of their

18 

employment. Thus, all parties were acting within their “corporate capacity,” and the claim of
civil conspiracy, Count 10, is dismissed.
Plaintiff’s proposed amendments to the civil conspiracy count are identical to Plaintiff’s
proposed amendments to the tortious interference claims; namely that “Defendants harassed the
Plaintiff to disclose to them who provided to her confidential emails that were provided to the
Human Resources Department,” and that “Defendants terminated the Plaintiff for failing to
disclose to them who provided her confidential emails.”3d. Am. Compl. at ¶¶ 10-10, 10-11. For
the same reasons that were discussed in that section, supra, these amendments do not suffice to
show that the individual Defendants were acting outside the scope of their employment.
Plaintiff’s Motion to Amend Count 10 is therefore denied.
F. Punitive Damages and Attorney Fees
Defendants argue that Counts 11, punitive damages, and 12, attorney fees and litigation
expenses, should be dismissed because they are forms of relief and not separate causes of action.
Def. Br. at 19. I agree that punitive damages, attorney fees, and litigation expenses, are remedies
for certain causes of action, and not substantive counts in their own rights. See Hassoun v.
Cimmino, 126 F. Supp. 2d 353, 372 (D.N.J. 2000). Counts 11 and 12 are therefore dismissed.
The Court does not comment as to whether these remedies are permissible under any of the
substantive causes of actions asserted in the Complaint.

IV. CONCLUSION
Fore the reasons set forth above, Defendants’ Motion to Dismiss is granted in part and
Denied in part; Plaintiff’s Motion to Amend the Complain is similarly granted in part and denied
in part. Specifically, Defendants’ Motion to Dismiss Counts 3 (tortious interference with

19 

economic advantage) and 4 (tortious interference with contractual relations); Counts 7 (breach of
employee handbook) and 8 (breach of covenant of good faith and fair dealing); Count 9
(negligent misrepresentation); Count 10 (civil conspiracy); and Counts 11 (punitive damage) and
12 (attorney fees) are granted. Plaintiff’s Motion to Amend Complaint are denied with respect to
Counts 3, 4, 7, 8, 9, 10, 11, and 12. Plaintiff’s Motion to Amend the Complaint is granted with
regard to Counts 6 (Law Against Discrimination—disability discrimination) and Defendants’
Motion to Dismiss Count 6 is denied as moot. In addition, the Complaint should be amended to
reflect that the proper corporate Defendant is Capital Health Systems, Inc. An appropriate Order
shall follow.

Date: Jan. 29, 2015

__/s/ Freda L Wolfson_________
Hon. Freda L. Wolfson, U.S.D.J.a

20