BELONSTON v. MARRIOTT INTERNATIONAL, INC. et al

Filing 39

MEMORANDUM AND ORDER granting 32 Motion to Remand; denying 34 Motion for Judgment on the Pleadings. Signed by Judge Peter G. Sheridan on 9/1/2016. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF NEW JERSEY

LENA BELONSTON,
Plaintiff

Case No.: 15-8075-PGS-DEA

V.

MARRIOTT TNTERNATIONAL, INC., et
al.,

MEMORANDUM AND ORDER

Defendants.

SHERIDAN, District Judge.
Facts and Procedural History:

This is Plaintiffs second motion to remand for lack of diversity. Plaintiff has crossmoved for judgment on the pleadings with regard to the newly added Defendants.
Plaintiff Lina Belonston (“Belonston”) brings this action under the New Jersey Law
Against Discrimination (“LAD”), N.J.S.A. 10:5-12 et seq., against Marriott International Inc.,
Marriott Hotel Services, Inc. (“MHS”) d/b/a Princeton Marriot Forrestal Center, and Jennifer
Eckels (“Eckels”) and Nancy Macknowsky (“Macknowsky”) (collectively, “Defendants”).
Belonston is 60 years old and of Haitian decent with a native language of Creole. (Amended
Complaint (“Am. Compl.”)

¶ 9).

She had worked at the Princeton Marriott for about 15 years (2

years in housekeeping and 13 in guest services). (Id.

¶

12).

The Amended Complaint alleges the following. On or about October 24, 2014, Erica
Grey (“Grey”), a former co-worker, accused Plaintiff of drinking on the job. (Id.

¶

15). The next

day, Plaintiff met with Defendant Eckels, a manager at the Princeton Marriott. (Id.

¶I

18-20).

Although Belonston denied any wrongdoing, Eckels told Plaintiff to report back the following
week to discuss the matter further with the Human Resources Manager. (Id.

¶J 20-21). There

was no interpreter during this discussion even though English is Plaintiff’s second language. (Id.
J22).
The Amended Complaint further alleges that on or about October 27, 2014, Plaintiff met
with Defendant Macknowsky, a HR Manager at Princeton Marriott. (Id.

¶ 23). Plaintiff was

accompanied by her niece to act as an interpreter, but Macknowsky did not allow her niece to be
present. (Id.

¶ 24).

Plaintiff’s request to have Grey and Eckels attend the meeting as her accusers

was also denied. (Id.

¶ 25).

Macknowsky told Plaintiff that she had two letters to support the

drinking allegation, purportedly from Grey and Eckels, but none were provided to Plaintiff. (Id.

¶

26). Plaintiff was coerced into providing a statement that was typed by a Princeton Marriot
employee in English, and Plaintiff was told to sign the statement even though she could not
understand the contents. (Id.
investigation. (Id.

¶ 29).

¶ 27-28). Plaintiff was then suspended without pay pending further

On or about October 30, 2014, Plaintiff called Princeton Marriot about

the status of her employment, at which point she was advised that she was terminated effective
October 28, 2014. (Id.

¶ 30).

Plaintiff filed her Complaint in the Superior Court of New Jersey, Mercer County on or
about September 28, 2015. She named John/Jane Doe defendants and corporations in the
Complaint. Defendants removed to this Court on November 13, 2015 pursuant to diversity
jurisdiction. (ECF No. 1). In their answer on December 4, 2015, Defendants identified “Erica,”
“Nancy,” and “Jennifer” from Plaintiff’s Complaint as Erica Grey, Jennifer Eckels, and Nancy
Macknowsky. (ECF No. 7). On December 14, 2015—10 days later—Plaintiff filed a motion to

remand. (ECF No. 8). In that motion, Plaintiff argued that the case should be remanded because
MHS was a New Jersey corporation. But in Plaintifrs reply brief for the first motion to remand,
which was filed on January 19, 2016, she indicated that she would like to add unidentified and
uimamed nondiverse parties to the case in place of the John and Jane Does, (ECF No. 15). The
Court denied that motion to remand that was predicated on the domicile of M1{S on February 1,
2016, providing Plaintiff with 30 days to amend the complaint to add the additional defendants.
(ECF No. 16).
Plaintiff then filed an Amended Complaint on April 18, 2016, changing the caption to
include Macknowsky and Eckels, including their residences, and identifying them by their full
names throughout. (ECF No. 21; ECF No. 22).
On July 5, 2016, Plaintiff filed this second motion to remand based on the new,
nondiverse Defendants. (ECF No. 32). On August 1, 2016, Defendants filed a cross motion for
judgment on the pleadings. (ECF No. 34).
Here, it is undisputed that Plaintiff is a citizen of New Jersey. Defendants Eckels and
Macknowsky (“Individual Defendants”) are also residents of New Jersey. (Am. Compl. at I,

¶

5-6). If the Court allows them to remain in the case, diversity is destroyed and the case must be
remanded.
Analysis:
“The principal federal statute governing diversity jurisdiction, 28 U.S.C.

federal district courts original jurisdiction of all civil actions ‘between

...

§

1332, gives

citizens of different

States’ where the amount in controversy exceeds $75,000.” Lincoln Prop. Co. v. Roche, 546 U.s.
81, 89 (2005). The statute requires “complete diversity between all plaintiffs and all defendants.”
Zainbelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 419 (3d Cir. 2010). Therefore, without

some other basis
defendant.”

forjurisdiction, “no plaintiff [may]

be a citizen of the same state as any

Id.

Under 28 U.S.C. § 1447(e), ‘[i]f after removal the plaintiff seeks to join additional parties
whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit
joinder and remand to state court.” Id. In determining whether to permit joinder, courts in this
Circuit apply the factors set forth in Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir.
1987), cert. denied, 493 U.S. 851 (1989). These factors are: (1) the extent to which the purpose
of the amendment is to defeat federal jurisdiction; (2) whether plaintiff has been dilatory in
asking for amendment; (3) whether plaintiff will be significantly injured if amendment is not
allowed; and (4) any other factors bearing on the equities. 833 F.2d at 1182. The Third Circuit
has looked to Hensgens for examining whether parties have been joined for the sole purpose of
defeating diversity. Hayden v. WestfIeld Ins. Co., 586 Fed. Appx. 835, 840-41 (3d Cir. Sept. 18.
2014). According to Hensgens, “{t]he district court, when faced with an amended pleading
naming a new nondiverse defendant in a removed case, should scrutinize that amendment more
closely than an ordinary amendment.” 833 F.3d at 1182.
Fraudulent joinder means that “there is no reasonable basis in fact or colorable ground
supporting the claim against the joined defendant, or no real intention in good faith to prosecute
the action against the defendant or seek ajoint judgment.” In re Briscoe, 448 F.3d 201, 216 (3d
Cir. 2006) (internal quotation omitted). The court can disregard citizenship of the non-diverse
defendants, keep jurisdiction, and dismiss the nondiverse defendants if it determines that joinder
was fraudulent. Id. However, ‘a removing party who charges that a plaintiff has fraudulently
joined a party to destroy diversity ofjurisdiction has a ‘heavy burden of persuasion.” Boyer v.
Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990).

The first Hensgens factor is the extent to which the purpose of amendment is to defeat
federal jurisdiction. Plaintiff argues that she identified Eckels and Macknowsky by first name in
the initial state court filings, and there are viable claims against them. Defendants argue that it is
irrelevant that they were named by first name in the original Complaint, because they were not
listed as defendants. See 28 U.S.C.

§ 1441(b) (“the citizenship of defendants sued under

fictitious names shall be disregarded.”).
Plaintiff claims that she has a legitimate cause of action against the two Individual
Defendants. An individual may not be held directly liable for discrimination under the LAD, but
may be liable where he or she “aid[s] or abet[s]. .in the doing of any of the acts forbidden under
.

[the LAD].” N.J.S.A.

§ 10:5-12(e). The complaint must allege: “(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.’

“

Tarr

V.

Ciasuilli, 181 N.J. 70, 84(2004). There must be “active and

purposeful conduct,” and the individual must have willfully and knowingly associated herself
with another’s unlawful act. Burroughs v. City of Newak, 2013 WL 4047588, at *7 (D.N.J. Aug.
9,2013).
In addition, a prima facie case for discrimination under the LAD generally requires
Plaintiff to show that she (1) belongs to a protected class; (2) was performing ajob at a level that
met the employer’s legitimate expectations; (3) suffered an adverse employment action; and (4)
others not within the protected class did not suffer similar adverse employment actions. Wesley v.
Palace Rehabilitation & Care Center, 3 F. Supp. 3d 221, 231 (D.N.J. 2014).

Plaintiff appears to have met all of these elements. It also seems plausible at this stage
that Eckels and Macknowsky engaged in “active and purposeful conduct,” or “substantially
assisted” the discriminatory acts by denying Plaintiff’s request for an interpreter, coercing her
into signing a statement that she did not understand, denying her request to be confronted by her
accusers, and refusing to provide Plaintiff with a copy of the written statements prepared by her
accusers.
The second factor is whether plaintiff has been dilatory. Plaintiff claims that she has been
diligent because she used tictitious pleadings in the initial state court filing, and these potential
parties were identified by first name in the original Complaint. Moreover, the Court allowed
Plaintiff to amend the Complaint, and the amendment was made within the prescribed time
period. Defendants contend that Plaintiff has been dilatory because there was no indication from
her initial Complaint that “Nancy” and “Jennifer” were going to eventually be substituted as the
Doe defendants. Also, Defendants claim that Plaintiff did not join these defendants upon
discovering their identities as she suggests. Instead, Plaintiff had been informed of Eckels and
Macknowsky’s complete identities in Defendant’s Answer to the Complaint 10 days before
Plaintiff filed her first motion to remand. See Duston Cert. at ¶ 6; Ex. C. Therefore, on December
4, 2015, Defendants answered the Complaint identifying Jennifer Eckels and Nancy
Macknowsky as the individuals who Plaintiff was likely referring to as “Jennifer” and “Nancy.”
Then on December 14, 2015, Plaintiff filed her first motion to remand without mentioning
Macknowsky or Eckels; Plaintiff instead sought to remand on the grounds that MHS was not
domiciled in New Jersey. Not until reply papers in the first motion to remand did Plaintiff
indicate that she sought to add Macknowsky and Eckels as the Doe defendants.

The third factor is whether Plaintiff will be significantly injured if amendment is not
allowed. Although Plaintiff does not address this factor in her brief, presumably, without
amendment, Plaintiff will be forced to litigate in federal court, and all the parties involved will
not be included in the same case.
After considering these factors, the Court will grant joinder and, as a result, will remand
the case. Although Plaintiff may have been somewhat dilatory in joining the Individual
Defendants, and waited until her reply brief for the first motion to remand to bring up the issue,
she did list fictitious names in her original Complaint. Similarly, Defendant should have been on
notice that these Individual Defendants should have been named in an Amended Complaint,
because they were named by first name throughout the original Complaint. Although Defendants
claim that she they should not have guess who is included in the lawsuit, it seems clear here who
Plaintiffs were referring to, and clear that they may have been the subject of litigation. More
importantly, Plaintiff may have viable claims against these Individual Defendants. Although the
Court will not speculate at this point as to whether the claims are sufficient to survive a motion to
dismiss, there are enough facts to conceivably make out a claim for aider and abettor liability.
Therefore, the Court is not convinced that the main purpose of Plaintiff’s joinder request is to
defeat diversity. After weighing the Hensgens factors, the Court will grant Plaintiffs motion to
remand. As such, the Court will also deny Defendant’s motion for judgment on the pleadings as
moot.

Plaintiff also seeks the payment ofjust costs and expenses incurred as a result of removal.
An order remanding the case may require payment ofjust costs and any actual expenses,
including attorney fees, incurred as a result of the removal.” 28 U.S.C.

§ 1447(c). A court has

____

discretion under this statute whether to award costs and attorney fees. Fyal v. Lior, 913 F. Supp.
868, 878 (D.N.J. 1996). “The Supreme Court has held that ‘absent unusual circumstances, courts
may award attorney’s fees under

§ 1447(c) only where the removing party lacked an objectively

reasonable basis for seeking removal.” First’ Am. Title Ins, Corp.

V.

.1? Morgan Chase & Co.,

384 F. App’x 64, 66 (3d Cir. 2010) (quoting Martin v. Franklin Capital Corp., 546 U.S. 132, 141
(2005)).
However, Defendants had an objectively reasonable basis seeking removal here since
Plaintiff did not list these nondiverse named defendants in her original Complaint. Plaintiffs
request for attorney’s fees and costs is denied.

ORDER
For the reasons stated herein and for good cause shown,
IT IS, on this,

day of September 2016,

ORDERED that Plaintiffs Second Motion to Remand to State Court [ECF No. 32j is
GRANTED; it is further
ORDERED that Defendants’ Cross Motion for Judgment on the Pleadings is DENIED.

PETER G. SHERIDAN, U.S.D.J.