WALL et al v. BIL-JIM CONSTRUCTION CO., INC. et al
MEMORANDUM OPINION filed. Signed by Magistrate Judge Tonianne J. Bongiovanni on 8/16/2017. (km)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SEAN WALL, et al.,
Civil Action No. 15-8982 (PGS)
BIL-JIM CONSTRUCTION CO.,
INC., et al.
BONGIOAVNNI, Magistrate Judge
Currently pending before the Court is Plaintiffs Sean Wall, Tammy Bollinger, Walter
Everett and John Horaneck’s (collectively, “Plaintiffs”) motion to file a Second Amended
Complaint. [Docket Entry No. 43]. Defendant Bil-Jim Construction Co., Inc. (“Bil-Jim”)
opposes Plaintiffs’ motion. The Court has fully reviewed the arguments made in support of and
in opposition to Plaintiffs’ motion. The Court considers Plaintiffs’ motion without oral argument
pursuant to L.Civ.R. 78.1(b). For the reasons set forth more fully below, Plaintiffs’ motion to
amend is GRANTED.
Background and Procedural History
On December 30, 2015, Bil-Jim removed this matter to this Court. (Notice of Removal;
Docket Entry No. 1). At that time, Plaintiffs’ First Amended Complaint (“FAC”) was the
operative pleading. Through the FAC, Plaintiffs asserted claims against Bil-Jim for violations
of: (1) New Jersey’s Prevailing Wage Act (“PWA”), N.J.S.A. 34:11-56.25 et seq.; (2) the Fair
Labor Standards Act (“FLSA”), as amended, 29 U.S.C. 201 et seq.; and (3) New Jersey’s Wage
and Hour Law (“WHL”), N.J.S.A. 34:11-56a et seq. (See, generally, FAC; Docket Entry No.
1). 1 Plaintiffs argue that their PWA claims are connected with “several remediation projects in
the aftermath of the weather event commonly referred to as Superstorm Sandy (“Sandy”)”;
whereas their FLSA and WHL claims are “for overtime pay on projects almost entirely unrelated
to Sandy.” (Pl. Br. at 1; Docket Entry No. 43-1).
Plaintiffs argue that since filing the FAC new information has come to light regarding
“the identity and nature of the various post-Sandy projects.” (Id.) In particular, Plaintiffs focus
on projects under taken by two construction companies that “contracted with the State of New
Jersey to perform two of the major post-Sandy recovery efforts[:]” (1) AshBritt, Inc. and/or
AsshBritt Environmental (collectively “Ash Britt”), the “Ash Britt Project”; and (2)
CrowderGulf, Inc. (“Crowder Gulf”), the “Crowder Gulf Project.” Plaintiffs argue that these two
projects differed in several significant ways. For example, Plaintiffs contend that the Ash Britt
Project “involved the repair, restoration, and/or remediation of dry land on the barrier island in
and around . . . the eastern terminus of the Mantoloking Bridge[,]” while the Crowder Gulf
Project “involved, among other things: (i) repairing/altering Barnegat Bay by restoring it to preSandy [d]epths, and making it navigable again, through the removal of debris and sand washed
over land and deposited in the bay by Sandy; and (ii) the retrieval (through dredging) of that
over-washed sand, then screening/cleaning it, and using it to replenish/reconstruct/repair the
nearby beaches, sand dunes and sand bars.” (Id. 2-3). Plaintiffs note that the Ash Britt project
began in November 2012 and ended in May 2013, while the Crowder Gulf Project began in May
2013 and ended in January 2014. (Id.) They further note that the bidding on the Crowder Gulf
Project, unlike the Ash Britt Project, involved an electronic Q&A session regarding the
Plaintiffs’ FAC also asserted claims against individual defendants who were dismissed from
this matter by the District Court’s Order of March 8, 2016. (Docket Entry No. 22).
applicability of the PWA to that project, which implicates additional discovery not relevant to
the Ash Britt Project.
Plaintiffs argue that given the differences in the projects, including differences between
“the associated subcontractors, sub-subcontractors, workers, trades/crafts, PWA legal analysis
and rate determinations[,] [a]ny actions involving these projects would be unrelated.” (Id. at 3).
In this regard, Plaintiffs note that while the four named Plaintiffs happened to work on both the
Ash Britt and Crowder Gulf Projects, many new putative class members who have been
identified only worked on one. Plaintiffs further note that many of the identified new putative
class members were not employees of Bil-Jim and, consequently, would not be properly named
parties as this suit currently stands.
In light of the above, Plaintiffs contend that claims arising from the Ash Britt Project do
not belong in the same case as claims arising from the Crowder Gulf Project. (Id. at 4). They
similarly maintain that the FLSA/WHL overtime claims, which pertain to Bil-Jim alone, do not
belong in any lawsuit arising from either of the aforementioned projects. Indeed, they claim that
the only common thread among the foregoing is Bil-Jim, which was just one of many
subcontractors on each project and which supplied only a fraction of the sub-subcontractors
working on same. Plaintiffs argue that this largely insignificant similarity should not prevent
them from being the master of their own claims.
As a result, Plaintiffs seek to file a Second Amended Complaint (“SAC”). In same, they
seek to make the following substantive changes: (1) add the Ash Britt entities as defendants; (2)
set forth allegations that only relate to the Ash Britt Project; (3) assert a cause of action for PWA
violations only (remove the FSLA and WHL claims); (4) include in the putative class similarly
situated employees of subcontractors and sub-subcontractors on the Ash Britt Project only; (5)
remove the individual defendants from the caption and factual allegations based on the District
Court’s March 8, 2016 Order (Docket Entry No. 22); and (6) add Maple Lake, Inc. (“Maple
Lake”) as a defendant. (Id. at 4-5). Plaintiffs argue that their motion should be granted because
Plaintiffs are the master of their Complaint and their proposed amendments will neither prejudice
Bil-Jim nor unreasonably delay these proceedings, and are neither made in bad faith nor are they
Bil-Jim, “[i]n principal . . does not oppose litigation of the two contracts in separate
actions provided, however that the two actions are commonly managed with coordinated
discovery.” (Def. Opp. at 1). It does, however, oppose Plaintiffs’ motion to the extent such a
change “leads to duplicative and wasteful discovery in the absence of coordination or, even
worse, if it is simply an excuse by Plaintiffs to shop for what they perceive to be a more
favorable judge or court for some of their claims.” (Id.) In this regard, Bil-Jim is confident that,
if Plaintiffs’ motion to amend is granted, Plaintiffs “intend to file a separate action alleging
PWA claims against CrowderGulf, Bil-Jim, and other CrowderGulf subcontractors arising out of
the CrowderGulf Contract.” (Id. at 3). Given the “substantial overlap” between the two cases:
(1) both involve contracts issued by the State of New Jersey to clean up the damage caused by
Sandy; (2) Bil-Jim and likely other subcontractors will be common to both actions; (3) many of
the named plaintiffs will be common to both actions; (4) both actions will likely be pled as
putative class actions, involving similar class certification issues; and (5) both will involve
similar issues of fact and law regarding the PWA, Bil-Jim asks that certain conditions be set if
Plaintiffs are permitted to amend. (Id. at 3-4).
Specifically, Bil-Jim requests that the Court require:
(1) the new action is filed in the United States District Court for
the District of New Jersey . . . and designated as a “related
case” to the present action so the same district and magistrate
judge are assigned;
(2) the court schedules an early case management conference for
both actions, to address consolidation and coordination of the
two actions for discovery and pretrial purposes; and
(3) further discovery in the existing action be held in abeyance
until the second case management conference, so that any
further discovery can be coordinated between the two actions.
(Id. at 2). Bil-Jim argues that justice would not be served by any other result. (See Id. at 5-7).
Pursuant to Rule 15(a)(2), leave to amend the pleadings is generally granted freely “when
justice so requires.” 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 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).
Bil-Jim’s “opposition” centers around its argument that justice requires any future action
filed regarding the Crowder Gulf Project be marked “related” and coordinated with this matter if
Plaintiff’s motion to amend is granted. The Court finds that Bil-Jim’s argument is not a reason
to deny Plaintiffs’ motion. While the Court agrees that the economies and efficiencies of
litigation are best served when matters involving common sets of operative facts, common
questions of law, overlapping parties and overlapping witnesses are coordinated for discovery
purposes, the Court shall not at this juncture impose the conditions requested by Bil-Jim. At this
time, it is unclear whether and when a separate suit involving the Crowder Gulf Project will be
filed. It is equally unclear whether this Court will ultimately have jurisdiction over same. If
such a suit is filed and if the Court has jurisdiction over same, then it may be appropriate based
on the allegations contained in the anticipated Crowder Gulf case for that case and this to be
marked related. The Court notes that pursuant to L.Civ.R. 40.1 counsel is obligated to inform
the Clerk of the Court at the time of filing if the matter being filed relates to a pending cause of
action. If the anticipated Crowder Gulf matter is filed in federal court and the plaintiffs do not
mark it as related, believing it is not, then Bil-Jim, assuming it is a defendant, may make a
request that it be deemed so and assigned to the appropriate District and Magistrate Judges. The
Court shall rule on the propriety of such a request at that time. If the matter is filed in state court
and the defendants remove it, they can request that it be treated as a related case at the time of
removal. This is sufficient to protect Bil-Jim’s concerns.
As a result, Plaintiffs shall be permitted to file their proposed SAC. They are directed to
do so no later than August 25, 2017.
For the reasons state above, Plaintiffs’ motion seeking leave to file a SAC is GRANTED.
An appropriate Order follows.
Dated: August 16, 2017
s/ Tonianne J. Bongiovanni
HONORABLE TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE
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