HICKS v. STATE OF NJ DEPARTMENT OF CORRECTIONS
OPINION filed. Signed by Judge Brian R. Martinotti on 10/27/2017. (mps)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
STATE OF NJ DEPARTMENT OF
CORRECTIONS, MAJOR GERALD
CALDARISE, and LIEUTENANT BERNARD
Civ. Action No. 16-0927-BRM-LHG
MARTINOTTI, DISTRICT JUDGE
Before this Court is Defendant Major Gerald Caldarise’s (“Caldarise”) Second Motion to
Dismiss (ECF No. 54) Count III of Plaintiff Martha Hicks’ (“Plaintiff”) First Amended Complaint
(the “Amended Complaint”) pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
(ECF No. 21.) Plaintiff opposes Caldarise’s Motion. (ECF No. 55.) Pursuant to Federal Rule of
Civil Procedure 78(b), the Court did not hear oral argument. For the reasons set forth herein,
Caldarise’s Motion to Dismiss is GRANTED.
For the purpose of this Motion to Dismiss, the Court accepts the factual allegations in the
Amended Complaint as true and draws all inferences in the light most favorable to Plaintiff. In
Phillips v. Cty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008).
Plaintiff is a Hispanic female correctional officer employed by the New Jersey Department
of Corrections (“DOC”). (ECF No. 21 at ¶¶ 12-14.) Plaintiff filed this action against the DOC and
her former supervisors at the DOC, Caldarise and Defendant Lieutenant Bernard Willie (“Willie”)
(collectively, “Defendants”) for allegedly discriminating against Plaintiff and creating a hostile
work environment on the basis of her race and/or her national origin, as well as for allegedly
retaliating against Plaintiff for filing a charge with the Equal Employment Opportunity
Commission (“EEOC”) complaining of workplace discrimination and hostile work environment.
(Id. at ¶¶ 11-31.) In Count I, Plaintiff asserts a claim against the DOC for violation of Title VII of
the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq. (Id. at ¶¶ 32-35.) In Count
II, Plaintiff asserts claims against Caldarise and Willie for racial and/or national origin
discrimination and retaliation in violation of 42 U.S.C. § 1981, as well as in violation of her right
to equal protection under the Fourteenth Amendment to the U.S. Constitution, pursuant to 42
U.S.C. § 1983. (Id. at ¶¶ 36-43.) And, in Count III, Plaintiff asserts a claim against Caldarise for
violations of the NJLAD. (Id. at ¶¶ 44-47.)
On October 19, 2015, Plaintiff filed her original Complaint in this matter against the DOC
in the Eastern District of Pennsylvania. (ECF No. 1.) The same day, Plaintiff requested pro bono
counsel. (ECF No. 2.) On January 6, 2016, the Honorable L. Felipe Restrepo, U.S.D.J., appointed
the law firm of Karpf, Karpf & Cerutti, P.C. to represent Plaintiff for certain limited purposes.
(ECF No. 6.) On February 18, 2016, Plaintiff and the DOC stipulated to, and the Honorable J.
William Ditter, Jr., U.S.D.J., ordered, the transfer of this matter from the Eastern District of
Pennsylvania to the District of New Jersey. (ECF No. 11.)
On March 28, 2016, the DOC moved to dismiss the Complaint. (ECF No. 20.) In response,
on April 18, 2016, Plaintiff filed the Amended Complaint, which added new factual allegations
and joined Caldarise and Willie as new defendants. (ECF No. 21.) On April 19, 2016, the
Honorable Michael A. Shipp, U.S.D.J., ruled the Amended Complaint was now the operative
pleading and terminated the DOC’s Motion to Dismiss as moot. (ECF No. 22.) On June 24, 2016,
the DOC moved to dismiss Count III (NJLAD) of the Amended Complaint on the basis of Eleventh
Amendment sovereign immunity, pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). (ECF No. 28.) On August 9, 2016 this matter was reassigned to the undersigned. (ECF
No. 35.) On September 27, 2016, Caldarise also moved to dismiss Count III (NJLAD) of the
Amended Complaint on the basis of Eleventh Amendment sovereign immunity, pursuant to Rules
12(b)(1) and 12(b)(6). (ECF No. 43.) Plaintiff opposed the DOC’s motion in part and Caldarise’s
Motion in its entirety. (ECF Nos. 31 & 47.)
On January 17, 2017, the Court granted in part the DOC’s motion, finding the Eleventh
Amendment barred Plaintiff’s NJLAD claim against the DOC, and denied Caldarise’s first motion
to dismiss. (ECF Nos. 51 and 52.) On February 6, 2017, Caldarise filed his Second Motion to
Dismiss. (ECF No. 54.) Plaintiff opposes Caldarise’s Motion. (ECF No. 55.)
Motion to Dismiss
Caldarise moves to dismiss Count III of the Amended Complaint for failure to state a claim,
pursuant to Rule 12(b)(6), and he also moves on the grounds the Court lacks subject matter
jurisdiction, pursuant to Rule 12(b)(1). (ECF No. 54.) “Caution is necessary because the standards
governing the two rules differ markedly, as Rule 12(b)(6) provides greater procedural safeguards
for plaintiffs than does Rule 12(b)(1).” Davis v. Wells Fargo, 824 F.3d 333, 348-49 (3d Cir. 2016).
Federal Rule of Civil Procedure 12(b)(1)
“A challenge to subject matter jurisdiction under Rule 12(b)(1) may be either a facial or a
factual attack.” Davis, 824 F.3d at 346. A facial attack “challenges the subject matter jurisdiction
without disputing the facts alleged in the complaint, and it requires the court to ‘consider the
allegations of the complaint as true.’” Id. (citing Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3
(3d Cir. 2006)). A factual attack, on the other hand, “attacks the factual allegations underlying the
complaint’s assertion of jurisdiction, either through the filing of an answer or ‘otherwise
present[ing] competing facts.’” Id. (quoting Constitution Party of Pa. v. Aichele, 757 F.3d 347,
358 (3d Cir. 2014)). A “factual challenge allows a court [to] weigh and consider evidence outside
the pleadings.” Id. (citation omitted). Thus, when a factual challenge is made, “no presumptive
truthfulness attaches to [the] plaintiff’s allegations . . . .” Id. (citing Mortensen v. First Fed. Sav.
& Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). Rather, “the plaintiff will have the burden of
proof that jurisdiction does in fact exist,” and the court “is free to weigh the evidence and satisfy
itself as to the existence of its power to hear the case.” Id.
The Third Circuit has “repeatedly cautioned against allowing a Rule 12(b)(1) motion to
dismiss for lack of subject matter jurisdiction to be turned into an attack on the merits.” Davis, 824
F.3d at 348-49 (collecting cases). “[D]ismissal for lack of jurisdiction is not appropriate merely
because the legal theory alleged is probably false, but only because the right claimed is ‘so
insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely
devoid of merit as not to involve a federal controversy.’” Id. at 350 (quoting Kulick v. Pocono
Downs Racing Ass’n, Inc., 816 F.2d 895, 899 (3d Cir. 1987)). “In this vein, when a case raises a
disputed factual issue that goes both to the merits and jurisdiction, district courts must ‘demand
less in the way of jurisdictional proof than would be appropriate at a trial stage.’” Id. (citing
Mortensen, 549 F.2d at 892 (holding that dismissal under Rule 12(b)(1) would be “unusual” when
the facts necessary to succeed on the merits are at least in part the same as must be alleged or
proven to withstand jurisdictional attacks)). These cases make clear that “dismissal via a Rule
12(b)(1) factual challenge to standing should be granted sparingly.” Id.
Here, Caldarise is asserting a facial 12(b)(1) challenge because he asserts he is immune
from Plaintiff’s claims as pled. Therefore, the Court considers the allegations in the light most
favorable to Plaintiff. Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000);
Mortensen, 549 F.2d at 891.
Federal Rule of Civil Procedure 12(b)(6)
In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a
district court is “required to accept as true all factual allegations in the complaint and draw all
inferences in the facts alleged in the light most favorable to the [plaintiff].” Philips, 515 F.3d at
228. “[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).
However, the plaintiff’s “obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.”
Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A court is “not bound to accept as true a
legal conclusion couched as a factual allegation.” Papasan, 478 U.S. at 286. Instead, assuming the
factual allegations in the complaint are true, those “[f]actual allegations must be enough to raise a
right to relief above the speculative level.” Twombly, 550 U.S. at 555.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the defendant is
liable for misconduct alleged.” Id. This “plausibility standard” requires the complaint allege “more
than a sheer possibility that a defendant has acted unlawfully,” but it “is not akin to a ‘probability
requirement.’” Id. (citing Twombly, 550 U.S. at 556). “Detailed factual allegations” are not
required, but “more than ‘an unadorned, the defendant-harmed-me accusation” must be pled; it
must include “factual enhancements” and not just conclusory statements or a recitation of the
elements of a cause of action. Id. (citing Twombly, 550 U.S. at 555, 557).
“Determining whether a complaint states a plausible claim for relief [is] . . . a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
Caldarise moves to dismiss Plaintiff’s NJLAD claim against him on three grounds. First,
he argues the NJLAD only authorizes suit in the Superior Court of New Jersey. (Br. in Support of
Def.’s Second Mot. to Dismiss (ECF No. 54-1) at 4.) Second, Caldarise argues he cannot be liable
for aiding and abetting the DOC’s allegedly discriminatory conduct under the NJLAD, because
the DOC the Court dismissed Plaintiff’s NJLAD claim against the DOC. (Id. at 5.) Third, Caldarise
argues Plaintiff has pled no facts that could lead to liability in his personal capacity, and he is
immune for acts in his official capacity.
A. A Federal Court’s Ability to Hear a NJLAD Claim
Caldarise argues the NJLAD does not authorize suit in federal court. (Id. at 4 (citing Garcia
v. Richard Stockton Coll., 210 F. Supp. 2d 545, 550 (D.N.J. 2002)).) The parties do not dispute
Eleventh Amendment sovereign immunity applies to claims under the NJLAD. See Garcia, 210
F. Supp. 2d at 550 (holding that the Eleventh Amendment bars claims under the NJLAD against
the state of New Jersey, because the state has not expressly waived immunity from such claims)
(citing N.J.S.A. § 10:5-13); Rich v. New Jersey, No. 14-2075, 2015 U.S. Dist. LEXIS 61683, at
*18 (D.N.J. May 12, 2015) (same). This precedent was the basis for this Court’s grant of the DOC’s
motion to dismiss Plaintiff’s NJLAD claim. (ECF No. 51 at 6-7.) Caldarise argues the DOC’s
immunity from a NJLAD claim in federal court precludes Plaintiff’s NJLAD claim against him.
(ECF No. 54-1 at 4.)
The Garcia court’s holding is not as broad as Caldarise argues, however. A plaintiff cannot
assert against a NJLAD claim against the state, a state agency or alter ego, or a state employee
acting in his or her official capacity. Garcia, 210 F. Supp. 2d at 550. But, as this Court found in
denying Caldarise’s first motion to dismiss, “Plaintiff brings her NJLAD claim against Caldarise
solely in his personal capacity, alleging that he is ‘personally liable’ under the NJLAD.” (ECF No.
51 at 7 (citing ECF No. 21 at ¶ 46).) “In a suit against state officials in their ‘personal’ capacity . .
. where the plaintiff seeks recovery from the personal assets of the individual, the state is not the
real party in interest; the suit is therefore not barred by the Eleventh Amendment.” Melo v. Hafer,
912 F.2d 628, 635 (3d Cir. 1990) aff’d 502 U.S. 21 (1991). Therefore, the Court finds it has
jurisdiction to hear a NJLAD claim against Caldarise in his personal capacity.
B. Aiding and Abetting Liability Under the NJLAD
Pursuant to the NJLAD, it is unlawful for an employer “to discriminate against [an
employee] in compensation or in terms, conditions or privileges of employment.” N.J.S.A. § 10:512(a). It is also unlawful “[f]or any person . . . to aid, abet, incite, compel or coerce the doing of
any of the acts forbidden under this act, or to attempt to do so.” N.J.S.A. § 10:5-12(e). A plaintiff
seeking to hold a person liable for aiding and abetting discrimination in violation of the NJLAD
must show: “(1) the employer whom the defendant aided performed a wrongful act causing injury;
(2) the defendant was generally aware of his role as part of an overall illegal or tortious activity at
the time that he provided the assistance; and (3) the defendant knowingly and substantially assisted
the principal violation.” DeSantis v. N.J. Transit, 103 F. Supp.3d 583, 591 (D.N.J. 2015) (citing
Cicchetti v. Morris Cty. Sheriff’s Office, 947 A.2d 626, 645 (N.J. 2008)).
Caldarise claims he cannot be found liable for any violation under the NJLAD, because his
employer, the DOC, is immune from liability under Plaintiff’s NJLAD claim. (ECF No. 54-1 at
5.) If an employer is not liable for a NJLAD violation, a claim against an individual defendant for
aiding and abetting must also fail. Monaco v. Am. Gen. Assur. Co., 359 F.3d 296, 307 n.15 (3d
Cir. 2004). Plaintiff argues her claim against Caldarise may proceed because the dismissal of her
claim against the DOC was not an adjudication on the merits. (ECF No. 55 at 6 (citing Lindsey v.
N.J. Dept. Corr., No. 04-3815, 2007 WL 83667, at *6-7 (D.N.J. Mar. 14, 2007) (finding the DOC’s
Eleventh Amendment immunity did not preclude a NJLAD aiding and abetting claim against
The issue of whether a plaintiff may proceed with a claim for aiding and abetting against
an individual defendant when the state employer is immune is unsettled in this district. In a slight
majority of cases, this Court has found the state employer’s immunity precludes a claim for aiding
and abetting against an individual defendant. See Shreve v. N.J. Motor Vehicle Comm., No. 157957, 2016 WL 5334661, at *5 (D.N.J. Sep. 22, 2016); Hughes v. N.J., Office of the Public
Defender/Dep’t of Public Advocate, No. 11-1442, 2012 WL 761997, at *3 (D.N.J. Mar. 7, 2012);
Cooper v. N.J. Lottery, No. 05-896, 2006 WL 1344092, at *12 (D.N.J. May 15, 2006); Hanai v.
State of N.J., No. 03-3111, WL 1308231, at *16 (May 31, 2005). But see Lindsey, 2007 WL 83667,
at *6-7; Uwalaka v. N.J., No. 04-2973, 2005 WL 3077685, at *3 (D.N.J. Nov. 15, 2005). The
Court finds the reasoning of the majority of cases more persuasive. “[I]ndividual liability does not
exist under the NJLAD absent evidence that the individual was ‘aiding and abetting’
discrimination by the employer. Hughes, 2012 WL 761997, at *3 (citing Hurley v. Atl. City Police
Dep’t, 174 F.3d 95, 138 (D.N.J. 1999)). “Such proof is impossible if the Court has no jurisdiction
over the employer.” Id. As the Court dismissed Plaintiff’s NJLAD claim against the DOC, Plaintiff
cannot prove the DOC violated the NJLAD. Consequently, she cannot prove Caldarise aided and
abetted the DOC’s violation.
Therefore, the Caldarise’s Second Motion to Dismiss Count III of Plaintiff’s Amended
Complaint is GRANTED.
C. Plaintiff’s Claim Against Caldarise in His Personal Capacity
As the Court has found Plaintiff cannot assert a claim for aiding and abetting liability
against Caldarise under the NJLAD, the Court need not address the question of whether Plaintiff
pled sufficient facts to assert a claim against him in his personal capacity.
D. Dismissal Without Prejudice
The Court dismissed Plaintiff’s NJLAD claim against the DOC without prejudice. (ECF
No. 51 at 7-8 (citing Siravo v. Crown, Cork & Seal Co., 256 F. App’x 577, 580 (3d Cir. 2007))
(“Where a district court lacks subject-matter jurisdiction, its disposition of such a case will . . . be
without prejudice.”).) The Court noted denying relief for want of jurisdiction does not preclude a
subsequent action in a court of competent jurisdiction. (Id. (citing Siravo, 256 F. App’x at 580).)
Just as the Court’s dismissal of Count III against the DOC did not preclude Plaintiff from bringing
the claim in state court, this Opinion does not preclude Plaintiff from bring her claim against
Caldarise in state court. See N.J.S.A. § 10:5-13 (“Any complainant may initiate suit in Superior
Court under this act . . . .”). Accordingly, Count III against Caldarise is dismissed without
For the reasons set forth above, Caldarise’s Motion to Dismiss (ECF No. 54) is
GRANTED. Plaintiff’s NJLAD claim (Count III) against the Caldarise is DISMISSED
Date: October 27, 2017
/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE
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