Opinion
Civil No. 00-2383 (JBS).
February 26, 2001
Christian A. Pemberton, Esquire, LAW OFFICE OF CHRISTIAN A. PEMBERTON, P.C., Sicklerville, New Jersey, Attorney for Plaintiff.
Joseph M. Toddy, Esquire, ZARWIN, BAUM, DEVITO, KAPLAN, O'DONNELL SHAER, Cherry Hill, New Jersey, Attorney for Defendant.
OPINION
In this sex discrimination and wrongful discharge case, plaintiff Nicole Phillips brings suit against defendants Angel Ramirez, Coach USA, and John Does I to X, alleging that they violated her civil rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-5 et seq. ("Title VII"), the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq. ("NJLAD"), and several other state laws when they allegedly sexually harassed and discharged her from her employment at Coach USA. Presently before the Court are plaintiff's motion to amend her complaint and defendants' motions to dismiss for improper venue and for failure of five of the seven counts to state a claim on which relief may be granted.
I. BACKGROUND
Plaintiff Nicole Phillips ("Phillips") was employed by defendant Coach USA ("Coach") from July 12, 1999 through October 16, 1999 in the Dispatch Department of Coach's Philadelphia, Pennsylvania facility. (Am. Compl. at 1, ¶ 2 and at 4, ¶ 2.) During the time-period relevant to this action, defendant Angel Ramirez ("Ramirez") was a Coach employee and was Phillips's direct supervisor. (Am. Compl. at 1, ¶ 2.)
Phillips, a twenty-nine year old female, resides in Sicklerville, New Jersey, and alleges that during her three month employment at Coach, she was sexually harassed, discriminated against, and discharged in retaliation for her complaints about such behavior and that as a result, she suffered severe emotional distress, humiliation, mental pain and anguish, loss of wages and benefits, and litigation fees. (See Am. Compl.) Specifically, Phillips charged that on August 8, 1999, Ramirez yelled at her in front of other employees and told her to "shut up." (Am. Compl. at 4, ¶ 2.) Phillips additionally charged that Ramirez made sexually offensive comments and remarks to her, such as telling her that he liked her legs and enjoyed watching her bend over in the office. (Id. at 4, ¶¶ 3-4.) Phillips asserted that after each incident, she advised Ramirez that his conduct offended her and that she would not tolerate such behavior. (Id.) Phillips finally claimed that Phillips was hostile towards her and disciplined her in retaliation for her complaints about his alleged behavior. (Id., ¶¶ 5-6.)
Phillips received a letter, dated August 16, 1999, from Coach Operations Manager Jeff Carty at the New Jersey facility, acknowledging that Phillips had given Ramirez two weeks notice of her intention to resign, and informing her that her separation date would be effective as of the date of the letter. (Id., ¶ 6; see Pl.'s Mot. to Am. Compl., Ex. 1.) Plaintiff denys ever communicating any intention to resign to Ramirez. (Id., ¶ 7.)
On January 11, 2000, plaintiff filed a complaint and affidavit with the Equal Employment Opportunity Commission ("EEOC"). (Am. Compl., ¶ 5.) On February 17, 2000, the EEOC provided Phillips with a right to sue letter. (Id., ¶ 6.) On May 17, 2000, plaintiff filed a seven count complaint with the Clerk of this Court charging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII") (Count One), the New Jersey Law Against Discrimination,N.J.S.A. 10:5-1, et seq. ("NJLAD") (Count Two), the public policy of New Jersey and Pennsylvania (Count Three), the New Jersey and Pennsylvania Constitutions (Count Four), the public policy of New Jersey and Pennsylvania against retaliatory discharge (Count Five), and for breach of contract and or the implied covenant of good faith and fair dealing (Count Six), and intentional infliction of emotional distress (Count Seven). On September 7, 2000, defendants filed a motion to dismiss plaintiff's complaint based on improper venue and a Rule 12(b)(6), Fed.R.Civ.P., motion to dismiss counts II, III, IV, VI, and VII for failure to state a claim. On September 12, 2000, plaintiff filed a motion to amend the complaint, which contained additional information about her selected venue. This motion was unopposed. For the reasons discussed herein, plaintiff's motion to amend the complaint will be granted, defendants' motion to dismiss for improper venue will be denied, and defendants' motion to dismiss counts II, III, IV, VI, and VII for failure to state a claim will be granted.
Because plaintiff's motion to amend her complaint was unopposed, and because the proposed amended complaint did not remedy any of the deficiencies alleged in defendants' arguments for Rule 12(b)(6) dismissal of counts II, III, IV, VI, and VII, this Court will resolve all of the pending motions at once.
II. DISCUSSION
A. Motion to Amend the Complaint
Federal Rule of Civil Procedure 15(a) provides that a party may amend his pleading once before a responsive pleading is served, or thereafter upon leave of court or on consent from his adversary. See Fed.R.Civ.P. 15(a). The rule further provides that "leave should be freely given when justice so requires."Id. The decision whether to grant leave to amend rests with the sound discretion of the trial judge and will be overturned on appeal only upon a finding of abuse of discretion. Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644, 654 (3d Cir. 1998) (citing Howze v. Jones Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984)).
The Third Circuit has adopted a liberal approach to the amendment of pleadings to ensure that "a particular claim will be decided on the merits rather than on technicalities." Dole v. Arco Chemical Co., 921 F.2d 484, 486-87 (3d Cir. 1990). However, the granting of leave to amend is not automatic. See Dover Steel Co., Inc. v. Hartford Accident and Indemnity Co., 151 F.R.D. 570, 574 (D.N.J. 1993). Leave may be denied upon a showing of "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, futility of amendment, etc." Foman v. Davis, 371 U.S. 178, 182 (1982); see also Heyl Patterson Int'l, Inc. v. F.D. Rich Housing of the Virgin Islands, Inc., 663 F.2d 419, 425 (3d Cir. 1981), cert. denied sub nom., 455 U.S. 1018 (1982).
Plaintiff's original complaint was filed on May 17, 2000. Plaintiff's proposed amended complaint seeks to make an alternative pleading relative to jurisdiction and venue. There was no opposition submitted to plaintiff's motion to amend the complaint and the Court finds no undue delay, bad faith or dilatory motive on the part of the movant and the motion to amend the complaint will be granted. Because no opposition was entered, and plaintiff made no amendments to the counts listed in the original complaint, this Court will now consider Defendants' motions to dismiss with respect to the amended complaint.
B. Rule 12(b)(3) Motion to Dismiss for Improper Venue
Defendants have first moved to dismiss this action pursuant to Fed.R.Civ.P. 12(b)(3) for lack of venue as defined in 28 U.S.C. § 1391. In her Amended Complaint, plaintiff asserts that venue is proper in the District of New Jersey pursuant to 28 U.S.C. § 1391. The appropriate section of the code reads:
Plaintiff invokes this Court's federal question jurisdiction under 42 U.S.C. § 2000e, et seq. (Title VII of the Civil Rights Act of 1964), and diversity jurisdiction under 42 U.S.C. § 1332.
A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same state, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.28 U.S.C. § 1391(b). The statute also provides that corporate defendants, such as Coach USA, "shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced." 28 U.S.C. § 1391(c).
Defendants argue that venue is improper because no substantial part of the events or omissions giving rise to plaintiff's Amended Complaint occurred in the District of New Jersey. (Defs.' Br. at 2-3.) Defendants base their argument on the factual allegations of the Complaint, which state that defendant Coach USA is a Pennsylvania Corporation doing business in Pennsylvania, and that the events giving rise to plaintiff's cause of action all occurred at the Coach USA office in Philadelphia, Pennsylvania. (Id.) Defendants do not dispute that the letter, dated August 16, 1999, that plaintiff received advising her of her separation date from the company was sent from a manager in the Pleasantville, New Jersey office.
The Court now considers whether dismissal is appropriate under the present circumstances. Plaintiff need not include allegations in the complaint showing that the district in which he has sued is the proper venue. 15 Wright, Miller Cooper, Federal Practice and Procedure: Jurisdiction, § 3826 at 256-57 (2d ed. 1986). The burden is on defendant to object to venue and demonstrate that the chosen venue is improper. Myers v. American Dental Ass'n, 695 F.2d 716, 724-25 (3d Cir. 1982). Venue, as that term is defined by Congress, is proper in this district. Defendant, Coach USA, is a corporation over which the State of New Jersey has personal jurisdiction, making the District of New Jersey a proper venue for this litigation. Defendant does not deny that they are subject to personal jurisdiction in New Jersey (see Defs.' Br. at 2); instead, they argue that venue here is improper because all of the events leading up to the allegations in this case occurred in Philadelphia.
Coach USA has an office in Pleasantville, New Jersey, where it employs people and does business, and plaintiff's termination letter was sent from the New Jersey office.
Because Coach USA is clearly subject to personal jurisdiction in the District of New Jersey, and because there would be no real inconvenience in litigating the case here (this Court is only several miles away from the United States Courthouse for the Eastern District of Pennsylvania), and because plaintiff's termination was effectuated from Pleasantville, New Jersey, defendants' motion to dismiss this action for improper venue will be denied and the case will remain in the District of New Jersey.
C. Defendants' Rule 12(b)(6) Motions
Defendants also make a Rule 12(b)(6), Fed.R.Civ.P., motion to dismiss counts II, III, IV, VI, and VII of plaintiff's amended complaint for failure to state claims upon which relief may be granted in those counts.
A Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A district court must accept as true all well-pleaded allegations in the Complaint and any and all reasonable inferences derived from those allegations. Schanzer v. Rutgers Univ., 934 F. Supp. 669, 673 (D.N.J. 1996) (citing Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987)); Unger v. National Residents Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1100, 1107 (D.N.J. 1991). In addition to the Complaint, the court may also consider authenticated documents appended to the submissions of the parties. Schanzer, 934 F. Supp. at 671 n. 1 (citing 5A Charles A. Wright Arthur R. Miller, Federal Practice and Procedure, § 1357, at 299 (2d ed. 1990)). It is not necessary for the plaintiff to plead evidence, and it is not necessary to plead the facts that serve as the basis for the claim. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977); In re Midlantic Corp. Shareholder Litigation, 758 F. Supp. 226, 230 (D.N.J. 1990). The question before the Court is not whether the plaintiff will ultimately prevail; rather, it is whether he can prove any set of facts in support of his claims that would entitle him to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984). "Although the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."Baldwin County Welcome Center v. Brown, 466 U.S. 147, 150 n. 3 (1984) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Therefore, in deciding a motion to dismiss, a court should look to the face of the complaint and decide whether, taking all of the allegations of fact as true and construing them in a light most favorable to the nonmovant, plaintiff's allegations state a cognizable legal claim. Markowitz v. Northeast Land Co., 906 F.2d at 103.
1. Choice of Law
Counts II, III, IV, VI, and VII of Phillips's amended complaint are all based on state law. Defendants argue that Pennsylvania law applies and that these counts must be dismissed because plaintiff's amended complaint fails to state a claim upon which relief can be granted. Plaintiff argues that New Jersey law should apply because New Jersey has an interest in protecting its citizens against discrimination.
As a federal court sitting in diversity on these counts, this Court must apply the law of the state in which it sits, including the choice of law rules of the forum state. See Ruccolo v. BDP, Int'l, Inc., 1996 WL 735575, * 5, 3 Wage Hour Cas.2d (BNA) 941 (D.N.J. 1996) (citing Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). This court must, therefore, look to the New Jersey choice of law rules to determine whether a New Jersey court would apply the law of New Jersey or Pennsylvania to this Pennsylvania employment relationship with a New Jersey resident.
New Jersey courts have adopted a flexible governmental interest analysis to determine choice of law issues. See Ruccolo, 1996 WL 735575, *5 (citing Veazey v. Doremus, 103 N.J. 244, 247-48 (1986); Mellk v. Sarahson, 49 N.J. 226 (1967); Haggerty v. Cedeno, 267 N.J. Super. 114, 116 (Law Div. 1993), aff'd, 279 N.J. Super. 607 (App.Div. 1993), certification denied, 141 N.J. 98 (1995)). Under this analysis, a court must first decide whether there is a conflict in the laws of the interested states and, if so, the court must then consider the governmental policies underlying the laws and how the policies are affected by each state's contacts to the litigation. Id. at 248. As this Court determined in Ruccolo, a case factually similar to this one, there is a conflict of law between the employment laws of Pennsylvania and New Jersey. Ruccolo, 1996 WL 735575, * 5 (finding that Pennsylvania's public policy exception to the general rule of at-will employment is narrower than New Jersey's and, consequently, a plaintiff would have a higher burden when bringing the employment counts under Pennsylvania law).
Because there is a conflict between the employment law of New Jersey and Pennsylvania, this Court must now consider each state's contacts with the litigants, the governmental policies that underlie the laws at issue, and how each state's policies are affected by these contacts. Plaintiff argues that because she is a citizen of New Jersey and because defendant Coach is subject to personal jurisdiction in New Jersey, the laws of this state should apply. Additionally, plaintiff identifies the letter sent by Jeff Carty from the Pleasantville, New Jersey Coach office as "the major crux of Plaintiff's Complaint" (Pl.'s Opp. at 2) in terms of connecting the interests of New Jersey to this case, because the letter was both sent from and received in New Jersey. Defendants contend that Pennsylvania has the greater governmental interest in this case because Phillips's employment at Coach was exclusively at the Philadelphia facility, the alleged harassing manager, Ramirez, worked at the Philadelphia facility and all of the allegedly discriminatory and harassing acts took place in Philadelphia. Defendants do not deny that the letter from Carty was both sent from and received in New Jersey. They argue, however, that singular fact does not override the more significant interests of the Commonwealth of Pennsylvania.
The Court finds that Pennsylvania's interests in this case are greater than those of New Jersey. As discussed in this Court's opinion in Ruccolo, the fact that a plaintiff is a resident of New Jersey employed in Pennsylvania, where all the allegedly harassing conduct occurred in Pennsylvania, without more, does not require that New Jersey law should apply. See 1996 WL 735575, * 5-6 (citing Eger v. E.I. Du Pont DeNemours Co., 110 N.J. 133 (1988) (finding South Carolina workers compensation law governs the right of a New Jersey subcontractor's employee — a New Jersey resident — to bring suit in South Carolina where he was injured)). In this case, as inRuccolo, the employment relationship was entered into and performed in Pennsylvania, and the allegedly improper conduct occurred in Pennsylvania, by another Philadelphia facility employee. For purposes of the employment relationship at issue, it was only fortuitous that plaintiff resided in New Jersey (a short commute into Philadelphia) and that the letter confirming her termination was mailed from and received in New Jersey. Pennsylvania law, therefore, should govern this dispute. As discussed in greater detail below, each of plaintiff's claims in Counts II, III, IV, VI, and VII fails to state a claim upon which relief may be granted under Pennsylvania law, and each will be dismissed with prejudice.
As discussed above, this Court's personal jurisdiction over Coach and the fact that the termination letter was both sent from and received in New Jersey were sufficient to justify retaining venue in the District of New Jersey, but such interests do not outweigh Pennsylvania's governmental interests in having their law govern Pennsylvania employment relationships.
2. Counts II, III, IV, VI, and VII
In Count II, Phillips alleges that defendants violated her rights under the New Jersey Law Against Discrimination,N.J.S.A. 10:5-1 et seq. ("NJLAD") because she is a citizen of New Jersey. Defendants argue that the NJLAD does not apply to the present case because none of the allegedly discriminatory behavior occurred in New Jersey. (Defs.' Br. at 6.)
Defendants concede that if plaintiff had alleged that Ramirez harassed her in Coach's New Jersey facility, the NJLAD would apply. Plaintiff does not allege that any of the wrongful behavior occurred in New Jersey and the only contacts with the state are plaintiff's citizenship and the letter received confirming her separation from the company.
As this Court has already discussed, the law of Pennsylvania, and not New Jersey, governs this dispute. Additionally, New Jersey law is clear that claims of a New Jersey resident relating to employment in another state will usually be governed by the law of the state in which the New Jersey resident is employed.See Brunner v. Allied Signal, Inc., 2001 WL 40739 (D.N.J. Jan. 17, 2001) (citing Buccilli v. Timby, Brown Timby, 283 N.J. Super. 6 (App.Div. 1995)). Similar to the plaintiff inBuccilli, plaintiff Phillips worked exclusively in Pennsylvania and the allegedly unlawful conduct occurred there. Her employment claims, therefore, are governed by the statutes of Pennsylvania, not the NJLAD. Count II of plaintiff's complaint will therefore be dismissed.
Plaintiff's amended complaint does not seek relief under the Pennsylvania Human Relations Act, 43 Pa. Stat. Ann. § 962 ("PHRA").
In Count III, Phillips alleges that defendants violated New Jersey and Pennsylvania's public policy against sex discrimination. (Am. Compl., Count III.) Because this Court has determined that Pennsylvania and not New Jersey law governs these issues, plaintiff cannot state a claim for sex discrimination under New Jersey public policy and that portion of this count will be dismissed. Phillips's claim under the public policy of the Commonwealth of Pennsylvania must also be dismissed. In order to state a claim for a public policy exception to at-will employment, plaintiff must establish that the termination violated a well established public policy and that there is no other remedy to protect the interests of the employee or society as a whole. Wehr v. Burroughs Corp., 438 F. Supp. 1052, 1055 (E.D. Pa. 1977); see also Ruccolo, 1996 WL 735575, * 8. Phillips has not specifically alleged any such public policy or that she had no other remedy available to redress her employment claims. Indeed, Phillips had a remedy for her claim under the PHRA. Count III of plaintiff's amended complaint will therefore be dismissed with prejudice.
In Count IV, Phillips alleges that defendants violated the New Jersey and Pennsylvania constitutions when they allegedly discriminated against her and terminated her in retaliation for her complaints. Defendants argue that the constitutions of New Jersey and Pennsylvania do not, by themselves, provide independent causes of action to redress plaintiff's complaints. Defendants do not dispute that the NJLAD and the PHRA are premised on the rights afforded in the state constitutions, but reason that Count IV of plaintiff's amended complaint should be dismissed as an independent claim because a claim was already made under the NJLAD in Count II. This Court agrees that no separate cause of action exists to redress plaintiff's employment claims under the constitutions of New Jersey and Pennsylvania. Additionally, since plaintiff has not plead a violation of the PHRA, Count IV of plaintiff's amended complaint will be dismissed with prejudice.
In Count VI, Phillips alleges that defendants breached their duty of good faith and fair dealing in her implied contract of employment, the terms of which she claims were contained in the published handbook and/or manual provided to employees. Phillips does not allege that she had an actual employment contract with Coach or that she was anything but an at-will employee. (See Pl.'s Opp. at 9.) Instead, Phillips makes her argument under New Jersey law, which has a broader exception to the narrow rule of at-will employment, and asserts that because her termination allegedly did not comport with the procedures detailed in Coach's employee handbook, it was a contractual violation. As discussed above, plaintiff's claim is governed by Pennsylvania, not New Jersey law.
Under Pennsylvania law, there is a strong presumption of at-will employment and a plaintiff must meet a high burden to overcome that presumption. Violanti v. Emery Worldwide A-CF Co., 847 F. Supp. 1251, 1258 (M.D. Pa. 1994); see Ruccolo, 1996 WL 735575, *7. An employment handbook or employee manuel can convert an at-will employment relationship into a contractual one, but in order to do so, it "must contain unequivocal provisions that the employer intended to be bound by it and, in fact, renounced the principle of at-will employment." Id. at 1269 (quoting Reilly v. Stroehmann Bros. Co., 367 Pa. Super. 411 (1987)). Phillips has presented no such allegation or evidence in her amended complaint to overcome the presumption of at-will employment in this case. Because Pennsylvania law does not recognize the duty of good faith and fair dealing in an at-will employment relationship, defendants Coach and Ramirez could not have violated any such covenant with respect to Phillips. Count VI of plaintiff's amended complaint will therefore be dismissed with prejudice.
Finally, in Count VII, Phillips alleges that defendants, through their alleged discrimination, harassment, and retaliatory discharge, engaged in extreme and outrageous conduct that caused her to suffer emotional upset and injury. (Am. Compl., Count VII, ¶¶ 2-4.) Defendants argue that Phillips has not plead sufficient facts to state such a claim and they assert that under Pennsylvania law, job loss alone is not a sufficient basis for such a claim. (Defs.' Br. at 10-11.)
Pennsylvania law only allows recovery for intentional infliction of emotional distress. Aquino v. Sommer Maid Creamery, 657 F. Supp. 208, 210 (E.D. Pa. 1987); see Ruccolo, 1996v WL 735575, *10. In order to be compensable, the alleged conduct must be extreme and outrageous, intentional and reckless, and must cause severe emotional distress. Bradshaw v. General Motors Corp., 805 F.2d 110, 114 (3d Cir. 1986). To be actionable under Pennsylvania law, the alleged conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."Id. at 114 (quoting Jones v. Nissenbaum, Rudolph and Seider, 244 Pa. Super. 377 (1976) (adopting the standard set forth in Restatement (Second) of Torts, § 46 comm. d)). In the employment context, "it is extremely rare to find conduct . . . that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress." Cox v. Keystone Carbon Co., 861 F.2d 390, 396 (3d Cir. 1988), cert. denied, 498 U.S. 811 (1990) (allegation of improperly motivated dismissal insufficient to support intentional infliction claim). Additionally, as defendants argue, Pennsylvania courts have held that job loss standing alone cannot provide the basis for such a claim. Briek v. Harbison-Walker Refractories, 624 F. Supp. 363, 367 (W.D. Pa. 1985).
Phillips offers only her allegedly improper discharge and the comments allegedly made by Ramirez as support for her claim. In this motion to dismiss under Rule 12(b)(6), this Court accepts all of plaintiff's allegations as true. Plaintiff alleges that Supervisor Ramirez made offensive sexual innuendoes to her, and that she was fired in retaliation for complaining about him. The complaint does not allege that he ever touched her or that he threatened her or humiliated her. Moreover, in her opposition brief, plaintiff does not argue that these circumstances meet the demanding requirements of Pennsylvania's common law tort of intentional infliction of emotional distress, and she cites only to a discussion of New Jersey law in the case of King v. Port Authority of New York and New Jersey, 909 F. Supp. 938 (D.N.J. 1995), see Pl.'s Opp. Br. at 11, which is inapplicable to this Pennsylvania cause of action. This Court finds that plaintiff's allegations do not rise to the level required to state a claim for intentional infliction of emotional distress under Pennsylvania law. Although the comments and behavior that plaintiff attributes to Ramirez are distasteful and juvenile, they are not atrocious and do not exceed all possible bounds of decency. That plaintiff's employment was terminated after a few months in retaliation may give rise to other remedies under federal or state law, but does not rise to the "rare level of outrageousness" necessary for this tort. See Cox, supra, 861 F.2d at 396. Plaintiff's claim for intentional infliction of emotional distress, therefore, fails as a matter of law. Count VII will be dismissed with prejudice.
III. CONCLUSION
For the foregoing reasons, the Court will grant plaintiff's motion to amend the Complaint, will deny defendants' motion to dismiss the amended complaint for improper venue, and will grant defendants' Rule 12(b)(6) motions to dismiss Counts II, III, IV, VI and VII of plaintiff's Amended Complaint.
The accompanying Order is entered.
ORDER
This matter having come before the Court upon the motion of defendants Angel Ramirez, Coach USA, and John Does I to X, to dismiss plaintiff's amended complaint for improper venue or, in the alternative, to dismiss plaintiff's NJLAD (Count II), Violation of Public Policy of New Jersey and Pennsylvania — Sex Discrimination (Count III), Violation of New Jersey and Pennsylvania Constitutions (Count IV), Breach of Contract and/or Implied Covenant of Good Faith and Fair Dealing (Count VI), and Intentional Infliction of Emotional Distress (Count VII); and the Court having considered the parties' submissions; and for the reasons expressed in an Opinion of today's date;IT IS this day of February, 2001 hereby
ORDERED that plaintiff's motion to amend the complaint be, and hereby is, GRANTED, and plaintiff shall cause the original Amended Complaint to be filed with the Clerk of the Court and served within seven (7) days hereof;
IT IS FURTHER ORDERED that defendants' motion to dismiss the amended complaint for improper venue be, and hereby is, DENIED ;
IT IS FURTHER ORDERED that defendants' motions to dismiss Counts II, III, IV, VI, and VII of plaintiff's Amended Complaint for failure to state a claim pursuant to Rule 12(b)(6), Fed.R.Civ.P., be, and hereby are, GRANTED ; and
IT IS FURTHER ORDERED that Counts II, III, IV, VI, and VII of plaintiff's Amended Complaint are DISMISSED WITH PREJUDICE. Counts I and V of plaintiff's Complaint shall proceed to trial.