Biermann v. Helicopters, Inc.

REPLY BRIEF to Opposition to Motion

D.N.J.October 10, 2017

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY JOSEPH BIERMANN, Plaintiff, v. HELICOPTERS, INC., Defendant. : : : : : : : : : : : : Civ. Action No.: 2:17-cv-07079-ES-CLW Electronically Filed Civil Action RETURN DATE: OCTOBER 16, 2017 ORAL ARGUMENT REQUESTED REPLY BRIEF IN FURTHER SUPPORT OF DEFENDANT’S PARTIAL MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 10 Madison Avenue, Suite 400 Morristown, New Jersey 07960 Tel: (973) 656-1600 Fax: (973) 656-1611 Attorneys for Defendant On the Brief: Mark Diana, Esq. Krystina L. Barbieri, Esq. Case 2:17-cv-07079-ES-CLW Document 8 Filed 10/10/17 Page 1 of 15 PageID: 145 i TABLE OF CONTENTS LEGAL ARGUMENT .................................................................................................................... 1 POINT 1 PLAINTIFF’S COMPLAINT FAILS TO STATE A CLAIM FOR BREACH OF AN IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING (COUNT FIVE) .... 1 A. Plaintiff’s Complaint Contains No Facts Showing The Existence of a Verbal Agreement Between the Parties, and therefore, Plaintiff’s Complaint Fails to State a Claim for Breach of an Implied Covenant of Good Faith and Fair Dealing Based on an Alleged Verbal Agreement ................................................................................... 2 B. Plaintiff’s Complaint Contains No Facts Showing The Existence of a Written Agreement Between the Parties, and therefore, Plaintiff’s Complaint Fails to State a Claim for Breach of an Implied Covenant of Good Faith and Fair Dealing Based on an Alleged Written Agreement .................................................................................. 5 C. Even if the Court Considers the New Facts Asserted and Documents Supplied, Plaintiff Fails to State a Claim for Breach of an Implied Covenant of Good Faith and Fair Dealing Based on an Alleged Written Agreement ...................................... 6 POINT II LEAVE TO AMEND THE COMPLAINT SHOULD BE DENIED ................................. 9 CONCLUSION ............................................................................................................................. 10 Case 2:17-cv-07079-ES-CLW Document 8 Filed 10/10/17 Page 2 of 15 PageID: 146 ii TABLE OF AUTHORITIES Page(s) Cases Abulkhair v. Citibank, 2010 WL 11531087 (D.N.J. May 14, 2010) ..............................................................................9 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ................................................3, 4 Bermingham v. Sony Corp. of America, Inc., 820 F. Supp. 834 (D.N.J. 1992) .................................................................................................6 Certain Underwriters at Lloyd's, London v. U-Line Corp., No. 13-3203, 2013 WL 550362 (D.N.J. Oct. 1, 2013) ..............................................................3 Chudasama v. Mazda Motor Corp., 123 F.3d 1353 (11th Cir.1997). .................................................................................................3 Cioni v. Globe Specialty Metals, Inc., 2014 WL 2965707 (D.N.J July 1, 2014) ....................................................................................7 Dillin v. Construction & Turnaround Services, LLC, 2015 WL 5545236 (D.N.J. Sept. 18, 2015) ...............................................................................4 Doll v. Port Auth. Trans-Hudson Corp., 92 F.Supp.2d 416 (D.N.J. 2000) ................................................................................................7 Francis v. Joint Force Headquarters Nat. Guard, 2009 WL 90396 (D.N.J. January 12, 2009) ...............................................................................6 Gil v. Related Management Co., 2006 WL 2358574 (D.N.J. August 14, 2006) ............................................................................9 Giovanelli v. D. Simmons Gen. Contracting, No. 09-1082, 2010 WL 988544 (D.N.J. Mar. 15, 2010) ...........................................................3 Gok v. Ports America, Inc., 2015 WL 4915518 (D.N.J. August 17, 2016) ............................................................................9 Huafeng Xu v. Walsh, 2014 WL 4388663 (D.N.J. Sept. 4, 2014) ...............................................................................10 Jemas v. CitiMortgage, Inc., 2014 WL 7149278 (D.N.J. Dec 12, 2014) .................................................................................6 Levey v. Brownstone Inv. Group, LLC, 590 Fed. Appx. 132 (3d Cir. 2014) ............................................................................................3 Case 2:17-cv-07079-ES-CLW Document 8 Filed 10/10/17 Page 3 of 15 PageID: 147 iii Londono v. ABM Janitorial Sevs., 2014 WL 7146993 (D.N.J. Dec. 12, 2014) ..............................................................................10 Longo v. Purdue Pharma, L.P., 2014 WL 2800817 (D.N.J. June 19, 2014), mot. for recons. denied, 2014 WL 3844795 (D.N.J August 5, 2014) ...............................................................................................9 Luongo v. Village Supermarket, Inc., 2017 WL 2399088 (D.N.J. June 2, 2017) ..............................................................................7, 9 Mann v. Brenner, 375 Fed. Appx. 232 (3d Cir. 2010) ............................................................................................4 Marrin v. Capital Health Systems, Inc., 2015 WL 404783 (D.N.J. January 29, 2015) .............................................................................7 May v. Borough of Pine Hill, 755 F.Supp.2d 623 (D.N.J. 2010) ..........................................................................................8, 9 McCrone v. Acme Markets, 2013 WL 1208942 (D.N.J. June 24, 2013), aff’d, 561 Fed. Appx. 169 (3d Cir. 2014) ..........................................................................................................................................7 Mitchell v. C & S Wholesale Grocers, Inc., 2010 WL 2735655 (D.N.J. July 8, 2010) ...................................................................................4 Neitzke v. Williams, 490 U.S. 319, 326–27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) ..............................................3 Nicosia v. Wakefern Food Corp., 136 N.J. 401 (1994) ...................................................................................................................8 Normand v. Goodyear Tire & Rubber Co., 2005 WL 1657032 (D.N.J. July 13, 2005) .............................................................................7, 9 Power v. Bayonne Board of Education, 2017 WL 1536221 (D.N.J. April 26, 2017) ...............................................................................7 Priore v. Caravan Ingredients, Inc., 2014 WL 2931182 (D.N.J. June 30, 2014) ............................................................................7, 9 Ranke v. Sanofi–Synthelabo Inc., 436 F.3d 197 (3d Cir.2006)........................................................................................................4 State Capital Title & Abstract Co. v. Pappas Business Services, LLC, 646 F. Supp. 668 (D.N.J. 2009) .................................................................................................6 Case 2:17-cv-07079-ES-CLW Document 8 Filed 10/10/17 Page 4 of 15 PageID: 148 iv Taylor v. Lincare, Inc., 2016 WL 3849852 (D.N.J. July 15, 2016) .................................................................................9 Top v. Ocean Petroleum, LLC, 2010 WL 3087385 (D.N.J. Aug. 3, 2010) .................................................................................4 Warner v. Federal Express Corp., 174 F.Supp.2d 215 (D.N.J. 2001) ..............................................................................................9 White v. Hon Co., 520 Fed. Appx. 93, 95 (3d Cir. Apr. 5, 2013) ............................................................................3 Woolley v. Hoffmann–La Roche, Inc., 99 N.J. 284 (1985) .................................................................................................................6, 7 Yarris v. County of Delaware, 465 F.3d 129 (3d Cir. 2006).......................................................................................................5 Zimmerman v. PepsiCo, Inc., 836 F.2d 173 (3d Cir.1988)........................................................................................................5 Other Authorities FED. R. CIV. P. 12(b)(6) ..........................................................................................................2, 3, 10 Case 2:17-cv-07079-ES-CLW Document 8 Filed 10/10/17 Page 5 of 15 PageID: 149 1 LEGAL ARGUMENT POINT I PLAINTIFF’S COMPLAINT FAILS TO STATE A CLAIM FOR BREACH OF AN IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING (COUNT FIVE) Plaintiff’s hyperbolic “Introduction” is a thinly-disguised attempt to divert the Court’s attention from the simple fact that Plaintiff’s Complaint fails to state a claim for breach of an implied covenant of good faith and fair dealing that is plausible on its face. Defendant’s Motion is not a “delay tactic,” and Defendant has not “twist[ed] the allegations [of the Complaint] into self-serving statements without a factual basis.” (Opp. Brief, p. 1). Defendant seeks only to hold Plaintiff accountable to fundamental pleading requirements and to streamline the litigation by dismissing a frivolous claim that has no factual or legal support in the Complaint. Plaintiff concedes he has no facts to support the existence of a “verbal agreement” between the parties as alleged in the Complaint, and instead predicts that discovery will find the missing factual support. Plaintiff’s “sue now, hope to find facts later” plan is totally improper and cannot defeat Defendant’s Motion to Dismiss. Recognizing that his Complaint is legally deficient as is, Plaintiff’s Opposition attempts to assert new facts not alleged in his Complaint to show the existence of a “Woolley contract” based on Defendant’s employee handbook. Plaintiff’s attempt to supplement the record with new facts and documents is wholly improper and must be rejected. Moreover, even if Plaintiff’s improper statements and submissions are considered, Plaintiff still has not alleged facts sufficient to show any agreement between the parties. In sum, Plaintiff has not and cannot allege facts to show the existence of a valid agreement, verbal or written, between the parties. Leave to amend would therefore be futile. Case 2:17-cv-07079-ES-CLW Document 8 Filed 10/10/17 Page 6 of 15 PageID: 150 2 Accordingly, Defendant’s Motion to Dismiss Plaintiff’s breach of implied covenant of good faith and fair dealing claim should be granted with prejudice pursuant to FED. R. CIV. P. 12(b)(6). A. Plaintiff’s Complaint Contains No Facts Showing The Existence of a Verbal Agreement Between the Parties, and therefore, Plaintiff’s Complaint Fails to State a Claim for Breach of an Implied Covenant of Good Faith and Fair Dealing Based on an Alleged Verbal Agreement Count Five of Plaintiff’s Complaint, captioned “Breach of the Implied Covenant of Good Faith and Fair Dealing,” alleges that: 29. Defendant’s decision to withhold income from Plaintiff during his term of employment as fully set forth herein, as well as its retaliatory and wrongful termination of the Plaintiff in violation of public policy, [sic] the Defendant has acted in bad faith and dealt unfairly with the Plaintiff. 30. Defendant’s violation of the implied covenant of good faith and fair dealing in its verbal agreement with the Plaintiff has resulted in money damage to the Plaintiff. (Complaint, ¶¶29-30). As set forth in Defendant’s Moving Brief, Count Five fails to state a plausible claim for breach of an implied covenant of good faith and fair dealing (“ICGFFD”) because Plaintiff’s Complaint does not allege facts to show the existence of a verbal agreement between the parties. In the absence of a valid agreement, there can be no ICGFFD as a matter of law. (See Moving Brief, p. 3-4). Plaintiff’s Opposition devotes considerable energy arguing that the factual allegations in his Complaint must be accepted as true. (Opp. Brief, p. 1-3). Defendant does not dispute this; Defendant does not ask the Court to disregard the factual allegations in the Complaint. Plaintiff’s problem is that his Complaint contains no factual allegations that can be accepted as true. Plaintiff’s bare-bones, conclusory assertion that the parties had a “verbal agreement,” Case 2:17-cv-07079-ES-CLW Document 8 Filed 10/10/17 Page 7 of 15 PageID: 151 3 coupled with boilerplate mantra regarding the standard of review on a motion to dismiss, does not substitute for factual allegations, which are entirely absent from his Complaint. Indeed, Plaintiff’s Opposition does not even argue that the Complaint contains facts sufficient to show a verbal agreement between the parties. Rather, Plaintiff simply states: “regarding the verbal agreement between the parties, that issue will be fully examined once discovery commences and interrogatories and depositions occur.” (Opp. Brief, p. 5). This admission is fatal to Plaintiff’s ICGFFD claim. To survive a motion to dismiss, a complaint must allege sufficient facts to give rise to a cause of action; mere legal conclusions and an intention to rely on future discovery are inadequate. See White v. Hon Co., 520 Fed. Appx. 93, 95 (3d Cir. Apr. 5, 2013) (Plaintiff “may not attempt to use discovery as a fishing expedition … to seek out the facts necessary to establish a legally adequate complaint”); Certain Underwriters at Lloyd's, London v. U-Line Corp., No. 13-3203, 2013 WL 550362, at *5 (D.N.J. Oct. 1, 2013) (“ the discovery process cannot be used as a fishing expedition to seek out the facts necessary to establish a legally adequate complaint.”); Giovanelli v. D. Simmons Gen. Contracting, No. 09- 1082, 2010 WL 988544, at *5 (D.N.J. Mar. 15, 2010) (citing Bell Atlantic v. Twombly, 550 U.S. 544, 563 n. 8 (2007)) ("Discovery . . . cannot serve as a fishing expedition through which plaintiff searches for evidence to support facts he has not yet pleaded.")). As the Court of Appeals recently held in Levey v. Brownstone Inv. Group, LLC, 590 Fed. Appx. 132, 137 (3d Cir. 2014): That argument [that discovery should be allowed before ruling on the defendant’s motion to dismiss] of course, puts the cart before the horse. The Rule 12(b)(6) procedure “streamlines litigation by dispensing with needless discovery and factfinding,” Neitzke v. Williams, 490 U.S. 319, 326–27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), and motions to dismiss filed under it should typically “be resolved before discovery begins.” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir.1997). Indeed, the purpose of the Rule's plausible inference standard is to ensure that the complaint “raise[s] a reasonable expectation that Case 2:17-cv-07079-ES-CLW Document 8 Filed 10/10/17 Page 8 of 15 PageID: 152 4 discovery will reveal evidence of illegal [conduct],” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). … Indeed, “were we to reverse the dismissal here to allow for discovery,” all we would be doing would be providing [plaintiff] the opportunity “to conduct a fishing expedition in order to find a cause of action.” Ranke v. Sanofi–Synthelabo Inc., 436 F.3d 197, 204 (3d Cir.2006). That we will not do. See also Mann v. Brenner, 375 Fed. Appx. 232, 239 (3d Cir. 2010) (“a motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and therefore may be decided on its face without extensive factual development”); Top v. Ocean Petroleum, LLC, 2010 WL 3087385, at *3 (D.N.J. Aug. 3, 2010) (“A Rule 12(b)(6) motion essentially represents a checkpoint that must be cleared before a plaintiff can reach the discovery stage of litigation”). In sum, entirely absent from Plaintiff’s Complaint are any facts to show the existence of a verbal agreement between the parties. Plaintiff pleads no facts describing the terms of the alleged agreement, and no facts describing the making of the alleged agreement (such as facts showing an offer, acceptance and consideration). Because Plaintiff has not pled facts to show the existence of a verbal agreement between the parties, his ICGFFD predicated on an alleged verbal agreement fails as a matter of law. (See Moving Brief, p. 3-5). See also Dillin v. Construction & Turnaround Services, LLC, 2015 WL 5545236, at *7 (D.N.J. Sept. 18, 2015) (granting motion to dismiss breach of ICGFFD claim, holding “Plaintiff does not provide factual details in his Complaint or elsewhere about the nature of his contract, its terms, and why Defendants' actions constitute a breach.”); Mitchell v. C & S Wholesale Grocers, Inc., 2010 WL 2735655, at *6 (D.N.J. July 8, 2010) (dismissing ICGFFD claim based on Plaintiff’s threadbare recital that “defendants had contractual obligations to plaintiff that were set forth in their oral representations and actions.”) Case 2:17-cv-07079-ES-CLW Document 8 Filed 10/10/17 Page 9 of 15 PageID: 153 5 B. Plaintiff’s Complaint Contains No Facts Showing The Existence of a Written Agreement Between the Parties, and therefore, Plaintiff’s Complaint Fails to State a Claim for Breach of an Implied Covenant of Good Faith and Fair Dealing Based on an Alleged Written Agreement The only alleged agreement between the parties referenced in Plaintiff’s Complaint is the vague and undefined “verbal agreement” discussed above. (Complaint, ¶30). Tacitly admitting he has no facts to show the existence of any such “verbal agreement,” Plaintiff asserts for the first time in his Opposition Brief that “The Plaintiff had an employment job description, manual and a verbal agreement that was utilized throughout the course of employment of the Plaintiff.” (Opp. Brief, p. 4) (emphasis added). Plaintiff also submits to the Court what he describes as an “Employee Handbook” and a “Corporate Employee Manual.” 1 (Certification of Harry Jay Levin, Exs. A & B, respectively). Plaintiff goes on to state that “Courts have generally found that an employee handbook can be a binding employment contract.” (Opp. Brief, p. 4). Based on these new allegations, Plaintiff argues that he “has sufficient factual matter to show that the claim for breach of an implied covenant of good faith and fair dealing is facially plausible based on a contract between the parties.” (Opp. Brief, p. 4). Plaintiff’s attempt to supplement the record with new “facts” in his Opposition Brief, and documents that are not attached to his Complaint, is completely improper. At the motion-to- dismiss stage, the district court’s “review is limited to the contents of the complaint and any attached exhibits.” Yarris v. County of Delaware, 465 F.3d 129, 134 (3d Cir. 2006). Plaintiff does not get to repair his broken Complaint with a Certification setting forth new “facts” and documents that are not part of his Complaint. See Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 1 Counsel’s Certification misidentifies the exhibits. The correct name of Exhibit A is “Helicopters Inc. Job Description Handbook – Full-Time Photojournalist.” The correct name of Exhibit B is “Helicopters Inc. Employee Handbook.” In addition, the Employee Handbook exhibit attached to counsel’s Certification was not submitted in the proper order. Pages 14-41 of the Employee Handbook appear at the end of Exhibit C instead of as part of Exhibit B. Case 2:17-cv-07079-ES-CLW Document 8 Filed 10/10/17 Page 10 of 15 PageID: 154 6 181 (3d Cir.1988) (“It is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”); Jemas v. CitiMortgage, Inc., 2014 WL 7149278, at *4 (D.N.J. Dec 12, 2014) (same); see also State Capital Title & Abstract Co. v. Pappas Business Services, LLC, 646 F. Supp. 668, 676-77 (D.N.J. 2009) (“On a 12(b)(6) motion, the Court may only consider the allegations as set forth in the plaintiff’s complaint, and a plaintiff is precluded from asserting new allegations in its opposition papers or its evidentiary materials.”); Bermingham v. Sony Corp. of America, Inc., 820 F. Supp. 834, 862 (D.N.J. 1992) (same); Francis v. Joint Force Headquarters Nat. Guard, 2009 WL 90396, at *6 (D.N.J. January 12, 2009) (same). Therefore, the Court should disregard entirely Plaintiff’s newly asserted “facts” and documents that purport to show the existence of an “employee handbook contract” between the parties. The only allegation properly before the Court is Plaintiff’s claim that he and Defendant had a “verbal agreement,” and that allegation has no factual support, as detailed above. C. Even if the Court Considers the New Facts Asserted and Documents Supplied, Plaintiff Fails to State a Claim for Breach of an Implied Covenant of Good Faith and Fair Dealing Based on an Alleged Written Agreement Even if the Court were to consider Plaintiff’s improper submissions, Plaintiff still has not stated a claim for breach of an ICGFFD that is plausible on its face. Plaintiff argues that the employee handbook documents he submitted to the Court constitute a contract between the parties, and that his ICGFFD claim can be premised on that alleged contract. (Opp. Brief, p. 4). Plaintiff’s attempt to demonstrate a contractual agreement between the parties, presumably based on Woolley v. Hoffmann–La Roche, Inc., 99 N.J. 284 (1985), and its progeny, fails as a matter of law, and therefore, so too does his ICGFFD claim. Case 2:17-cv-07079-ES-CLW Document 8 Filed 10/10/17 Page 11 of 15 PageID: 155 7 First, Plaintiff fails to identify which provisions of the documents he supplied allegedly gave rise to contractual obligations. “To state a Woolley claim in the first instance, plaintiff must bring to the Court’s attention 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, 423 (D.N.J. 2000); see also Marrin v. Capital Health Systems, Inc., 2015 WL 404783, at *5 (D.N.J. January 29, 2015) (same); McCrone v. Acme Markets, 2013 WL 1208942, at *4 (D.N.J. June 24, 2013) (same), aff’d, 561 Fed. Appx. 169 (3d Cir. 2014). Here, Plaintiff fails to identify (or even try to identify) any alleged promises of good cause termination or job security made in the documents submitted and, therefore, his attempt to establish an employee handbook contract under Woolley fails as a matter of law. 2 Doll, 92 F.Supp.2d at 423 (granting motion to dismiss where employee handbook did not contain language promising job security); McCrone, 2013 WL 1208942, at *4-5 (same); Normand v. Goodyear Tire & Rubber Co., 2005 WL 1657032, at *5 (D.N.J. July 13, 2005) (same); Priore v. Caravan Ingredients, Inc., 2014 WL 2931182, at *5 (D.N.J. June 30, 2014) (dismissing breach of employee handbook claim where plaintiff failed to specify which terms of handbook he contends created a contractual relationship); Cioni v. Globe Specialty Metals, Inc., 2014 WL 2965707, *7 (D.N.J July 1, 2014) (finding Code of Ethics “too vague to give rise to any contractual obligation”). Second, even if an employee handbook does contain implied promises of job security, the legal effect of those promises can be entirely negated by an appropriate disclaimer. Doll, 92 F.Supp.2d at 423; Luongo v. Village Supermarket, Inc., 2017 WL 2399088, at *6 (D.N.J. June 2, 2017). Here, both of the documents submitted by Plaintiff contain plain language disclaimers 2 To the extent Plaintiff argues that the documents he submitted created some contractual obligation other than a right to termination for just cause, that argument also fails since the Woolley doctrine has not been extended beyond the context of dismissal. Power v. Bayonne Board of Education, 2017 WL 1536221, at *8 (D.N.J. April 26, 2017). Case 2:17-cv-07079-ES-CLW Document 8 Filed 10/10/17 Page 12 of 15 PageID: 156 8 making clear: that the documents are not contracts; that Defendant was free to revise them at any time; and that Plaintiff was employed at will. More specifically, the Employee Handbook contains an “Acknowledgement of Receipt and Understanding” that clearly states: I understand that, except for employment at will status, any and all policies or practices can be changed at any time by the Company. I understand and agree that, other than the President of the Company, no manager, supervisor, or representative of the Company has the authority to enter into any agreement, express or implied, for employment for any specific period of time, or to make any agreement for employment other than at will employment. I understand and agree that nothing in the Employee Handbook creates or is intended to create a promise or representation of continued employment, and that employment with the Company is employment at will. I understand that at-will employment means that the terms and conditions of employment may be changed, with or without cause and with or without notice, including but not limited to terminations, demotions, promotions, transfers, compensation, benefits, duties and location of work. (Levin Cert., Ex. B, p.58). 3 The Job Description Handbook contains an identical Acknowledgement disclaiming any contractual effect. (Levin Cert., Ex. A). In addition, the “Disciplinary Action & Separation” section of the Employee Handbook states: “Helicopters, Inc. does not have tenure or guaranteed employment. Your employment with the Company is ‘at will.’ You or Helicopters, Inc. may terminate your employment at any time and for any reason.” (Levin Cert., Ex. B, p.56). These disclaimers state in no uncertain terms that the documents Plaintiff now relies upon did not create a contract of any sort between the parties. Indeed, courts routinely find similar language sufficient to negate any contract effect of an employee handbook. See May v. Borough 3 Plaintiff submitted unsigned copies of the Employee Handbook Acknowledgment and Job Description Handbook Acknowledgment. Plaintiff obviously concedes he received these handbooks, as he submitted them with his Motion Opposition. Moreover, it does not matter whether Plaintiff himself actually received a copy of the handbook; a handbook’s contractual effect does not depend on whether an employee received it. Nicosia v. Wakefern Food Corp., 136 N.J. 401, 411 (1994). However, to the extent Plaintiff now attempts to argue (frivolously) that he did not receive the handbooks in an effort to avoid the effect of the clear disclaimers, Defendant has submitted Plaintiff’s signed Acknowledgments. See Certification of Mark Diana, Ex. 1 & 2. Although both handbooks have been revised several times, the language of the Acknowledgments Plaintiff signed (which negate any contractual effect) have not changed. Case 2:17-cv-07079-ES-CLW Document 8 Filed 10/10/17 Page 13 of 15 PageID: 157 9 of Pine Hill, 755 F.Supp.2d 623, 628-629 (D.N.J. 2010) (granting motion to dismiss breach of employee handbook claim based on similar disclaimer language); Luongo, 2017 WL 2399088, at *7-8 (same); Gok v. Ports America, Inc., 2015 WL 4915518, at *5 (D.N.J. August 17, 2016) (same); Taylor v. Lincare, Inc., 2016 WL 3849852, at *11 (D.N.J. July 15, 2016) (same); Marrin, 2015 WL 404783, at *5 (same); Gil v. Related Management Co., 2006 WL 2358574, at *4-7 (D.N.J. August 14, 2006) (same); Normand, 2005 WL 1657032, at *6 (same). 4 In sum, the documents (improperly) submitted by Plaintiff do not demonstrate the existence of any contract between the parties. Because Plaintiff has not alleged facts to show the existence of any contract between the parties, there can be no ICGFFD. Accordingly, Plaintiff’s claim for breach of ICGFFD must be dismissed. See May, 755 F.Supp.2d at 629 (dismissing ICGFFD claim after dismissing breach of contract claim based on employee handbook contract); Taylor, 2016 WL 2849852, at *11 (same); Longo v. Purdue Pharma, L.P., 2014 WL 2800817, at *6 (D.N.J. June 19, 2014) (same), mot. for recons. denied, 2014 WL 3844795 (D.N.J August 5, 2014); Priore, 2014 WL 2931182, at *6 (same); Gil, 2006 WL 2358574, at *8 (same). POINT II LEAVE TO AMEND THE COMPLAINT SHOULD BE DENIED Effectively conceding that his Complaint does not allege facts sufficient to state a claim for breach of an ICGFFD, Plaintiff seeks leave to amend his Complaint to include the new “facts” improperly submitted with his Opposition. (Opp. Brief., p. 6). Plaintiff’s request must be denied. It is well settled that leave to amend should be denied when the proposed amendment would be futile. See Abulkhair v. Citibank, 2010 WL 11531087, at *2 (D.N.J. May 14, 2010) 4 Plaintiff’s citation to Warner v. Federal Express Corp., 174 F.Supp.2d 215 (D.N.J. 2001) is curious since the Court there found the handbook disclaimer adequate to negate any contractual effect of the employer’s handbook. Case 2:17-cv-07079-ES-CLW Document 8 Filed 10/10/17 Page 14 of 15 PageID: 158 10 (“Courts may properly deny a motion to amend when the amendment would not withstand a motion to dismiss. With respect to futility, “[it is] clear that an amendment would be futile when ‘the complaint, as amended, would fail to state a claim upon which relief could be granted.’ ”) (citations omitted), aff’d, 434 Fed. Appx. 58 (3d Cir. 2011); see also Huafeng Xu v. Walsh, 2014 WL 4388663, at *2 (D.N.J. Sept. 4, 2014) (same); Londono v. ABM Janitorial Sevs., 2014 WL 7146993, at *7 (D.N.J. Dec. 12, 2014) (same). Here, Plaintiff proposes to amend his Complaint to reference the two employee handbook documents he improperly submitted in opposition to Defendant’s motion. As detailed above, these documents did not create a contract between the parties, and these documents provide no foundation for an ICGFFD as a matter of law. As such, Plaintiff’s proposed amended Complaint would still fail to state a claim. Leave to amend should thus be denied on grounds of futility. CONCLUSION For all the foregoing reasons, Defendant respectfully requests that the Court dismiss Count Five of Plaintiff’s Complaint, alleging breach of an ICGFFD, with prejudice for failure to state a claim upon which relief can be granted pursuant to FED. R. CIV. P. 12(b)(6). Respectfully submitted, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Attorneys for Defendant Dated: October 10, 2017 By: s/Mark Diana Mark Diana, Esq. 31521042.1 Case 2:17-cv-07079-ES-CLW Document 8 Filed 10/10/17 Page 15 of 15 PageID: 159