Adams v. Hult et alREPLY BRIEF to Opposition to MotionD.N.J.January 26, 2017 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY JEFFREY L. ADAMS, Plaintiff, v. VERIZON; KENNY HULT; E. SANTIAGO; TOM TALLMAN; MARK STELLATO; AND HECTOR QUILES, Defendants. : : : : : : Civil Action No. 2:14-cv-06820 (ES) (MAH) (Document Filed Electronically) REPLY BRIEF IN FURTHER SUPPORT OF DEFENDANTS’ MOTION TO DISMISS THE SECOND AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6), 12(b)(2), and 12(b)(5) Mary B. Rogers, Esq. DAY PITNEY LLP One Jefferson Road Parsippany, NJ 07054 Attorneys for Defendants Motion Date: February 6, 2017 Case 2:14-cv-06820-ES-MAH Document 53 Filed 01/26/17 Page 1 of 14 PageID: 358 TABLE OF CONTENTS Page -i- PRELIMINARY STATEMENT .......................................................................................................... 1 LEGAL ARGUMENT .......................................................................................................................... 1 I. Because Plaintiff Cannot Excuse His Failure to Serve Defendants Santiago, Tallman, Stellato, and Quiles, His Claims Against Them Must Be Dismissed Under FED. R. CIV. P. 12(b)(5) and 12(b)(2) ................................... 1 II. Plaintiff Has Not Shown That He Has Stated a Claim Upon Which Relief May Be Granted ........................................................................................................... 4 A. Plaintiff Has Not Pleaded a Plausible Claim Under 42 U.S.C. § 1981 .................................................................................................................. 4 B. Plaintiff Has Not Pleaded a Plausible Claim of Discriminatory Failure to Rehire Under the NJLAD .............................................................. 6 CONCLUSION ..................................................................................................................................... 9 Case 2:14-cv-06820-ES-MAH Document 53 Filed 01/26/17 Page 2 of 14 PageID: 359 -ii- TABLE OF AUTHORITIES Page(s) Cases Bartone v. NetJets, Inc., No. 11-8, 2011 U.S. Dist. LEXIS 68080 (D.N.J. June 24, 2011) ............................................ 7 Buckley v. Power Windows & Siding, Inc., No. 09-3162, 2010 U.S. Dist. LEXIS 107768 (D.N.J. Oct. 7, 2010) ....................................... 8 Deluca v. AccessIT Group, 695 F. Supp. 2d 54 (S.D.N.Y. 2010) .................................................................................. 2, 4 El-Hewie v. Paterson Public School District, No. 13-5820, 2014 U.S. Dist. LEXIS 39598 (D.N.J. Mar. 24, 2014) ...................................... 5 Gerety v. Atlantic City Hilton Casino Resort, 184 N.J. 391 (N.J. 2005) ........................................................................................................ 7 Gonzalez v. Thomas Built Buses, Inc., 268 F.R.D. 521 (M.D. Pa. 2010) ........................................................................................ 2, 3 Grand Entertainment Group v. Star Media Sales, 988 F.2d 476 (3d Cir. 1993) .................................................................................................. 2 Guarneri v. Buckeye Pipe Line Services Co., No. 14-1131, 2014 U.S. Dist. LEXIS 61627 (D.N.J. May 5, 2014) ........................................ 7 Hassell v. Johnson & Johnson, No. 13-cv-4109, 2014 U.S. Dist. LEXIS 60503 (D.N.J. May 1, 2014) ................................... 9 Lampe v. Xouth, Inc., 952 F.2d 697 (3d Cir. 1992) .................................................................................................. 2 Martinez v. Anselmi & Decicco, Inc., No. 09-5277, 2009 U.S. Dist. LEXIS 119295 (D.N.J. Dec. 22, 2009) .................................... 7 Pryor v. National Collegiate Athletic Ass’n, 288 F.3d 548 (3d Cir. 2002) .................................................................................................. 4 Sweet-Springs v. Dep’t of Children & Families, No. 12-CV-706, 2013 U.S. Dist. LEXIS 84620 (D.N.J. June 17, 2013) ................................. 5 Tarr v. Ciasulli, 181 N.J. 70 (2004) ................................................................................................................. 6 Case 2:14-cv-06820-ES-MAH Document 53 Filed 01/26/17 Page 3 of 14 PageID: 360 -iii- . Tyson v. CIGNA Corp., 918 F. Supp. 836 (D.N.J. 1996), aff’d, 149 F.3d 1165 (3d Cir. 1998) ..................................... 6 Watiti v. Walden University, No. 07-4782, 2008 U.S. Dist. LEXIS 43217 (D.N.J. May 30, 2008) ...................................... 8 Statutes 42 U.S.C. § 1981 ......................................................................................................................... 1 Rules Fed. R. Civ. P. 12(b)(2) ............................................................................................................... 2 Fed. R. Civ. P. 12(b)(5) ............................................................................................................... 2 Case 2:14-cv-06820-ES-MAH Document 53 Filed 01/26/17 Page 4 of 14 PageID: 361 -1- PRELIMINARY STATEMENT Defendants have moved to dismiss plaintiff Jeffrey Adams’ (“plaintiff”) Second Amended Complaint (ECF No. 37) in its entirety and with prejudice, because he failed to serve any defendant besides Kenneth Hult, Jr. (“Hult”) despite having more than two years to do so, and because he has still failed to state any claim upon which relief could be granted. This Court previously dismissed plaintiff’s original complaint, and his first amended complaint, without prejudice. His Second Amended Complaint - alleging claims of race discrimination/retaliation under 42 U.S.C. § 1981 (“Section 1981”) and the New Jersey Law Against Discrimination (“NJLAD”) - contains no facts that cure the defects identified in this Court’s prior decisions. Accordingly, the Second Amended Complaint must be dismissed under FED. R. CIV. P. 12(b)(2), 12(b)(5), and 12(b)(6). Plaintiff’s opposition brief rivals his Second Amended Complaint in its lack of merit. He argues only that he should be granted leave to serve defendants Efrain Santiago (“Santiago”), Thomas Tallman (“Tallman”), Mark Stellato (“Stellato”), and Hector Quiles (“Quiles”) (although he fails to explain why he has failed to even attempt to serve them up to this point, more than two years after he filed his original complaint), and merely concludes that he has stated sufficient facts to support his causes of action (without pointing to those alleged facts or any legal authority to support his arguments). Simply put, plaintiff’s opposition is “too little, too late.” The litigants and the Court have already wasted enough time and energy on this meritless lawsuit. Now is the time to end it. LEGAL ARGUMENT I. Because Plaintiff Cannot Excuse His Failure to Serve Defendants Santiago, Tallman, Stellato, and Quiles, His Claims Against Them Must Be Dismissed Under FED. R. CIV. P. 12(b)(5) and 12(b)(2) As fully set forth in defendants’ moving brief, the Second Amended Complaint should be dismissed against all defendants, except Hult, for insufficient service of process and lack of personal Case 2:14-cv-06820-ES-MAH Document 53 Filed 01/26/17 Page 5 of 14 PageID: 362 -2- . jurisdiction because plaintiff has failed to satisfy his burden of demonstrating that service was proper. See Fed. R. Civ. P. 12(b)(5); Grand Entm’t Group v. Star Media Sales, 988 F.2d 476, 488 (3d Cir. 1993); Fed. R. Civ. P. 12(b)(2); Lampe v. Xouth, Inc., 952 F.2d 697, 700-01 (3d Cir. 1992). Plaintiff’s own opposition brief demonstrates that he cannot meet this burden. In its November 5, 2015 Opinion and Order dismissing plaintiff’s complaint without prejudice, the Court found that “Plaintiff has failed to serve each defendant in accordance with Federal Rules of Civil Procedure 4(a)-(m). Plaintiff served only one defendant, Kenneth Hult.” (ECF No. 25 at 2). Plaintiff does not dispute this fact. Nor can he dispute that he has failed to serve any defendant other than Hult since this Court’s ruling, rendered more fourteen months ago. Plaintiff does not describe any efforts (or lack thereof) to serve these defendants since filing this lawsuit, but instead, baldly claims that “an extension of time to serve process for good cause is warranted.” (Pl.’s Opp’n at 3, ECF No. 52). He also confusingly asserts that although the time to serve the amended complaint has not yet expired (which it has), he should be permitted to serve defendants out of time because defendants have filed a responsive pleading. (ECF No. 52 at 3). This argument is unavailing because no such extension is warranted. Plaintiff cites only two cases to support his request: Gonzalez v. Thomas Built Buses, Inc., 268 F.R.D. 521 (M.D. Pa. 2010), and Deluca v. AccessIT Grp., 695 F. Supp. 2d 54 (S.D.N.Y. 2010). Although plaintiff’s opposition states that he seeks an extension for “good cause,” the factors he cites in his brief are relevant to a discretionary extension, occurring when a plaintiff cannot show good cause for failing to serve process. See Gonzalez, 268 F.R.D. at 527. First, plaintiff’s reliance on these cases is misplaced because he has never filed a motion for an extension of time to effectuate service. Even assuming that he had filed such a motion, however, a review of the relevant factors weighs against permitting plaintiff to serve these defendants now. Case 2:14-cv-06820-ES-MAH Document 53 Filed 01/26/17 Page 6 of 14 PageID: 363 -3- . As noted in Gonzalez, in determining whether to grant a discretionary extension of time to serve, courts of this Circuit will consider “(1) if the applicable statute of limitations would bar the refiled action; (2) if the defendant is evading service or concealing a defect in attempted service; and (3) if the plaintiff is appearing pro se,” and, additionally, may consider “(1) actual notice of the legal action; (2) prejudice to the defendant; and (3) other relevant factors.” Id. at 527-28. None of the first three factors weigh in favor of an extension. Pursuant to this Court’s prior orders, the only claims plaintiff may bring are under Section 1981 and the NJLAD stemming from the alleged failure to rehire him. (See ECF No. 35). Defendants do not contest that these specific claims are time-barred and, accordingly, the statute of limitations factor is not relevant. 1 Second, plaintiff admits that defendants have not evaded or concealed service and, accordingly, this factor weighs against any extension. (ECF No. 52 at 3). Third, plaintiff has been represented by counsel since at least the filing of his first amended complaint on December 4, 2015, yet there is no explanation as to why counsel has failed to even attempt service on the remaining defendants. Accordingly, plaintiff’s prior pro se status has no bearing on this matter. Nor do any of the remaining factors weigh in favor of an extension. Plaintiff has not attempted to serve these defendants and, accordingly, there can be no showing of “actual notice.” 2 1 Although defendants have noted that certain allegations in the Second Amended Complaint are time-barred, that is no different than what the Court has already ruled. The lone claim the Court permitted plaintiff to bring, for alleged discriminatory failure to rehire, is not time- barred. 2 Plaintiff apparently also contends that although the defendants themselves have not been served, “their counsel has.” (ECF No. 52 at 3). Plaintiff assumes that because this firm represents defendant Hult, his counsel would also represent Santiago, Tallman, Stellato, and Quiles if and when they were served. This argument puts the cart before the horse. As noted in defendants’ moving brief, only Hult (and previously Verizon, prior to dismissal of the claims against it) has entered an appearance in this action since only Hult has been served, but because plaintiff’s Second Amended Complaint is meritless, there is no need to further burden defendants Santiago, Tallman, Stellato, and Quiles with a litigation that was first filed in October of 2014, but still has not been served on them. (ECF No. 41-1 at n.3). Case 2:14-cv-06820-ES-MAH Document 53 Filed 01/26/17 Page 7 of 14 PageID: 364 -4- . These defendants will suffer prejudice if they were brought into the case now - over four years after it was filed, and after three motions to dismiss the complaint have been briefed. Finally, and most importantly, it bears repeating that plaintiff has not even tried to serve these defendants, despite multiple notices that he has failed to do so. This factor should be given particular weight here, when considering the well noted rule (as stated in the DeLuca opinion cited by plaintiff) that where the failure demonstrates a “flagrant disregard of Rule 4, service will be considered invalid and amendment need not be allowed.” 695 F. Supp. 2d at 65 (citations omitted). Plaintiff offers no reason for why he has not attempted to serve the remaining defendants. This case has gone on long enough, and there is no reason the Court should exercise its discretion to allow plaintiff to make a belated effort to complete the most basic of litigation requirements. Accordingly, plaintiff’s claims against these defendants must be dismissed, with prejudice. II. Plaintiff Has Not Shown That He Has Stated a Claim Upon Which Relief May Be Granted Plaintiff’s remaining claims under Section 1981 and the NJLAD are insufficiently pled. Plaintiff’s Second Amended Complaint added no substance to his claims, and his opposition cannot change this fact. Accordingly, and for the reasons set forth in defendants’ moving brief, they must be dismissed with prejudice. A. Plaintiff Has Not Pleaded a Plausible Claim Under 42 U.S.C. § 1981 To demonstrate a right to relief under Section 1981, plaintiff must demonstrate: “(1) that he belongs to a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) discrimination concerning one or more of the activities enumerated in Section 1981, including the right to make and enforce contracts.” Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 569 (3d Cir. 2002) (citing Brown v. Philip Morris, Inc., 250 F.3d 789, 797 (3d Cir. 2001)). As noted in defendants’ moving brief, plaintiff failed to plead sufficient facts to bring such a claim Case 2:14-cv-06820-ES-MAH Document 53 Filed 01/26/17 Page 8 of 14 PageID: 365 -5- . because he has not indicated which defendant committed which alleged acts; he has not shown that any purported discrimination by any defendant interfered with the contractual rights protected by Section 1981; and he has not alleged sufficient facts to show that such conduct was in any way connected to his race. Plaintiff’s opposition barely addresses these points. Defendants set forth, in painstaking detail, each and every allegation in the Second Amended Complaint that has any conceivable connection to a claim under Section 1981, and explained that such allegations are either legal conclusions, or substantively inadequate to show interference with a contract or any racial discrimination. (See ECF No. 41-1 at 11-13). Plaintiff’s opposition merely concludes: that “he is” a racial minority, that “an intent to discriminate based on race . . . is alleged in the pleadings with particularity,” that the Second Amended Complaint “sets forth 20 specific acts of alleged discrimination and breach of the property right by the defendants or any of them in violation of Section 1981,” and that defendant Hult “is on sufficient notice of the allegations against him.” (ECF No. 52 at 5). 3 Plaintiff’s failure to even attempt to address defendants’ arguments speaks volumes, as he simply does not - and cannot - contest the fact that his failure to plead any facts demonstrating that any contractual relationship was interfered with, or that any racial discrimination occurred, is fatal to his Section 1981 claim. See, e.g., El-Hewie v. Paterson Pub. Sch. Dist., No. 13-5820 (KM), 2014 U.S. Dist. LEXIS 39598, at *16 (D.N.J. Mar. 24, 2014); Sweet- Springs v. Dep’t of Children & Families, No. 12-706 (FLW), 2013 U.S. Dist. LEXIS 84620, at *12 (D.N.J. June 17, 2013); see also ECF No. 35 at 9-10 (“Plaintiff’s contentions simply do not permit the Court to reasonably infer that Defendants’ alleged race discrimination interfered with 3 Defendants note that plaintiff’s argument on this point is virtually identical to the argument he advanced in opposition to defendants’ motion to dismiss his prior amended complaint. (See ECF No. 35 at 10 and footnote 5). Case 2:14-cv-06820-ES-MAH Document 53 Filed 01/26/17 Page 9 of 14 PageID: 366 -6- . Plaintiff’s [rights] under Section 1981 . . . the Amended Complaint references a ‘contractual relationship between plaintiff and Verizon’ . . . but fails to mention any interference with this contract that resulted from discrimination . . . The Court therefore dismisses Plaintiff’s Section 1981 claim without prejudice . . . Any future dismissal for failure to state a claim will be with prejudice.”) (emphasis in original). 45 B. Plaintiff Has Not Pleaded a Plausible Claim of Discriminatory Failure to Rehire Under the NJLAD The only viable claim against individual defendants that plaintiff could have brought under the NJLAD is for “aiding and abetting” unlawful discrimination. See Tyson v. CIGNA Corp., 918 F. Supp. 836, 840 (D.N.J. 1996), aff’d, 149 F.3d 1165 (3d Cir. 1998). This claim requires a showing that “(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. Ciasulli, 181 N.J. 70, 84 (2004). In determining whether a defendant “substantially assisted” the principal violation, courts consider: “(1) the nature of the act encouraged, (2) the amount of assistance given by the supervisor, (3) whether the supervisor was present at the time of the asserted harassment, (4) the supervisor’s relations to the others, and (5) the state of mind of the supervisor.” Id. 4 Plaintiff’s remaining argument set forth on page 5 of his opposition brief is irrelevant to his Section 1981 claim, as the cited case and standard he describes do not concern claims under Section 1981, or any other form of discrimination claim. 5 Defendants also noted in their moving brief that to the extent plaintiff is alleging a retaliation claim under Section 1981, such claim must fail for similar reasons. Plaintiff’s opposition does not contest the fact that he cannot establish a prima facie claim of retaliation under Section 1981 and, accordingly, defendants’ motion to dismiss any retaliation claim under Section 1981 should be treated as unopposed. Case 2:14-cv-06820-ES-MAH Document 53 Filed 01/26/17 Page 10 of 14 PageID: 367 -7- . As noted in defendants’ moving brief, plaintiff does not allege any facts indicating that Hult “aided and abetted” any discriminatory conduct and, accordingly, that claim must be dismissed. See, e.g., Guarneri v. Buckeye Pipe Line Servs. Co., No. 14-1131, 2014 U.S. Dist. LEXIS 61627, at *6-8 (D.N.J. May 5, 2014); Bartone v. NetJets, Inc., No. 11-8, 2011 U.S. Dist. LEXIS 68080, at *13-15 (D.N.J. June 24, 2011). Once again, rather than address this point with facts or law, plaintiff merely concludes: “The facts in the complaint allege sufficient facts to constitute aiding and abetting as set forth in the case law against all defendants.” (ECF No. 52 at 6). His conclusory assertion does not show that there is any basis to allow plaintiff to proceed on his NJLAD claim against Hult individually, and accordingly that claim must be dismissed. Further, even ignoring the fact that plaintiff could only bring an “aiding and abetting” claim against Hult, he has not alleged sufficient facts to bring an NJLAD claim against any defendant. Following the Court’s prior rulings, the only claim plaintiff could assert under the NJLAD is for alleged failure to rehire, as his other claims were time-barred. (ECF No. 35 at 8-9). To prove a prima facie case of discrimination for failure to rehire, a plaintiff “must demonstrate that he or she (1) belongs to a protected class; (2) applied for or held a position for which he or she was objectively qualified; (3) was not hired or was terminated from that position; and (4) the employer sought to, or did fill the position with a similarly-qualified person.” Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 399 (N.J. 2005). Once again, defendants, in their moving brief, highlighted every allegation that was not time-barred, and demonstrated that only one related to the alleged failure to rehire: the conclusory assertion that “defendant Verizon refused to rehire [plaintiff] until March 2016.” (ECF No. 41-1 at 15-18). This conclusion cannot support a claim of discrimination under the NJLAD. See Martinez v. Anselmi & Decicco, Inc., No. 09-5277 (JLL), 2009 U.S. Dist. LEXIS 119295, at *16-17 (D.N.J. Case 2:14-cv-06820-ES-MAH Document 53 Filed 01/26/17 Page 11 of 14 PageID: 368 -8- . Dec. 22, 2009) (dismissing NJLAD failure to rehire claim, noting: “[Plaintiff’s] Amended Complaint provides no information to demonstrate that she has a plausible failure to re-hire claim . . . she simply alleges: ‘The foregoing facts and circumstances [alleged in the general factual allegations] demonstrate that Defendants have violated the [NJLAD] by failure to re-hire Plaintiff.’”). Plaintiff fails to address this point in his opposition. Instead, he incorrectly asserts that the “refusal to reemploy the plaintiff constituted a continuing violation” - an assertion that this Court has already rejected. (ECF No. 52 at 6; ECF No. 35 at 8-9). His remaining arguments are the bare conclusion that he “has pled a cognizable claim under the [NJLAD] . . . [because the] Facts Common to All Counts set forth appropriate acts of discrimination and inappropriate activities,” that he “should be entitled to pursue both the [NJLAD] and tort claims regardless of any preemption,” and that “The claims may not go to the jury but this does not prevent them from being pled and developed through discovery.” (ECF No. 52 at 6-7). 6 Similarly, plaintiff has failed to plead sufficient facts to state a claim of retaliation under the NJLAD because he has not adequately alleged that he engaged in protected activity known to defendants and, even if he did, his conclusory allegations do not, as a matter of law, form the basis of a retaliation claim under the NJLAD. See, e.g., Buckley v. Power Windows & Siding, Inc., No. 09-3162 (JAP), 2010 U.S. Dist. LEXIS 107768, at *13 (D.N.J. Oct. 7, 2010) (finding plaintiff’s “naked assertions devoid of factual enhancement” insufficient to state a claim under the NJLAD); Watiti v. Walden Univ., No. 07-4782 (JAP), 2008 U.S. Dist. LEXIS 43217, at *41-42 (D.N.J. May 30, 2008) (dismissing NJLAD claim with prejudice, stating: “[T]he Complaint uses convoluted and conclusory language that is long on legal conclusion but woefully short on facts . . . Although 6 Plaintiff does not allege any “tort claims,” and defendants have not argued that any of his claims are preempted. Case 2:14-cv-06820-ES-MAH Document 53 Filed 01/26/17 Page 12 of 14 PageID: 369 -9- . Plaintiff baldly asserts over and over that [defendant] engaged in discrimination, Plaintiff has not alleged any facts sufficient to state her claim.”); Hassell v. Johnson & Johnson, No. 13-cv-4109 (JAP), 2014 U.S. Dist. LEXIS 60503, at *19-20 (D.N.J. May 1, 2014) (“Plaintiff simply cannot expect this Court to connect conclusory allegations of micro-management and workplace gossip to finding that retaliation is plausible. It is Plaintiff's burden to allege facts that would make such a causal link conceivable, and Plaintiff has failed to do so.”). Plaintiff provides no argument in opposition, other than to stand by his bare assertion that “The allegations in the Second Amended Complaint demonstrate that there was retaliatory discharge,” and “The Facts Common to All Counts sets forth appropriate acts of discrimination and inappropriate activities.” (ECF No. 52 at 6-7). For the same reasons as set forth above, these conclusions cannot change the deficiencies of the Second Amended Complaint. Accordingly, his claim of retaliation must be dismissed with prejudice. At bottom, plaintiff’s argument could be summarized as: “yes I did plead sufficient facts.” But however frequently plaintiff claims “yes I did,” he cannot change the fact - as fully demonstrated in defendants’ moving brief - that there are no facts in the Second Amended Complaint demonstrating a right to relief under the NJLAD. CONCLUSION This is now plaintiff’s third defective attempt to plead his claims in this lawsuit. His failure to mount any substantive response to defendants’ motion to dismiss the Second Amended Complaint proves that he has no meritorious facts to assert. Accordingly and for the foregoing reasons, defendants respectfully request that the Court grant the motion to dismiss the Second Amended Complaint, with prejudice. Case 2:14-cv-06820-ES-MAH Document 53 Filed 01/26/17 Page 13 of 14 PageID: 370 -10- . DAY PITNEY LLP Attorneys for Defendants By: /s/MARY B. ROGERS MARY B. ROGERS A Member of the Firm One Jefferson Road Parsippany, NJ 07054-2891 T: (973) 966-6300 mrogers@daypitney.com DATED: January 26, 2017. Case 2:14-cv-06820-ES-MAH Document 53 Filed 01/26/17 Page 14 of 14 PageID: 371 CI¡]RTIF'ICATE OF SERVICE I hereby certify that on this date a true copy of the within brief was electronically filed and served upon all counsel of record via the Court's ECF system, and was also sent to plaintiff s counsel via UPS Overnight, addressed as follows: Steven V. Schuster Attorney At Law 75 Essex Street, Suite 220 Hackensack, New Jersey 0760I MICHAEL H. DELL Dated January 26,2017. 9639890s.1 Case 2:14-cv-06820-ES-MAH Document 53-1 Filed 01/26/17 Page 1 of 1 PageID: 372
