Hagen v. John Doe Company

MOTION to Dismiss for Lack of Jurisdiction

D.N.J.July 3, 2017

FREDERICK L. WHITMER (FW-8888) KILPATRICK TOWNSEND & STOCKTON LLP 1114 Avenue of the Americas New York, New York 10036 Telephone: (212) 775-8773 Fax: (212) 775-8821 fwhitmer@kilpatricktownsend.com Diane L. Prucino (Application for Pro Hac Vice Admission forthcoming) KILPATRICK TOWNSEND & STOCKTON LLP 1100 Peachtree Street, NE Suite 2800 Atlanta, Georgia 30309-4528 Telephone: (404) 815-6500 Fax: (404) 815-6555 dprucino@kilpatricktownsend.com Attorneys for Defendant UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ROBERT HAGEN, Plaintiff v. JOHN DOE COMPANY, Defendant. Case No. 2:16-CV-05050-ES-MAH DOCUMENT FILED ELECTRONICALLY DEFENDANT’S NOTICE OF MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT Hon. Esther Salas Motion Date: August 7, 2017 Case 2:16-cv-05050-ES-MAH Document 16 Filed 07/03/17 Page 1 of 3 PageID: 60 2 PLEASE TAKE NOTICE that, upon the pleadings and proceeds herein and upon the accompanying Brief in Support of its Motion to Dismiss Amended Complaint and supporting exhibit, on August 7, 2017, at 10 o’clock in the forenoon, or as soon as counsel may be heard, Defendant, by its attorneys and pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6) shall move before the Honorable Esther Salas, United States District Judge, for an Order dismissing the Amended Complaint in its entirety. A proposed Form of such Order is included in this application. /s/ Frederick L. Whitmer Dated: July 3, 2017 FREDERICK L. WHITMER (FW-8888) KILPATRICK TOWNSEND & STOCKTON LLP 1114 Avenue of the Americas New York, New York 10036 Telephone: (212) 775-8773 Fax: (212) 775-8821 fwhitmer@kilpatricktownsend.com Diane L. Prucino Georgia Bar No. 588888 (Application for Pro Hac Vice Admission forthcoming) KILPATRICK TOWNSEND & STOCKTON LLP 1100 Peachtree Street, NE Suite 2800 Atlanta, Georgia 30309-4528 Telephone: (404) 815-6500 Fax: (404) 815-6555 dprucino@kilpatricktownsend.com Attorneys for Defendant Case 2:16-cv-05050-ES-MAH Document 16 Filed 07/03/17 Page 2 of 3 PageID: 61 CERTIFICATE OF SERVICE I hereby certify that on July 3, 2017, I caused the electronic submission of the foregoing Notice of Motion to Dismiss Plaintiff’s Amended Complaint; Defendant’s Brief in Support of its Motion to Dismiss Plaintiff’s Amended Complaint; and Proposed Order, which sent notifications of such filing to all counsel of record. I also certify that on July 3, 2017 a true and correct copy of the foregoing was served upon plaintiff by depositing same in the U.S. Mail with first-class postage affixed and addressed as follows: Robert Hagen 2153 Cameron Circle Birmingham, AL 35242 By: /s/Frederick L. Whitmer Frederick L. Whitmer Case 2:16-cv-05050-ES-MAH Document 16 Filed 07/03/17 Page 3 of 3 PageID: 62 FREDERICK L. WHITMER (FW-8888) KILPATRICK TOWNSEND & STOCKTON LLP 1114 Avenue of the Americas New York, New York 10036 Telephone: (212) 775-8773 Fax: (212) 775-8821 fwhitmer@kilpatricktownsend.com Diane L. Prucino (Application for Pro Hac Vice Admission Forthcoming) KILPATRICK TOWNSEND & STOCKTON LLP 1100 Peachtree Street, NE Suite 2800 Atlanta, Georgia 30309-4528 Telephone: (404) 815-6500 Fax: (404) 815-6555 dprucino@kilpatricktownsend.com Attorneys for Defendant UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ROBERT HAGEN, Plaintiff v. JOHN DOE COMPANY, Defendant. Case No. 2:16-CV-05050-ES-MAH DOCUMENT FILED ELECTRONICALLY DEFENDANT’S BRIEF IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT Hon. Esther Salas Motion Date: August 7, 2017 Case 2:16-cv-05050-ES-MAH Document 16-1 Filed 07/03/17 Page 1 of 16 PageID: 63 i TABLE OF CONTENTS Page I. INTRODUCTION ........................................................................................... 1 II. STATEMENT OF RELEVANT FACTS ........................................................ 2 III. ARGUMENT AND CITATIONS OF AUTHORITY .................................... 4 A. The Amended Complaint must be dismissed under Rule 12(b)(1) because Plaintiff failed to establish that the Court has federal subject matter jurisdiction. ........................................................ 4 B. The Complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. ..................................................................................... 5 1. The Complaint must be dismissed because the Amended Complaint fails to allege any facts demonstrating that the Confidentiality Provisions are void as a matter of federal or state public policy. .................................................................. 6 2. The Complaint must be dismissed because the Superior Court of New Jersey has exclusive jurisdiction over any action, suit, or proceeding relating to the Agreement per the Agreement’s forum selection clause. .................................... 8 C. The Amended Complaint must be dismissed under Rule 12(b)(5) due to Plaintiff’s failure to effect timely service. ................. 10 IV. CONCLUSION .............................................................................................. 11 Case 2:16-cv-05050-ES-MAH Document 16-1 Filed 07/03/17 Page 2 of 16 PageID: 64 ii TABLE OF AUTHORITIES Cases Bell Atlantic Corp. v. Twombly, 540 U.S. 544, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2007) ...................................... 5 Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009) ................................................................................... 6 Gaskins v. Countrywide Bank, FSB, 2013 WL 4478779 (D.N.J. Aug. 21, 2013) ............................................................ 4 Jordan Acquisitions Grp. LLC v. Adam Techs., Inc., No. CIV.A. 09-542, 2009 WL 2473987 (W.D. Pa. Aug. 12, 2009) ...................... 8 Mayer v. Belichick, 605 F.3d 223 (3d Cir. 2010) ................................................................................... 5 New Jersey v. Merrill Lynch & Co, Inc. 640 F.3d 545 (3rd. Cir. 2011) .............................................................................. 10 PGT Trucking, Inc. v Lyman, 500 Fed. Appx. 202 (3rd Cir. 2012) ........................................................................ 9 Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548 (3d Cir. 2002) ................................................................................... 6 Schiavi v. AT & T Corp., No. A-1548-12T4, 2014 WL 3970293 (N.J. Super. Ct. App. Div. Aug. 15, 2014) ................................................................................................................................ 7 Sykes v. Blockbuster Inc./Viacom, No. CIV.A.04CV6260 (DMC), 2006 WL 286785 (D.N.J. Feb. 3, 2006) ............................................................... 11 Wall Street Aubrey Golf, LLC v. Aubrey, 189 Fed. Appx. 82 (3rd. Cir. 2006) ..................................................................... 10 Statutes 28 U.S.C. § 1332(a) ................................................................................................... 4 28 U.S.C. § 2201 ........................................................................................................ 3 Case 2:16-cv-05050-ES-MAH Document 16-1 Filed 07/03/17 Page 3 of 16 PageID: 65 iii Rules Fed. R. Civ. P. 12(b)(1) ..........................................................................................1, 4 Fed. R. Civ. P. 12(b)(5) ....................................................................................... 1, 11 Fed. R. Civ. P. 12(b)(6) ................................................................................. 1, 5, 6, 8 Fed. R. Civ. P. 4(m) ...................................................................................... 2, 10, 11 Fed. R. Civ. P. 8(a) ..................................................................................................... 7 Case 2:16-cv-05050-ES-MAH Document 16-1 Filed 07/03/17 Page 4 of 16 PageID: 66 I. INTRODUCTION Defendant (hereinafter “Defendant”) submits this Brief of Law in support of its Motion to Dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), failure to effect timely service pursuant to Federal Rule of Civil Procedure 12(b)(5); and failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In this action, Plaintiff pro se seeks a declaratory judgment pursuant to the federal Declaratory Judgment Act that certain provisions relating to the confidentiality of a five-year-old severance agreement between him and Defendant, his former employer, are unenforceable as a matter of public policy. Plaintiff’s Amended Complaint should be dismissed for four independent reasons, any one of which alone would justify its dismissal: (1) The Court lacks subject matter jurisdiction over Plaintiff’s claim, as Plaintiff’s Amended Complaint fails to establish diversity jurisdiction, and there is no federal question presented in this lawsuit; 2) the Parties’ agreement, about which Plaintiff sues, contains a plain vanilla, and commonly found, valid forum selection clause, which specifies that all disputes relating to the breach or enforcement of the agreement must be brought in the Superior Court of the State of New Jersey, not in this Court; 3) Plaintiff’s Amended Complaint otherwise fails to state a claim upon which relief may be granted, as it fails to provide the Defendant with fair notice of the factual and legal Case 2:16-cv-05050-ES-MAH Document 16-1 Filed 07/03/17 Page 5 of 16 PageID: 67 2 grounds for his contention that the confidentiality provisions in the Parties’ agreement are void as a matter of public policy; and 4) Plaintiff’s Amended Complaint is subject to dismissal because he failed to timely serve Defendant with the Amended Complaint within the 90-day period required under Federal Rule of Civil Procedure 4(m). These manifold failures may be attributable to Plaintiff’s pro se status, but they are reasons to dismiss the action, which this Court should adopt. II. STATEMENT OF RELEVANT FACTS Plaintiff is a former employee of Defendant. (ECF Doc. 11 ¶ 2.) Plaintiff and Defendant entered into an Agreement and General Release dated August 8, 2012 in connection with the termination of his employment (the “Agreement”). (ECF Doc. 11 ¶ 3.) The Agreement provides that Plaintiff must treat the existence of the Agreement and all of its terms as confidential. (ECF Doc. 11 at ¶¶ 12-13.) The Agreement, however, allows Plaintiff to disclose the terms of the agreement to his spouse, attorney, or tax preparer. (ECF Doc. 11 ¶ 14.) Further, the Agreement contemplates that Plaintiff may disclose the terms of the Agreement to consult with legal or professional advisors, or to comply with a valid subpoena or an order of any court or administrative agency served upon either party demanding disclosure of the Agreement or the terms thereof. (ECF Doc. 11 ¶ 14.) In the event Plaintiff brings an action for enforcement or breach of the Agreement, the Agreement may Case 2:16-cv-05050-ES-MAH Document 16-1 Filed 07/03/17 Page 6 of 16 PageID: 68 3 be submitted to the court under seal. (ECF Doc. 11 ¶ 4.) There is nothing draconian or unusual regarding the Agreement’s confidentiality provisions (“Confidentiality Provisions”); they were then, and are now, standard clauses to facilitate settlements. The Agreement also contains the following choice of law and forum selection provisions: 20. Governing Law; Jurisdiction. This Agreement has been negotiated, executed and delivered in and shall be governed by, and construed in accordance with the laws of the State of New Jersey applicable to contracts made and to be wholly performed in such State. Each of the parties hereby irrevocably submits to the exclusive jurisdiction of the Superior Court of New Jersey in any action, suit or proceeding…”. (See Ex. 1 hereto at ¶ 20, filed under seal). Plaintiff initiated this action by filing a Complaint against “John Doe Company” on August 18, 2016, purporting to bring this action pursuant to the federal Declaratory Judgment Act (“DJA”), 28 U.S.C. § 2201. (ECF Doc. 11 ¶ 1.) Plaintiff filed an Amended Complaint under seal on January 1, 2017. (ECF Doc. 11.) According to the Amended Complaint, Plaintiff intends to bring an action in this Court rescinding the Agreement. (ECF Doc. 11 ¶ 4.) Plaintiff contends that the Confidentiality Provisions “could prevent him from asserting and vindicating his legal and equitable rights in this or any other Court,” and Plaintiff therefore seeks a declaration from this Court that the Confidentiality Provisions are void and unenforceable as a matter of public policy. (ECF Doc. 11 ¶ 5.) Case 2:16-cv-05050-ES-MAH Document 16-1 Filed 07/03/17 Page 7 of 16 PageID: 69 4 III. ARGUMENT AND CITATION OF AUTHORITY A. The Amended Complaint must be dismissed under Rule 12(b)(1) because Plaintiff failed to establish that the Court has federal subject matter jurisdiction. The Amended Complaint is subject to dismissal because there is no basis for federal subject matter jurisdiction. Federal courts are presumed to lack jurisdiction, and the burden is on the Plaintiff to prove that the dispute is within the federal courts’ limited jurisdiction to avoid dismissal under Federal Rule of Civil Procedure 12(b)(1). Gaskins v. Countrywide Bank, FSB, No. 12-06682 (DMC)(JBC), 2013 WL 4478779, at *1 (D.N.J. Aug. 21, 2013). The DJA does not automatically confer federal subject matter jurisdiction, and thus, Plaintiff must establish an independent basis. Id. at *2. Plaintiff contends that this Court has subject matter jurisdiction based on diversity of citizenship jurisdiction under 28 U.S.C. § 1332. (ECF Doc. 11 at ¶ 8). Plaintiff alleges that the Parties are diverse because Plaintiff is allegedly a citizen of Alabama and Defendant allegedly is a Delaware limited liability company with its principal place of business in Georgia. (ECF Doc. 11 at ¶¶ 6-7). However, beyond the conclusory statement that “the amount in controversy exceeds the value of $75,000,” which is merely a recitation of the amount in controversy requirement in 28 U.S.C. § 1332(a), the factual allegations in the Amended Complaint do not support a rational conclusion that this requirement has been satisfied. A plaintiff Case 2:16-cv-05050-ES-MAH Document 16-1 Filed 07/03/17 Page 8 of 16 PageID: 70 5 cannot invoke diversity jurisdiction when there is no way to tell whether his claim will exceed the jurisdictional amount in controversy. Miller v. Lib. Mut. Grp., 97 F.Supp.2d 672, 676 (W.D. Pa. 2000). Here, there are no dollars at all associated with the relief Plaintiff seeks, which is the excision of the Confidentiality Provisions in the Agreement. Because the Amended Complaint does not indicate that the amount in controversy has been met, Defendant respectfully requests the Court to dismiss the Amended Complaint. B. The Complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. In order to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain sufficient factual allegations which, if accepted as true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 177 L.Ed.2d 868 (2009) (citation omitted). “[A] complaint's ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010) (citation omitted). The court need not, however, accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. See Bell Atlantic Corp. v. Twombly, 540 U.S. 544, 555-56, 124 S.Ct. 1200, 1964- 65, 167 L.Ed.2d 929 (2007). Case 2:16-cv-05050-ES-MAH Document 16-1 Filed 07/03/17 Page 9 of 16 PageID: 71 6 In reviewing Rule 12(b)(6) dismissal motions, courts in the Third Circuit apply a two-part test. Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). First, the district court must separate the factual and legal elements and accept all of the complaint’s well-pleaded facts as true, disregarding any legal conclusions. Id. Second, the district court must determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief. Id. In short, “a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to ‘show’ such an entitlement with its facts.” Jersey Asparagus Farms, Inc. v. Rutgers Univ., 803 F.Supp.2d 295, 303 (D.N.J. 2011) (emphasis added). In addition to the factual allegations in the complaint, “documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered. . . . Documents that the defendant attaches to the motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff’s complaint and are central to the claim; as such, they may be considered by the court.” Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002) (citations omitted). Because the Agreement is referred to in the Amended Complaint and is central to Plaintiff’s claim for relief, the Court may consider the Agreement, which is filed under seal as Exhibit 1 to this Brief, in ruling on this motion. 1. The Complaint must be dismissed because the Amended Complaint fails to allege any facts demonstrating that the Case 2:16-cv-05050-ES-MAH Document 16-1 Filed 07/03/17 Page 10 of 16 PageID: 72 7 Confidentiality Provisions are void as a matter of federal or state public policy. Plaintiff seeks a declaration from the Court that the Confidentiality Provisions are void and unenforceable as a matter of public policy, but fails utterly to demonstrate a factual basis to support that conclusion. The Amended Complaint must be dismissed, however, because Plaintiff fails to provide Defendant with proper notice of the specific grounds on which his claim for relief rests, as required under Federal Rule of Civil Procedure 8(a). Glauberzon v. Pella Corp., No. 10- 5929 (JLL), 2011 WL 1337509, at *15 (D.N.J. Apr. 7, 2011). Employees and employers routinely include confidentiality provisions in their agreements, and employers are entitled to recover damages in the event an employee breaches his agreement to maintain the confidentiality of the agreement. See, e.g. Schiavi v. AT & T Corp., 2014 WL 3970293, at *9 (N.J. Super. Ct. App. Div. Aug. 15, 2014) (stipulated damages provision in employee’s severance agreement entitling employer to recover the amount paid under the agreement in the event of the employee’s breach of the confidentiality provision held reasonable). Plaintiff provides no factual or legal basis for his contention that the Confidentiality Provisions are void and unenforceable as a matter of federal or state public policy. Because the facts alleged in the Amended Complaint are not sufficient to raise Plaintiff’s entitlement to relief above a speculative level, the Court should dismiss the Amended Complaint. Case 2:16-cv-05050-ES-MAH Document 16-1 Filed 07/03/17 Page 11 of 16 PageID: 73 8 2. The Complaint must be dismissed because the Superior Court of New Jersey has exclusive jurisdiction over any action, suit, or proceeding relating to the Agreement per the Agreement’s forum selection clause. Our Court of Appeals has held that a motion to dismiss based on enforcement of a contractual forum selection clause is evaluated under Federal Rule of Civil Procedure 12(b)(6). Intermetals Corp. v. Hanover Int'l Aktiengesellschaft Fűr Industrieversicherungen, 188 F.Supp.2d 454, 457 (D.N.J. 2001); see also Jordan Acquisitions Grp. LLC v. Adam Techs., Inc., No. 09-542, 2009 WL 2473987, at *4 (W.D. Pa. Aug. 12, 2009) (“[W]hen the parties' agreement contains a valid forum selection clause designating a particular forum for settling disputes arising out of their contract, a Rule 12(b)(6) dismissal is a permissible means of enforcing that forum selection clause.”). Where, as in the Agreement, a valid contractual forum selection clause specifies that a state court forum has exclusive jurisdiction over claims relating to the contract, the district court must dismiss the action so that it may be re-filed in the proper state court. Salovaara v. Jackson Nat’l Life Ins. Co., 246 F.3d 289, 298 (3d Cir. 2001) (where valid forum selection clause calls for a non-federal forum, transfer is not an option); see also Petrik v. Corr. Eyecare Network, Inc., No. 4:12-CV-2252, 2013 WL 12203007, at *6 (M.D. Pa. Aug. 22, 2013), R. & R. adopted sub nom. Petrik v. Corr. Eyecare Network, Serv., No. 4:12-CV-02252, 2013 WL 12213847 (M.D. Pa. Sept. 20, 2013) (granting defendant’s Rule 12(b)(6) motion to dismiss without Case 2:16-cv-05050-ES-MAH Document 16-1 Filed 07/03/17 Page 12 of 16 PageID: 74 9 prejudice pursuant to parties’ forum selection clause identifying the Courts of the State of New York as the “exclusive courts of jurisdiction with respect to the interpretation and enforcement” of the parties’ agreement.) Forum selection clauses are evaluated under the ordinary rules of contract interpretation. TGA Premier Jr. Golf Franchise, LLC v. B P Bevins Golf LLC, No. 12-4321 (JAP), 2012 WL 4892861, at *3 (D.N.J. Oct. 12, 2012). “Where the language of a contract is unambiguous, that is when the contract is ‘reasonably capable of only one construction,’ the court must enforce the contract as written.” Id. Moreover, “forum selection clauses are entitled to great weight, and are presumptively valid.” PGT Trucking, Inc. v Lyman, 500 Fed.Appx. 202, 204 (3rd Cir. 2012). Forum selection clauses will be enforced, unless the party that opposes enforcement proves that: 1) the forum selection clause is the result of fraud or overreaching; 2) enforcement would violate a strong public policy of the forum; or 3) enforcement would result in litigation in a jurisdiction so seriously inconvenient as to be unreasonable based on the particular circumstances of the case. Reynolds Publishers, Inc. v. Graphics Fin. Grp., Ltd., 938 F.Supp. 256, 263 (D.N.J. 1996). Here, the Agreement’s forum selection clause provides that the designated forum for disputes relating to the Agreement is the Superior Court of New Jersey. See Ex. 1 at ¶ 20. As an initial matter, both the federal courts in this Circuit and New Jersey state courts have long held that enforcement of forum selection clauses Case 2:16-cv-05050-ES-MAH Document 16-1 Filed 07/03/17 Page 13 of 16 PageID: 75 10 are not contrary to public policy. Reynolds, 938 F. Supp. at 263; Cadapult Graphic Sys., Inc. v. Tektronix, Inc., 98 F.Supp.2d 560, 566 (D.N.J. 2000) (listing cases). Further, by filing this action in the District of New Jersey, Plaintiff has made clear that litigating in in the state of New Jersey is not an inconvenience for Plaintiff. The Amended Complaint alleges that Defendant’s principal place of business was in the State of New Jersey and the Agreement was drafted and executed in the State of New Jersey. (ECF Doc. 11 at ¶ 9). Plaintiff was also represented by New Jersey counsel in negotiations that resulted in the Agreement. These facts undermine any argument Plaintiff could muster. For the foregoing reasons, the Court should dismiss this action based on the Parties’ contractual forum selection provision so that suit may proceed in the proper state court forum. See Wall Street Aubrey Golf, LLC v. Aubrey, 189 Fed.Appx. 82 (3rd. Cir. 2006) (holding that dismissal is the sole option where forum selection clause calls for non-federal forum); see also New Jersey v. Merrill Lynch & Co, Inc., 640 F.3d 545 (3rd. Cir. 2011) (parties waived right to litigate in federal court where forum selection clause called for venue in New Jersey state courts). C. The Amended Complaint must be dismissed under Rule 12(b)(5) due to Plaintiff’s failure to effect timely service. When a plaintiff fails to properly serve a defendant within the time period required in Federal Rule of Civil Procedure 4(m), the defendant may move to Case 2:16-cv-05050-ES-MAH Document 16-1 Filed 07/03/17 Page 14 of 16 PageID: 76 11 dismiss pursuant to Federal Rule of Civil Procedure 12(b)(5). Sykes v. Blockbuster Inc./Viacom, No. 04CV6260 (DMC), 2006 WL 286785, at *1 (D.N.J. Feb. 3, 2006). If service of the summons and complaint is not made upon a defendant within 90 days after filing of the complaint and the plaintiff cannot show good cause why service was not made within that period, the court, upon motion or on its own initiative after notice to the plaintiff, must dismiss the action. See Federal Rule of Civil Procedure 4(m). Here, Plaintiff filed his original Complaint against “John Doe Company” on August 18, 2016. On January 12, 2017, Plaintiff filed an Amended Complaint under seal. Plaintiff, however, did not request a summons from the Court until April 21, 2017, ninety-nine days after he filed the Amended Complaint and well after the 90-day service period under Rule 4(m) expired. Defendant ultimately did not receive service of the Amended Complaint in this action until May 3, 2017, one hundred and eleven days (“111”) days after the Complaint was filed. Because Plaintiff failed to comply with the Federal Rules of Civil Procedure’s requirement of timely service, the Court should dismiss this action pursuant to Rule 12(b)(5). IV. CONCLUSION For all of the foregoing reasons, Defendant respectfully requests that the Court grant its Motion and dismiss this action, award Defendant its attorney’s fees and costs incurred in connection with enforcing the terms of the Agreement as Case 2:16-cv-05050-ES-MAH Document 16-1 Filed 07/03/17 Page 15 of 16 PageID: 77 12 provided in Section 21 of the Agreement, and such other and further relief as the Court deems proper. The plain fact is that this action is barren of merit, but if a Court is to afford it consideration on whatever factual basis Plaintiff asserts, it should be the Court the parties contracted to adjudicate disputes, the Superior Court of New Jersey; not this Court. Date: July 3, 2017 KILPATRICK TOWNSEND & STOCKTON LLP /s/ Frederick L. Whitmer Frederick L. Whitmer New Jersey Bar No. FW-8888 1114 Avenue of the Americas New York, New York 10036 Telephone: (212) 775-8773 Fax: (212) 775-8821 E-mail: fwhitmer@kilpatricktownsend.com Diane L. Prucino Georgia Bar No. 588888 (Application for Pro Hac Vice Admission forthcoming) 1100 Peachtree Street, NE Suite 2800 Atlanta, Georgia 30309-4528 Telephone: (404) 815-6500 Fax: (404) 815-6555 E-mail: dprucino@kilpatricktownsend.com Attorneys for Defendant Case 2:16-cv-05050-ES-MAH Document 16-1 Filed 07/03/17 Page 16 of 16 PageID: 78 1 FREDERICK L. WHITMER (FW-8888) KILPATRICK TOWNSEND & STOCKTON LLP 1114 Avenue of the Americas New York, New York 10036 Telephone: (212) 775-8773 Fax: (212) 775-8821 fwhitmer@kilpatricktownsend.com Diane L. Prucino (Application for Pro Hac Vice Admission Forthcoming) KILPATRICK TOWNSEND & STOCKTON LLP 1100 Peachtree Street, NE Suite 2800 Atlanta, Georgia 30309-4528 Telephone: (404) 815-6500 Fax: (404) 815-6555 dprucino@kilpatricktownsend.com Attorneys for Defendant UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ROBERT HAGEN, Plaintiff v. JOHN DOE COMPANY, Defendant. Case No. 2:16-CV-05050-ES-MAH DOCUMENT FILED ELECTRONICALLY [PROPOSED] ORDER GRANTING MOTION TO DISMISS Hon. Esther Salas Motion Date: August 7, 2017 This matter having been before the Court upon Defendant’s motion to dismiss Plaintiff’s Amended Complaint, and having considered the arguments of Case 2:16-cv-05050-ES-MAH Document 16-2 Filed 07/03/17 Page 1 of 3 PageID: 79 2 Plaintiff and Defendant’s counsel, the briefs, pleadings, and evidence submitted, and good cause otherwise appearing, IT IS on this ________ day of __________, 2017, ORDERED, ADJUDGED AND DECREED as follows: 1. Defendant’s Motion to Dismiss is hereby GRANTED; and it is further ordered that 2. Plaintiff’s Amended Complaint against Defendant is hereby DISMISSED without prejudice. By: __________________________ Hon. Esther Salas, U.S.D.J. Case 2:16-cv-05050-ES-MAH Document 16-2 Filed 07/03/17 Page 2 of 3 PageID: 80 CERTIFICATE OF SERVICE I hereby certify that on July 3, 2017 a true and correct copy of the foregoing was served upon plaintiff by depositing same in the U.S. Mail with first-class postage affixed and addressed as follows: Robert Hagen 2153 Cameron Circle Birmingham, AL 35242 By: /s/Frederick L. Whitmer Frederick L. Whitmer Case 2:16-cv-05050-ES-MAH Document 16-2 Filed 07/03/17 Page 3 of 3 PageID: 81