Norton v. Stop And Shop Store #830 et al

REPLY BRIEF to Opposition to Motion

D.N.J.January 30, 2017

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY THOMAS J. NORTON, Plaintiff, v. STOP AND SHOP STORE #830, AHOLD U.S.A., INC., BARBARA BODNAR, SCOTT TRAEGER and RICHARD GOLDMAN, and/or Supervisors 1- 10, individually and/or agents, servants and/or employees of Stop and Shop, Defendants. : : : : : : : : Docket No. 3:16-cv-09385 (FLW) (DEA) REPLY BRIEF IN FURTHER SUPPORT OF DEFENDANTS THE STOP & SHOP SUPERMARKET COMPANY LLC, AHOLD U.S.A., INC., BARBARA BODNAR, SCOTT TRAEGER, AND RICHARD GOLDMAN’S PARTIAL MOTION TO DISMISS Heather Weine Brochin, Esq. DAY PITNEY LLP One Jefferson Road Parsippany, NJ 07054 973-966-8199 hbrochin@daypitney.com Attorneys for Defendants Return Date: February 6, 2017. Case 3:16-cv-09385-FLW-DEA Document 13 Filed 01/30/17 Page 1 of 12 PageID: 202 -i- TABLE OF CONTENTS Page PRELIMINARY STATEMENT...........................................1 PROCEDURAL HISTORY..............................................2 ARGUMENT........................................................2 I. THE FIRST COUNT OF THE COMPLAINT IS PREEMPTED BY THE LMRA AND FAILS TO STATE A CLAIM............................2 II. PLAINTIFF’S THIRD COUNT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED................................5 III. THE FOURTH COUNT, AS ALLEGED AGAINST ALL DEFENDANTS EXCEPT FOR GOLDMAN, IS LEGALLY IMPOSSIBLE AND MUST BE DISMISSED..................................................5 IV. COUNT FIVE OF THE COMPLAINT, NEGLIGENT SUPERVISION AND TRAINING, FAILS TO STATE A CLAIM...........................7 V. PLAINTIFF CONCEDES THAT COUNT SIX DOES NOT STATE A SEPARATE CAUSE OF ACTION AND THEREFORE COUNT SIX MUST BE DISMISSED AGAINST ALL DEFENDANTS........................8 CONCLUSION......................................................9 Case 3:16-cv-09385-FLW-DEA Document 13 Filed 01/30/17 Page 2 of 12 PageID: 203 -ii- TABLE OF AUTHORITIES Page(s) Cases Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985) ..........................................3 Bell Atlantic-Pennsylvania, Inc. v. Communications Workers, Local 13000, 164 F.3d 197 (3d Cir. 1999) ..................................3 Caldwell v. KFC Corp., 958 F. Supp. 962 (D.N.J. 1997) ...............................6 Carter v. Reynolds, 175 N.J. 402 (2003) ..........................................6 Dixon v. CEC Entertainment, Inc., No. A-2010-06T1, 2008 N.J. Super. Unpub. LEXIS 2875(App. Div. Aug. 6, 2008) .................................6 Hilburn v. Bayonne Parking Authority, No. 07-5211, 2009 U.S. Dist. LEXIS 6762 (D.N.J. Jan. 29, 2009) ....................................................5 Ivan v. County of Middlesex, 595 F. Supp. 2d 425 (D.N.J. 2009) ............................4 Schultz v. Roman Catholic Archdiocese, 95 N.J. 530 (1984) ........................................6, 8 Case 3:16-cv-09385-FLW-DEA Document 13 Filed 01/30/17 Page 3 of 12 PageID: 204 -1- PRELIMINARY STATEMENT Plaintiff, in his opposition, argues that the claims asserted in the Complaint arise solely out of Goldman allegedly slapping Plaintiff. With the exception of the Second Count of the Complaint, Breach Of The Covenant Of Good Faith And Fair Dealing, which Plaintiff agrees to dismiss as against all defendants, and the Sixth Count of the Complaint, Punitive Damages, which Plaintiff concedes is not a separate cause of action, Plaintiff continues to assert that he has alleged viable causes of action against each defendant. Moreover, Plaintiff clarifies that Count Four, Assault and Battery, is alleged against Goldman, Stop & Shop and Ahold, seemingly agreeing to dismiss that claim against Bodnar and Traeger. Defendants, now formally joined in the motion to dismiss by Bodnar and Traeger, incorporate the arguments set forth in their moving brief and maintain that the claims in the Complaint are not supported by the facts or legal authority. As such, for the reasons set forth in their moving brief and as further elaborated below, Defendants request that this Court dismiss with prejudice the First, Third and Fifth Counts as against all Defendants, and dismiss with prejudice the Fourth Count as against Stop & Shop, Ahold, Traeger and Bodnar. Plaintiff has agreed to dismiss the Second Count and has conceded that the Sixth Count does not state a cause of action. Case 3:16-cv-09385-FLW-DEA Document 13 Filed 01/30/17 Page 4 of 12 PageID: 205 -2- PROCEDURAL HISTORY Defendants respectfully refer this Court to the procedural history set forth in their moving brief. However, at the time Defendants’ moving brief was filed, Defendants Bodnar and Traeger had not yet been served. Since that time, both Bodnar and Traeger have been served. On January 25, 2017, Defendants informed the Court that Defendants Bodnar and Traeger formally join in this motion to dismiss the claims in the Complaint as they relate to them. (ECF Docket No. 12). ARGUMENT I. THE FIRST COUNT OF THE COMPLAINT IS PREEMPTED BY THE LMRA AND FAILS TO STATE A CLAIM. In his opposition, Plaintiff argues that the CEPA claim arises solely out of the fact that “the plaintiff was maniacally attacked by a supervising employee.” (Pl. Opp. pg. 7). Notwithstanding that the Plaintiff’s version of the alleged slap curiously grows in proportion to when he first described the alleged touching, it remains that the CEPA count necessarily involves interpretation of the CBA. The Supreme Court has held that if any state law cause of action requires the interpretation of terms of a collective bargaining agreement or is “substantially dependent upon analysis of [its] terms,” that cause of action is entirely preempted by Section 301 of the LMRA. Case 3:16-cv-09385-FLW-DEA Document 13 Filed 01/30/17 Page 5 of 12 PageID: 206 -3- Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985) (citing Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 559 (1968)). Without any relevance to the substance of the CEPA claim, Plaintiff argues that “the existence of a CBA that has no specific provisions for remedies or procedures for criminal attacks made against employees by supervisors does not preempt the entire cause of action afforded by the New Jersey CEPA.” (Pl. Opp. Pg. 8). That is not a valid argument to oppose a motion to dismiss a CEPA claim that alleges retaliation due to shift reductions. In this case, where there is a mandatory grievance and arbitration procedure in place, any disputes as to the interpretation of the rights and obligations of the parties to a collective bargaining agreement must be presented to an arbitrator, not to the courts. See Bell Atl.-Pa., Inc. v. Commc’ns Workers, Local 13000, 164 F.3d 197, 201 (3d Cir. 1999). Simply put, under § 301 of the LMRA, a union employee cannot ignore the application of this principle. Id. Here, Plaintiff has alleged violations of CEPA through shift reductions, a process which is governed under the CBA. An analysis of whether Defendants improperly reduced Plaintiff’s number of shifts will require the Court to construe the CBA provisions governing hours of work, shift assignments and seniority. Next, Plaintiff misconstrues Defendants’ burden of proof on a motion to dismiss and argues “[m]ost significantly, defendants do Case 3:16-cv-09385-FLW-DEA Document 13 Filed 01/30/17 Page 6 of 12 PageID: 207 -4- not offer any explanation justifying any of the adverse action taken against him.” (Pl. Opp. Pg. 9). Plaintiff has missed the point. To adequately plead a CEPA claim, a plaintiff must show, among other things, that a causal connection exists between the whistle-blowing activity and the adverse employment action. See Ivan v. Cty. of Middlesex, 595 F. Supp. 2d 425, 468 (D.N.J. 2009). Defendants have no obligation to counter-prove anything in connection with a motion to dismiss. Defendants filed their motion because, while Plaintiff’s allegation is replete with conclusory allegations, he has failed to plead facts which allege that the shift reduction was causally related to Plaintiff’s complaint about the alleged assault or any time he took off as a result of the alleged assault. Indeed, Plaintiff cites to an alleged work schedule for only one week, an “Exhibit A”, as evidence that his shifts were reduced as retaliation. However, not a single defendant was served with a complaint that included any work schedule as an “Exhibit A.” Nonetheless, the content of a one week schedule can hardly constitute adequate pleading of retaliation, where Plaintiff himself admits that he is currently working his normal schedule (or with additional shifts). (Pl. Opp. Pg. 8). Moreover, demonstrated in Defendants’ moving brief, and for the reasons set forth in Defendants’ reply brief, Defendants’ maintain that Plaintiff has failed to adequately plead a CEPA violation. Case 3:16-cv-09385-FLW-DEA Document 13 Filed 01/30/17 Page 7 of 12 PageID: 208 -5- II. PLAINTIFF’S THIRD COUNT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED. In his opposition, it remains unclear whether Plaintiff is seeking damages due to emotional distress from the alleged assault or from the alleged retaliation. However, Plaintiff clarifies his emotional distress claim to state that the alleged activities were intentional. (Pl. Opp. Pg. 10). This point has been briefed at length in Defendants’ moving brief. (ECF. No. 6). As it relates to the claims arising out of alleged retaliation, Plaintiff’s claim for intentional infliction of emotional distress is barred by CEPA’s waiver provision. See Hilburn v. Bayonne Parking Auth., No. 07-CV- 5211, 2009 U.S. Dist. LEXIS 6762, at *28-30 (D.N.J. Jan. 29, 2009). It remains that Plaintiff has failed to set forth a cause of action and for that reason, his claim must be dismissed. III. THE FOURTH COUNT, AS ALLEGED AGAINST ALL DEFENDANTS EXCEPT FOR GOLDMAN, IS LEGALLY IMPOSSIBLE AND MUST BE DISMISSED. In his opposition, Plaintiff clarifies that the Fourth Count, Assault and Battery, is alleged “against the defendant Goldman individually AND against the two employer defendants vicariously.” (Pl. Opp. Pg. 6). Plaintiff later states that “the plaintiff seeks damages against Goldman, Stop and Shop, and Ahold directly and vicariously for the assault and battery committed by Goldman during working hours . . . “ (Pl. Opp. Pg. 7). Thus it is clear that that Plaintiff is not accusing Bodnar Case 3:16-cv-09385-FLW-DEA Document 13 Filed 01/30/17 Page 8 of 12 PageID: 209 -6- and Traeger of assault and battery, despite the nebulous allegations in his Complaint and opposition. As set forth in the Defendants’ moving brief, Plaintiff’s reliance on the theory of vicarious liability to hold Defendants Stop & Shop and Ahold responsible fails. “An employer may be held vicariously liable for an employee’s intentional torts only insofar as those torts fall within the scope of the employee’s employment.” Caldwell v. KFC Corp., 958 F. Supp. 962, 970 (D.N.J. 1997); see Carter v. Reynolds, 175 N.J. 402, 408-09 (2003). Moreover, intentional torts rarely fall within the scope of employment. Schultz v. Roman Catholic Archdiocese, 95 N.J. 530, 535 n.1 (1984); Dixon v. CEC Entm't, Inc., No. A-2010- 06T1, 2008 N.J. Super. Unpub. LEXIS 2875, at *47 (App. Div. Aug. 6, 2008). To be certain, Defendants are not asking this Court to dismiss the causes of action against defendant Goldman. However, Defendants are asking this Court to dismiss the claims against the corporate defendants (as Plaintiff has clarified he is alleging charges against them) because any alleged assault by Goldman was not done in the scope of Goldman’s employment. Nor was it alleged that Stop & Shop or Ahold requires its employees to touch or assault other employees. Accordingly, no facts giving rise to a vicarious liability claim exist against Stop & Shop and Ahold. For these reasons, and those cited in Case 3:16-cv-09385-FLW-DEA Document 13 Filed 01/30/17 Page 9 of 12 PageID: 210 -7- Defendants’ moving brief, there is no basis for vicarious liability here, and any claim for assault and battery against Stop & Shop and Ahold must be dismissed. IV. COUNT FIVE OF THE COMPLAINT, NEGLIGENT SUPERVISION AND TRAINING, FAILS TO STATE A CLAIM. Plaintiff’s sole opposition to Defendants’ motion to dismiss the Fifth Count of the Complaint is as follows: “The Fifth Count notices the corporate defendants that claims are asserted against them for the failure to protect the plaintiff from the foreseeable intentional acts of the defendant Goldman.” (Pl. Opp. Pg. 11). Of note, Plaintiff does not address or even attempt to refute any of the arguments raised in Defendants’ moving brief. As such, Defendants rely on the New Jersey Workers’ Compensation Act exclusivity provision argument and other legal propositions relied upon in their moving brief. However, Plaintiff’s frivolous argument that all Defendants are liable for negligent supervision and training because of the “failure to protect the plaintiff from the foreseeable intentional acts of defendant Goldman” (id.) fails for a variety of reasons grounded in common sense. First, no employer can foresee that its employee will intentionally assault another employee. Indeed, the vicarious liability laws in New Jersey make that clear, as discussed in defendants’ moving brief and point III, infra. See Schultz, 95 N.J. at 535 n.1. Case 3:16-cv-09385-FLW-DEA Document 13 Filed 01/30/17 Page 10 of 12 PageID: 211 -8- Second, to the extent Plaintiff is alleging that all Defendants, including Goldman, are liable for negligent supervision and training, this allegation simply does not make sense -- it goes without saying that Goldman cannot train and supervise himself. Third, there is no allegation in the Complaint that Traeger or Bodnar are Goldman’s superiors or are involved in the training or supervision of others. In fact, such an allegation cannot be asserted as Goldman has never reported to Bodnar or Traeger. For these common sense based reasons, and those set forth in Defendants’ moving brief, Plaintiff’s claim, as pled, must be dismissed. V. PLAINTIFF CONCEDES THAT COUNT SIX DOES NOT STATE A SEPARATE CAUSE OF ACTION AND THEREFORE COUNT SIX MUST BE DISMISSED AGAINST ALL DEFENDANTS. Plaintiff has conceded in his opposition brief that Count Six, for punitive damages, does not set forth a separate cause of action. Accordingly, Count Six of the Complaint must be dismissed against all Defendants. Case 3:16-cv-09385-FLW-DEA Document 13 Filed 01/30/17 Page 11 of 12 PageID: 212 -9- CONCLUSION For all the foregoing reasons, Defendants respectfully request that Plaintiff’s First, Third, and Fifth and Sixth Counts be dismissed with prejudice as against all Defendants, and that Plaintiff’s Fourth Count be dismissed with prejudice as against Stop & Shop, Ahold, Bodnar and Traeger. DAY PITNEY LLP Attorneys for Defendants By: /s/HEATHER WEINE BROCHIN HEATHER WEINE BROCHIN A Member of the Firm One Jefferson Road Parsippany, NJ 07054-2891 T: (973) 966-6300 hbrochin@daypitney.com DATED: January 30, 2017. Case 3:16-cv-09385-FLW-DEA Document 13 Filed 01/30/17 Page 12 of 12 PageID: 213 DAY PITNEY LLP HEATHER WEINE BROCHIN One Jefferson Road Parsippany, NJ 07054-2891 (973) 966-6300 HBROCHIN@DAYPITNEY.COM 96410135.1 A T T O R N E Y S F O R D E F E N D A N T S UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY THOMAS J. NORTON, Plaintiff, v. STOP AND SHOP STORE #830, AHOLD U.S.A., INC., BARBARA BODNAR, SCOTT TRAEGER and RICHARD GOLDMAN, and/or Supervisors 1-10, individually and/or agents, servants and/or employees of Stop and Shop, Defendants. : : : : : : : : Civil Action No. 3:16-cv- 09385-FLW-DEA CERTIFICATION OF HEATHER WEINE BROCHIN IN FURTHER SUPPORT OF DEFENDANTS’ PARTIAL MOTION TO DISMISS THE COMPLAINT (Document Filed Electronically) HEATHER WEINE BROCHIN, of full age, hereby certifies as follows: 1. I am an attorney-at-law of the State of New Jersey and am a member of the firm of Day Pitney LLP, attorneys for Case 3:16-cv-09385-FLW-DEA Document 13-1 Filed 01/30/17 Page 1 of 2 PageID: 214 96410135.1 2 defendants The Stop & Shop Supermarket Company LLC (improperly pled as Stop and Shop Store #830) (“Stop & Shop”), Ahold U.S.A., Inc. (“Ahold”), Barbara Bodnar, Scott Traeger, and Richard Goldman (collectively, the “Defendants”). I make this Certification in further support of Defendants’ partial motion to dismiss the complaint. 2. Attached hereto as Exhibit 1 is a true and accurate copy of the unpublished decision Dixon v. CEC Entertainment, Inc., No. A-2010-06T1, 2008 N.J. Super. Unpub. LEXIS 2875 (App. Div. Aug. 6, 2008). 3. Attached hereto as Exhibit 2 is a true and accurate copy of the unpublished decision Hilburn v. Bayonne Parking Authority, No. 07-5211, 2009 U.S. Dist. LEXIS 6762 (D.N.J. Jan. 29, 2009). I declare under penalty of perjury that the foregoing is true and correct. /s/ Heather Weine Brochin HEATHER WEINE BROCHIN A Member of the Firm Dated: January 30, 2017. Case 3:16-cv-09385-FLW-DEA Document 13-1 Filed 01/30/17 Page 2 of 2 PageID: 215 96410336.1 EXHIBIT 1 Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 1 of 29 PageID: 216 2008 N.J. Super. Unpub. LEXIS 2875, * 96410336.1 DAVID DIXON, JR., and CHADRICK GARRIS, Plain- tiffs-Appellants/Cross-Respondents, v. CEC ENTERTAINMENT, INC. d/b/a CHUCK E. CHEESE, Defendant-Respondent/Cross-Appellant/Third-Party Plain- tiff, v. DAMION BOGLE, Third-Party Defendant. DOCKET NO. A-2010-06T1 SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION 2008 N.J. Super. Unpub. LEXIS 2875 April 7, 2008, Argued August 6, 2008, Decided NOTICE: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS. PRIOR HISTORY: [*1] On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4087-04. COUNSEL: Glenn D. Goldberg argued the cause for appellants/cross-respondents (Alpert Goldberg Butler Norton & Weiss, P.C., attorneys; Mr. Goldberg, of counsel; Mr. Goldberg, David N. Butler, and Clark E. Alpert, on the briefs). Lawrence M. Berkeley argued the cause for respond- ent/cross-appellant (Stein, McGuire, Pantages & Gigl, LLP, attorneys; Mr. Berkeley, of counsel; Gerald J. Gunning, on the brief). JUDGES: Before Judges Graves, Sabatino and Alvarez. OPINION PER CURIAM On Sunday, October 5, 2003, plaintiffs, David Dix- on, Jr. (Dixon) and Chadrick Garris (Garris) were at a Chuck E. Cheese restaurant (the restaurant, or defend- ant's restaurant) at the Bergen Mall in Paramus celebrat- ing a birthday party for one of their young daughters when they were assaulted by a restaurant employee. This personal injury action ensued. Following a trial, a jury returned a verdict in favor of each plaintiff and awarded damages of $ 10,000 to Dixon and $ 5,000 to Garris. Plaintiffs appeal from "the damages portion of [the] jury verdict," and they also appeal from the court's decision to exclude certain evidence from the jury. In a cross-appeal, [*2] defendant CEC Entertain- ment, Inc., the operator of the restaurant, contends the trial court erred: (1) in denying its pretrial motion for summary judgment and its subsequent motion for a di- rected verdict at the close of plaintiff's case, (2) in awarding damages from stipulated medical expenses, and (3) in failing to apportion liability against its former em- ployee, Damon Bogle (Bogle), the person who assaulted plaintiffs. After reviewing the record and the applicable law in light of the arguments presented, we affirm. We summarize the following facts from the evi- dence adduced at trial. Dixon and Garris were good friends since childhood. On October 5, 2003, they were at defendant's restaurant for a birthday party, because Dixon's daughter turned two the next day. The restaurant catered to children between the ages of two and twelve. Defendant referred to its employees as "cast members." Company policy prohibited male employees from having visible body tattoos or wearing earrings. Defendant also had emergency procedures for dealing with violence on the restaurant's premises. When third-party defendant Bogle applied for a kitchen position at the restaurant, he indicated on the employment [*3] application form that he was "old enough to work all kitchen equipment" (eighteen or old- er), he was a high school graduate, and he had never been convicted of a felony or misdemeanor. But he did not provide his social security number or fill in the in- formation about experience and prior employment. At some point, he provided two different social security numbers which police later determined did not belong to him. Defendant hired Bogle as an hourly "food & bever- Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 2 of 29 PageID: 217 2008 N.J. Super. Unpub. LEXIS 2875, * 96410336.1 age laborer" on January 3, 2000. He worked in the kitchen where he made and cut pizza, and made sand- wiches. His job uniform consisted of a short-sleeve red shirt, blue pants, white sneakers, a belt, and hat. Naida Carrasquillo (Carrasquillo) was one of de- fendant's assistant managers, and Bogle reported to her when they worked the same shifts. She described Bogle as "[p]olite, always on time, willing to work always" and "[a] very nice employee. Very nice person." To her knowledge, Bogle had never exhibited any violent be- havior or threatened any customer or employee, and she never had a problem with him. Steve Tacabo (Tacabo), a general manager at the restaurant, described Bogle as a "very good" employee. On February 23, 2003, however, [*4] he gave Bogle a written warning after verbally counseling him "numerous times" for being late. In May or June 2003, Bogle got a tattoo on his right forearm with the words "FEAR ME" in upper case. Car- rasquillo advised him to remove the tattoo or leave the job. Bogle told her that he would need time to get the money to remove it. When Carrasquillo told Tacabo about the situation, he suggested that Bogle cover the tattoo so it would not be visible. According to Tacabo, he objected to the tattoo, or- dered Bogle to remove it and, until then, to cover it. De- spite three deadlines imposed by Tacabo, Bogle never removed the tattoo. Instead, he concealed it with "some- thing like a tennis band." Tacabo did not fire him, how- ever, because Bogle worked in the kitchen, had no con- tact with the customers, was an excellent employee, and hid the tattoo. Carrasquillo confirmed that Bogle always covered the tattoo when he worked with her. Bogle also usually wore a large diamond earring in each ear, but removed them at work. Between 5:00 and 6:00 p.m. on Sunday, October 5, 2003, Dixon arrived at the restaurant to celebrate his daughter's second birthday. Garris also arrived with his fiance and one-year-old daughter. [*5] Among the other attendees were Natalia Frasier (Natalia), the mother of Dixon's daughter; Melissa Dixon (Melissa), Dixon's mother; and Lacretia Dixon (Lacretia), Dixon's sister. While waiting for the party to begin, plaintiffs went to the restroom after which they met Natalia and Lacretia in the hallway. Dixon noticed two employees walking down the hall, each carrying four or five empty pizza boxes. As a "joke," Dixon tapped the boxes carried by the man in front who later was identified as Bogle. Ac- cording to Dixon, the boxes did not tip or fall, and he and Bogle "laughed it off" as did Lacretia and Natalia. Bogle then continued to walk past them down the hallway. Within seconds, as plaintiffs started to walk towards the party area, they heard two people arguing. Both men turned around and walked back down the hall where Dixon saw Bogle and his sister, Lacretia, "having a shouting match." Garris heard Bogle tell Lacretia to "[s]uck my dick, bitch." Lacretia also testified that Bogle called her a bitch, but she thought she "might have said something to him first." Garris told Lacretia to stop arguing and asked Bogle to leave them alone, saying: "Just go ahead, get away from me," and "We're [*6] not going to fight you in your place of work." According to Garris, Bogle re- sponded by saying that he would not fight him, but would "fucking stab" him. After an employee told her about the argument, the manager-in-training, Jamie Portillo (Portillo), went into the hall, told Bogle and the customers to calm down, and pulled Bogle into the kitchen. Plaintiffs and the two women proceeded to the showroom with Dixon in the lead. The birthday party still had not started. Neither plaintiff reported the incident. Portillo and Tyesha Wilson (Wilson), who worked as a hostess at the restaurant, saw Bogle pick up a knife from a cutting table in the kitchen and walk towards the party area. The "bone knife" was about ten inches long with a black handle and thin silver blade of the type used to cut sandwiches. As Dixon was walking back to the party, he saw Bogle walking towards Garris with his hand behind his back. Dixon believed that Bogle left the kitchen within "[m]aybe one minute" of the incident in the hallway. Garris also believed that the sequence of events happened "pretty quickly." Garris and Bogle began to argue. When Bogle raised his right hand from behind his back, Garris saw the knife [*7] and punched Bogle causing him to stumble. As Bo- gle recovered, Dixon tried to restrain him, but Bogle reached over Dixon's shoulder and stabbed him in the back left shoulder. At that point, Dixon "backed off of him" and walked over to his sister, Lacretia, who called the police on her cell phone. After the stabbing, Garris tried to get the knife which had fallen onto the floor, but Bogle had already retrieved it. Garris testified he threw a chair at Bogle, who dropped the knife, and Bogle "picked up a chair and he threw it at [Garris's] face." The chair struck Garris in his right elbow and ribs. Bogle then ran into the kitchen. When Dixon's mother walked over to the kitchen area to find the manager, she told Bogle that he had stabbed her son. Bogle then raised the pizza cutter up at her and said: "[D]o you want some, too"? Dixon's mother "realized he wasn't playing," so she walked outside. Af- Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 3 of 29 PageID: 218 2008 N.J. Super. Unpub. LEXIS 2875, * 96410336.1 ter getting his jacket, bag and boots, Bogle left the res- taurant through the rear door. Carrasquillo, who was on duty that night, testified she was taking care of customers in the game room when Portillo told her about the stabbing. Carrasquillo called the police and Tacabo. She asked Myeesha Nicole [*8] Meeks (Meeks), who worked as a cashier, to get the knife on the showroom floor so no children would get hurt. After Meeks recovered the knife, she took it to the kitchen, and put it into a garbage can. At that point, Wil- son went into the kitchen and asked about the knife. Af- ter Meeks told her where it was, Wilson retrieved it, washed it off, and threw it into the garbage can next to the showroom in an effort to hide it. Wilson then left the restaurant. As Garris held Dixon's shirt on the stab wound to stop the bleeding, a patrolman arrived at the restaurant, and plaintiffs were transported by ambulance to a hospi- tal for x-rays. A doctor closed Dixon's incision with six or seven stitches. Dixon received a prescription for pain medicine, and he recalled the doctor telling him he was lucky that the knife did not puncture a vital organ. The x-rays of Garris's elbow and ribs showed no fractures. Both men left the hospital around 5:30 or 6:00 a.m. the next morning. Dixon stayed in bed for a day with "very, very sharp pain," and he missed "one or two days from work." He returned to his landscaping job because he could not af- ford to stay home. About two weeks later, a doctor re- moved the stitches. [*9] Dixon continued to perform light-duty work for about a month until his wound healed. Garris also stayed home for a day after the incident. Although he had extreme pain in his ribs and difficulty breathing, Garris returned to his plumbing job because, like Dixon, he needed the money. Detective Devine, the detective assigned to the case, interviewed several of the restaurant's employees includ- ing Meeks, Wilson, Portillo, and Carrasquillo, and they were fully cooperative. He also spoke to Romero, a manager who was not present at the time of the incident, who provided a description of Bogle. Devine interviewed Dixon and Garris as well. The police never recovered the knife used in the attack. On October 13, 2003, Devine arrested Bogle. After being advised of his Miranda 1 rights, Bogle gave his version of the incident in a statement which Devine read into the record. Bogle did not deny the stabbing, but ex- plained that: (1) he put the "bread knife"--which he was using to make sandwiches--into his pocket before he took the pizza boxes to the garbage; (2) he went into the showroom to talk with plaintiffs so he would not lose his job; (3) he did not intend to kill or hurt anyone--he "just reacted," [*10] and (4) when asked why he stabbed the victim, Bogle replied: "To defend myself." 1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). According to Devine, after Bogle was arrested, he either pled guilty or was convicted of assault--a disor- derly persons offense. In addition, Detective Devine's testimony included the following: Q. And you indicated you had a . . . criminal history search on Mr. [Bogle]. Correct? A. Correct. Q. What did that conclude? A. No history. Q. Never been arrested? A. Correct. Q. How about during the cour[se] of your investigation of Mr. [Bogle] with the Chuck E. Cheese managers and employ- ees? Where you able to ascertain whether he had additional trouble there as an em- ployee, violence, anything of that nature? A. No, he didn't have a history. Q. No history of what? A. Of . . . violence or anything. At trial, Dixon testified he still got sore at times in cer- tain weather or when performing strenuous work. He felt the incident made him overprotective and defensive, and he testified he continued to have trouble dealing with the fact that he could have died on his daughter's birthday. He preferred to stay home after work and take care of his daughter. For [*11] a few months after the attack, Dix- on had nightmares and difficulty sleeping. He saw a psychiatrist but did not return because he felt uncom- fortable and did not want to take the medication the doc- tor suggested to help him sleep. His father, Daniel Dixon, testified his son lived at home in the basement until about a month before the trial. He cleaned his son's wound, changed the bandages, and checked on him at night when Dixon woke up screaming. He confirmed that his son and Garris did not play basketball anymore or go out together with their daughters. Dixon's mother testified that her son still Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 4 of 29 PageID: 219 2008 N.J. Super. Unpub. LEXIS 2875, * 96410336.1 "breaks down" and cries when he talks about the stab- bing or hears other people talking about it. On May 20, 2005, at his attorney's request, Dixon saw Lee Hindin, M.D., a clinical psychiatrist. Dixon told Dr. Hindin the stabbing made him "[j]umpy, less likely to trust people" and more likely to protect himself at work. At trial, Dr. Hindin described Dixon's demeanor during the interview as spontaneous and genuine. He believed Dixon had suffered from acute posttraumatic stress disorder during the first three months after the stabbing, with symptoms such as "[r]ecurring intrusive thoughts of the [*12] events . . . heightened startle re- sponse," sleep difficulty, and persistent anxiety. While some of these symptoms had persisted, Dr. Hindin testi- fied they had gotten less intense over time. According to Dr. Hindin, the stabbing is something that happened that's a part of him. What will make it come out at some point in the future, we can't tell. Certain circumstances might be more likely to bring back those memories and feelings. They might never come out again, and they might come out more fre- quently at certain times during certain stressful periods in his life in the future, and there's no real way to know. Garris also testified he felt depressed after the inci- dent and did not see Dixon as much. Like Dixon, he pre- ferred to stay at home and take care of his daughter when he was not at school or work. He felt guilty that Dixon got hurt defending him. Garris said his pain persisted for approximately two weeks after the attack. In points one and two of their appellate brief, plain- tiffs contend the court erred in dismissing their claims for punitive damages. They argue there was sufficient evi- dence for the jury to find defendant's actions were wan- ton and willful based on its reckless disregard [*13] of a known risk and its ratification of the concealment of evidence. They also contend that punitive damages were justi- fied based on their prima facie tort claim, and the pres- ence of "exceptional circumstances" arising from de- fendant's "egregious breach of duty to plaintiffs as busi- ness invitees--claiming safety while creating and re- warding danger." Finally, plaintiffs contend defendant should be held jointly liable for the intentional assault by Bogle and that defendant--through the actions of Meeks and Wil- son--assisted Bogle in "one continuous criminal transac- tion." Thus, they argue that the court misapplied the standard for involuntary dismissal as set forth in Rule 4:37-2(b) because the evidence could sustain a judgment in their favor. We do not agree. The court dismissed plaintiffs' punitive damages claims arising from the alleged wanton and willful con- duct, including counts four (wanton and willful disre- gard), seven (reckless infliction of physical harm and emotional distress) and eight (prima facie tort). It also dismissed count six, ruling there was no separate cause of action for ratification. A. Wanton and Willful Disregard Plaintiffs contend there was ample evidence for the jury [*14] to consider their claims of punitive damages because defendant's actions were wanton and willful in two respects: (1) it knew that Bogle was a hazard to its patrons but did not take reasonable steps to protect them; and (2) it knew that certain employees concealed evi- dence but rewarded them. After giving plaintiffs an opportunity to make their proofs, the court ruled there was no evidence from which a reasonable finder of fact could conclude defendant's behavior was wanton and willful. It rejected plaintiffs' arguments that Bogle was "an employee [who] could not be controlled, [and who] was going to do whatever he wanted, despite whatever the general manager, his boss, said." Instead, the court found that Bogle was defiant only "[o]n one subject." It explained: There's no testimony that this person [Bogle] was unruly or defiant in any way, other than getting a tattoo that was against the rules and failing to remove it or may- be even failing to cover it up. So if you want to argue that he was defiant in someway, with regard to that he was, ar- guably. The court also rejected plaintiffs' argument that the actions of Meeks and Wilson after the stabbing were a reflection of defendant's attitude. [*15] Instead, it found that the employees' actions were based on their feelings for the perpetrator, and were clearly not within the scope of their employment or done at defendant's behest. The court further found the employees' behavior did not re- flect in any way on defendant's attitudes when it hired or retained Bogle, and was irrelevant to the remaining causes of action. At the close of a plaintiff's case, a defendant "may move for a dismissal of the action or of any claim on the ground that upon the facts and upon the law the plaintiff has shown no right to relief." R. 4:37-2(b). The standard Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 5 of 29 PageID: 220 2008 N.J. Super. Unpub. LEXIS 2875, * 96410336.1 of review of a trial court's decision on a motion for in- voluntary dismissal at the close of a plaintiff's case is the same evidential standard which governs a motion for judgment at the close of all the evidence, Rule 4:40-1, and a motion for judgment notwithstanding the verdict, Rule 4:40-2(b). Verdicchio v. Ricca, 179 N.J. 1, 30, 843 A.2d 1042 (2004). The test is "whether 'the evidence, together with the legitimate inferences therefrom, could sustain a judgment in . . favor' of the party opposing the motion." Dolson v. Anastasia, 55 N.J. 2, 5, 258 A.2d 706 (1969) (quoting R. 4:37-2(b)) (alteration in original); see also Liptak v. Rite Aid, Inc., 289 N.J. Super. 199, 211, 673 A.2d 309 (App. Div. 1996). The [*16] motion must be denied "if, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ." Dolson, supra, 55 N.J. at 5. The court's concern is not "the worth, nature or extent . . . of the ev- idence, but only with its existence, viewed most favora- bly to the party opposing the motion." Id. at 5-6. The Punitive Damages Act, N.J.S.A. 2A:15-5.9 to -5.17 (the Act), provides that punitive damages may be awarded to a plaintiff only if he or she "proves, by clear and convincing evidence, that the harm suffered was the result of the defendant's acts or omissions, and such acts or omissions were actuated by actual malice or accom- panied by a wanton and willful disregard of persons who foreseeably might be harmed." N.J.S.A. 2A:15-5.12(a). To determine whether punitive damages should be awarded, the Act requires the court to consider all rele- vant evidence, including: "(1) The likelihood . . . that serious harm would arise from the defendant's conduct; (2) The defendant's awareness of . . . the serious harm at issue . . [*17] .; (3) The conduct of the defendant upon learning that its initial conduct would likely cause harm; and (4) The duration of the conduct or any concealment of it by the defendant." N.J.S.A. 2A:15-5.12(b)(1)-(4). Under the Act, "'[a]ctual malice' means an intentional wrongdoing in the sense of an evil-minded act." N.J.S.A. 2A:15-5.10. "'Wanton and willful disregard' means a deliberate act or omission with knowledge of a high de- gree of probability of harm to another and reckless indif- ference to the consequences of such act or omission." Ibid. Punitive damages are limited to "'exceptional cases . . . as a punishment of the defendant and as a deterrent to others.'" Pavlova v. Mint Mgmt. Corp., 375 N.J. Super. 397, 404, 868 A.2d 322 (App. Div.) (quoting Di Giovanni v. Pessel, 55 N.J. 188, 190, 260 A.2d 510 (1970)) (altera- tion in original), certif. denied, 184 N.J. 211, 876 A.2d 285 (2005). They are awarded when the wrongdoer's conduct is particularly egregious, and at the discretion of the fact-finder. Maul v. Kirkman, 270 N.J. Super. 596, 619-20, 637 A.2d 928 (App. Div. 1994). To warrant the imposition of punitive damages, there must have been an intentional wrongdoing in the sense of an "'evil-minded act,'" or the defendant's conduct must have [*18] been "'accompanied by a wanton and willful disregard of the rights of another.'" Smith v. Whitaker, 160 N.J. 221, 241, 734 A.2d 243 (1999) (quoting Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 49, 477 A.2d 1224 (1984)). An award of punitive damages, however, "'must bear some reasonable relation to the injury inflicted and the cause of the injury.'" Lockley v. Dep't of Corr., 177 N.J. 413, 427, 828 A.2d 869 (2003) (quoting Herman v. Sunshine Chem. Specialties, Inc., 133 N.J. 329, 338, 627 A.2d 1081 (1993)). Plaintiffs first contend they satisfied the Act with evidence defendant: (1) ignored Bogle's "FEAR ME" tattoo; (2) continued to retain him in its family restaurant knowing his presence posed a risk to its patrons; (3) recklessly disregarded the risk by instructing Bogle to cover up the tattoo; and (4) ignored his refusal to comply with repeated instructions to remove the tattoo. They also contend defendant hired Bogle without references and with multiple false social security numbers. The record, however, does not contain any evidence to suggest de- fendant acted with the degree of "actual malice" or "wanton and willful disregard" required under the Act. To the contrary, the assistant and general managers described Bogle as a "very [*19] nice," "very good" and "excellent" employee. When asked to remove the tattoo, Bogle did not object but asked for time to raise the mon- ey to pay for its removal. In the meantime, at his man- ager's request, Bogle concealed the tattoo with "some- thing like a tennis band" so it would not be visible. Ac- cording to Tacabo, Bogle "was religious in putting a band to cover it, and that sufficed for me." The other managers knew about the tattoo and enforced the no-visibility requirement. Carrasquillo confirmed that Bogle covered the tattoo when he worked with her. Alt- hough Bogle did not meet the three deadlines for its re- moval, there is nothing in the record to suggest he re- fused on principle to do so. There also is no evidence to contradict Tacabo's testimony that Bogle "worked in the kitchen. He had no contact with any guests. . . . in the dining rooms." Additionally, there was no evidence Bo- gle ever exhibited any violent behavior or threatened any customer or employee prior to the incident with plain- tiffs. Nor did he have any criminal history of violence. Moreover, there is insufficient evidence in the rec- ord to demonstrate defendant acted in reckless disregard of risks to its patrons when it [*20] hired Bogle without references and a social security number. Although the application requested the names of two references, em- ployment was not contingent on this information. The Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 6 of 29 PageID: 221 2008 N.J. Super. Unpub. LEXIS 2875, * 96410336.1 application also expressly stated the furnishing of a so- cial security number was voluntary. While it appears undisputed that Bogle subsequently submitted two fraudulent social security numbers, the record is devoid of any testimony as to when, why and to whom these numbers were submitted. Second, plaintiffs contend they satisfied the Act be- cause of defendant's acts of concealment. N.J.S.A. 2A:15-5.12(b)(4). They argue defendant (1) concealed the violent nature of its restaurant while promoting a "safe family environment," (2) instructed Bogle to con- ceal his tattoo, and (3) rewarded its employees who con- cealed evidence of the attack. Nevertheless, there was no evidence that defendant's conduct involved acts of deception or concealment. Ra- ther, defendant obtained handwritten statements from Meeks and Wilson about the incident, immediately sus- pended Wilson pending further investigation, and coop- erated with the police. Indeed, Detective Devine testified that Tacabo, Romero, Carrasquillo, and Portillo were fully [*21] cooperative and did not hinder his investiga- tion in any way. Plaintiffs, therefore, failed to show that defendant acted with wanton and willful disregard of their safety. N.J.S.A. 2A:15-5.10. Plaintiffs rely on La Bruno v. Lawrence, 64 N.J. Su- per. 570, 577, 166 A.2d 822 (App. Div. 1960), certif. denied, 34 N.J. 323, 168 A.2d 694 (1961), to argue that defendant "compounded the felony" by continuing to pay Meeks and Wilson as a reward for their cover-up of evi- dence. In La Bruno, the court found that the defend- ant-surveyor's initial act of trespass by misplacing prop- erty-line stakes did not justify a punitive damages award. Id. at 576-77. However, it found his conduct after- wards--including "his stubborn refusal to examine his own prior survey and to correct his alleged er- ror"--demonstrated a "willful and wanton" disregard of the plaintiffs' property rights, and the jury justifiably awarded punitive damages against him. Id. at 577. However, unlike the facts in La Bruno, there is nothing in the record below to suggest defendant's overall con- duct and attitude after the incident provided a proper basis for a similar award. Plaintiffs also argue they are entitled to punitive damages because count four of their complaint [*22] encompassed the intentional tort of recklessness. Recog- nizing that courts in New Jersey have not "squarely ad- dressed" the viability of "recklessness" or "willful and wanton misconduct" as a cause of action, plaintiffs rely on the recognition of this tort in other jurisdictions. For example, plaintiffs cite Advanced Fin. Servs., Inc. v. As- sociated Appraisal Servs., Inc., 79 Conn. App. 22, 830 A.2d 240 (Conn. App. Ct. 2003), to support their position that: (1) the tort of recklessness was a valid cause of ac- tion; (2) the alleged harm was beyond negligence or gross negligence; and (3) the tort was a basis to award damages under New Jersey law. In Advanced Fin. Servs., however, the appeals court awarded punitive damages to the plaintiff for violation of a Connecticut statute where the evidence revealed a "reckless indifference to the rights of others or an intentional and wanton violation of those rights." Id. at 250 (internal quotations omitted). That case, therefore, is factually distinguishable. Here, the evidence did not support plaintiffs' claim that de- fendant was recklessly indifferent to the possibility that plaintiffs might be the victims of violence, and the court did not err in dismissing plaintiffs' [*23] claims for wanton and willful disregard of a known risk and acts of concealments. B. Ratification The trial court concluded there was no cause of ac- tion for ratification because there was nothing in the tes- timony which indicated Bogle, Meeks, or Wilson were acting in the course of their employment with regard to the stabbing or the actions taken afterwards to conceal the knife. On appeal, plaintiffs contend punitive damages were justified based on defendant's ratification of the destruction of evidence. They argue defendant "impliedly adopted . . . Bogle's actions by approving of its employ- ees' concealment and destruction of evidence against Bogle (and not even firing Bogle on the basis of his vio- lence)." "Ratification arises when one party, claiming that the other had no authority to act on his behalf, is found to have known of and assented to the allegedly unauthor- ized actions of the other." Erlich v. First Nat'l Bank of Princeton, 208 N.J. Super. 264, 303, 505 A.2d 220 (Law Div. 1984) (holding ratification was not a defense to a malpractice claim). Here, there is no basis in the record on which a jury reasonably could find that Bogle, Meeks or Wilson acted within the scope of their employment either [*24] before or after the stabbing, or that de- fendant ratified their actions by allowing them to return to work. See Zullo v. Cent. R.R. Co. of N.J., 9 N.J. Super. 49, 50, 74 A.2d 626 (App. Div. 1950) (holding court erred in instructing jury to consider punitive damages where there was no evidence that the employer partici- pated, expressly or impliedly, in the assault and battery by its employee, either before or after it was committed). Plaintiffs rely on Gindin v. Baron, 16 N.J. Super. 1, 5-7, 83 A.2d 790 (App. Div. 1951), where the jury found that the defendant-employer ratified an assault by its employee by having stated the assault was a "'good thing'" that would keep the competitor away from its customers. Plaintiffs, however, neglect to mention the court in Gindin concluded the proofs justified the finding that the assault was committed by an employee in fur- Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 7 of 29 PageID: 222 2008 N.J. Super. Unpub. LEXIS 2875, * 96410336.1 therance of his master's business and within the scope and limits of his employment, and the employer ex- pressly or impliedly authorized or ratified the wrong. Id. at 7. That was not the case here. Because there are no facts in the record to establish defendant knew of, and assented to, the actions of Bo- gle's co-employees, plaintiffs' ratification claim is [*25] unpersuasive. C. Prima Facie Tort Plaintiffs also contend the court erred in granting defendant's motion to dismiss their prima facie tort claim. They argue the court's determination was errone- ous factually and as a matter of law. The court dismissed the prima facie tort claim on the basis that it dealt with the unsupported allegation of "wanton and willful" be- havior. We agree. In Taylor v. Metzger, 152 N.J. 490, 523, 706 A.2d 685 (1998) (internal quotations omitted), the Court rec- ognized that a prima facie tort cause of action encom- passed "intentional, willful and malicious harms" that fell within gaps of the law. However, it warned against in- voking a prima facie tort "when essential elements of an established and relevant cause of action are missing." Ibid. (rejecting use of prima facie tort claim to overcome deficiencies in allegations of racial harassment to state a claim under the Law Against Discrimination or a claim of intentional infliction of emotional distress). Thus, a "[p]rima facie tort should not become a 'catch-all' alter- native for every cause of action which cannot stand on its legs." Ibid. (internal quotations omitted). In the present matter, plaintiffs had other causes of action which [*26] targeted their allegations of wanton and willful conduct. Plaintiffs acknowledge this fact in their brief, stating they set forth defendant's willful and wanton misconduct in great detail elsewhere and "if no other cause of action applied to the willful misconduct, then prima facie tort did." Thus, the trial court did not err in dismissing plaintiffs' prima facie tort claim because it was not a gap-filler. As our Court recently stated: "[T]he availability of the prima facie tort doctrine is limited exclusively to those instances of intentional and culpable conduct unjustified under the circumstances that, as a threshold matter, do not fall within a traditional tort cause of action." Pulaski Constr. Co. v. Air Frame Hangars, Inc., 195 N.J. 457, 460, 950 A.2d 868 (2008)). D. Exceptional Circumstances Plaintiffs also contend that punitive damages were appropriate due to defendant's egregious breach of duty owed to them as business invitees by claiming the res- taurant was a safe family environment. Specifically, they argue defendant exposed its customers--including fami- lies with small children--to a "defiant employee whose known tattoo was proof of his dangerous nature," and its reckless disregard [*27] for their safety constituted ex- ceptional circumstances justifying a punitive damages award. We do not agree. Plaintiffs rely on Sandler v. Lawn-A-Mat Chem. & Equip. Corp., 141 N.J. Super. 437, 449, 358 A.2d 805 (App. Div.), certif. denied, 71 N.J. 503, 366 A.2d 658 (1976), to argue that punitive damages may be awarded in "exceptional circumstances dictated by the nature of the relationship between the parties or the duty imposed upon the wrongdoer." The full quote, however, reads: "In the absence of exceptional circumstances . . . the concept of punitive damages has not been permitted in litigation involving breach of a commercial contract." Ibid. The Sandler court also stated: "Where the essence of a cause of action is limited to a breach of such a contract, puni- tive damages are not appropriate regardless of the nature of the conduct constituting the breach." Ibid. That case involved a commercial transaction where the plaintiffs' grievance was founded on "the breach of contract be- tween the parties--a contract which create[d] no special relationship or duty beyond that arising out of any com- mercial transaction." Id. at 451. The court determined that the litigation was a result of a series of disputes with each [*28] party seeking to advance its own interests, and concluded such facts did not warrant a finding of malicious wrongful conduct. Id. at 451-52. Thus, we do not find plaintiffs' argument persuasive. Plaintiffs also contend the court erred by dismissing their claims of negligent hiring, premises liability, re- spondeat superior, and negligent supervision. Once again, we disagree. A. Negligent Hiring Plaintiffs argue the court erred by dismissing their cause of action for negligent hiring because there was sufficient evidence to require submission of this claim to the jury. They point to the facts that defendant: (1) hired Bogle as an employee based on a "sketchy" application form which did not ask for any personal references and had virtually no "blanks" completed; (2) failed to per- form a proper investigation, including a criminal back- ground check which, at the very least, would have re- vealed that Bogle had submitted two different social se- curity numbers; (3) took no action to discover the false numbers, which would have constituted grounds for Bo- gle's termination; and (4) knew or should have known of Bogle's dangerous propensities. Thus, plaintiffs argue that defendant's failure to follow its [*29] own hiring procedures was a proximate cause of their injuries. Based on plaintiffs' proofs, the court found there was sufficient evidence to support a finding that defendant Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 8 of 29 PageID: 223 2008 N.J. Super. Unpub. LEXIS 2875, * 96410336.1 had been negligent in the hiring process. It based its finding on facts showing defendant did not follow its own hiring procedures with respect to Bogle. However, the court found even if defendant was negligent in hiring Bogle, there was no evidence to suggest its negligence was a proximate cause of plaintiffs' injuries. Other than the fact Bogle did not have a valid social security num- ber, the court did not find anything in the record which would allow a jury to connect the negligence to the oc- currence of the injuries. It rejected plaintiffs' argument that the absence of character and employee references were "red flags," stating that such a view would require employers only to hire people with prior work experi- ence. The court also rejected plaintiffs' argument that the incident would not have taken place if defendant had discovered Bogle lied about his social security number and refused to hire him. The court, therefore, ruled as a matter of law that a reasonable trier of fact could not connect the negligent hiring [*30] with the occurrence of plaintiffs' injuries. The New Jersey Supreme Court has expressly rec- ognized that an employer who negligently hired or re- tained an incompetent, unfit, or dangerous employee might be liable to a third party whose injury was proxi- mately caused by the employer's failure to exercise due care. Mavrikidis v. Petullo, 153 N.J. 117, 133, 707 A.2d 977 (1998); Di Cosala v. Kay, 91 N.J. 159, 174, 450 A.2d 508 (1982). The tort "addresses the risk created by exposing members of the public to a potentially danger- ous individual." Di Cosala, supra, 91 N.J. at 172. The employee conduct, however, does not need to be within the scope of employment. Id. at 174. Instead, "the duty owed is properly to be determined by whether the risk of harm from the dangerous employee to a person such as the plaintiff was reasonably foreseeable as a result of the employment." Ibid. To hold an employer liable for negligent hiring, the plaintiff must prove: (1) the employer knew or had rea- son to know of the employee's dangerous characteristics and could reasonably have foreseen that such qualities created a risk of harm to other persons; and (2) through the employer's negligence in hiring the employee, the employee's incompetence, [*31] unfitness or dangerous characteristics proximately caused the injury. Id. at 173-74, 177 (recognizing that employer, who hired em- ployee who possessed and used guns, had duty to protect the public and the injured minor from foreseeable physi- cal danger presented by firearms kept at employee's liv- ing quarters). See also Lo Bosco v. Kure Eng'g Ltd., 891 F. Supp. 1020, 1034 (D.N.J. 1995) (dismissing tort of negligent hiring based on alleged misrepresentations where the plaintiff did not present evidence that the de- fendants knew of employee's propensity to commit fraud or that the allegedly fraudulent acts were foreseeable); Johnson v. Usdin Louis Co., 248 N.J. Super. 525, 529, 591 A.2d 959 (App. Div.) (holding no duty owed by em- ployer to protect public or specific victims because there was no evidence that the employer knew the employee "possessed dangerous characteristics" and would use nitric acid taken from job site to assault family mem- bers), certif. denied, 126 N.J. 386, 599 A.2d 163 (1991). In Lingar v. Live-In Companions, Inc., 300 N.J. Su- per. 22, 29, 30-31, 692 A.2d 61 (App. Div. 1997), a case cited by plaintiffs, the court reversed the dismissal of a negligent hiring claim, finding that a reasonable fact-finder could have [*32] concluded from the evi- dence that the defendants failed to exercise due care in hiring a live-in companion and that their alleged negli- gence proximately caused harm to the person who was the focus of the care-providing agreement. In that case, the plaintiff-wife hired "Live-In Companions" to provide a caregiver for her disabled husband when she went on a trip. Id. at 25. While she was away, the companion stole from the family and abandoned the husband. Ibid. The family asserted a claim for negligent hiring, alleging the nursing company did not make an adequate inquiry into the caregiver's background before hiring him. Id. at 29-30. The court acknowledged that at the time of hiring, the companion's criminal record was not accessible to the general public. Id. at 31. It also questioned whether the defendants could have obtained information about the companion's drug convictions from the Division of Mo- tor Vehicles, noting there was no evidence whether or not those records contained such information. Id. at 32. The court, however, concluded an employer's liability was not predicated solely on failure to investigate an applicant's criminal history, but on the totality of circum- stances. Ibid. [*33] Based on the critical nature of the work performed by the companion, the court held that a trier of fact could have found the application form was insufficient to yield adequate information about the ap- plicant's background, criminal history and experience, and a proper investigation would have disclosed the companion's propensity to violate the law and his general lack of fitness to perform his duties. Id. at 33. Unlike Lingar, there is no proof in the record before us that defendant knew or should have known of Bogle's dangerous propensities with the sole exception of his "FEAR ME" tattoo. Specifically, there was no evidence of any prior work history of an invalid nature, any prior criminal history, any pending charges, or bad references. There also was no evidence of any violent tendencies after Bogle got the tattoo. Thus, there was nothing in the record to suggest to the jury that Bogle had a propensity for violence or lacked fitness to perform his job. Ac- cordingly, even if the jury found defendant had a duty to the general public to follow its own hiring procedures Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 9 of 29 PageID: 224 2008 N.J. Super. Unpub. LEXIS 2875, * 96410336.1 and failed to do so, there are no facts to suggest that through defendant's negligence, Bogle's incompetence, unfitness [*34] or dangerous characteristics was the proximate cause of plaintiffs' injuries. Therefore, we affirm the trial court's decision to dismiss the claim of negligent hiring. B. Premises Liability Plaintiffs next contend the court erred by dismissing their claim of premises liability. They argue defendant breached its general duty to them as business invitees to provide a reasonably safe place to have a children's par- ty. Again, we do not agree. The court dismissed the premises liability claim on two grounds: (1) there was no expert testimony to sup- port its admissibility; and (2) even if an expert was not necessary, the evidence did not support the cause of ac- tion. The court defined premises liability to include the property's physical condition as well as security issues on the day of the incident. For example, "[p]remises security has to do with who you have for a security guard, do they make rounds, do they make inquiries, do they have a presence? Those kinds of things." The court found no evidence that defendant did anything wrong or failed to do something that it should have done with regard to security. Under the common law, a landowner owes an in- creasing duty of care depending on whether [*35] a visitor is a trespasser, licensee, social guest, or business invitee. Parks v. Rogers, 176 N.J. 491, 497, 825 A.2d 1128 (2003); Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433-34, 625 A.2d 1110 (1993). In New Jersey, whether a landowner owes a duty of reasonable care to a person injured on the premises and the extent of that duty are based on several factors, including "the relationship of the parties, the nature of the attendant risk, the oppor- tunity and ability to exercise reasonable care, and the public interest in the proposed solution." Hopkins, supra, 132 N.J. at 439. The determination of whether a person owes a duty of reasonable care to another is "very fact-specific" and is the responsibility of the courts. Ibid. The determination of whether a business owner has breached that duty is a jury question. Morris v. Krauszer's Food Stores, Inc., 300 N.J. Super. 529, 534, 693 A.2d 510 (App. Div.), certif. denied, 151 N.J. 77, 697 A.2d 549 (1997). A store owner or proprietor of a business who in- vites the public owes a duty to those who enter the premises of reasonable care "to provide a reasonably safe place to do that which is within the scope of the invita- tion." Butler v. Acme Mkts., Inc., 89 N.J. 270, 275, 445 A.2d 1141 (1982). "If [a] reasonably [*36] prudent per- son would foresee danger resulting from another's vol- untary criminal acts, the fact another's actions are beyond [a] defendant's control does not preclude liability." Id. at 276. The crucial factor is the foreseeability of the risk that criminal acts of others would cause harm. Ibid. Commercial shopkeepers, like landlords, must exer- cise due care under all the circumstances to provide ad- equate security to protect their customers against fore- seeable criminal conduct. Ibid.; see Trentacost v. Brus- sel, 82 N.J. 214, 222-23, 412 A.2d 436 (1980) (holding criminal assault on tenant in apartment hallway was foreseeable result of landlord's negligence in failing to install a lock on the front entrance). In Butler, supra, 89 N.J. at 274, a customer sued the defendant-store owner for personal injuries and lost wages sustained in a criminal attack in the store's parking lot. In response to seven prior muggings the preceding year, the store hired off-duty police officers. Ibid. At the time of the attack on the plaintiff, however, the lone se- curity guard was inside the store. Id. at 274-75. The jury found the store owner did not exercise reasonable care, but the trial court subsequently granted the defendant's [*37] motion for judgment notwithstanding the verdict. Id. at 275. The appellate court reversed, holding the de- fendant owed a duty to protect its customers from fore- seeable criminal acts. Ibid. The Supreme Court agreed, holding it was reasonable for the jury to determine that the store provided "an insufficient response in light of the known, repeated history of attacks on the premises." Id. at 280. The Court concluded the business invitor was in the best position to provide warnings or adequate pro- tection for its patrons, and public interest required a rea- sonably safe place to shop. Id. at 284. It reasoned: The proprietor of premises to which the public is invited for business purposes of the proprietor owes a duty of reasona- ble care to those who enter the premises upon that invitation to provide a reasona- bly safe place to do that which is within the scope of the invitation. The measure of that care has been described as "due care under all the circumstances." [Id. at 275-76 (quoting Bozza v. Vornado, Inc., 42 N.J. 355, 359, 200 A.2d 777 (1964)) (citations omitted).] However, to guard against making a shopkeeper liable for all crimes on its premises, the Butler Court adopted the Restatement (Second) of Torts § 344 comment (f) [*38] (1965), which stated: Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 10 of 29 PageID: 225 2008 N.J. Super. Unpub. LEXIS 2875, * 96410336.1 knows and has reasons to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or char- acter of his business, or his past experi- ence, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be un- der a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection. In Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 507, 694 A.2d 1017 (1997), the Court applied the totality of the circumstances standard to decide when criminal conduct was "'likely to be done.'" (Quoting Re- statement (Second) of Torts § 344(b) (1965)). That standard required a court to consider "all prior criminal [*39] incidents occurring on the landowner's premises and adjacent properties, whether similar or not, as well as other types of evidence such as the nature, location, con- dition, and the architectural design of the landowner's property." Id. at 509. In that case, a customer was ab- ducted from the defendant's shopping center parking lot and murdered. Id. at 500. The Court held that the crimi- nal act was foreseeable given the occurrence of prior criminal acts of lesser degree in and around the lot even through there had never been a prior abduction. Id. at 500, 503, 516-17. The evidence persuaded the Court that the defendant owed the plaintiff a legal duty of care to provide some degree of security in the parking lot, and it was reasona- bly foreseeable that the plaintiff could suffer some injury in the unsecured lot. Id. at 519-20. The duty to provide security could include a security guard, security system or warnings depending on the circumstances. Id. at 520; see Zepf v. Hilton Hotel & Casino, 346 N.J. Super. 6, 19-20, 786 A.2d 154 (App. Div. 2001) (holding, after balancing and weighing various factors, that the defend- ant owed the same duty to the plaintiff-employee as it owed to patrons to provide security [*40] for the area around its facility based on the nature of the defendant's business and its recognition of the risk); Morris, supra, 300 N.J. Super. at 535-36 (applying totality of circum- stances, including expert testimony about the inherent risk of violent crime in the convenience store business and police reports documenting prior robberies at similar stores in other central New Jersey towns, to find substan- tial evidence as to foreseeability of a criminal incident); Gaita v. Laurel Grove Cemetery Co., 323 N.J. Super. 89, 96, 731 A.2d 1245 (Law Div. 1998) (applying totality of the circumstances test to find cemetery owed duty to plaintiff-visitor as business invitee to provide some secu- rity, and that the attack by a third party in a remote area was foreseeable). Here, under the totality of the circumstances, plain- tiffs contend the violence against them was foreseeable. Specifically, they claim: (1) there were more than 100 prior incidents at the restaurant "including at least five assaults, five (other) fights, and ten disputes"; (2) "Bogle failed to qualify for employment"; and (3) management was aware of his tattoo. Despite the risks, plaintiffs al- lege that defendant did not employ a security guard [*41] at the restaurant, did not post any warnings, and did not prevent Bogle from using knives or interacting with the public. Instead, defendant "lulled patrons into a false sense of security by holding itself out as an envi- ronment safe enough for a child." Plaintiffs also argue the court erred by dismissing their premises liability claim based on its mistaken belief that expert testimony was necessary. We agree with plaintiffs that expert testimony was not necessary. "There is no general rule or policy requir- ing expert testimony as to the standard of care." Butler, supra, 89 N.J. at 283. The test is whether the matter was "so esoteric that jurors of common judgment and experi- ence [could not] form a valid judgment as to whether the conduct of the party was reasonable." Ibid. Thus, alt- hough expert testimony may have assisted the jury, its absence was not fatal. See, e.g., Scully v. Fitzgerald, 179 N.J. 114, 127, 843 A.2d 1110 (2004) (holding landlord's duty of reasonable care was not of an esoteric nature because jury did not need a fire expert to explain the dangers of throwing lit cigarettes into a pile of papers); Vargo v. Nat'l Exch. Carriers Ass'n, Inc., 376 N.J. Super. 364, 380-81, 870 A.2d 679 (App. Div. 2005) [*42] (holding expert testimony was necessary to show that laboratory's actions breached the standard of care). Nevertheless, we also agree with the court below that the evidence did not support a claim for premises liability. Under the totality of the circumstances, there was nothing in the record to suggest defendant's busi- ness--a family restaurant--was inherently at risk for vio- lent crimes or posed a significant risk to plaintiffs. Nor did defendant have a duty to hire a security guard or post warnings in its restaurant. Indeed, the evidence supports the conclusion that Bogle's attack was intentional and that it was not negligent or reckless. Bogle was not the type of predatory third party envisioned in Clohesy, su- Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 11 of 29 PageID: 226 2008 N.J. Super. Unpub. LEXIS 2875, * 96410336.1 pra, 149 N.J. at 520, and, in fact, had no history of vio- lence from the time of his hiring on January 3, 2000, until the assault on plaintiffs on October 5, 2003. More- over, when asked to remove the tattoo, the testimony indicates that Bogle agreed to do so as soon as he could raise the money, that he kept the tattoo covered, and that he never displayed any behavior to suggest that he in- tended to intimidate co-workers or patrons. As noted in plaintiffs' brief, the police records [*43] of "more than 100 incidents" at the restaurant were not introduced into evidence. The court ruled that these records were inadmissible under Rule 4:17-7 because they were submitted out of time and were not accompa- nied by a certification that the information sought was not "reasonably available or discoverable by the exercise of due diligence prior to the discovery end date." R. 4:17-7. Thus, the court correctly found these documents inadmissible, and there was no competent evidence to support plaintiffs' argument that the assault was foresee- able based on prior criminal activities at the premises. Accordingly, we affirm the trial court's decision to dis- miss the premises liability claim. C. Respondeat Superior Plaintiffs also contend the court erred by dismissing their claims of respondeat superior. Quoting the Re- statement (Second) of Agency § 229 (1958), they argue the court should have considered such factors as "time, place, and . . . instrumentality" to find that the actions of Bogle, Meeks and Wilson were within the scope of their employment. Because the stabbing took place on de- fendant's premises during business hours by an employee wearing his employer's uniform and using one of [*44] the "tools" of his trade, plaintiffs argue the imposition of respondeat superior liability was proper under New Jer- sey law. The court dismissed the respondeat superior claims based on its finding that there was nothing in the testi- mony to indicate any of the employees were acting in the course of their employment or in furtherance of their jobs. Because defendant was not responsible for inten- tional torts or crimes committed by its employees, the court ruled the issue would not go to the jury. Under the doctrine of respondeat superior, an em- ployer will be held liable to a third party for the torts of an employee if the employee was acting within the scope of his or her employment. Carter v. Reynolds, 175 N.J. 402, 408-09, 815 A.2d 460 (2003); Di Cosala, supra, 91 N.J. at 168-69; Hill v. N.J. Dep't of Corr. Comm'r, 342 N.J. Super. 273, 305, 776 A.2d 828 (App. Div. 2001), certif. denied, 171 N.J. 338, 793 A.2d 717 (2002). Con- duct by an employee is usually within the scope of em- ployment if the conduct is of the kind the employee was hired to perform, "'it occurs substantially within the au- thorized time and space limits; [and] it is actuated, at least in part, to serve the [employer].'" Di Cosala, supra, 91 N.J. at 169 (quoting Restatement (Second) of Agency § 228 [*45] (1957)) (first alteration in original). Other factors include: whether the conduct is of the same general nature as that authorized, or inci- dental to the conduct authorized; whether the master has reason to expect that such an act will be done; the similarity in qual- ity of the act done to the act authorized; and the extent of departure from the nor- mal method of accomplishing an author- ized result. [Hill, supra, 342 N.J. Super. at 306 (citing Restatement (Second) of Agency § 229 (1957).] Thus, New Jersey courts consider "'the nature of the employment, the duties of the employee, [and] whether the accident occurred in the course of fulfilling some job-related function.'" Carter, supra, 175 N.J. at 411 (quoting Christopher Vaeth, Annotation, Employer's Li- ability for Negligence of Employee in Driving His or Her Own Automobile, 27 A.L.R. 5th 174, 174 (1995)). Con- versely, if an employee deviates from his or her employ- er's business and commits a tort while in pursuit of his or her own ends, the employer is not liable. Roth v. First Nat'l State Bank of N.J., 169 N.J. Super. 280, 286, 404 A.2d 1182 (App. Div.), certif. denied, 81 N.J. 338, 407 A.2d 1212 (1979). In determining whether an employer is vicariously liable for the [*46] acts of it employees, we have said: "[T]he fact that the tort is negligent or intentional is of no real consequence." Hill, supra, 342 N.J. Super. at 305. An act may fall within the scope of employment alt- hough consciously criminal or tortious. Gilborges v. Wallace, 78 N.J. 342, 351, 396 A.2d 338 (1978) (holding master liable for conduct not within the scope of em- ployment only if the servant's action advanced "'the em- ployer's business or interests, as distinguished from the private affairs of the servant"' (quoting Restatement (Second) of Agency, § 238 (1957))); Gindin v. Baron, 11 N.J. Super. 215, 220, 78 A.2d 297 (App. Div. 1951) (re- versing judgment dismissing respondeat superior claim because jury might have inferred that the employee's sole motive for assaulting the plaintiff was to serve the wel- fare of his employer's business). Whether the plaintiff names the actual employee tortfeasors as the defendants in a suit against their employer "is legally irrelevant to [the employer's] liability for their conduct under the doc- Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 12 of 29 PageID: 227 2008 N.J. Super. Unpub. LEXIS 2875, * 96410336.1 trine of respondeat superior." Zukowitz v. Halperin, 360 N.J. Super. 69, 74, 821 A.2d 527 (App. Div. 2003). An employer, therefore, may be held liable for its employee's intentional torts when they are "reasonably [*47] connected with the employment and so within its scope." Hill, supra, 342 N.J. Super. at 306 (internal quo- tations omitted); Mason v. Sportsman's Pub, 305 N.J. Super. 482, 497-500, 702 A.2d 1301 (App. Div. 1997) (holding pub vicariously liable for employee-bouncer's battery of patron because bouncer was acting within scope of employment, battery took place during hours he was employed and within space limits of employment, and ejection of patron served employer's purpose of maintaining orderly establishment). Intentional torts, however, rarely fall within the scope of employment. Schultz v. Roman Catholic Archdiocese, 95 N.J. 530, 535 n.1, 472 A.2d 531 (1984). Plaintiffs cite to Hill, supra, 342 N.J. Super. at 306, to support their argument that the court should not have dismissed their respondeat superior claims. In that case, the plaintiffs argued the court erred in granting summary judgment based on its conclusion that the defendants could not be vicariously liable for the acts of their agents in connection with alleged sexual activities at a juvenile facility. Id. at 305. We reversed and remanded for a new trial after finding a genuine issue of material fact as to whether the defendants were acting within the [*48] scope of their employment. Id. at 307. Thus, the court in Hill did not hold the employer liable for the torts of its employees under the circumstances. Id. at 306-07. Here, there are no facts suggesting that Bogle's ac- tions were within the scope of his employment. Although Bogle committed the assault at defendant's restaurant during the hours he was employed there, the assault was not the kind of activity he was hired to perform. Bogle was employed to work in the kitchen and his intentional use of defendant's cutlery to stab a restaurant patron was unexpected, unauthorized, and unrelated to his job du- ties. His acts served no purpose of his employer and, in fact, risked the "welfare" of his employer's business. Thus, Bogle's unlawful conduct was not in any sense related to his employer's interests or needs. Likewise, the post-incident actions of Meeks and Wilson were not performed within the scope of their employment, but rather were undertaken because they were afraid and wanted to protect Bogle. Their actions also did not further defendant's interest. While Meeks picked the knife off the floor to protect the children at the restaurant, she acted without any authorization when she discarded [*49] it in the garbage. Similarly, Wilson's actions in taking the knife out of the garbage, cleaning it, and discarding it were not the kinds of activities that she was hired to perform or that served defendant's best in- terests. We therefore conclude plaintiffs failed to offer sufficient evidence to show that Bogle, Meeks, and Wil- son were acting within the scope of their employment, and we affirm the court's decision to dismiss plaintiffs' respondeat superior claims. D. Negligent Training and Supervision Plaintiffs further contend the court erred in dismiss- ing their claim against defendant for negligent training and supervision. They argue that defendant failed to use reasonable care in training and supervising its employ- ees, and that the evidence presented a jury question. In plaintiffs' view, defendant failed (1) to adequately train its employees on the prevention and handling of a crisis, and (2) to closely monitor and control Bogle, whom they describe as a dangerous employee who had "unfettered access" to commercial knives. They further argue expert testimony is not required in a case involving a private employer's liability for violence. Plaintiffs assert they "paid the price" for defendant's [*50] negligent super- vision. We cannot agree. The court granted defendant's motion to dismiss the cause of action for negligent training and supervision on two grounds: (1) the lack of expert testimony to establish the standards by which the person would have to be judged; and (2) the lack of evidence to suggest Bogle was inadequately supervised. Instead, the court found defendant's alleged failure to follow-up on certain per- sonnel actions in response to Bogle's lack of cooperation was part of plaintiffs' argument for negligent retention. Liability may be imposed on an employer who fails to perform its duty to train and supervise employees. Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335, 346, 643 A.2d 1 (1994). "[A] claim based on negligent hiring or negligent supervision is separate from a claim based on respondeat superior." Hoag v. Brown, 397 N.J. Super. 34, 54, 935 A.2d 1218 (App. Div. 2007). Unlike respondeat superior, this negligence claim "covers acts committed outside the scope of employment." Ibid. An employer, however, is liable for negligent supervision only if all the requirements of an action of tort for negli- gence exists. Restatement (Second) of Agency, § 213(c) comment a (1957). Thus, a person conducting [*51] an activity through agents is subject to liability for harm resulting from the agents' conduct if the person is negli- gent or reckless "in the supervision of the activity." Id. at § 213(c). Because negligence involves a breach of duty of care that causes injury, the issue here is whether defend- ant's alleged failure to properly supervise and train its employees was a breach of its duty of care owed to plaintiffs which, in turn, was a proximate cause of their damages. Weinberg v. Dinger, 106 N.J. 469, 484, 524 Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 13 of 29 PageID: 228 2008 N.J. Super. Unpub. LEXIS 2875, * 96410336.1 A.2d 366 (1987). As noted previously, there is no general rule or policy requiring expert testimony on the standard of care in tort actions. Butler, supra, 89 N.J. at 283. A trial judge has discretion to determine the necessity for expert testimony to enhance the knowledge and under- standing of jurors. State v. Griffin, 120 N.J. Super. 13, 20, 293 A.2d 217 (App. Div.), certif. denied, 62 N.J. 73, 299 A.2d 71 (1972). See e.g., Hoag, supra, 397 N.J. Su- per. at 56 (holding there was sufficient evidence to cre- ate jury question on negligent supervision claim based on employee's extensive disciplinary record and expert opinion that employee would have been terminated if the Department of Corrections had followed accepted agen- cy [*52] personnel practices). Here, in our view, the matter at issue was not so esoteric that the jurors could not form a valid judgment without an expert. Butler, su- pra, 89 N.J. at 283. In any event, the trial court correctly concluded there was insufficient evidence to support a jury finding of negligent supervision. Bogle worked in the kitchen at defendant's restaurant for more than three years, and plaintiffs offered no evidence that Bogle ever left the kitchen to work in other areas of the restaurant such as the showroom. There also is no evidence of any prior incidence of violence at the restaurant involving Bogle. Moreover, the record is devoid of any facts to sup- port plaintiffs' contention that defendant was negligent for failing to train its employees in such areas as anger management or incident control. The record, however, does include a document entitled "general security" in which defendant outlined its emergency procedures for dealing with violence on the restaurant's premises. Among other things, the document required employees to "[r]eport all threats of violence, both direct and indi- rect" to the general manager or manager on duty as soon as possible, and if unavailable, to [*53] the regional manager or department head. It also expressly advised employees not to put themselves in danger or try to re- solve violent situations. Instead, defendant advised em- ployees to call 911 and "[t]ry to avoid a physical con- frontation if possible, but defend yourself or [g]uests if there is an imminent threat of physical harm". Defendant further required employees to "[c]ooperate fully with security, law enforcement, and medical personnel that respond to a call for help or investigate any incident." Based on the testimonial evidence, these procedures were followed. For example, Dixon and Garris testified that one of defendant's employees attempted to pull Bo- gle into the kitchen after the initial verbal altercation. While it is true other employees saw Bogle take the knife from the kitchen, there also is evidence that several em- ployees followed him into the showroom and one female employee apparently attempted to get between him and Garris. Moreover, the entire incident happened "pretty quickly"; Dixon thought it took place within the span of "[m]aybe a minute." Because there is no evidence to support a claim of negligent training or supervision, the court below properly dismissed [*54] this cause of ac- tion. In its cross-appeal, defendant contends the court erred by denying its motion to dismiss the negligent re- tention claim based on the totality of the evidence. Es- sentially, defendant argues Bogle's act of getting a tattoo with the words "FEAR ME" was insufficient by itself to establish that defendant knew or had reason to know of his "unfitness, incompetence or dangerous attributes" or make it foreseeable that he would get involved in an al- tercation with a customer. Instead, defendant argues the record showed Bogle was an "excellent" worker who never exhibited any violent, threatening or hostile be- havior during his three years at the restaurant. Defendant further argues it would create "enormous public policy implications" if any tattoo with "similar statements of bravado" was indicative of a person's violent tendencies, making such person unemployable. The court found there was ample evidence in the record to support a jury finding for negligent retention. It based its ruling on plaintiffs' arguments that (1) defend- ant should not have retained Bogle because he was "un- ruly or defiant" by getting a tattoo that was against the rules and by failing to remove it or completely [*55] cover it up, and (2) defendant took certain personnel ac- tions in response to Bogle's "bad attitude" but did not follow up on them. A court may grant a motion for involuntary dismis- sal at the close of a plaintiff's case only when the de- fendant shows the plaintiff has no right to relief based on the facts and the law. R. 4:37-2(b). The test is "whether 'the evidence, together with the legitimate inferences therefrom, could sustain a judgment in . . . favor' of the party opposing the motion." Dolson, supra, 55 N.J. at 5 (quoting R. 4:37-2(b)) (alteration in original). In a case alleging negligent retention, the question is whether the employer should have foreseen that the conduct of its employee "unreasonably enhanced a haz- ard that would be injurious to those coming within [its] range." Johnson, supra, 248 N.J. Super. at 529. In John- son, an employee used nitric acid taken from his place of employment to assault family members at home. Id. at 527-28. The issue was whether the employer breached a duty owed to the employee's family members. Id. at 527. Among other things, the plaintiff alleged the employer negligently retained the employee "when [*56] it knew or should have known of his dangerousness." Id. at 528. The employer appealed from the trial court's refusal to dismiss the complaint, and we reversed, finding there was no basis to impose a legal duty upon the employer Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 14 of 29 PageID: 229 2008 N.J. Super. Unpub. LEXIS 2875, * 96410336.1 because "it was not aware that [the employee] possessed dangerous characteristics." Id. at 529. Thus, the court held that the employer owed no legal duty--even though it had no procedure in place to prevent employees from taking nitric acid home--because ordinary human expe- rience and the totality of the circumstances dictated that the employer could not reasonably foresee that one of its employees would take nitric acid from the premises and throw it at someone. Id. at 530. In contrast, the record below presented sufficient facts and inferences to provide a basis for liability against defendant on the claim of negligent retention. The evidence established that defendant--through its em- ployees--was aware of Bogle's tattoo and its message, had asked him to remove it, and had failed to take any action when Bogle failed to comply. Thus, it was rea- sonable for the jury to conclude that, under the totality of the circumstances, defendant should have foreseen its retention [*57] of Bogle could result in an unreasonably enhanced hazard to its patrons, including plaintiffs. While defendant argues Bogle's supervising manag- ers described him as an "excellent" worker, it is clear Bogle's supervisors were aware that he had gotten a tat- too with the words "FEAR ME" on his right forearm approximately three months before the assault. Defend- ant had a policy against visible tattoos and his supervi- sors asked him several times to remove it. Thus, there was sufficient evidence for the court to present this ques- tion to the jury, and for the jury to conclude defendant's negligent retention of Bogle was a proximate cause of plaintiffs' injuries. Accordingly, the court did not err in denying defendant's motion to dismiss the negligent re- tention claims. Defendant also argues the court erred by awarding plaintiffs their medical expenses without consideration of collateral source payments. While it stipulated at trial as to the amount of plaintiffs' medical expenses, defendant contends it never agreed these expenses "were a recov- erable element of damages." Because plaintiffs had health insurance at the time of the incident, defendant argues the award gave them a financial "windfall." [*58] Specifically, it argues that documentation for- warded by plaintiffs' counsel indicated that Garris's in- surance carrier paid all of his medical expenses except for his $ 25 co-pay, and that Dixon had outstanding bills, which he inexplicably never submitted for payment. De- fendant claims it was entitled to a hearing on this issue and that the portion of the order of judgment, which awards "stipulated medical expenses" of $ 4251 to Dixon and $ 1605 to Garris must be vacated as a matter of law. Defendant's argument has no merit. Plaintiffs agree they are not entitled to a windfall despite a transcription error that inadvertently read oth- erwise. They acknowledge Garris's insurance company paid all of his medical bills except for his co-pay, and the amount of these payments will be credited to the judg- ment. However, because Dixon had no insurance cover- age, plaintiffs acknowledge in their reply brief that his "medical bills will be paid from the judgment proceeds." Moreover, defendant is not entitled to a hearing on the issue of plaintiffs' medical expenses. After the jury returned a verdict, the court asked defendant's counsel how to resolve the collateral source issue. Defendant's counsel responded [*59] that plaintiffs needed to sub- mit documentary proof and that a hearing was not nec- essary unless there was some contradiction. Defendant did not further object below. Applying the doctrine of invited error, defendant may not argue on appeal that a position it advocated below and that the trial judge adopted at trial was the product of error. Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503, 677 A.2d 705 (1996); Donofry v. Autotote Sys., Inc., 350 N.J. Super. 276, 296, 795 A.2d 260 (App. Div. 2001). The trial court's decision to include the stipulated medical ex- penses in the order of judgment is therefore affirmed. Next, defendant contends the court improperly de- nied its "request for an apportionment of responsibility against third [-]party defendant, Bogle." It essentially argues that N.J.S.A. 2A:15-5.2 of the Comparative Neg- ligence Act and case law require an apportionment of fault between negligent and intentional tortfeasors. Be- cause Bogle was the principal actor in the intentional tort against plaintiffs, defendant argues that the jury should have been required to assign his percentage of compara- tive fault as a matter of law. The court denied defendant's request to direct the jury to assess some percentage [*60] of fault against Bogle, concluding the jury could not compare intentional conduct and negligence under these facts. Citing Bla- zovic v. Andrich, 124 N.J. 90, 590 A.2d 222 (1991), the court recognized that New Jersey was a minority juris- diction which required juries to make these comparisons in most cases. Nevertheless, the court ruled that Blazovic carved out a narrow exception, and it concluded the ex- ception applied. The court explained: [T]here is an exception, and it seems to me the facts here fit it. This is not some- thing that [defendant] could have pre- vented once it started. That's not the alle- gation against you. You shouldn't have retained this per- son in your employment, the plaintiff says, because this person had violent tendencies. You should have seen that. He did have violent tendencies. He was a vi- Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 15 of 29 PageID: 230 2008 N.J. Super. Unpub. LEXIS 2875, * 96410336.1 olent person. He committed violence on the plaintiff[s], and that is something that your obligation, as an employer, encom- passes, not to hire people who are going to present a danger to the patrons. I think that's the -- that's the way I read the ex- ception, and I agree with you. I haven't had -- found a case that applies the excep- tion either. "New Jersey law favors the apportionment of fault among [*61] responsible parties." Boryszewski v. Burke, 380 N.J. Super. 361, 374, 882 A.2d 410 (App. Div. 2005), certif. denied, 186 N.J. 242, 892 A.2d 1288 (2006). The Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8 (the Act), requires the apportionment of fault where "the question of liability is in dispute." N.J.S.A. 2A:15-5.2(a); Boryszewski, supra, 380 N.J. Su- per. at 374-75. The apportionment of responsibility for a plaintiff's injury is based on "each party's relative degree of fault, including the fault attributable to an intentional tortfeasor." Blazovic, supra, 124 N.J. at 107. In Blazovic, the plaintiff-patron was injured in a confrontation with other patrons in the parking lot of a restaurant and lounge, and filed a negligence action for physical injuries and economic loss. Id. at 93-94. After the individual defendants settled with the plaintiff, a jury found the plaintiff was negligent for provoking the as- sault, the restaurant was negligent for failing to provide adequate lighting and security in the parking lot, and the settling defendants had committed intentional assault and battery. Id. at 94. Because the court believed negligent and intentional conduct could not be compared, it in- structed the jury to [*62] compare only the relative fault of the two negligent parties. Ibid. The Appellate Division modified the judgment with a majority holding the jury verdict was incomplete because it did not apportion a percentage of fault to the intentional tortfeasors. Id. at 95. The issue before the Supreme Court was whether the Act required the jury to apportion fault among the negli- gent plaintiff, the negligent restaurant, and the settling defendants whose fault was based on intentional conduct. Id. at 92-93. After reviewing the Act and case law, the Court held "responsibility for a plaintiff's claimed injury is to be apportioned according to each party's relative degree of fault, including the fault attributable to an in- tentional tortfeasor." Id. at 107. Thus, it held the Act applied to conduct characterized as intentional, and di- rected the jury to determine the relative percentages of fault between the intentional and negligent tortfeasors. Id. at 111-12. The Legislature apparently accepted Bla- zovic as correctly interpreting the Act by inserting "neg- ligence or fault" into the 1995 amendments, thereby "'clarifying that the fact-finder must apportion all fault attributable to each party.'" Martin v. Prime Hospitality Corp., 345 N.J. Super. 278, 286, 785 A.2d 16 (App. Div. 2001) [*63] (quoting Steele v. Kerrigan, 148 N.J. 1, 11 n.2, 689 A.2d 685 (1997)). The Blazovic Court, however, recognized a line of cases which precluded the apportionment of fault when the duty of one tortfeasor encompassed the obligation to prevent the specific misconduct of the other. Blazovic, supra, 124 N.J. at 111. Thus, a defendant responsible for security would be precluded from relying on apportion- ment from the intentional tortfeasor. Ibid. The Court, however, declined to apply the exception in that particu- lar case based on its view that the incident was not suffi- ciently foreseeable and did not bear an adequate causal relationship to the restaurant's alleged fault to justify imposing the entire liability on the restaurant. Id. at 112. In Martin, supra, 345 N.J. Super. at 280, the court addressed the "proper interpretation" of Blazovic regard- ing the apportionment of fault between negligent and intentional tortfeasors. In that case, the plaintiff was sexually assaulted in the defendant's hotel room by an- other guest who had lived there for four months, during which time he had not shown any indication that he might prove to be dangerous. Id. at 280, 291. In deter- mining whether Blazovic excused the apportionment [*64] of fault, the court stated "the overall focus is on whether plaintiff's injury was so foreseeable to the su- pervising defendant that a failure to act or an inadequate response that causes the plaintiff to suffer the foreseeable injury warrants imposition of the entire fault upon that defendant." Id. at 292-93. The Martin court held that, just as in Blazovic, the sexual assault "was neither suffi- ciently foreseeable nor sufficiently related to [the hotel's] alleged fault to justify imposing responsibility on [the hotel] for all of [the plaintiff's] injuries." Id. at 292; see Steele, supra, 148 N.J. at 14 (reaffirming Blazovic hold- ing that the jury ordinarily should apportion fault be- tween the negligent supervisor and the intentional tort- feasor, provided there was sufficient foreseeability and causation); Waldron v. Johnson, 368 N.J. Super. 348, 352, 845 A.2d 1287 (App. Div.) (holding Monmouth Mall's duty did not encompass obligation to prevent the plaintiff's injury at an ATM, where the attack "was not so foreseeable nor did it bear such a close causal connection to the Mall's slow response to the melee that it should justify imposing upon the Mall the entire responsibility for plaintiff's injuries"), [*65] certif. denied, 182 N.J. 139, 861 A.2d 844 (2004). In the present matter, there were sufficient facts in the record for the jury to find that plaintiffs suffered foreseeable injuries as a result of defendant's negligent Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 16 of 29 PageID: 231 2008 N.J. Super. Unpub. LEXIS 2875, * 96410336.1 retention of Bogle. Therefore, the court did not err in applying the Blazovic non-apportionment exception. Any other arguments advanced by either the plain- tiffs or defendant, which we have not specifically ad- dressed, are without sufficient merit to warrant discus- sion in a written opinion. R. 2:11-3(e)(1)(E). The appeal and cross-appeal are affirmed. Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 17 of 29 PageID: 232 96410336.1 EXHIBIT 2 Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 18 of 29 PageID: 233 2009 U.S. Dist. LEXIS 6762, * 96410336.1 PETER HILBURN and FELICIA RYAN, Plaintiffs, v. BAYONNE PARKING AUTHORITY; JOSEPH DORIA, individually and in his official capacities; THE CITY OF BAYONNE, a Municipal Corporation; PETER CRESCI, individually and in his official capacities as Chairman of the Bayonne Parking Authority; MICHAEL PIERSON; KATHY LORE; and BAYONNE PARKING AUTHORITY (BPA) Commissioners 1-10, individually and in their official capacities, Defendants. Civil Action No. 07-CV-5211 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY 2009 U.S. Dist. LEXIS 6762 January 29, 2009, Decided January 30, 2009, Filed NOTICE: NOT FOR PUBLICATION SUBSEQUENT HISTORY: Reconsideration denied by Hilburn v. Bayonne Parking Auth., 2009 U.S. Dist. LEXIS 22976 (D.N.J., Mar. 19, 2009) COUNSEL: [*1] For PETER HILBURN, FELICIA RYAN, Plaintiffs: KAREN F. DESOTO, LEAD AT- TORNEY, BAYONNE, NJ. For BAYONNE PARKING AUTHORITY, Defend- ant: PETER J. CRESCI, LEAD ATTORNEY, CRESCI & BLACK LLC, BAYONNE, NJ; SEAN X. KELLY, LEAD ATTORNEY, MARKS, O'NEILL, O'BRIEN & COURTNEY, PC, PENNSAUKEN, NJ. For THE CITY OF BAYONNE, a Municipal Corpora- tion, Defendant: JOHN F. COFFEY, II, LEAD AT- TORNEY, CITY OF BAYONNE., LAW DEPART- MENT, BAYONNE, NJ; PETER J. CRESCI, CRESCI & BLACK LLC, BAYONNE, NJ. For PETER CRESCI, individually and in his official capacities, Defendant: PETER J. CRESCI, LEAD ATTORNEY, CRESCI & BLACK LLC, BAYONNE, NJ. For ROCCO COVIELLO, individually and in his offi- cial capacities as Chairman of the Bayonne Parking Au- thority, Defendant: THOMAS J. CAMMARATA, LEAD ATTORNEY, CAMMARATA, NULTY & GAR- RIGAN LLC, JERSEY CITY, NJ. For MICHAEL PIERSON, Defendant: JAMES P. FLYNN, LEAD ATTORNEY, LAUREN D. DALOISIO, EPSTEIN, BECKER & GREEN, PC, NEWARK, NJ. JUDGES: Hon. Dennis M. Cavanaugh, U.S.D.J. OPINION BY: Dennis M. Cavanaugh OPINION DENNIS M. CAVANAUGH, U.S.D.J.: This matter comes before the Court upon a series of motions by Defendants seeking dismissal and other re- lief, including: Michael Pierson's ("Pierson") motion to dismiss under Fed. R. Civ. P. 12(b)(6) [*2] and motion to strike under Fed. R. Civ. P. 12(f); Rocco Coviello's ("Coviello") motion to dismiss under Fed. R. Civ. P. 12(c); Peter Cresci's ("Cresci") motion to dismiss under Fed. R. Civ. P. 12(b)(6) and motion to impose sanctions under Fed. R. Civ. P. 11; Bayonne Parking Authority's ("BPA") motion to dismiss under Fed. R. Civ. P. 12(b)(6); and the City of Bayonne's ("City," and collec- tively, "Defendants") motion to dismiss under Fed. R. Civ. P. 12(b)(6). Pursuant to Fed. R. Civ. P. 78, no oral argument was heard. After carefully considering the submissions of the parties, and based upon the following, it is the finding of this Court that: Defendant Pierson's motion to dismiss under Rule 12(b)(6) is granted in part, denied in part; Defendant Coviello's motion to dismiss under Rule 12(c) is granted in part, denied in Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 19 of 29 PageID: 234 2009 U.S. Dist. LEXIS 6762, * 96410336.1 part; Defendant Cresci's motion to dismiss under Rule 12(b)(6) is granted in part, denied in part; Defendant BPA's motion to dismiss under Rule 12(b)(6) is granted in part, denied in part; Defendant City of Bayonne's motion to dismiss under Rule 12(b)(6) is granted in part, denied in part; Defendant Pierson's motion to strike under Rule 12(f) is denied; and Defendant [*3] Cresci's motion for sanctions under Rule 11 is denied. I. BACKGROUND 1 1 The facts set-forth in this Opinion are taken from the Parties' statements in their respective moving papers. A. Factual History Plaintiff Felicia Ryan ("Ryan") was hired by the BPA as Executive Secretary in January 2001. Plaintiff Peter Hilburn ("Hilburn," and collectively with Ryan, "Plaintiffs") was hired by the BPA as Executive Director in September 2006. Collectively, Plaintiffs and Defend- ant Kathy Lore ("Lore") comprised the BPA Executive Department, each of whom were at-will employees with no contractual right to employment. Plaintiffs allege that between September 2006 and March 2007, members of the BPA and City of Bayonne were engaging in criminal and suspicious activities. Hil- burn first became suspicious when someone asked him to sign a check for a Christmas party without any explana- tory documentation. Hilburn was also displeased because the BPA Commissioners took trips and billed them to the BPA. Hilburn thereafter instituted a policy forbidding such practices. When Hilburn voiced his concerns to Mayor Joseph Doria ("Mayor Doria"), he claims Mayor Doria told him to "let it be." Ryan became concerned when she [*4] found an envelope with three parking tickets and a "thank you" note from Pierson while retrieving payroll records from Lore's filing cabinet, leading her to believe that Lore was illegally fixing tickets. Her concern grew upon finding un-deposited cash in Lore's filing cabinet. Hilburn alleg- edly witnessed Lore failing to report, record or deposit cash from meter bags. Hilburn also suspected that his signature was being forged by someone at the BPA, pos- sibly Lore. Between March and May 2007, Hilburn voiced his concerns to several individuals, including Mayor Doria, Cresci, Coviello, Bayonne Corporation Counsel and the Bayonne Court Administrator. Finding their response inadequate, Hilburn contacted the New Jersey Attorney General ("Attorney General") and became an informant for the Attorney General's office. In May 2007, the Attorney General served the BPA with the first of two subpoenas. Plaintiffs allege that Coviello shredded the subpoenas due to concerns that news of the subpoenas would be leaked. Mayor Doria allegedly then told Hilburn that, "if you had anything to do with this, you f***ed me and you f***ed yourself." On July 16, 2007, the BPA terminated Plaintiffs and Lore. Ryan [*5] was told that the BPA was eliminating both her position and the BPA's executive branch and that she would not be transferred to another department. Cresci informed the media that the terminations were part of a departmental reorganization to stimulate strate- gic improvements. Plaintiffs dispute this reasoning, however, and instead assert that their terminations were in retaliation for their whistle-blowing activities. B. Procedural History Plaintiffs filed a notice of tort claim pursuant to N.J.S.A. § 59.1-1 on August 2, 2007. The initial Com- plaint was filed on October 29, 2007. An Amended Complaint was filed on July 17, 2008, alleging nine sep- arate causes of action, including: a civil action for depri- vation of rights under 42 U.S.C. § 1983 (count 1); con- spiracy to violate federal civil rights under 42 U.S.C. §§ 1983, 1985 and 1986 (count 2); intentional and/or negli- gent infliction of emotional distress (count three); negli- gent hiring / retention (count 4); respondeat superior (count 5); violation of the Conscientious Employee Pro- tection Act ("CEPA") (count 6); interference with pro- spective economic advantage (count 7); violation of the New Jersey Civil Rights Statute (count 8); and wrongful [*6] termination (count 9). For each count, Plaintiffs seek an award of compensatory damages, punitive dam- ages, reinstatement of employment and attorneys' fees. Coviello is the only Defendant to have filed an an- swer. Defendants Pierson, Coviello, Cresci, BPA and the City of Bayonne have all moved for dismissal under ei- ther Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c). Additionally, Pierson has filed a motion to strike under Fed. R. Civ. P. 12(f), and Coviello seeks sanctions under Fed. R. Civ. P. 11. Neither Mayor Doria nor Lore have filed a motion to dismiss. II. STANDARDS OF REVIEW A. Fed. R. Civ. P. 12(b)(6) In deciding a motion to dismiss pursuant to Rule 12(b)(6), all allegations in the complaint must be taken as true and viewed in the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975); Trump Hotels & Ca- sino Resorts, Inc., v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998). If, after viewing the allegations in the Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 20 of 29 PageID: 235 2009 U.S. Dist. LEXIS 6762, * 96410336.1 complaint in the light most favorable to the plaintiff, it appears beyond doubt that no relief could be granted "under any set of facts which could prove consistent with the allegations," a court shall dismiss a complaint for failure [*7] to state a claim. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984). In Bell Atl. Corp. v. Twombly, the Supreme Court clarified the Rule 12(b)(6) standard. See 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Specifi- cally, the Court "retired" the language contained in Con- ley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957), that "a complaint should not be dismissed for failure to state a claim 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." Twombly, 127 S. Ct. at 1968 (citing Conley, 355 U.S. at 45-46). Instead, the Supreme Court instructed that "[f]actual al- legations must be enough to raise a right to relief above the speculative level." Twombly, 127 S. Ct. at 1965. B. Fed. R. Civ. P. 12(c) The standard applied to a Rule 12(c) motion for judgment on the pleadings is similar to that applied to a Rule 12(b)(6) motion to dismiss. Haynes v. Metropolitan Life Ins. Co., 94 Fed. App'x 956, 958 (3d Cir. 2004). Under Rule 12(b)(6), courts must accept as true all alle- gations in the complaint, viewed in the light most favor- able to the plaintiff. See Gomez v. Toledo, 446 U.S. 635, 636 n.3, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980); Robb v. Phila., 733 F.2d 286, 290 (3d Cir. 1984). [*8] If no relief could be granted under any set of facts that could prove consistent with the allegations in the complaint, the court may dismiss the complaint for failure to state a claim. See Hishon, at 73; Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir. 1986). C. Fed. R. Civ. P. 12(f) Under Rule 12(f), "[t]he court may strike from a pleading an insufficient defense or any redundant, im- material, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). The court may do so on its own or "on a motion made by a party either before responding to the pleading or, if a response is not allowed, within 20 days after be- ing served with the pleading." Motions to strike are not favored, however, and usually will be denied "unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties." 5A Wright & Miller, Federal Practice and Procedure: Civil 2d §1382. D. Fed. R. Civ. P. 11 As provided by Rule 11, "[s]anctions may be im- posed against an attorney or unrepresented party pursu- ant to Fed. R. Civ. P. 11(b)(2) for signing, filing, or later advocating a claim, defense, or other legal contention that is not warranted by existing law." 2 Moore's Federal Practice, § 11.11 [7] [a] [*9] (Matthew Bender 3d ed.). Rule 11(c) requires notice and an opportunity to with- draw the offending document, by serving a motion for sanctions pursuant to Rule 11, but not filing it if the of- fending paper is withdrawn within twenty-one days of service. See Fed. R. Civ. P. 11(c)(2). Additionally, Rule 11(c) requires that "[a] motion for sanctions must be made separately from any other motion and must de- scribe the specific conduct that allegedly violates Rule 11(b)." Id. Furthermore, "[a] court considering the impo- sition of Rule 11 sanctions must bear in mind that such sanctions are to be imposed only in exceptional circum- stances, 'where the claim or motion is patently unmerito- rious or frivolous.'" Ritter v. Clinton House Rest., 64 F. Supp. 2d 374, 396 (D. N.J. 1999) (quoting Dura Sys., Inc. v. Rothbury Invs., Ltd., 886 F.2d 551, 556 (3d Cir. 1989)). Rule 11 is "not intended to chill an attorney's enthusiasm or creativity in pursuing factual or legal the- ories." Dura Sys., 886 F.2d at 556 (citing Fed. R. Civ. P. 11 (advisory committee notes)). When issues are close, seeking Rule 11 sanctions borders on an abuse of the system. See Gaiardo v. Ethyl Corp., 835 F.2d 479, 483-84 (3d Cir. 1987) [*10] (citations omitted). III. DISCUSSION Currently before the Court are a series of motions by Defendants Pierson, Coviello, Cresci, BPA and the City of Bayonne requesting dismissal of the claims against them and other relief. For the reasons stated, the Court finds that: the Section 1983 claims alleging First Amendment violations are dismissed as against Pierson and Coviello only; the Section 1985 and 1986 claims alleging conspiracy to violate First Amendment rights are dismissed as against all Defendants; all federal claims alleging Fourteenth Amendment violations are dismissed; the CEPA claims may proceed against all Defendants; and the remaining state law claims are dismissed as against all Defendants filing a motion. Furthermore, Pierson's motion for sanctions is denied, and Cresci's motion to strike is denied. A. Federal Claims Plaintiffs assert federal claims against all Defendants for deprivation of constitutionally protected rights under Section 1983 and for conspiracy to violate federal civil rights under Sections 1983, 1985 and 1986. Because Plaintiffs have alleged a proper First Amendment retalia- tion claim under Section 1983 against City of Bayonne, BPA, and Cresci, those claims [*11] may proceed. Be- cause Plaintiffs have failed to show that Coviello and Pierson acted outside the scope of their "legitimate leg- islative activit[ies]," however, claims under Section 1983 Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 21 of 29 PageID: 236 2009 U.S. Dist. LEXIS 6762, * 96410336.1 against them are dismissed. All claims under Sections 1985(2) and 1986 are dismissed. Additionally, because Plaintiffs have failed to allege a property interest in their continued employment, all claims based upon the Four- teenth Amendment are dismissed. i. First Amendment Claims under Section 1983 In Counts 1 and 2, Plaintiffs assert First Amendment retaliation claims against all Defendants under Section 1983. While not a source of substantive rights, Section 1983 provides a method for vindicating rights secured elsewhere in federal law. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85, 122 S. Ct. 2268, 153 L. Ed. 2d 309 (2002); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Plaintiffs seeking damages thereunder must demonstrate that the defendant, acting under color of state law, deprived him or her of a right secured by the Constitution or laws of the United States. 42 U.S.C. § 1983; Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S. Ct. 977, 143 L. Ed. 2d 130 (1999). Plaintiffs allege that they were deprived of their First Amendment rights when Defendants retaliated [*12] against them for "blowing the whistle" on the cor- rupt activities allegedly taking place at the BPA. To pre- vail on a First Amendment retaliation claim, plaintiffs must show that: (1) the conduct at issue was constitu- tionally protected; (2) the retaliatory action was suffi- cient to deter a person of ordinary firmness from exer- cising his constitutional rights; and (3) a causal link be- tween the constitutionally protected conduct and the re- taliatory action. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006). Here, little doubt exists that Plaintiffs' speech was "protected conduct." Public employees have a constitu- tional right to speak on matters of public concern without fear of retaliation. See Baldassare v. New Jersey, 250 F.3d 188, 194 (3d Cir. 2001). Speech is said to involve a matter of public concern if it relates to "any matter of political, social, or other concern to the community." Id. at 195. In particular, speech bringing to light "actual or potential wrongdoing or breach of public trust on the part of government officials" has been identified as protected speech. See id.; see also O'Donnell v. Yanchulis, 875 F.2d 1059, 1061 (3d Cir. 1989) [*13] ("Needless to say, allegations of corrupt practices by government offi- cials are of the utmost public concern."). In this case, Plaintiffs' "voicing their concerns and reporting behavior [by Defendants] that they believed to be criminal" is clearly protected conduct under the First Amendment. Furthermore, Defendants' alleged retaliatory campaign of harassment and intimidation, including threats that Plain- tiffs would "lose their jobs," is "sufficient to deter a per- son of ordinary firmness" from exercising those rights and satisfies the second prong. See Thomas, 463 F.3d at 296. Finally, due to the temporal proximity that exists between Plaintiffs' whistle-blowing activities, Defend- ants' alleged threats, and Plaintiffs' actual termination, the Court finds that Plaintiffs have sufficiently estab- lished a causal link between their constitutionally pro- tected activity and the retaliatory action. Accordingly, construing the allegations in Plaintiffs' favor, the Court finds that Plaintiffs have adequately pled a deprivation of their First Amendment rights. Thus, the only remaining question is whether each named Defendant acted to deprive Plaintiffs of their First Amendment rights "under the color [*14] of state law." In support of their claims, Plaintiffs make a series of allegations that, if true, may lead to a finding that De- fendants deprived Plaintiffs of their First Amendment rights under the color of law, including: Defendants Doria, Cresci, Pierson, Coviello and the BPA commis- sioners are "policymakers" for the BPA; Mayor Doria "maintained control over the operations, business, poli- cies and practices" of the BPA; Mayor Doria allegedly made adverse statements to Plaintiffs about getting along with the BPA commissioners and their job prospects; Cresci allegedly told Plaintiffs that they were "probably going to lose their jobs"; and Plaintiffs were eventually terminated by the BPA commissioners in retaliation for engaging in protected conduct. 2 2 Plaintiffs also appear to base their federal claims on Defendants' alleged corrupt practices, including, inter alia, ticket fixing and submitting false expenses. While those acts may have been improper, the Court will not consider them here because they do not have the effect of impinging on Plaintiffs' First or Fourteenth Amendment rights. Because Mayor Doria is the City of Bayonne's "highest official," and because he is alleged to have [*15] threatened and then caused Plaintiffs' termination, the Court finds that, as alleged, the City of Bayonne may have had a "policy or custom" in effect that caused the constitutional violation, and thus that it may be sued di- rectly under Section 1983. See Brennan v. Norton, 350 F.3d 399, 428 (3d Cir. 2003) (finding that, even though municipalities may not be held vicariously liable under Section 1983, they may be held directly liable if "an un- constitutional policy could be inferred from a single de- cision taken by the highest officials responsible for set- ting policy in that area of the government's business"). Similarly, because individual BPA commissioners are alleged to have threatened the Plaintiffs with termination in retaliation for Plaintiffs exercising their First Amend- ment rights, and because it is alleged that the BPA com- missioners are in fact responsible for Plaintiffs' termina- Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 22 of 29 PageID: 237 2009 U.S. Dist. LEXIS 6762, * 96410336.1 tion, the Court finds that the BPA may also have had in place a "custom or policy" that deprived Plaintiffs of their constitutional rights. See Natale v. Camden County Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003) (the act of a governmental employee may be deemed a "cus- tom or policy" where "no rule [*16] has been an- nounced as policy but federal law has been violated by an act of the policymaker itself"); see also Brennan, 350 F.3d at 428; Bowen v. Parking Auth. of Camden, 2003 U.S. Dist. LEXIS 16305, 2003 WL 22145814, *32 (D.N.J. Sept. 18, 2003). Accordingly, Plaintiffs' Section 1983 claims against the City of Bayonne and the BPA may proceed. With respect to the individual Defendants, the Court finds that the Section 1983 claims against Coviello and Pierson are dismissed for failure to state a claim, but that the claims against Cresci may proceed. Federal common law provides public officials with immunity "for all ac- tions taken in the sphere of legitimate legislative activi- ty." Baraka v. McGreevey, 481 F.3d 187, 195-96 (3d Cir. 2007); see also Bogan v. Scott-Harris, 523 U.S. 44, 54-55, 118 S. Ct. 966, 140 L. Ed. 2d 79 (1998) (absolute legislative immunity for city council members who voted for ordinance eliminating government office of which plaintiff was sole employee). In this case, Plaintiffs con- cede that Pierson, Cresci and Coviello are "policymak- ers" and "legislators entitled to immunity from civil lia- bility for legislative activities." Nonetheless, Plaintiffs contend that immunity should not attach to Coviello, Pierson and Cresci because [*17] they acted outside the scope of their employment by their "ticket fixing, misuse of funds, and engaging in illegal contracts along with their involvement in the conspiracy to terminate Plain- tiffs' employment." As the Court has already explained, however, the Defendants' alleged corrupt practices of ticket fixing, misusing funds and engaging in illegal con- tracts have little relevance to Plaintiffs' First Amendment claims under Section 1983 because, while improper, they do not impact Plaintiffs' protected rights, and would not "deter a person of ordinary firmness from exercising his constitutional rights." See Mitchell, 318 F.3d at 530. Rather, it appears that the only proper basis for Plaintiffs' Section 1983 claims are that Defendants engaged in a retaliatory campaign of threats and intimidation in an effort to prevent Plaintiffs from speaking about the al- leged corruption. Applied to Coviello, Pierson and Cresci, it appears that only two grounds exist upon which Plaintiffs may properly base their claims: (1) those actions taken by the individual Defendants in the course of their duties as BPA commissioners, including the decision to terminate Plaintiffs; and (2) Cresci's alleged threat [*18] that Plaintiffs were "probably going to lose their jobs." With respect to the first basis, the Court has already explained that Coviello, Pierson and Cresci are immune from lia- bility for "actions taken in the sphere of [their] legitimate legislative activity." Thus, to the extent that Plaintiffs' claims are based upon actions taken within the "legisla- tive" process, including the decision to terminate Plain- tiffs, the individual Defendants are immune from suit. To the extent that Plaintiffs' claims are based on non-legislative activities, however, including retaliatory threats and intimidation, their claims may proceed. Ac- cordingly, because it appears that the only valid Section 1983 allegations against Coviello and Pierson are based upon "actions taken in the sphere of legitimate legislative activity," they are immune from suit and their motions to dismiss are granted. Because Cresci's alleged retaliatory threats take him outside the scope of his "legislative ac- tivities," however, he is not immune and his motion to dismiss is denied. ii. First Amendment Conspiracy Claims under Sec- tions 1983, 1985 and 1986 Plaintiffs also state claims under Sections 1983, 1985(2) and 1986 alleging that [*19] Defendants con- spired to retaliate against them for exercising their First Amendment rights and to prevent Plaintiffs from speak- ing out about the alleged corruption. 3 Plaintiffs asserting conspiracy claims under Section 1983 "must show that two or more conspirators reached an agreement to de- prive him or her of a constitutional right under color of law." See Royster v. Beard, 308 Fed. Appx. 576, 2009 U.S. App. LEXIS 1364, 2009 WL 146689, *3 (3d Cir. Jan. 22, 2009). Similar to the findings above, the Court will allow the conspiracy claim under Section 1983 to proceed against Defendants City of Bayonne, the BPA and Cresci because it has been sufficiently alleged, at least at this stage, that they participated in a retaliatory campaign against Plaintiffs with the effect of depriving Plaintiffs of their federally-protected rights. With respect to Coviello and Pierson, however, it remains the case that no relevant allegations take them outside the scope of their "legitimate legislative activity," and thus they re- main immune under federal common law. See Baraka, 481 F.3d at 195-96; see also Bogan, 523 U.S. at 54-55. 3 Plaintiffs also attempt to ground their claim in Defendants' alleged conspiracy to cover up the illegal acts that formed [*20] the basis of Plain- tiffs' whistle-blowing activities. Again, however, the Court finds that these actions are not relevant to Plaintiffs' claims under Section 1983 because, while improper, they do not impact Plaintiffs' protected rights. With respect to the conspiracy claims under Sections 1985(2) and 1986, however, the Court finds that those claims are without merit and must be dismissed. Plain- tiffs' claims under Section 1985(2) are dismissed because Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 23 of 29 PageID: 238 2009 U.S. Dist. LEXIS 6762, * 96410336.1 Plaintiffs fail to allege "that racial, or otherwise class-based, invidiously discriminatory animus lay be- hind the defendants' actions." See Parrott v. Abramsen, 200 Fed. App'x 163, 165 (3d Cir. 2006); Magnum v. Archdiocese of Philadelphia, 253 Fed. App'x 224, 230 (3d Cir. 2007). Plaintiffs' Amended Complaint provides absolutely no basis for finding that Defendants acted with a "racial" or "class-based" discriminatory animus. Furthermore, in the absence of a valid Section 1985 claim, Plaintiffs cannot state a claim pursuant to Section 1986. See Finch v. Buechel, 188 Fed. App'x 139, 141 (3d Cir. 2006). Accordingly, because Plaintiffs fail to estab- lish that Defendants acted with a racial or class-based discriminatory intent, and because a Section 1986 [*21] claim cannot be maintained in the absence of a proper Section 1985 claim, Plaintiffs' claims thereunder are dismissed. iii. Fourteenth Amendment Claims under Section 1983, 1985 and 1986 Plaintiffs also assert Fourteenth Amendment claims under Sections 1983, 1985 and 1986, presumably based upon a deprivation of their property interest in continued employment. To succeed on a claim for deprivation of due process rights under the Fourteenth Amendment based on termination of a specific employment position, a plaintiff must establish a property interest in the em- ployment. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 576, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Latessa v. New Jersey Racing Comm'n, 113 F.3d 1313, 1318 (3d Cir. 1997). To have a property interest in a job or job benefit, an employee must have a legitimate claim of entitlement to his position. Latessa, 113 F.3d at 1318. Property interests in employment may also arise from "mutually explicit understandings between a government employer and employee." Id. In this case, Plaintiffs have failed to allege in any manner that they had a property interest in their continued employment at the BPA, nor is the Court otherwise able to identify such an interest. [*22] Accordingly, because the Court finds that Plaintiffs were not deprived of any protected right under the Four- teenth Amendment, Plaintiff's claims thereunder are dis- missed as to all filing Defendants. B. State Claims Plaintiffs assert state claims against all Defendants for, inter alia, intentional and/or negligent infliction of emotional distress (count three); negligent hiring / reten- tion (count 4); respondeat superior (count 5); violation of the Conscientious Employee Protection Act ("CEPA") (count 6); interference with prospective economic ad- vantage (count 7); violation of the New Jersey Civil Rights Statute (count 8); and wrongful termination (count 9). Because Plaintiffs have alleged a proper claim under CEPA, those claims may proceed. All of the re- maining state claims, however, are dismissed. i. CEPA Claims (Count 6) Plaintiffs allege that they were retaliated against for engaging in protected expression in violation of CEPA. CEPA expressly forbids an employer from taking retali- atory action against an employee who discloses infor- mation to a supervisor or public body related to an activ- ity, policy or practice of the employer that the employee reasonably believes is in violation of [*23] the law or that is fraudulent or criminal. See N.J.S.A. § 34:19-3. Liability is not limited to employers, however, as CEPA also creates individual liability for employees or super- visors acting with employer authorization. See Fasano v. Fed. Reserve Bank of New York, 457 F.3d 274, 289 (3d Cir. 2006); Palladino ex rel United States v. VNA of S. N.J., Inc., 68 F. Supp. 2d 455, 474 (D.N.J. 1999). Plain- tiffs bringing suit under CEPA must establish that: (1) he or she reasonably believed that his or her employer's conduct was violat- ing either a law, rule, or regulation prom- ulgated pursuant to law, or a clear man- date of public policy; (2) he or she per- formed a 'whistle-blowing' activity de- scribed in N.J.S.A. 34:19-3c; (3) an ad- verse employment action was taken against him or her; and (4) a causal con- nection exists between the whis- tle-blowing activity and the adverse em- ployment action. Maimone v. Atl. City, 188 N.J. 221, 230, 903 A.2d 1055 (2006) (citing Dzwonar v. McDevitt, 177 N.J. 451, 462, 828 A.2d 893 (2003)). In other words, Plaintiffs must identify "the asserted violation with adequate particular- ity." Klein v. Univ. of Med. and Dentistry of N.J., 377 N.J. Super. 28, 40, 871 A.2d 681 (App. Div. 2005) (citing McLelland v. Moore, 343 N.J. Super. 589, 601, 779 A.2d 463 (App. Div. 2001)). As [*24] alleged, little doubt exists that Plaintiffs were performing a "whistle-blowing" activity under N.J.S.A. § 34:19-3 by reporting conduct that they "rea- sonably believed" to be illegal. Furthermore, considering the temporal proximity between Defendants' alleged re- taliatory conduct and Plaintiffs' whistle-blowing activi- ties, it appears that, at least at this stage, Plaintiffs have properly established a causal connection between their whistle-blowing activities and eventual termination. Thus, the only remaining question is whether each named Defendant can be held liable under the statute. Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 24 of 29 PageID: 239 2009 U.S. Dist. LEXIS 6762, * 96410336.1 The BPA and City of Bayonne both argue that they are not subject to liability under the statute because they are not "employers" within the meaning of CEPA. The BPA argues that it was not Plaintiffs' employer because it was "controlled" by the City of Bayonne, while the City argues that Plaintiffs were employees only of the BPA, a separate legal entity, and not the City. Because it appears that the BPA was in fact Plaintiffs' "employer," however, and because Plaintiffs have alleged that Mayor Doria and the City of Bayonne were effectively in control of the BPA's activities, the Court finds that, at least [*25] at this stage, Plaintiffs' CEPA claims against the BPA and City of Bayonne may proceed. Defendants Coviello, Pierson and Cresci argue that they are not liable under CEPA both because CEPA does not allow for individual liability and because they did not engage in an "adverse employment action" against Plain- tiffs. Contrary to Defendants' assertion, however, indi- vidual liability may exist under CEPA for employees or supervisors acting with employer authorization. See Fasano, 457 F.3d at 289. Additionally, Plaintiffs have adequately alleged that the individual Defendants en- gaged in an "adverse employment action," based both on their alleged participation in the BPA's terminating ac- tion as well as Cresci's threats that Plaintiffs would "lose their jobs" for engaging in whistle-blower activities. Ac- cordingly, because individuals may be held liable under CEPA, and because Plaintiffs have properly alleged that the individual Defendants engaged in an "adverse em- ployment action" to prevent Plaintiffs from "blowing the whistle," the Court finds that Defendants' motions to dismiss the CEPA claims are denied. ii. Claims Subsumed Under CEPA CEPA includes a waiver provision stating that the institution [*26] of a CEPA claim "shall be deemed a waiver of the rights and remedies available under any contract, collective bargaining agreement, State law, rule or regulation or under common law." N.J.S.A. § 34:19-8. This provision recognizes that CEPA "provides a bundle of rights protecting employees from retaliatory dis- charge," and ensures that any "[p]arallel claims based on those rights, privileges and remedies are waived because they represent multiple or duplicative claims based on retaliatory discharge." See Young v. Schering Corp., 141 N.J. 16, 29, 660 A.2d 1153 (1995); see also Palladino, 68 F. Supp. 2d at 470 ("The unambiguous language of the New Jersey provision indicates that by filing a claim under CEPA, a plaintiff waives his or her right to assert claims for the same conduct."). The waiver provision thus precludes all claims "substantially related" and based on the same conduct as the CEPA claim, "in- clud[ing] all rights and remedies that are available when an employee is wrongfully discharged for disclosure, in an attempt to prevent multiple claims based upon the same issue." See Espinosa v. County of Union, 2005 U.S. Dist. LEXIS 36563, 2005 WL 2089916, *11 (D.N.J. Aug. 30, 2005), aff'd on other grounds, 212 Fed. App'x 146, 156 (3d Cir. 2007). Importantly, [*27] however, the waiver provision does not apply "to those causes of action that are sub- stantially independent of the CEPA claim." Young, 141 N.J. at 29. Claims that are unrelated to the retaliatory conduct and require a showing of different proofs are not waived by the institution of a CEPA claim. Espinosa, 2005 U.S. Dist. LEXIS 36563, 2005 WL 2089916, at * 11. Thus, Courts considering a CEPA claim are tasked with determining whether, based upon the circumstances, additional claims represent "multiple or duplicative claims based on retaliatory discharge," or whether in- stead they are "substantially unrelated to the retaliatory discharge claim" and "require different proofs than those needed to substantiate the CEPA claim." Young, 141 N.J. at 29, 31. Defendants in this case variously assert that all claims other than the CEPA claim should be dismissed as duplicative. The Court is mindful, however, that CEPA only precludes claims based on "similar conduct," and that it must determine whether the related claims are "substantially related" to the retaliatory conduct or are "independent" and require "different proofs." Because the Court finds that Plaintiffs' wrongful termination claim is entirely "duplicative" of the CEPA [*28] claim, and because many of the remaining state claims are based at least in part on the retaliatory conduct, the wrongful termination claim is dismissed in its entirety, see Calabria v. State Operated Sch. Dist. of Paterson, 2008 U.S. Dist. LEXIS 65264, 2008 WL 3925174, *7 (D.N.J. Aug. 26, 2008) (wrongful termination claim pre- cluded by CEPA), and the remaining state claims are dismissed to the extent that they are based on the alleged retaliatory conduct. See Boody v. Township of Cherry Hill, 997 F. Supp. 562, 568-69 (D.N.J. 1997) (dismissing state law claims for infliction of emotional distress, con- spiracy, harassment, and interference with contract of employment because based on the same retaliatory con- duct as that underlying CEPA claim). 4 4 CEPA does not preclude federal claims, and thus Plaintiffs' claims in Counts 1 and 2 for viola- tion of federally-protected rights are unaffected by CEPA's waiver provision. Thus, for example, Plaintiffs' claims for emotional distress, negligent hiring, respondeat superior, interfer- ence with economic advantage, and for violating the due process and free speech principles of New Jersey's Civil Rights Statute are dismissed to the extent that they are based on Defendants' alleged [*29] retaliatory conduct. This includes any claims arising out of Plaintiffs' termi- Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 25 of 29 PageID: 240 2009 U.S. Dist. LEXIS 6762, * 96410336.1 nation, Defendant Cresci's alleged retaliatory threats that Plaintiffs were "probably going to lose their jobs," and Mayor Doria's alleged retaliatory statement, as described earlier in this Opinion. See, e.g., Lynch v. New Deal De- livery Serv., Inc., 974 F. Supp. 441, 456 (D.N.J. 1997) (dismissing emotional distress claim based primarily upon "discharge itself and the manner in which it was conducted" because the claim was linked to the termina- tion and thus waived by CEPA) (not followed on other grounds, see Farrell v. Planters Lifesavers Co., 206 F.3d 271, 282 (3d Cir. 2000)); Baldassare, 250 F.3d at 201-02 (dismissing claims for violation of state constitu- tional right to freedom of speech and tortious interfer- ence with economic advantage because they were based on facts identical to the retaliation claim and thus were waived under CEPA). While the Court is mindful that such claims are not always precluded by a CEPA claim, see Espinosa, 212 Fed. Appx. at 156, it nonetheless finds that, given the nature of the remaining claims, any proofs based on the alleged retaliatory acts would be substan- tially similar [*30] to those underlying the CEPA claim, leaving the claims as "essentially cumulative." See Young, 141 N.J. at 27. To the extent that these claims are independent of Defendants' alleged retaliatory conduct, however, the claims are not precluded by CEPA. iii. Intentional / Negligent Infliction of Emotional Distress (Count 3) Plaintiffs' raise claims for negligent and intentional infliction of emotional distress ("IIED") based upon De- fendants' alleged conduct that was "outrageous and ex- ceeded all bounds usually tolerated by a decent society." As a threshold matter, however, the Court notes that to the extent these emotional distress claims are based upon Defendants' alleged retaliatory conduct, these claims have already been dismissed under the exclusionary pro- vision of CEPA. See, e.g., Lynch, 974 F. Supp. at 456 (dismissing emotional distress claim under exclusionary provision of CEPA because based primarily upon cir- cumstances surrounding discharge); Boody, 997 F. Supp. at 568-69. Furthermore, to the extent that this or any other tort claim is based upon workplace negligence, the Court agrees with Defendants that such claims are barred by the New Jersey Workers' Compensation Act ("WCA"). 5 [*31] See, e.g., Smith v. Exxon Mobil Corp., 374 F. Supp. 2d 406, 424 (D.N.J. 2005) (dismiss- ing claim for negligent infliction of emotional distress under the WCA). 5 Additionally, the Court declines to dismiss Plaintiffs' tort claims for failing to comply with the New Jersey's Tort Claims Act's six-month waiting period. See N.J.S.A. § 59:8-8. While it is indeed true that Plaintiffs failed to wait the requi- site six months, the Court nonetheless notes that such a violation generally results only in dismis- sal without prejudice. See Guerrero v. City of Newark, 216 N.J. Super. 66, 74-75, 522 A.2d 1036 (N.J. App. Div. 1987). Because it appears that Defendants will not be prejudiced by allow- ing the claims to proceed, and in consideration of the interests of judicial economy implicated by the fact that Plaintiffs' could simply re-file their claims upon dismissal without prejudice, the Court will allow Plaintiffs' tort claims to remain despite the violation. See, e.g., id. Accordingly, Plaintiffs can only state a viable claim for IIED based upon actions other than the retaliatory conduct addressed by CEPA. To prevail on an IIED claim, Plaintiffs must show that Defendants' conduct was "so outrageous in character, [*32] 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." Marrero v. Camden County Bd. of Soc. Servs., 164 F. Supp. 2d 455, 479 (D.N.J. 2001). "Mere insults, indignities, threats, annoyances, petty op- pressions, or other trivialities" do not give rise to liability for IIED. Barboza v. Greater Media Newspapers, 2008 U.S. Dist. LEXIS 55716, 2008 WL 2875317, *5 (D.N.J. July 22, 2008). Indeed, "[t]he limited scope of this tort tolerates many kinds of unjust, unfair and unkind con- duct." Id. Furthermore, it is "extremely rare to find con- duct in the employment context that will rise to the level of outrageousness necessary to provide a basis for re- covery" for IIED. Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988) (applying Pennsylvania law). In this case, it appears, though Plaintiffs do not specify, that Defendants' IIED claims are based both on Defendants' alleged retaliatory conduct as well as an al- leged series of criminal and corrupt practices engaged in by Defendants such as ticket fixing, conspiring to cov- er-up wrongdoing, misusing the office, and authorizing illegal payments. As stated earlier, to the [*33] extent that these claims are based on retaliatory conduct, they are precluded by CEPA. With respect to the other grounds, however, the Court finds that, even when con- strued most favorably to Plaintiffs, Defendants' alleged corrupt practices do not rise to the level necessary to maintain a claim for IIED. See Marrero, 164 F. Supp. 2d at 479 ("mere fact that [d]efendants acted for an improp- er purpose does not give rise to an actionable claim"). Accordingly, Plaintiffs' claims for IIED against all De- fendants are dismissed under Rule 12(b)(6) for failure to state a claim. iv. Negligent Hiring / Retention (Count 4) Plaintiffs next bring a claim for negligent hiring and retention based upon Defendants' "appointing, hiring and retaining" various employees even after becoming aware Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 26 of 29 PageID: 241 2009 U.S. Dist. LEXIS 6762, * 96410336.1 of their alleged criminal acts. As stated above, however, an employee covered by the WCA cannot sue his em- ployer or a co-employee for negligence. Wellenheider v. Rader, 49 N.J. 1, 9, 227 A.2d 329 (1967). This is true regardless of the kind of injury alleged, and has specifi- cally been held to bar claims of negligent hiring and re- tention. See, e.g., Cremen v. Harrah's Marina Hotel Ca- sino, 680 F. Supp. 150, 155-56 (D.N.J. 1988) (negligent [*34] hiring and retention claims barred by exclusive remedy provision of the WCA); DeMaria v. The Home Depot, 1998 U.S. Dist. LEXIS 23070, 1998 WL 1750127, *3 (D.N.J. Mar. 31, 1998) (negligent hiring and retention claims barred by WCA). Accordingly, because this claim sounds in negligence and is compensable under the WCA, it is hereby dismissed. v. Respondeat Superior (Count 5) Plaintiffs bring suit against all Defendants under a claim of respondeat superior, stating that "Defendants are liable for the actions of the individual Defendants . . . to the extent Defendants acted within the scope of their duties." As an initial matter, the Court notes that Plain- tiffs appear to base this claim on Defendants' alleged campaign to "terminate, harass, humiliate and threaten" the Plaintiffs. Because the only allegations supporting such a claim are those involving Defendants' alleged retaliatory actions, the Court finds that these claims are barred by CEPA. Alternatively, to the extent that Plaintiffs attempt to hold the BPA and City of Bayonne vicariously liable due to "customs and policies of ongoing and criminal con- duct as pleaded," the Court notes that the only facts sup- porting a tortious "custom or policy" by the municipali- ties [*35] are those dealing with the alleged retaliatory acts against Plaintiffs for whistle-blowing activities. Be- cause these allegations are based on the same set of facts and would require the same set of proofs as a claim for retaliation, however, the claim is again barred by the exclusionary provision of CEPA. Furthermore, with re- spect to the individual Defendants, the Court notes that Plaintiffs' respondeat superior claim is specifically based on actions taken "within the scope of their duties." The Court has already established, however, that public offi- cials may not be held liable for the "exercise of discre- tion" or for "legislative or judicial action or inaction." See N.J.S.A. § 59:3-2. Accordingly, because the claims for respondeat superior against the municipalities are barred by CEPA, and because the individual Defendants are immune from liability for actions taken within the scope of their employment, Plaintiffs' claims for re- spondeat superior are dismissed. vi. Interference with Prospective Economic Ad- vantage (Count 7) Plaintiffs next raise a common law claim for inter- ference with prospective economic advantage, alleging that Defendants "interfere[d] [*36] with the employ- ment of Plaintiffs," resulting in "loss of that prospective advantage, and economic damage by means of their ter- mination." As an initial matter, the Court notes that, to the extent that this claim is based on Defendants' alleged retaliatory conduct, it has already been dismissed under the CEPA's waiver provision. Because it appears from the allegations in the Amended Complaint that this claim is based entirely on Plaintiffs' termination, the Court finds that this claim is precluded by CEPA and dismissed for failure to state a claim. Alternatively, however, the Court notes that this claim is also subject to dismissal as against the BPA, City of Bayonne, Coviello and Pierson because Plaintiffs have utterly failed to allege a proper cause of action against these Defendants. Claims for tortious interference require, inter alia, that the claim be directed at a non-contracting third party. See Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 752-53, 563 A.2d 31 (1989). Accordingly, because the BPA and City of Bayonne, as employers, are alleged to be parties to the employment contract between them- selves and Plaintiffs, the claim against them must fail. See Fioriglio v. Atl. City, 996 F. Supp. 379, 392 (D.N.J. 1998). [*37] Similarly, as employees of the BPA and City of Bayonne, the individual Defendants cannot be held liable for interfering with another's contract with their common employer while acting in the course of their employment. See id. (noting that corporations can only act through their agents and employees and that employees are generally immune from tort liability where they exercise a privilege held by the employer). Although Plaintiffs attempt to circumvent this rule by arguing that the individual Defendants acted outside the scope of their employment, the Court has already noted its finding that Coviello and Pierson acted within the scope of their employment and legislative duties with respect to Plaintiffs' termination. 6 Accordingly, even in the absence of CEPA preclusion, this claim is still sub- ject to dismissal as against the BPA, City of Bayonne, Coviello and Pierson. 6 Based upon Plaintiffs' allegations, only Cresci can be viewed as having potentially acted outside the scope of his employment with respect to Plaintiffs' termination due to his alleged threat that Plaintiffs' "were probably going to lose their jobs." vii. New Jersey Civil Rights statute (Count 8) Plaintiffs also raise [*38] claims under the New Jersey Civil Rights Statute for violation of their due pro- cess and free speech rights, as protected under the New Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 27 of 29 PageID: 242 2009 U.S. Dist. LEXIS 6762, * 96410336.1 Jersey State Constitution. Though not specified, it ap- pears that the only valid basis for Plaintiffs to allege due process and free speech violations are the circumstances surrounding Defendants' alleged retaliatory conduct, in- cluding the threats allegedly made to silence Plaintiffs and Plaintiffs' eventual termination. Accordingly, be- cause the Court finds that Plaintiffs' claims under the New Jersey Civil Rights Statute arise from the same set of facts as those surrounding their retaliation claim, these claims are dismissed under CEPA's waiver provision. See, e.g., Baldassare, 250 F.3d at 202 (dismissing claim under New Jersey Civil Rights Statute because it "ar[o]se from the same set of facts surrounding [the] retaliation claim"). viii. Wrongful Termination (Count 9) Plaintiffs' claims for wrongful termination are based squarely on the allegation that Defendants terminated Plaintiffs in retaliation for "exercising their rights under the State and Federal Constitution" and "reporting and complaining [about] the illegal and criminal acts." As previously [*39] held, Plaintiffs' wrongful termination claims are precluded by CEPA's waiver provision be- cause they are based on Defendants' alleged retaliatory conduct. See N.J.S.A. § 34:19-8. Accordingly, these claims are dismissed. ix. Punitive Damages Both the City of Bayonne and the BPA argue that they may not be held liable for punitive damages. Be- cause the only claims remaining against the municipali- ties are those under 42 U.S.C. § 1983 and CEPA, the Court will consider this issue only with respect to those two claims. It is well established that municipal corpora- tions may not be held liable for punitive damages under Section 1983. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 259-60, 101 S. Ct. 2748, 69 L. Ed. 2d 616 (1981); Doe v. County of Centre, PA, 242 F.3d 437, 455-56 (3d Cir. 2001). Under CEPA, however, a public employer may be held accountable for punitive damages. See Abbamont v. Piscataway Twp. Bd. of Ed., 138 N.J. 405, 425-26, 650 A.2d 958 (1994); Gares v. Willingboro Twp., 90 F.3d 720, 729-30 (3d Cir. 1996). Accordingly, the Court finds that the City of Bayonne and the BPA may not be held liable for punitive damages under Sec- tion 1983, but that punitive liability may exist under CEPA. x. Defendant Cresci's Motion for [*40] Sanctions Defendant Cresci's motion for Rule 11 sanctions and request for payment of all reasonable attorney fees and expenses is denied. Cresci files this request on the basis that Plaintiffs' lawsuit is frivolous. Sanctions under Rule 11 are appropriate "only in the exceptional circumstance . . . where a claim or motion is patently unmeritorious or frivolous." See Doering v. Union County Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d Cir. 1988). In this case, the Court finds that each of Plaintiffs' motions are sufficiently grounded in law and fact to be "reasonable[] under the circumstances" and thus not without merit. See Ford Motor Co. v. Summit Motor Prod., Inc., 930 F.2d 277, 289 (3d Cir. 1991) (establishing "reasonableness under the circumstances" as the standard for sanctions under Rule 11). Accordingly, because the Court finds that Plaintiffs' motions are reasonable and not frivolous, Cresci's motion for sanctions and payment of reasonable fees and expenses is denied. xi. Defendant Pierson's Motion to Strike Defendant Pierson's motion to strike the allegations in paragraphs 38 and 54 relating to a "thank you" note written by Pierson is also denied. Pierson argues that the "thank [*41] you" note allegations should be stricken under Fed. R. Civ. P. 12(f) because they are "impertinent and immaterial." Rule 12(f) permits a party to have "stricken from any pleading any . . . redundant, immate- rial, impertinent, or scandalous matter." In this case, the Court finds that the "thank you" note allegations are rel- evant to this action because they form part of the basis for Plaintiffs' whistle-blowing activities, which in turn support Plaintiffs' claims for retaliatory conduct against Defendants. Because the Court finds that the allegations regarding the "thank you" note are relevant, and because insufficient evidence exists at this stage for the Court to determine that Plaintiffs have altered the evidence, Pierson's motion to strike is denied. IV. CONCLUSION For the reasons stated, Defendant Pierson's motion to dismiss under Rule 12(b)(6) is granted as to Counts 1-5 and 7-9 and denied as to Count 6; Defendant Covi- ello's motion to dismiss under Rule 12(c) is granted as to Counts 1-5 and 7-9 and denied as to Count 6; Defendant Cresci's motion to dismiss under Rule 12(b)(6) is grant- ed as to Counts 3-5 and 7-9, granted in part and denied in part as to Counts 1-2, and denied as to [*42] Count 6; Defendant BPA's motion to dismiss under Rule 12(b)(6) is granted as to Counts 3-5 and 7-9, granted in part and denied in part as to Counts 1-2, and denied as to Count 6; Defendant City of Bayonne's motion to dis- miss under Rule 12(b)(6) is granted as to Counts 3-5 and 7-9, granted in part and denied in part as to Counts 1-2, and denied as to Count 6; Defendant Pierson's mo- tion to strike under Rule 12(f) is denied; and Defendant Cresci's motion for sanctions under Rule 11 is denied. An appropriate Order accompanies this Opinion. /S/ Dennis M. Cavanaugh Dennis M. Cavanaugh, U.S.D.J. Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 28 of 29 PageID: 243 2009 U.S. Dist. LEXIS 6762, * 96410336.1 Date: January 29, 2009 Case 3:16-cv-09385-FLW-DEA Document 13-2 Filed 01/30/17 Page 29 of 29 PageID: 244