Roman v. Axa Advisors, Llc et al

REPLY BRIEF to Opposition to Motion

D.N.J.July 12, 2016

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ROBERT ROMAN, Plaintiff, v. AXA ADVISORS, LLC AND JAMES COPPOLA, Defendants. : : : : : : : : : : : : : Civ. Action No.: 3:16-cv-02863-PGS-TJB Electronically Filed Civil Action RETURN DATE: AUGUST 1, 2016 ORAL ARGUMENT REQUESTED REPLY BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PURSUANT TO FED. R. CIV. P. 12(b)(6) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 10 Madison Avenue, Suite 400 Morristown, New Jersey 07960 Tel: (973) 656-1600 Fax: (973) 656-1611 Attorneys for Defendants AXA Advisors, LLC and James Coppola On the Brief: Mark Diana, Esq. Michael J. Riccobono, Esq. Case 3:16-cv-02863-PGS-TJB Document 15 Filed 07/12/16 Page 1 of 17 PageID: 222 i TABLE OF CONTENTS LEGAL ARGUMENT...................................................................................................................1 POINT I PLAINTIFF’S COMPLAINT FAILS TO PLAUSIBLY ALLEGE THE EXISTENCE OF AN EMPLOYMENT RELATIONSHIP AND, THEREFORE, PLAINTIFF’S PIERCE AND LAD CLAIMS FAIL AS A MATTER OF LAW .......................................1 POINT II PLAINTIFF’S LAD AND ADA CLAIMS FAIL AS A MATTER OF LAW....................3 POINT III PLAINTIFF’S DEFAMATION CLAIM FAILS AS A MATTER OF LAW.....................6 POINT IV PLAINTIFF’S BREACH OF CONTRACT AND BREACH OF IMPLIED COVENANT CLAIMS FAIL AS A MATTER OF LAW..................................................8 POINT V PLAINTIFF’S INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM FAILS AS A MATTER OF LAW .....................................................9 POINT VI PLAINTIFF’S INDIVIDUAL LIABILITY CLAIMS FAIL AS A MATTER OF LAW...........................................................................................................10 CONCLUSION ............................................................................................................................12 Case 3:16-cv-02863-PGS-TJB Document 15 Filed 07/12/16 Page 2 of 17 PageID: 223 ii TABLE OF AUTHORITIES Page(s) Cases Baig v. Nuclear Regulator Comm’n, 2011 WL 2214660 (D.N.J. June 6, 2011) ..................................................................................5 Bak–A–Lum Corp. v. Alcoa Building Prods., 69 N.J. 123 (1976) .....................................................................................................................9 Barres v. Holt, Rinehart & Winston Inc., 131 N.J. Super. 371 (App. Div. 1974) .......................................................................................7 Botts v. The New York Times Co., 2003 WL 23162315 (D.N.J. Aug. 29, 2003) .............................................................................7 Bratek v. TD Bank, N.A., 2012 WL 5404398 (D.N.J. Nov. 5, 2012) .................................................................................5 Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assoc., 182 N.J. 210 (2005) ...................................................................................................................9 David J. Gold, P.C. v. Berkin, 2001 WL 121940 (S.D.N.Y. Feb. 13, 2001)..............................................................................7 Del’Aquila v. Riverbank America, 1993 WL 1618646 (D.N.J. Apr. 16, 1993) ................................................................................6 Foy v. Wakefern Food Corp., 2010 WL 147925 (D.N.J. Jan. 7, 2010) .....................................................................................4 Francis v. Joint Force Headquarters Nat. Guard, 2009 WL 90396 (D.N.J. January 12, 2009).............................................................................11 Gaines v. UPS, 2014 WL 1450113 (D.N.J. Apr. 14, 2014) ..........................................................................9, 10 Giovanelli v. D. Simmons Gen. Contracting, 2010 WL 988544 (D.N.J. Mar. 15, 2010)..................................................................................6 Graves v. Ancora Psychiatric Hosp., 2012 WL 6153428 (D.N.J. Dec. 11, 2012)................................................................................5 Hassell v. Johnson, 2014 WL 1744266 (D.N.J. May 1, 2014) ..................................................................................4 Case 3:16-cv-02863-PGS-TJB Document 15 Filed 07/12/16 Page 3 of 17 PageID: 224 iii Hollister v. U.S. Postal Service, 142 F. App’x 576 (3d Cir. 2005) .....................................................................................3, 8, 11 Incorvati v. Best Buy Co., Inc., 2010 WL 4807062 (D.N.J. Nov. 16, 2010) .............................................................................11 Itiowe v. NBC Universal Inc., 2013 WL 5435487 (D.N.J. Sept. 27, 2013) ...............................................................................2 Martinez v. Anselmi & Decicco, 2009 WL 5206286 (D.N.J. Dec. 22, 2009)..............................................................................10 Miller v. Level 3 Communications, LLC, 2005 WL 1529419 (D.N.J. Jun. 29, 2005)...............................................................................10 Milner v. New York State Higher Educ. Services Corp., 777 N.Y.S.2d 604 (App. Div. 2005) ..........................................................................................7 Morales v. Pressler & Pressler LLP, 2015 WL 1736350 (D.N.J. Apr. 16, 2015) ................................................................................6 Mosely v. Bay Ship Mgmt, Inc., 174 F.Supp.2d 192 (D.N.J. 2000) ............................................................................................10 Murtha v. Hunterdon Healthcare System, 2013 WL 1845910 (Law Div. Apr. 11, 2013) .........................................................................11 Norris v. Securitas Security Services USA, Inc., 2011 WL 3206484 (D.N.J. Jul. 27, 2011)..................................................................................2 Person v. Teamsters Local Union 863, 2013 WL 5676802 (D.N.J. Oct. 17, 2013).................................................................................5 Romaneck v. Deutsche Asset Mgmt., 2005 WL 2171987 (N.D. Cal. Sept. 6, 2005) ............................................................................8 Rosenberg v. Metlife, Inc., 866 N.E. 2d 439 (N.Y. 2007).....................................................................................................8 Sangi v. Warren Hosp., 2011 WL 4857933 (D.N.J. Oct. 11, 2011).................................................................................4 Shah v. State of Wisconsin, 2011 WL 5192127 (D.N.J. Oct. 31, 2011).................................................................................2 Stapperfenne v. Nova Healthcare Administrators, Inc., 2006 WL 1044456 (D.N.J. Apr. 17, 2006) ................................................................................1 Case 3:16-cv-02863-PGS-TJB Document 15 Filed 07/12/16 Page 4 of 17 PageID: 225 iv State Capital Title & Abstract Co. v. Pappas Business Services, LLC, 646 F. Supp. 668 (D.N.J. 2009) .................................................................................................1 Yarris v. County of Delaware, 465 F.3d 129 (3d Cir. 2006).......................................................................................................1 Zagami, LLC v. Cottrell, 403 N.J. Super. 98 (App. Div. 2008) .........................................................................................8 Statutes N.J.S.A. 10:5-12(a).........................................................................................................................12 N.J.S.A. 10:5-12(d)...................................................................................................................11, 12 N.J.S.A. 10:5-12(e).........................................................................................................................11 Case 3:16-cv-02863-PGS-TJB Document 15 Filed 07/12/16 Page 5 of 17 PageID: 226 1 LEGAL ARGUMENT POINT I PLAINTIFF’S COMPLAINT FAILS TO PLAUSIBLY ALLEGE THE EXISTENCE OF AN EMPLOYMENT RELATIONSHIP AND, THEREFORE, PLAINTIFF’S PIERCE AND LAD CLAIMS FAIL AS A MATTER OF LAW Plaintiff argues that “the available facts” – specifically, facts set forth in his improperly submitted extraneous materials – “support the claim of an employment relationship” for purposes of his Pierce and LAD claims. (Opp. Brief, p. 6,7.) Plaintiff’s attempt to salvage his wanting Pierce and LAD claims with materials outside the pleadings fails. The facts properly before the Court woefully fail to plausibly allege the existence of an employment relationship between the parties. Accordingly, Plaintiff’s Pierce claim (Count One) and LAD claim (Count Two) should be dismissed.1 As a threshold matter, the Court must reject Plaintiff’s improper attempt to supplement the record with “facts” that are not contained in his Complaint or the exhibits attached to it.2 At the motion-to-dismiss stage, the district court’s “review is limited to the contents of the complaint and any attached exhibits.” Yarris v. County of Delaware, 465 F.3d 129, 134 (3d Cir. 2006). Plaintiff does not get to repair his broken Complaint with an Affidavit setting forth new “facts” not in his Complaint. State Capital Title & Abstract Co. v. Pappas Business Services, LLC, 646 F. Supp. 668, 676 (D.N.J. 2009) (“On a 12(b)(6) motion, the Court may only consider the allegations as set forth in the plaintiff’s complaint, and a plaintiff is precluded from asserting new allegations in its opposition papers or its evidentiary materials.”); Stapperfenne v. Nova 1 Plaintiff continues to make ambiguous references to CEPA and CEPA’s test for determining employment status. Plaintiff’s Complaint does not clearly allege a CEPA claim, and even if it did, such a claim would be barred by CEPA’s one year statute of limitations. (See Mov. Br., p. 6, n.4.) To avoid ongoing confusion, Defendants request that the Court dismiss Plaintiff’s CEPA claim to the extent Plaintiff is attempting to assert one. 2 Specifically, Plaintiff submitted a Declaration from his counsel, with various exhibits attached thereto, including an Affidavit from Plaintiff. Case 3:16-cv-02863-PGS-TJB Document 15 Filed 07/12/16 Page 6 of 17 PageID: 227 2 Healthcare Administrators, Inc., 2006 WL 1044456, *3 (D.N.J. Apr. 17, 2006) (refusing to consider materials outside complaint submitted by plaintiff in opposition to motion to dismiss). Looking solely at the allegations in Plaintiff’s Complaint and the exhibits attached thereto, it is clear that Plaintiff has not pled sufficient facts to state a claim that he was an employee of AXA. It is undisputed that Plaintiff’s Registered Representative Agreement and his Agent Agreement, both of which are attached to Plaintiff’s Complaint, unequivocally state that no employer-employee relationship exists between the parties. Plaintiff’s Complaint contains literally no facts to contradict the parties’ express agreement. For example, Plaintiff’s Complaint does not allege that AXA “controlled” him and how it allegedly did so; does not allege how Plaintiff was compensated; does not allege who was responsible for Plaintiff’s expenses; does not allege whether Plaintiff was free to hire his own assistants and helpers; does not allege whether Plaintiff or AXA determined Plaintiff’s work schedule; and does not allege any other facts that would support the existence of an employment relationship. Given the dearth of any allegations to plausibly establish that Plaintiff was an employee of AXA, his Pierce and LAD claims must be dismissed. See, e.g., Shah v. State of Wisconsin, 2011 WL 5192127, *5 (D.N.J. Oct. 31, 2011) (granting defendants’ motion to dismiss plaintiffs’ LAD claims where plaintiffs “alleged no facts indicating that they are a direct employee of any of the Moving Defendants”); Norris v. Securitas Security Services USA, Inc., 2011 WL 3206484, *3 (D.N.J. Jul. 27, 2011) (“Because Norris has not alleged an employment nexus between her and [defendant] her [LAD claims] must be dismissed.”); Itiowe v. NBC Universal Inc., 2013 WL 5435487, *3 (D.N.J. Sept. 27, 2013) (dismissing plaintiff’s disability discrimination claims where plaintiff “failed to allege any facts that indicate[d] an employer-employee relationship existed between herself and Defendants”). Case 3:16-cv-02863-PGS-TJB Document 15 Filed 07/12/16 Page 7 of 17 PageID: 228 3 POINT II PLAINTIFF’S LAD AND ADA CLAIMS FAIL AS A MATTER OF LAW Even if Plaintiff’s Complaint did plausibly allege an employment relationship, his LAD and ADA claims still fail as a matter of law and must be dismissed. As a preliminary matter, Plaintiff has abandoned his LAD disability discrimination and ADA claims, as his Brief makes no reference whatsoever to these claims.3 Accordingly, Plaintiff’s disability discrimination claims under the LAD and the ADA claims should be dismissed. See Hollister v. U.S. Postal Service, 142 F. App’x 576, 577 (3d Cir. 2005) (noting that where party, represented by an attorney, does not submit responsive arguments to a motion to dismiss, the motion may be deemed unopposed, and the court may grant it without analysis of the merits). Plaintiff argues that he has sufficiently stated a claim for age discrimination under the LAD. This argument fails; Plaintiff’s Complaint does not contain sufficient factual matter to state a claim for age discrimination under the LAD that is plausible on its face. Plaintiff merely alleges that he was qualified for the position of Financial Advisor, that his performance was “exemplary,” and that he was terminated. (Complaint, ¶¶ 10, 42, 46.) Utterly lacking from Plaintiff’s Complaint are any facts to even suggest that his age played a role in his termination— indeed, the entire thrust of his Complaint is that he was terminated because of his alleged refusal to engage in fraudulent activity, not because of his age. 3 Plaintiff’s Complaint confusingly alleges that he “has a disability, a record of impairment and/or has been regarded as having an impairment, due to his age,” and that he was “threatened, harassed, disciplined and terminated on the basis of his age” in violation of the LAD. [D.E., Ex. 1, at ¶¶ 41 and 45.] It was thus unclear whether Plaintiff intended to assert a disability or an age discrimination claim. As noted, he has abandoned any disability discrimination claim. Case 3:16-cv-02863-PGS-TJB Document 15 Filed 07/12/16 Page 8 of 17 PageID: 229 4 For example, Plaintiff does not allege: that Defendants ever made any age-related remarks; the ages of the decision-makers; that Defendants have a pattern of discriminating against older workers; that similarly situated younger workers were treated more favorably; whether he was replaced and the age of his replacement; or any other allegations that might give rise to an inference of age discrimination. Without any such facts, his Complaint fails to state a plausible claim for age discrimination and must be dismissed. See Sangi v. Warren Hosp., 2011 WL 4857933, at *2 (D.N.J. Oct. 11, 2011) (“Here, Plaintiff has failed to plead facts sufficient to state age discrimination claims that are plausible rather than merely speculative. The complaint is completely devoid of any factual allegations from which it can be reasonably inferred that discriminatory motivation on the part of Defendant existed. At best, Plaintiff has pled facts that, taken as true and viewed in the light most favorable to Plaintiff, show that she was subject to certain adverse employment actions including, ultimately, termination. Based on her opposition brief, Plaintiff appears to believe that pleading such facts along with an allegation that Plaintiff is in a protected class is sufficient to state her claim. It is not. Plaintiff must plead facts that warrant an inference that Plaintiff was subject to such actions because of her age. Alleging merely that Plaintiff “believes” these actions were taken against her because of her age is not sufficient to meet the federal pleading requirements.”); see also Hassell v. Johnson, 2014 WL 1744266, *5 (D.N.J. May 1, 2014) (dismissing NJLAD age discrimination claim because “Plaintiff has alleged that she belongs to a protected class, was qualified for the positions at issue, and was subject to an adverse employment action by way of being denied those positions. However, Plaintiff's Complaint is devoid of any facts making it plausible that the adverse employment actions taken against her were motivated by Plaintiff's age.”); Foy v. Wakefern Food Corp., 2010 WL 147925, *3 (D.N.J. Jan. 7, 2010) (dismissing NJLAD age discrimination Case 3:16-cv-02863-PGS-TJB Document 15 Filed 07/12/16 Page 9 of 17 PageID: 230 5 claim because plaintiff’s allegations that he was 59 years old; his qualifications and performance was excellent; and that he was terminated because of his age is insufficient to state a claim for age discrimination; “a mere allegation that an adverse employment action was motivated by age, without more, is exactly the type of broad conclusory allegation which the Supreme Court has found insufficient” and noting that a plaintiff “must provide sufficient non-speculative and conclusory allegations that, accepted as true, state a claim for age discrimination under the NJLAD.”); Person v. Teamsters Local Union 863, 2013 WL 5676802, *3 (D.N.J. Oct. 17, 2013) (dismissing NJLAD age discrimination claim where “the Complaint fails to provide any facts or detail showing circumstances that would indicate age discrimination. Under the pleading requirements, a bare assertion that a defendant’s employment action was based on age discrimination is insufficient to survive a motion to dismiss.”); Bratek v. TD Bank, N.A., 2012 WL 5404398, *3 (D.N.J. Nov. 5, 2012) (dismissing NJLAD age discrimination claim because “Plaintiffs still do not allege which individuals replaced them, nor do they allege the age of these replacements (if in fact they were replaced at all). The failure to make such averments is fatal to Plaintiffs' wrongful termination claim); Graves v. Ancora Psychiatric Hosp., 2012 WL 6153428 (D.N.J. Dec. 11, 2012) (dismissing age discrimination claim because “Plaintiff does not allege any facts regarding discrimination on the basis of age. Plaintiff’s Amended Complaint and More Definite Statement state only that she is over forty; they do not offer any facts as to why her age is related to her termination. Plaintiff's age discrimination claim therefore does not meet the pleading requirements”); Baig v. Nuclear Regulator Comm’n, 2011 WL 2214660 (D.N.J. June 6, 2011) (dismissing age discrimination claim that failed to allege “any casual nexus between Plaintiff's membership in a protected class and the alleged discriminatory actions”). Accordingly, Plaintiff’s LAD and ADA claims must be dismissed. Case 3:16-cv-02863-PGS-TJB Document 15 Filed 07/12/16 Page 10 of 17 PageID: 231 6 POINT III PLAINTIFF’S DEFAMATION CLAIM FAILS AS A MATTER OF LAW Plaintiff does not dispute that the alleged defamatory statements in the U5 form AXA filed with FINRA in July 2014 were made well more than a year before he filed suit. Plaintiff argues, however, that his defamation claim should not be dismissed as time barred so that he can conduct discovery to determine if AXA made any other alleged defamatory statements within the limitations period. (See Opp. Br. pp. 8-9.) Plaintiff’s fishing expedition argument must be rejected. Federal pleading rules do not permit Plaintiff to assert a claim with no evidentiary basis on the hope that discovery might dredge up some facts to support it. Morales v. Pressler & Pressler LLP, 2015 WL 1736350, *3 (D.N.J. Apr. 16, 2015) (“The mere hope that discovery will produce some evidence to support [plaintiff’s claim], without more, is insufficient to permit such a claim to proceed beyond the motion to dismiss stage.”); Giovanelli v. D. Simmons Gen. Contracting, 2010 WL 988544, at *5 (D.N.J. Mar. 15, 2010) (“Discovery . . . cannot serve as a fishing expedition through which plaintiff searches for evidence to support facts he has not yet pleaded.”) (citing Bell Atlantic v. Twombly, 550 U.S. 544, 577 (2007)); Del’Aquila v. Riverbank America, 1993 WL 1618646, *10, n.4 (D.N.J. Apr. 16, 1993) (“a plaintiff cannot rely on future discovery to provide the basis for his complaint. Rather, plaintiff must be able to demonstrate that his claims are well-grounded in fact before he asserts them.”). Plaintiff’s Complaint contains no facts to support Plaintiff’s speculation that AXA made alleged defamatory statements on or after March 30, 2015 (i.e., one year prior to the filing of his Complaint). Plaintiff’s reference to AXA’s letter to Maryland regulators in September 2014 – again, well outside the limitations period – does not change this. First, once again, Plaintiff’s reliance on materials outside the Complaint is improper and must be rejected. (See Point I, Case 3:16-cv-02863-PGS-TJB Document 15 Filed 07/12/16 Page 11 of 17 PageID: 232 7 supra). Second, even if considered, Plaintiff’s reference to more time barred acts does not logically suggest that non-time barred acts exist. And third, New Jersey follows the “single publication” rule to determine when the statute of limitations in a defamation action begins to run. See Barres v. Holt, Rinehart & Winston Inc., 131 N.J. Super. 371 (App. Div. 1974). Under this rule, “there is no republication where materials are qualitatively identical and published by the original libeler.” Botts v. The New York Times Co., 2003 WL 23162315, *5 (D.N.J. Aug. 29, 2003). The purpose of the rule is to protect the defendant – and the courts – from numerous suits and an almost endless tolling of the statute of limitations. Courts have applied the single publication rule to circumstances where there are multiple “publications” to various entities or agencies, as is the case here. See, e.g., Milner v. New York State Higher Educ. Services Corp., 777 N.Y.S.2d 604, 606 (App. Div. 2005) (numerous statements to various credit reporting agencies subject to single publication rule where there was “nothing in the record to suggest that the information reported [to the three credit reporting agencies and the Department of Education] regarding Claimant’s student loan status changed materially from the date of first reporting until the date Defendant ceased providing same...”).4 Because all of the alleged defamatory statements here consist of AXA’s required reporting to federal and state regulators about the reason Plaintiff’s securities registration was terminated, all alleged republications are time barred, and Plaintiff’s defamation claim (Count Three) must be dismissed.5 4 See also David J. Gold, P.C. v. Berkin, 2001 WL 121940, *3 (S.D.N.Y. Feb. 13, 2001) (even if the reporting that plaintiff failed to pay the disputed debt had continued to a date within one year of the filing of the complaint, such would nevertheless be barred by the single publication rule). 5 Defendants’ communications with FINRA and state regulators were required by law. See, e.g., FINRA By-Laws, Article V, Section 3, available at http://finra.complinet.com/en/display/display_main.html?rbid=2403&element_id=4620 (requiring member firms like AXA to file with FINRA a U5 form no later than 30 days after the termination of an associated person’s registration). Even if not time barred, the alleged defamatory statements to FINRA and government regulators are likely subject to absolute Case 3:16-cv-02863-PGS-TJB Document 15 Filed 07/12/16 Page 12 of 17 PageID: 233 8 POINT IV PLAINTIFF’S BREACH OF CONTRACT AND BREACH OF IMPLIED COVENANT CLAIMS FAIL AS A MATTER OF LAW Plaintiff fails to address Defendants’ motion to dismiss his breach of express contract claim (Count Five) and therefore this claim should be dismissed. See Hollister, supra. Although Plaintiff does attempt to salvage his breach of implied covenant of good faith and fair dealing claim (Count Six), his arguments are baseless, and this claim too must be dismissed. Plaintiff alleges that AXA’s document integrity concerns about him were “disproven” and that AXA breached the implied covenant of good faith by terminating his Agreement with “bad intent.” (Opp. Br., p. 10.) Even assuming the truth of these allegations (which AXA denies), Plaintiff’s Complaint fails to state a claim for breach of the implied covenant. As set forth in Defendant’s Moving Brief, as well as the very cases Plaintiff himself cites, a party’s exercise of an express contractual right cannot constitute a breach of the implied covenant of good faith and fair dealing. (See Mov. Br., pp 11-12.) Plaintiff does not dispute that AXA had the express contractual right to terminate his Agreement without cause. Thus, even if AXA terminated the Agreement with “bad intent” (which is denied), his breach of implied covenant claim fails. Plaintiff attempts to avoid dismissal by misconstruing the relevant case law. To assert a viable breach of implied covenant claim, Plaintiff must allege some bad faith conduct in the privilege. Courts have held that statements made in a Form U-5 are subject to an absolute privilege. See, e.g., Rosenberg v. Metlife, Inc., 866 N.E. 2d 439 (N.Y. 2007); Romaneck v. Deutsche Asset Mgmt., 2005 WL 2171987, at *6 (N.D. Cal. Sept. 6, 2005). New Jersey courts have likewise recognized an absolute privilege in various contexts, including statements made in the course of judicial, administrative, or legislative proceedings. See Zagami, LLC v. Cottrell, 403 N.J. Super. 98, 104 (App. Div. 2008). Given New Jersey courts’ broad application of the privilege, all of the alleged defamatory statements to government regulators would likely be absolutely privileged under New Jersey law. Case 3:16-cv-02863-PGS-TJB Document 15 Filed 07/12/16 Page 13 of 17 PageID: 234 9 performance of the parties’ contract independent of the exercise of an express contractual right to terminate the contract. See, e.g., Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assoc., 182 N.J. 210 (2005); Bak–A–Lum Corp. v. Alcoa Building Prods., 69 N.J. 123, 126–27 (1976). In both Brunswick Hills and Bak–A–Lum, the defendant exercised its contractual right to terminate a contract, but withheld its intention to do so from the plaintiff for its own financial benefit, which caused the plaintiff to incur costs it would not have incurred had the defendant shared its intentions. Here, Plaintiff does not, and cannot, make such an allegation. Rather, Plaintiff simply alleges that AXA exercised its contractual right to terminate the parties’ contract with bad intent. As a matter of law, such alleged conduct cannot support a breach of implied covenant claim (see Mov. Br., pp. 11-12), and therefore, Count Six must be dismissed.6 POINT V PLAINTIFF’S INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM FAILS AS A MATTER OF LAW As explained in Defendants’ Moving Brief, Plaintiff’s Complaint does not allege facts sufficient to demonstrate that (1) Defendants’ alleged conduct was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency or (2) the distress Plaintiff allegedly suffered was so severe that no reasonable person could be expected to endure it. (See Mov. Br., pp. 12-15.) Plaintiff fails to distinguish, or even address, the extensive case law cited in Defendants’ Brief addressing both of these fatal deficiencies. Rather, Plaintiff simply restates the meager allegations in his Complaint, which are patently insufficient to state a tort claim for intentional infliction of emotional distress (IIED). Accordingly, Count Four must be dismissed on this basis. 6 Additionally, to the extent Plaintiff’s LAD claim is not dismissed, his implied covenant claim must be dismissed as preempted by the LAD. See Gaines v. UPS, 2014 WL 1450113, *6, n.2 (D.N.J. Apr. 14, 2014) (breach of express and implied contract claims preempted by LAD). Case 3:16-cv-02863-PGS-TJB Document 15 Filed 07/12/16 Page 14 of 17 PageID: 235 10 Plaintiff also fails to avoid dismissal of his IIED claim on preemption grounds. As set forth in Defendants’ Moving Brief, if Plaintiff’s LAD claim is not dismissed, then his IIED claim must be dismissed as duplicative of and preempted by the LAD, in accordance with extensive case law. (See Mov. Br., pp. 14-15.) Once again, Plaintiff fails to address the relevant case law and instead cites an inapposite decision, Mosely v. Bay Ship Mgmt, Inc., 174 F.Supp.2d 192 (D.N.J. 2000), for the proposition that “[t]he LAD does not necessarily bar all common law causes of action that might be implicated in an LAD action.” (See Opp. Br., p. 12.) As recognized in Gaines v. UPS, 2014 WL 1450113, *6, n.2 (D.N.J. Apr. 14, 2014), Mosley relied on statements from the New Jersey Supreme Court to the effect that a plaintiff “in appropriate circumstances could pursue an independent action . . . to vindicate particular interests in addition to or aside from those sought to be protected by a NJLAD action.” Id. (emphasis added) (quoting Mosley, 174 F.Supp.2d at 201). Here, the allegations comprising Plaintiff’s IIED claim do not invoke any interest separate and distinct from those underlying his LAD claims.7 (See Mov. Br., pp. 14-15.) Accordingly, as an additional basis for dismissal, if Plaintiff’s LAD claim is not dismissed, his IIED claim must be dismissed as preempted. POINT VI PLAINTIFF’S INDIVIDUAL LIABILITY CLAIMS FAIL AS A MATTER OF LAW Plaintiff fails to address Defendants’ argument that his common-law individual liability claims against Coppola (i.e., his Pierce, defamation, breach of contract and breach of implied 7 Mosley has also been rejected by a number of New Jersey federal court decisions as against the weight of authority in New Jersey holding that supplemental common law claims are barred as duplicative of the LAD. See, e.g., Martinez v. Anselmi & Decicco, 2009 WL 5206286, *8 (D.N.J. Dec. 22, 2009); Gaines, 2014 WL 1450113, at *6, n.2; see also, Miller v. Level 3 Communications, LLC, 2005 WL 1529419, *9-10 (D.N.J. Jun. 29, 2005) (concluding that Mosley “did not disturb the reasoning of the cases in this district” holding that supplementary common law causes of action are not permitted when a statutory remedy under the LAD exists). Case 3:16-cv-02863-PGS-TJB Document 15 Filed 07/12/16 Page 15 of 17 PageID: 236 11 covenant claims) fail to state a claim. (See Moving Brief, pp. 16-18.) Accordingly, those claims should be dismissed against Coppola. See Hollister, supra. Plaintiff argues that his LAD claim against Coppola survives because the LAD provides for individual liability on an “aider or abettor” theory under N.J.S.A. 10:5-12(e). This argument fails, first, because Plaintiff is an independent contractor, as previously discussed. Second, this argument fails because Plaintiff has not pled a cause of action for aiding and abetting liability under the LAD. See, e.g., Incorvati v. Best Buy Co., Inc., 2010 WL 4807062, *12 (D.N.J. Nov. 16, 2010) (granting motion to dismiss individual defendant where plaintiff failed to plead aider and abettor liability under the LAD); Murtha v. Hunterdon Healthcare System, 2013 WL 1845910 (Law Div. Apr. 11, 2013) (dismissing LAD claims against the individual defendant where the plaintiff failed to include an aiding and abetting claim in her Complaint). Plaintiff cannot amend his Complaint through arguments in his Brief and therefore his LAD claim against Coppola must be dismissed. See Francis v. Joint Force Headquarters Nat. Guard, 2009 WL 90396, at *6 (D.N.J. January 12, 2009) (“It is well-settled . . . that a plaintiff may not amend her complaint through arguments in her brief.”). Plaintiff also notes that N.J.S.A. 10:5-12(d) prohibits retaliation by “any person,” which he argues supports a claim for individual liability against Coppola. (Opp. Br., p. 15.) Defendants deny that individual liability can be imposed under N.J.S.A. 10:5-12(d) without also satisfying the requirements of N.J.S.A. 10:5-12(e), but the Court need not reach this issue because Plaintiff does not assert a LAD retaliation claim under N.J.S.A. 10:5-12(d), just a LAD Case 3:16-cv-02863-PGS-TJB Document 15 Filed 07/12/16 Page 16 of 17 PageID: 237 12 age discrimination claim under N.J.S.A. 10:5-12(a). Therefore, N.J.S.A. 10:5-12(d) does not save his individual liability claim against Coppola from dismissal.8 CONCLUSION For all the foregoing reasons and those in Defendants’ Moving Brief, Defendants respectfully request that the Court dismiss Plaintiff’s Complaint in its entirety. Respectfully submitted, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Attorneys for Defendants By: s/Mark Diana Dated: July 12, 2016 Mark Diana, Esq. 8 Plaintiff again makes a stray reference to CEPA in his individual liability brief point. (Opp. Br., p. 15.) Again, to the extent Plaintiff purports to assert a CEPA claim, it is time barred and must be dismissed. Case 3:16-cv-02863-PGS-TJB Document 15 Filed 07/12/16 Page 17 of 17 PageID: 238 Mark Diana, Esq. Michael J. Riccobono, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 10 Madison Avenue, Suite 400 Morristown, New Jersey 07960 (973) 656-1600 mark.diana@ogletreedeakins.com michael.riccobono@ogletreedeakins.com Attorneys for Defendants, AXA Advisors, LLC and James Coppola UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ROBERT ROMAN, Plaintiff, v. AXA ADVISORS, LLC AND JAMES COPPOLA, Defendants. : : : : : : : : : : : : : Civ. Action No.: 3:16-cv-02863-PGS-TJB Electronically Filed Civil Action CERTIFICATION OF SERVICE I am an attorney licensed to practice before this Court and not a party to this action. On this date, a true copy of the attached:  REPLY BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PURSUANT TO FED. R. CIV. P. 12(b)(6). was filed with the Clerk of the Court via ECF, and thereby simultaneously served upon Plaintiff’s counsel. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. By: s/ Michael J. Riccobono July 12, 2016 Michael J. Riccobono Case 3:16-cv-02863-PGS-TJB Document 15-1 Filed 07/12/16 Page 1 of 1 PageID: 239