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NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

__________________________________________

)

MIRIAM HAYDEN and AMERICAN )

MORTGAGE PROTECTION INSURANCE, )

)

Plaintiffs, )

)

v. ) Civil Action No. 10-3424 (GEB)

)

HARTFORD LIFE INSURANCE )

COMPANY and HARTFORD LIFE AND ) MEMORANDUM OPINION

ANNUITY INSURANCE COMPANY, )

)

Defendants. )

_________________________________________)

BROWN, Chief Judge

This matter comes before the Court on Defendants’ July 7, 2010 motion to dismiss 

Plaintiffs’ complaint. (Doc. No. 5.) Plaintiffs have opposed the motion and the parties 

completed briefing on the issue on October 12, 2010. (Doc. Nos. 5-1, 9-3, 11.)1

Defendants argue that Plaintiffs cannot allege violations of the New Jersey Law Against 

Discrimination (“NJLAD”) and the New Jersey Conscientious Employee Protection Act (“NJ 

CEPA”) because Plaintiffs’ claims are not sufficiently connected with New Jersey to fall within

the protection of those statutes. (Defs.’ Br. at 16-22; Doc. No. 5-1.) Defendants also argue that 

the Court must dismiss or stay Plaintiffs’ remaining claims because they are subject to an 

arbitration provision in her Producer Contract. (Defs.’ Br. at 23-31.) For the reasons set forth 

below, this Court denies Defendants’ motion to dismiss.

 

 1 Plaintiffs do not dispute that the Court lacks personal jurisdiction over Scott Dumbauld, and thus stipulated to his 

dismissal. (Doc. No. 10.) 

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I. BACKGROUND

This is an employment discrimination case brought under the NJLAD and NJ CEPA for 

discrimination based upon gender. The complaint also alleges several claims that are related to 

the contracts that govern the alleged employment relationship. In their motion papers, both 

parties submit several certifications. To the extent that these present undisputedly authentic 

documents, the Court considers those documents; to the extent that they present factual evidence, 

the Court will not consider them.

A. Facts

1. Facts Relevant to Plaintiffs’ Right to Avail Themselves of New Jersey’s 

Statutory Employment Protection

The factual allegations in the complaint together with facts present in indisputably 

authentic documents are these:

The complaint alleges that Defendants Hartford Life Insurance Company and Hartford 

Life and Annuity Insurance Company (“Defendants”) have a place of business in New Jersey at 

50 Millstone Rd. Bld. 300140, East Windsor, New Jersey. (Compl. at ¶1; Doc. No. 1-2.) The 

complaint states that Plaintiffs Miriam Hayden and her company American Mortgage Protection 

Insurance (“AMPI”) have a principal place of business at 11 Pal Drive, Ocean, New Jersey. 

(Compl. at preamble; Doc. No. 1-2.) However, the undisputedly authentic documents attached to 

the motion to dismiss provide that while AMPI may have a place of business in New Jersey, 

AMPI’s principal place of business is in Massachusetts. Both AMPI’s New Jersey insurance 

listing and AMPI’s incorporation certificate list its principal place of business as an address in 

Massachusetts. (Cerra Cert. at Ex. E; Doc. No. 5-2; Cerra Cert. at Exs. C, G; Doc. No. 5-2.) 

Thus, while Ms. Hayden may have had her principal employment in New Jersey, AMPI’s 

principal place of business is in Massachusetts. 

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The complaint further alleges that Plaintiff was employed as a Field Marketing Director 

for the Defendants. (Compl. at ¶¶3, 6, 10; Doc. No. 1-2.)2

The dispute between the parties began when Defendants allegedly “began to wrongfully 

withhold Ms. Hayden’s commission . . . withheld lead inventories, unfairly charged lead lift offs 

for Ms. Hayden’s female general agent (Lisa Dalton), and failed to notify Ms. Hayden and Lisa 

Dalton about the Field Marketing Director and General Agent Convention in San Diego, 

California.” (Compl. at ¶ 10; Doc. No. 1-2.) After this action, Hayden sent several letters 

complaining about Defendants’ treatment to Scott Dumbauld. However, in response to her 

letters, Defendants denied that they engaged in harassing or gender biased behavior and required 

Hayden to obtain authorization to purchase leads. (Id. at ¶¶13-16.) Defendants ultimately 

terminated Plaintiffs’ employment. (Id.)

 Ms. Hayden’s employment involved 

hiring General Agents, who oversaw producers who sold insurance policies to clients. (See 

Compl. at Ex. C. at §2; Doc. No. 1-2.) When Plaintiffs were involved in the sale of insurance 

policies, they were entitled to commissions. (See Compl. at Ex. A §5, Ex. C at §4; Doc. No. 1-

2.) Under the contract, Defendants were required to pay Plaintiffs the commissions; however, 

Defendants had the right to charge Plaintiffs for the sales leads that they provided to Plaintiffs. 

(See Compl. at Ex. B; Doc. No. 1-2.)

Plaintiffs allege both gender-based disparate treatment and retaliatory discharge. 

Plaintiffs allege that Defendants terminated Hayden because she voiced her concerns about 

Defendants’ wrongful conduct. (Id. at ¶¶17-24 (alleging a violation of NJ CEPA) and ¶¶30-36 

(alleging violation of NJLAD).) Plaintiffs allege that Defendants’ disparate treatment of Hayden

 2 For the purposes of this motion, Defendants concede that, despite their contract with Plaintiffs that designated an 

independent contractor relationship, Plaintiffs may allege sufficient facts that the actual relationship was one of 

employment. (Defs.’ Br. at 16 n.11; Doc. No. 5-1.) 

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was due in part to her gender and that it constituted sexual harassment and created a hostile work 

environment. (Id. at ¶¶25-29, 37-50 (alleging a violation of NJLAD).) 

2. Facts Relevant to the Arbitration Provisions

There are three contracts involved in the complaint; one contains an arbitration provision 

but the other two do not. Two of the contracts formed the basis of the relationship between 

Plaintiffs and Defendants. The first was the Producer Contract, which has the following broad 

arbitration clause:

Any controversy or claim occurring under, relating to or in connection with

any provisions of this Contract or the breach of such provisions, unless 

resolved by mutual agreement of the parties will be finally settled by 

arbitration in accordance with the Commercial Arbitration Rules of the 

American Arbitration Association in effect on the date hereof by a Commercial 

Arbitration Tribunal appointed with those rules. . . . The place of arbitration 

will be Minneapolis Minnesota.

(Compl. at Ex. A, §9; Doc. No. 1-2.) A series of subsequent contracts known as the Field 

Marketing Director Contracts are addendums to this contract, and, because they do not 

contravene the arbitration provision, the Producer Contract’s arbitration provision also requires 

arbitration of their provisions. (See Compl. at Ex. C; Doc. No. 1-2.) The second contract, while 

related to the Producer Contract, is the Insurance Lead Contract. (Compl. at Ex. B; Doc. No. 1-

2.) It governs Plaintiffs’ purchase of insurance leads and does not contain an arbitration 

provision. (Compl. at Ex. B; Doc. No. 1-2.) 

A third contract, the Member Contract, governs the Plaintiffs’ relationship with its 

General Agents. (Compl. at Ex. D; Doc. No. 1-2.) The Member Contracts do not contain an 

arbitration provision and the only parties to that contract are Plaintiffs and the General Agents 

with whom they contracted. (See Compl. at Ex. D; Doc. No. 1-2.) Defendants are not a party to 

this contract.

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B. Procedural History

Plaintiffs filed a Complaint against Defendants in the New Jersey Superior Court in 

Middlesex County on or about June 1, 2010. (Cerra Cert. at Ex. A; Doc. No. 5-2.) The 

Complaint alleged that Defendants engaged in wrongful discrimination under the NJLAD and NJ 

CEPA and tortious interference with her contracts with her General Agents, breach of contract, 

and breach of the implied covenant of good faith and fair dealing. (Compl.; Doc. No. 1-2.) On 

July 6, 2010, Defendants removed the action to this Court on Diversity grounds. (Id. at ¶3.) The 

next day, they filed this motion to dismiss. (Doc. No. 5.) 

II. DISCUSSION

A. Standard of Review

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) may be granted only 

if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light 

most favorable to the plaintiff, a court finds that plaintiff has failed to set forth fair notice of what 

the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 

555 (2007) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint will survive a motion 

to dismiss if it contains sufficient factual matter to “‘state a claim to relief that is plausible on its 

face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). The 

plausibility standard requires that “the plaintiff plead[] factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct alleged” and 

demands “more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing 

Twombly, 550 U.S. at 556). Although a court must accept as true all factual allegations in a 

complaint, that tenet is “inapplicable to legal conclusions,” and “[a] pleading that offers ‘labels 

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and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id.

(quoting Twombly, 550 U.S. at 555); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 

(3d Cir. 2008). 

In evaluating a motion to dismiss, a court may consider only the complaint that contains 

the claims that are the subject of the motion, exhibits attached to the complaint or answer, 

matters of public record, and undisputedly authentic documents if the claims are based upon 

those documents. See Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 

(3d Cir. 1993).

2. Motion for Leave to Amend Pleadings

Federal Rule of Civil Procedure 15(a)(2) provides that, under the present circumstances, 

“a party may amend [its] pleading only with the opposing party’s written consent or the court’s

leave. The court should freely give leave when justice so requires.” The Supreme Court has 

identified several factors to be considered when applying Rule 15(a):

If the underlying facts or circumstances relied upon by a plaintiff may be a 

proper subject of relief, he ought to be afforded an opportunity to test his claim 

on the merits. In the absence of any apparent or declared reason – such as 

undue delay, bad faith or dilatory motive on the part of the movant, repeated 

failure to cure deficiencies by amendments previously allowed, undue 

prejudice to the opposing party by virtue of allowance of the amendment, 

futility of amendment, etc.– the leave sought should, as the rules require, be 

“freely given.”

Foman v. Davis, 371 U.S. 178, 182 (1962); see also Heyl & Patterson Int'l, Inc. v. F.D. Rich 

Housing of the Virgin Islands, Inc., 663 F.2d 419, 425 (3d Cir. 1981), cert. denied, 455 U.S. 

1018 (1982); Newlin v. Invensys Climate Controls, Civ. No. 05-5746 (RBK), 2006 U.S. Dist. 

LEXIS 61133, (D.N.J. August 16, 2006); Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004); 

Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000); Arthur v. Maersk, Inc., 434 F.3d 196, 204-05 

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(3d Cir. 2006) (stating that “leave to amend must generally be granted unless equitable 

considerations render it otherwise unjust.”)

Thus, while “Rule 15(a) gives the court extensive discretion to decide whether to grant 

leave to amend after the time for amendment as of course has passed,” CHARLES ALAN WRIGHT 

ET AL., FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 1486 (2d ed. 1990), Rule 15(a)’s 

“generous standard is tempered by the necessary power of a district court to manage a case” in 

light of the factors listed in Foman. See Shivangi v. Dean Witter Reynolds, Inc., 825 F.2d 885, 

891 (5th Cir. 1987).

B. Application

1. Plaintiffs’ NJLAD and CEPA claims

To determine whether to dismiss counts one through four of the complaint, the Court 

must determine whether Plaintiffs may use the NJLAD or NJ CEPA as a cause of action. The 

question of whether Plaintiffs may avail themselves of the NJLAD and NJ CEPA is essentially a 

choice of law question. Norris v. Harte-Hanks, Inc., 122 Fed. App. 566 (3d Cir. 2004.) “A 

federal court exercising diversity jurisdiction must apply the choice of law rules of the forum 

state.” Echols v. Pelullo, 377 F.3d 272, 275 (3d Cir. 2004). The forum state in this case is New 

Jersey. New Jersey “applies a flexible ‘governmental-interest’ standard, which requires 

application of the law of the state with the greatest interest in resolving the particular issue that is 

raised in the underlying litigation.” Gantes v. Kason Corp., 145 N.J. 478, 679 A.2d 106, 109 

(1996). 

While this is a flexible standard, a few rules of thumb have emerged. Specifically, “New 

Jersey Courts have consistently applied the law of the state of employment to claims of 

workplace discrimination” and therefore apply the NJLAD if the claimant was employed in New 

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Jersey. Peiken v. Kimmel & Silverman, P.C., F. Supp. 2d 654, 657 (D.N.J. 2008). This is 

because “New Jersey law regulates conduct in New Jersey, not outside the state.” Buccilli v. 

Timby, Brown & Timby, 283 N.J. Super. 6, 10, 660 A.2d 1261 (App. Div. 1995). Further, a court 

may not apply NJLAD and NJ CEPA merely because an employee lives in New Jersey, 

particularly where the employee “worked exclusively in [another] state and the conduct which 

she alleges was unlawful occurred there.” Buccilli, 283 N.J. Super. at 10-11. However, where a 

corporation’s discriminatory conduct occurs in New Jersey, even if the employee is employed 

elsewhere, New Jersey law applies. D’Agostino v. Johnson & Johnson, Inc., 133 N.J. 516 

(1993). 

In this case, Plaintiffs’ allegations, broadly construed as they must be, sufficiently allege 

that Hayden’s employment was in New Jersey. Plaintiffs allege that Defendants had an office in 

New Jersey and that Hayden had her primary place of business in a New Jersey office. Thus, 

Hayden was primarily employed in New Jersey and Defendant has an office in the state. This, if 

true, is sufficient to create an interest in applying New Jersey law under either D’Agostino or 

Peiken. 

Plaintiffs do backpedal somewhat from their complaint in the briefing and Defendants 

submit certifications that tend to show that much of the complaint glosses over negative facts. 

However, this simply suggests that Defendants should present this argument again at summary 

judgment after some discovery has taken place and when Defendants can present assertions in 

their Rule 56.1 statement that Plaintiffs must either admit or deny. The undisputedly accurate 

documentation does not rebut the allegation of Hayden’s employment in New Jersey for the 

purposes of this motion.

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2. Arbitration of Counts Five Through Eight3

The next issue raised in the motion is whether counts five through eight must be 

arbitrated. The Court finds that the claims need not be arbitrated because they involve contracts 

that do not contain arbitration provisions.

When determining whether a claim must be arbitrated, “the focus remains on the facts 

underlying the claim rather than the actual legal terms in which the claim is covered.” Caruso v. 

Ravensword Developers, Inc., 337 N.J. Super. 499, 507 (App. Div. 2001); EPIX Holdings Corp. 

v. Marsh & McLennan Cos., 410 N.J. Super. 453, 472-73 (App. Div. 2009). “If these factual 

allegations touch matters covered by the parties’ contract, then those claims must be arbitrated, 

whatever the legal labels attached to them.” EPIX, 410 N.J. Super. at 473; see also Jansen v. 

Salomon Smith Barney, Inc., 342 N.J. Super. 254, 258 (App. Div. 2001) (ordering arbitration 

because even though “plaintiffs couch their claim as an independent tort action, the complaint 

essentially sounds in contract.”) (citations omitted); Wasserstein v. Kovath, 261 N.J. Super. 277, 

286 (App. Div. 1991) (“Notwithstanding the language of the Wassersteins’ complaint sounding 

in tort, the complaint essentially arises in contract rather than tort and is governed by the 

contract.”). 

The question of whether the factual allegations of the complaint are within the scope of 

the arbitration agreement is essentially a question of contract interpretation, Caruso, 337 N.J. 

Super. at 505, because “only those issues may be arbitrated which the parties have agreed shall 

be.” Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124, 132 (2001). 

However, because of a “strong public policy [that] favors arbitration of dispute resolution,” there 

is a presumption that the dispute falls within an arbitration clause. EPIX, 410 N.J. Super. at 471 

 3 The parties both apply New Jersey arbitration law without a discussion of the choice of law issue. Thus, the Court 

finds that the parties have both submitted to the application of New Jersey law to this dispute. 

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(internal quotations omitted). Indeed, “an order to arbitrate the particular grievance should not 

be denied unless it may be said with positive assurance that the arbitration clause is not 

susceptible of an interpretation that covers the asserted dispute.” EPIX, 410 N.J. Super. at 471 

(internal quotations omitted). Clauses that use broad “arising under” or other similar provisions 

cover torts related to the contract in addition to contract disputes themselves. Alfano v. BDO 

Seidman, LLP, 393 N.J. Super. 560, 575 (App. Div. 2007).

The Court denies Plaintiffs motion because each of Plaintiffs’ contract-like claims 

involves a contract that does not contain an arbitration clause. Plaintiffs have not agreed to 

arbitrate these claims. 

While Plaintiffs do not so argue, two of the three contracts that govern this dispute do not 

have arbitration provisions. The first of the three contracts is the Producer Contract that has the 

following broad arbitration clause:

Any controversy or claim occurring under, relating to or in connection with 

any provisions of this Contract or the breach of such provisions, unless 

resolved by mutual agreement of the parties will be finally settled by 

arbitration in accordance with the Commercial Arbitration Rules of the 

American Arbitration Association in effect on the date hereof by a Commercial 

Arbitration Tribunal appointed with those rules. . . . The place of arbitration 

will be Minneapolis Minnesota.

(Compl. at Ex. A, §9; Doc. No. 1-2.)4

 4 The Field Marketing Director Contract is an addendum to this contract. Because it does not contravene the 

arbitration provision, both “contracts” are really one contract that includes the provision. (See Compl. at Ex. C.; 

Doc. No. 1-2.)

 This is a broad provision that would cover related torts. 

See Alfano, 392 N.J. Super. at 575. However, the other two contracts do not contain arbitration 

provisions. The second contract, while closely related to the Producer Contract, is the Insurance 

Lead Contract. It governs the purchase of leads and does not contain an arbitration provision. 

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The third contract is the Member Contract between Plaintiffs and their General Agents. 

(Compl. at ¶¶51-64; Doc. No. 1-2.) This contract does not contain an arbitration clause and 

Defendants are not parties to the Member Contracts. (Compl. at Ex. D; Doc. No. 1-2.) 

The majority of the allegations involve the Member Contracts and the Insurance Lead 

Contract, the two contracts without arbitration provisions. Counts five and six both allege 

tortious interference with the Member Contracts between Plaintiffs and their General Agents. 

(See Compl. at ¶51-64; Doc. No. 1-2.) These contracts do not have an arbitration provision. 

Counts seven and eight allege, at least in part, withholding of leads; i.e. the violation of the 

Insurance Leads Contract. (See Compl. at ¶¶65-73; Doc. No. 1-2.) This contract does not 

contain an arbitration provision either. The claims, therefore, are not those that the parties have 

agreed to arbitrate and this Court cannot order such an arbitration. Garfinkel, 168 N.J. at 132. 

Defendants have cited no authority that suggests that an arbitration clause in one contract can 

require arbitration of a party’s rights in a separate contract; instead, they incorrectly suggest that 

all of the claims relate exclusively to the Producer Contract. Thus, these claims need not be 

arbitrated.

However, part of the allegations of claims seven and eight involve the Producer Contract. 

See EPIX, 410 N.J. Super. at 473. The breach of the Producer contract involves facts that

“occur[] under, relate to” or are “in connection with” the contract. See Caruso, 337 N.J. Super. 

at 505. Thus, this portion of the claim is within the scope of the arbitration provision and must 

be arbitrated. 

Plaintiffs’ citation of Garfinkel is not to the contrary. While Garfinkel did find that an 

arbitration clause must give a clear waiver of a statutory right, it did so in the context of claims 

under the NJLAD. The New Jersey Supreme Court noted that the NJLAD embodied “the clear 

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public policy of this State . . . to abolish discrimination in the work place.” Garfinkel, 168 N.J. at 

130. The court clearly intended its ruling to apply only in the situation presented by the strong 

public policy before it. The court stated that:

[T]he policies that support the LAD and the rights it confers on aggrieved 

employees are essential to eradicating discrimination in the workplace. The 

court will not assume that employees intend to waive those rights unless their 

agreements so provide in unambiguous terms.

Id. at 135. Thus, it was only in the context of a statutory employment claims that Garfinkel

requires a clear and explicit waiver of a statutory right. See Alfano, 393 N.J. Super. at 576

(finding that Garfinkel’s clear waiver requirement applies only in the area of statutory 

employment claims); EPIX, 410 N.J. Super. at 476 (Garfinkel’s limits on arbitration clauses “do 

not apply outside the ‘special area’ of ‘plaintiff’s enforcement of statutory employment 

claims.’”).5

While this case contains some statutory employment claims, as discussed, claims seven 

and eight are not statutory employment claims; they are contract and tort claims that arise out the 

contract. Thus, the presumption of arbitrability applies to these claims and, to the extent that 

they allege breech of the Producer Contract, the claims must be arbitrated. 

Thus, as discussed, portions of claims five through eight survive because the contracts at 

issue do not contain arbitration clauses. It is only to the extent that these allegations rely on the 

Producer Contract that Plaintiffs must arbitrate the claims.

 5 Further, while Garfinkel cursorily found that other claims in a suit involving statutory 

employment claims should be tried together, it did so based upon considerations of judicial 

economy. 168 N.J. at 137. While this Court must follow New Jersey law where appropriate, 

the Court sees no reason that it should be bound by the New Jersey Supreme Court’s 

considerations of judicial economy. 

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III. CONCLUSION

Consequently, the Court denies Defendants’ motion to dismiss Plaintiffs’ complaint 

because the Complaint sufficiently alleges that she was employed in New Jersey and can avail 

herself to its laws and because some contracts at issue in the remaining counts do not contain 

arbitration clauses.

Dated: December 8th, 2010

 /s/ Garrett E. Brown, Jr. 

GARRETT E. BROWN, JR., U.S.D.J.

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