NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ADRZEJ IWANICKI,

Plaintiff, : Civil Action No. 11-1792 (CCC)

V.

OPINION

BAY STATE MILLING COMPANY;

BAKERY, CONFECTIONARY,

TOBACCO WORKERS, AND GRAIN

MILLERS INTERNATIONAL UNION;

JOHN DOE(S) 1,2,3; AND ABC CORP.,

Defendants.

CECCHI, District Judge.

This matter comes before the Court by way of a motion to dismiss Plaintiffs Second

Amended Verified Complaint. The motion was filed by Defendant Bay State Milling Company

(“Bay State”) pursuant to Federal Rule of Civil Procedure I 2(b)(6). Submissions made in

support of and in opposition to the instant motion have been considered by the Court.’ The

Court decides this matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil

Procedure. Based on the reasons that follow, Defendant’s motion to dismiss is granted without

prejudice,

I, BACKGROUND 2

The Court considers an\ new arguments not presented b the parties to be aied. See Brenner v. Local 514.

UnuedBhd. OfCaipenters & Joiners. 927 F.2d 1283. 1298 (3d Cir. 1991) (“It is well established that failure to raise

an issue in the district court constitutes a waiser of the argument.”).

2 The following facts are taken from the Second Amended Complaint, the factual allegations in which are accepted

as true for purposes of Ba\ State’s Motion. A detailed discussion of the underl\ ing facts is set forth in this Court’s

Opinion eranting Defendants’ Motion to Dismiss the First Amended Complaint without prejudice See Ii anicki i’.

Ba Stale ftlling Co. So. 11-01792. 2011 L.S. Dist, LEXIS 140944 (D,N.J. Dec. 7,2011).

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Plaintiff Andrzej Iwanicki (“Iwanicki” or “Plaintiff’) worked as a miller for Bay State for

over twenty years, (Second Amended Complaint (“SAC”) ¶ 5.) He alleges that on or about

December 10. 2008. he “suffered extreme and permanent injuries” while performing his work

duties, (IJ) Plaintiff further alleges that “pursuant to promises of [Bay State].” he did not file a

Workers’ Compensation claim following the accident. (fri ¶ 5-6.) On or about January 14,

2011. Bay State terminated Plaintiffs employment. (id. ¶1, 6.) Plaintiff asserts that his

termination was in violation of Bay State’s “express and implied promises” regarding his

employment. (fri ¶ 6) He alleges that he “detrimentally relied on Defendant’s promises,”

refrained from pursuing a Workers’ Compensation claim, and as a result, the statute of

limitations on his claim lapsed. (Id) In addition, Plaintiff was sixty-three years old at the time

of his termination and he claims that his “age [was] a factor in his firing.” (Id. ¶ 7.)

This action was originally filed on March 11, 2011 in New Jersey Superior Court and was

removed to this Court on March 29, 2011. (Id. ¶ 2.) Plaintiff filed an Amended Complaint on

April 12, 2011, in which he asserted claims against Bay State and others under various statutory

and common law theories. (See First Amended Verified Complaint.) Bay State thereafter

moved to dismiss the Amended Complaint. This Court granted that motion without prejudice on

December 7, 2011, and gave Plaintiff leave to file a Second Amended Complaint. See Iwanicki

v. Bai State Milling Co.. No. 11-01792, 2011 U.S. Dist. LEXIS 140944 (D.N.J. Dec. 7. 2011).

Plaintiff filed a Second Amended Complaint on February 2, 2012. (See SAC.) Defendant Bay

State now moves to dismiss the Second Amended Complaint.

IL LEGAL STANDARD 3

Phdntifrs Opposition asserts that the pleading standard set forth in AshcroJr v, lqbal, 129 S. Ct. 1937 (2009) is “bad law” and “will not stand the test of time.” (P1. Opp. 4.) Plaintiffs argument regarding the pleading standard is

inapposite. The Iqha! standard governs Rule l2(b)(6) motions and shall be followed by this Court.

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For a complaint to survive dismissal pursuant to Federal Rule of Civil Procedure

12(b)(6), it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.’” Ashcrofl v. Jqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell At?. Corp.

v. Juomblv, 550 U.S. 544. 570 (2007)). In evaluating the sufficiency of a complaint, the Court

must accept all well-pleaded factual allegations in the complaint as true and draw all reasonable

inferences in favor of the non-moving party. See Phillips v. County ofAllegheny, 515 F.3d 224.

234 (3d Cir. 2008). ‘Factua1 allegations must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555. Furthermore, ‘[a] pleading that offers ‘labels and

conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do. Nor does

a complaint suffice if it tenders ‘naked assertion [s]’ devoid of ‘further factual enhancement.”

Jqbal, 129 S. Ct. at 1949.

‘While the Third Circuit has adopted a liberal approach to the amendment of pleadings,

leave to amend a complaint should not be permitted if it would be futile.” Oliver v. Dep ‘I of

Human Servs., No. 09-5336, 2012 U.S. Dist. LEXIS 99039, at *17l8 (D.N.J. July 16, 2012)

(citing Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002)). “Futility means that

the complaint, as amended, would fail to state a claim upon which relief could be granted.”

Sliane v. Fauver. 21 3 F.3d 113, 115 (3d Cir. 2000) (citing In re Burlington Coat Factory Sec.

Litig. 114 F.3d 1410. 1434 (3d Cir. 1997))(internal quotations omitted).

Ill. DISCUSSION

A. Breach of Contract

The Second Amended Complaint asserts a sole cause of action for breach of contract.

(SAC ¶ 4.) Plaintiff claims that Bay State’s decision to fire Plaintiff was a “violation of [the]

e\pre’s and implied prorn1ss’ made to Plaintiff regarding his emplo ment (Id ¶ 6) Plaintiff

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further claims that he ‘detrimentallv relied” on these promises and “therefore refrained from

exercising his rights pursuant to the [W]orkers[’] [C]ompensation act.” (Id.) Bay State argues

that Plaintiff has failed to identify ‘what the alleged promises were, who made them, when they

were made, and how they were breached.” (Bay State Br. 3-4.) Furthermore, Bay State

contends that Plaintiff did not state that these promises “constituted a contract as required under

New Jersey law,” (Id. at 4).

To state a claim for breach of contract under New Jersey law, the plaintiff must allege

facts demonstrating “(I) a contract; (2) a breach of that contract; (3) damages flowing therefrom;

and (4) that the [plaintiffj performed [his] own contractual duties.” Video Pieiine, Inc. v. Buena

Vista Home Entertainment, Inc., 210 F. Supp. 2d 552, 561 (D.N.J. 2002). The plaintiff must also

specifically identify the portions of the contract that were allegedly breached. Skypala v.

:ilortgage Electronic Registration Systems, Inc., 655 F. Supp. 2d 45 1, 459 (D.N.J. 2009)

(dismissing a breach of contract claim where “the Complaint does not identi1 the provisions

Plaintiff asserts were breached”); see also Loceria Colombiana, LA. v. Zrike Company, Inc., No.

10-5329, 2011 WL 735715, at *3, 45 (D.N.J. Feb. 22, 2011) (dismissing breach of contract and

good faith and fair dealing claims when defendant failed to identify the contract that was

allegedly breached).

Here, Plaintiff alleges that he “was fired without cause by [Bay State] in violation of its

express and implied promises” regarding Plaintiffs employment. (SAC ¶j 6.) He also claims

that he “detrimentally relied on Defendant’s promises regarding [his] continued employment and

therefore refrained from exercising his rights pursuant to the workers compensation act.” (Id.)

However. Plaintiff has failed to identify the contract that was allegedly breached. He also does

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not assert that the promises allegedly violated by Bay State constituted a contract, Thus, Plaintiff

has failed to plead the facts necessary to support its breach of contract claim.

B. § 301 of the Labor Management Relations Act Claim

Ba State also argues that because Plaintiff was a member of the Bakery. Confectionary.

Tobacco Workers and Grain Millers International Union Local 53 C’Union”), his breach of

contract claim ‘involves the interpretation of a collective bargaining agreement and is therefore

preempted by § 301 of the Labor Management Relations Act [LMRAJ, 29 U.S.C. § 185(a).”

(Bay State Br, 4.)

Section 301(a) of the LMRA provides:

Suits for violation of contracts between an employer and a labor organization.

may be brought in any district court of the United States.

29 U.S.C. § 185(a). ‘[Wjhen resolution of a state law claim is substantially dependent upon

analysis of the terms of an agreement made between the parties in a labor contract, that claim

must either be treated as a § 301 claim, or dismissed as preempted by federal labor contract law.”

Briones v. Bon Secours Health Sys., 69 Fed. Appx. 530, 534 (3d Cir. 2003); see also AllisChalmers v. Lueck, 471 U.S. 202, 211 (1985) (“The interests in interpretive uniformity and

predictability that require that labor-contract disputes be resolved by reference to federal law also

require that the meaning given a contract phrase or term be subject to uniform federal

interpretation.”). Here, Plaintiff is a member of the Union, and while he has asserted contract

law claims under state law, he has not identified the alleged express and implied promises

forming the contract, Therefore, the Court cannot determine whether these claims require

analysis of the relevant collective bargaining agreement (“CBA”).

Lvea if Plaintills claims are construed as 301 claims, however, they still fail. Under

federal labor law, aggrieved employees must exhaust their CBA’s grievance and arbitration

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procedures before filing a complaint in federal court ‘unless it may be said with positive

assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted

dispute.” Angst v. Mack Trucks, Inc., 969 F.2d 1530, 1537 (3d Cir. 1992). “Failure to plead

exhaustion can serve as a basis for dismissal of § 301 claims under Rule 12(b)(6).” Pickett v.

Ocean-Monmouth Legal Sen’s., No. 11-6980, 2012 U.S. Dist. LEXIS 9982, at *8 D.N.J. Jan.

27, 2012); see also, Carpenter v. Wawa, No. 09-2768, 2009 U.S. Dist. LEXIS 112509, at *910

(E.D. Pa. Dec. 3, 2009). The Second Amended Complaint does not allege any facts to indicate

that Plaintiff exhausted the CBA’s grievance procedures before filing his complaint. As such, he

has not stated a valid § 301 claim.

Furthermore, when an employee brings a § 301 claim against his employer, he must

establish that the Union breached the duty offair representation. See Albright v. Virtue, 273 F.3d

564, 576 (3d Cir. 2001); see also Felice v. Sever, 985 F.2d 1221, 1226 (3d Cir. 1993). Plaintiff’s

First Amended Complaint included claims against the Union. However, those claims were

dismissed in this Court’s decision, Iwanicki v. Bay State Milling Ca, No. 11-01792, 2011 U.S.

Dist. LEXIS 140944, at *3943 (D.N.J. Dec. 7, 2011). The Second Amended Complaint does

not include any claims against the Union, nor does it present any facts to support a claim that the

Union breached its duty of fair representation. Thus, the Court finds that Plaintiffs Complaint

cannot be construed to state any § 301 claims. Based on this and the foregoing reasons,

Plaintiffs claim for breach of contract is dismissed.

C. Promissory Estoppel 4

Defendant argues that if the Court chooses to construe Plaintiffs claim as one for

promissory estoppel rather than breach of contract, Plaintiffs claim also fails because he does

Plaintiff states that jt]he sole cause of action [in this matter] is for breach of contract pursuant to common law.”

(SAC ¶ 4.) However, the Court will address the argument raised by Bay State regarding any other potential claims.

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not “identify or describe the alleged promises that were made, why his reliance on such promises

was reasonable, or how such reliance caused him deflnite and substantial detriment.” (Bay

State Br. 5.) In order to state a claim for promissory estoppel, Plaintiff must satisfy the following

elements: “(1) a clear and definite promise: (2) made with the expectation that the promisee will

rely on it; (3) reasonable reliance; and (4) definite and substantial detriment.” Toll Bros., Inc. v.

Bd. OfChosen Freeholders ofCounty ofBurlington, 194 N.J. 223, 253 (N.J. 2008).

The Second Amended Complaint alleges that Plaintiff detrimentally relied upon Bay

State’s promises regarding his employment. (SAC ¶J 5-6.) Plaintiff contends that as a result of

his reliance, he was delayed in filing a workers compensation claim before the statute of

limitations expired. (SAC ¶ 6.) Plaintiff does not, however, provide further elaboration as to the

“clear and definite promise” made by Bay State. In fact, he has not even stated the content of the

alleged promises. Accordingly, even if this Court were to construe Plaintiffs claim as one for

promissory estoppel, Plaintiffs complaint is insufficient.

D. Age Discrimination Claim

While Plaintiff has not asserted a claim for Age Discrimination, the Second Amended

Complaint alleges that “age [was) a factor in [Plaintiffsj firing” and his Civil Cover Sheet states

that his claim has “elements of [the Age Discrimination in Employment Act (“ADEA”)j.” (See

SAC ¶ 7; P1. Civil Cover Sheet.) Bay State argues that Plaintiff “does not state a valid ADEA

claim because the Second Amended Complaint merely alleges, in conclusor terms. that

Plaintiffs age was a factor Bay State considered when it terminated his employment.” (Bay

State Br, 5.)

The ADEA provides in relevant part:

It shall he unlawful for an employer to fail or refuse to hire or to discharge any

individual or otherwise discriminate against any individual with respect to his

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compensation. terms. conditions. or privileges of employment, because of

such individual’s age;

29 U.S.C. § 623(a). A plaintiff asserting a cause of action under the ADEA must prove that age

‘made a difference” in an employer’s decision to terminate an employee. Perry v. Prudential

Bache 8cc, Inc., 738 F. Supp. 843, 850 (D.NJ. 1989) aff’d sub nom, Perry v. Prudential Bache

8ec, inc., 904 F.2d 696 (3d Cir. 1990) (finding that jokes about plaintiffs age and termination

based on factors that sometimes accompany advancing age are not enough to sustain an age

discrimination claim under the ADEA). Vague and conclusory allegations are insufficient to

state a claim for age discrimination. See Sangi v, Warren Hosp., No. 10—4571 2011, WL

4857933 (D.N.J. Oct. 11, 2011) (dismissing ADEA claim because the only factual support

offered by the plaintiff in support of her claim — her age and that she was terminated — did not

establish a claim of age discrimination).

Here, Plaintiff maintains that his age factored into Bay State’s decision to discharge him.

(SAC ¶ 7.) The Second Amended Complaint states that Plaintiff is now sixty-four and is

unemployed and without health coverage. (Id) Furthermore, Plaintiff argues that his age

“reduce[s] his ability to mitigate damages and . . . increase[s] the harm that he has suffered at the

hands of [Bay Statel.” (Id.) Plaintiffs assertions only indicate how his age has impacted him

following his termination, but do not show that his age ‘made a difference” in Bay State’s

decision to terminate him. See Periy, 738 F. Supp. at 850. Thus, Plaintiff has failed to state a

claim ftr age discrimination under the ADEA.

Even if Plaintiffs assertions did establish a claim for age discrimination, his claim would

still fail as untimely filed. Under federal law, a claim must be filed with the Equal Employment

Opportunity Commission (“EEOC”) within 300 days from the date of the adverse employment

decision. 42 U.S.C. § 2000e-5(e)(1); Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir.

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2000). Plaintiff was terminated from his position with Bay State on or about January 14, 2011.

(SAC ¶ 6.) The Second Amended Complaint was flied on February 2, 2012, well over 300 days

after Plaintiffs date of termination. Plaintiff concedes that he did not file his claim with the

EEOC after he was terminated. (SAC ‘ 7.) Therefore, Plaintiffs claim for age discrimination

fails to meet both the pleading and procedural requirements under the ADEA. Accordingly, the

Court grants Bay State’s motion to dismiss Plaintiffs age discrimination claim.

E. Abandonment of Plaintiff’s Breach of Contract and Age Discrimination

Claims

Bay State finally argues that Plaintiff has “abandoned his claims” because he failed “to

respond to the case law and argument in Bay State’s opening memorandum,” (Bay State Br. 2);

see Tota/ogistix. Inc. v. Marfack Co., Inc., No. 06-5117, 2007 WL 2705152 (D.N.J. Sept. 14,

2007) (finding that plaintiff abandoned his claim by not offering a defense in its opposition

papers to the defendant’s arguments). Plaintiffs Opposition and Sur-reply do not respond to the

arguments in Bay State’s moving brief, nor do they offer additional case law or facts to support

Plaintiffs position. Instead. Plaintiff restates the factual positions and allegations that were

originally stated in the Second Amended Complaint. (P1. Further Opp’n 4.) Even if Plaintiff did

not intend to abandon his claims, they have not been properly pled as described herein, and shall

therefore be dismissed.

IV. CONCLUSION

Based on the reasons set forth above. Defendant’s motion to dismiss Plaintiffs Second

Amended Complaint is granted without prejudice. To the extent the deficiencies in such claims

can be cured by way of amendment, Plaintiff is granted thirty days to reinstate this matter and

file an Amended Complaint solely for purposes of amending such claims. To the extent Plaintiff

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seeks to add any additional claims, a formal motion to amend should be filed in accordance with

all applicable local and Federal rules. as well as any scheduling order which may be in place.

An appropriate Order accompanies this Opinion.

DATED: C

CLAIRE C. CECCHI, U.S.D.J.

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