Plaintiff.

V. MEMORANDUM

AEX GROUP, et al,,

Defendants.

This matter comes before the Court on a motion to dismiss Plaintiff Louis Diana’s

(“Plaintiffs”) Complaint, filed by Defendants AEX Group and Michael Maenner (collectively

‘Defendants”). Plaintiff’s Complaint alleges violations of the New Jersey Law Against

Discrimination, breach of contract, retaliation, punitive damages. and aiding and abetting.Defendants move to dismiss the Complaint under Federal Rules of Civil Procedure 12(b)(2) and

1 2(b)(4) for failure to serve a summons upon Defendants and under Rule 1 2(b)(6) for failure to state

a claim upon which relief can be granted. For the following reasons, Defendants’ motion is granted.

I.

On or about February 23. 2011. Plaintiff filed his Complaint in the Superior Court of New

Jersey. Hudson County. On March 23. 2011. I)efendants removed the Complaint to this Court.

1)efendants therealler moved to dismiss Plaintiffs Complaint on April 21. 2() II

lhe Court notes that in Plaintiff’s “Counter Statement of Material Facts.” attached to Plaintiffs

opposition brief, Plaintiffstates: “Though there is no diversity jurisdiction. the defendants removed
for overseeing the Field Auditors, training employees, auditing each building, maintaining the alarm

systems. and investigating all theft. Throughout his employ with AEX Group. Plaintiffs work

performance met the expectations of his employers. Plaintiff contends that in March 2010, he was

tired on the basis of his age and replaced by a “much younger man who was trained by the

[Pjlaintiff.” Defendants allegedly told Plaintiff that he was fired due to a reduction in force, but

Plaintiff alleges it was merely a pretext to hide Defendants’ discriminatory motive.

Count One ofPlaintiffs Complaint alleges Defendants violated the New Jersey Law Against

Discrimination (N.JLAD), N.J.S.A. 10:5-1 et. seq. Plaintiff alleges that the NJLAD proscribes

discrimination and harassment against an employee because of his national origin and/or disability.

forbids retaliation on the basis of national origin, disallows terminating an employee on the basis of

age, and “prohibits employees of defendant Freehold Auto from aiding, abetting, coercing or

the Complaint to Federal Court and then tiled a motion to dismiss on the pleadings.” Such anargument is properly made in the context of a motion to remand, which Plaintiff has not filed.

Nevertheless, the Court is satisfied that there is diversity jurisdiction in this action because Plaintills

Complaint indicates that Plaintiff is a resident of New Jersey and Defendants AEX Group andMichael Maenner are both residents of Pennsylvania. Diversity jurisdiction does not require that

every party have different citizenship from every other party: rather, it requires that every plaintiffbe diverse from every defendant. Zambe/li Fireworks M/. Co. v, Wood. 592 F.3d 412. 419 (3d (‘ir.

201 0) (“Complete diversity requires that, in cases with multiple plaintiffs or multiple defendants.

no plaintiff be a citizen ofthe same state as any defendant.”). There appears to be complete diversity

in this action.
manner.” Similarly, in Count Four. Plaintiffalleges that the actions ofDefendants constitute common

law retaliation. Count Five requests punitive damages. Finally, Count Six alleges that Defendant

Maenner engaged in conduct in the work place that was intimidating, hostile, and offensive to a

reasonable person under the NJ LAD and that Maenner decided to fire Plaintiff based on plaintiffs

age. 4

II.

Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint for failure to

state a claim upon which relief can be granted. When considering a 1 2(b)(6) motion to dismiss, the

Court must accept as true all allegations in the complaint and draw all reasonable inferences in favor

of the non-moving party. See Asheroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009); Bell /111. Lotp. v.

Twonthly, 550 U.S. 544, 555 (2007), A complaint survives a motion to dismiss if it “contain[sl

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”

Plaintiffs reference to Freehold Auto is curious as that entity is not named as a Defendant in the

instant action.

Plaintiff filed a six-count Complaint. Count Two — “Fictitious Party Allegations” is not

relevant to the instant motion as it is directed towards John Does or “fictitious individuals,corporations, professional associations, or anyone else who participated in anyway with the

treatment. management and supervision of Plaintiff.”

This Count is not challenged under Rule I 2(h6) by I)efendants.
elements ofa cause ofaction will not do.” Ic! (quoting Twombly, 55 U.S. at 555). While the factual

allegations in a complaint must be accepted as true, such treatment is “inapplicable to legal

conclusions.” Ic!

III.

In this action, Defrndant challenge’s Plaintiff’s claims for violation ofthe NJLAD, common

law breach of contract, common law retaliation, and punitive damages. Plaintiffwas employed by

Defendant AEX Group, a Pennsylvania corporation, and Michael Maenner, the owner of the

corporation. However, curiously absent from Plaintiff’s Complaint is any indication ofthe state in

which Plaintiff worked. Without such infonnation, the Court cannot properly discern whetherPlaintiffhas stated any claims upon which reliefmay be granted.

For exampleNewJerseycourts have consistently applied the lawofthe Statewhere employment

occurred to claims ofworkplace discrimination; more specifically, NewJersey courts have only applied

the NJLAD ifthe plaintiffwas employed in New Jersey. San v. Talpinia, No. 01-5921,2003 U.S. DistLEXIS 27237, at 45-46 (DXI. Apr. 15, 2003) (“New Jersey courts have consistently applied the law

ofthe state of employment to workplace claims, and have therefore only applied the NJLAD if theplaintiff worked in New Jersey. When a New Jersey resident worked exclusively in Pennsylvania,

Pennsylvania law (the law ofthe state ofher workplace) applied and the NJLAD (the law ofthe state of

herresidence and the employe(s headquarters) did not.” (citingBrunner v. AiliedSignat inc., 198 F.R.D.

4
p

y

y

may not sustain a claim under the NJLAD. However, if Plaintiff was employed in New Jersey and the

NJLA[) applies to his employment claims. Plaintifrs common law breach of contract and common law

retaliation claims may not be sustainable. See Monaco v. Am. Gen. Assur. Co., 359 F.3d 296. 308-09

(3d Cir. 2004) (“New Jersey law does not provide a separate breach of contract cause of action on the

basis of generalized anti-discrimination language in an employee handbook where the alleged

discrimination would be in violation of the NJLAD. Such a breach of contract cause of action would

add nothing to the statutory cause of action.”); Waiters v. Hudson Cniy. Corr. Ctr., No. 07-421, 2010U.S. Dist. LEXIS 44393. at * 16 (D.N.J. May 5. 2010) (“[BJoth state and federal courts have found that

New Jersey’s Law Against Discrimination (“NJLAD’) preempts or precludes supplementary common

law actions.’ (citing But/er v. Sherman, Silverstein & Kohl, P.C.. 755 F. Supp. 1259 (D.N.J. 1990):

Shaner v. Horizon Bancorp., 116 N.J. 433, 561 (N.J. 1989); Catalane v. Gilian Inst. Corp., 271 N.J.

Super. 476 (App, Div. 1994).

In this case where Plaintiff resides in New Jersey. but where employment is located in

Pennsylvania: Pennsylvania law applies to the discrimination claim. The complaint is dismissed, but

Plaintiff has twentY (20) days to file an amended complaint. . PETER C. SHERIDAN, U.S.D.J.

September 1, 2011