566 F.Supp.3d 224
D.N.J.2021Background
- Plaintiff Sean M. Donovan, a New York resident, was employed by Berkley Public Entity (BPE) and worked primarily out of BPE’s New York office but alleges semi-regular work, meetings, and travel-related remote work in New Jersey offices (Rutherford, Morristown, Ewing).
- Plaintiff alleges he reported discriminatory and racist remarks by senior BPE personnel (notably Richard Starkie) made during teleconferences originating from BPE’s Rutherford, NJ office, and reported other incidents witnessed or occurring in connection with BPE business.
- Plaintiff interviewed (and was criticized) by CEO Barraclough in Morristown, NJ for an internal promotion; alleges a Final Warning was issued in Morristown and that Starkie informed him of his termination while at the Rutherford, NJ office.
- He sued in New Jersey state court under the New Jersey Law Against Discrimination (NJLAD) for retaliatory harassment and aiding-and-abetting by supervisors; defendants removed to federal court and moved to dismiss, arguing NJLAD does not apply because Plaintiff was employed in New York.
- Plaintiff moved for leave to amend to add factual allegations tying his claims to New Jersey. The court granted leave to amend but dismissed the (amended) complaint for failure to plausibly allege that New Jersey has the "most significant relationship" to his claims; plaintiff was given leave to file a second amended complaint within 21 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NJLAD applies to an out-of-state employee | Donovan: semi-regular NJ work, meetings, NJ interviews/termination contacts make NJ the relevant forum | Defendants: Donovan was employed in NY; sporadic NJ contacts insufficient to invoke NJLAD | Court: Donovan failed to plausibly allege NJ has the most significant relationship; NJLAD not shown to apply at pleading stage (dismissal with leave to amend) |
| What pleading showing is required to invoke NJLAD for nonresident plaintiffs | Donovan: Calabotta permits out-of-state plaintiffs to proceed where facts tie claim to NJ | Defendants: Calabotta does not eliminate the employment-in-NJ requirement; plaintiff must be employed in NJ | Court: Under Rule 12(b)(6) plaintiff must plausibly allege facts showing New Jersey has the most-significant relationship (Restatement factors) before discovery |
| Motion for leave to amend to add NJ contacts | Donovan: proposed additional NJ-related allegations cure nexus defect | Defendants: amendment would be futile because contacts remain insufficient | Court: Granted leave to amend liberally; allowed filing of Amended Complaint and further leave to cure deficiencies |
| Whether the NJLAD claims (retaliation and aiding/abetting) were sufficiently pleaded on the merits | Donovan: alleged reports of discrimination and retaliatory harassment by supervisors | Defendants: even if alleged, statute shouldn’t apply; merit arguments also raised | Court: Did not resolve merits; dismissed based on choice-of-law/contacts deficiency but permitted further amendment to attempt to cure nexus |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (established the federal plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (applies and explains Twombly plausibility framework)
- Bistrian v. Levi, 696 F.3d 352 (3d Cir. 2012) (outlines multi-step plausibility analysis for Rule 12(b)(6) review)
- Foman v. Davis, 371 U.S. 178 (1962) (Rule 15(a) leave-to-amend standard: courts should freely give leave)
- Calabotta v. Phibro Animal Health Corp., 460 N.J. Super. 38 (App. Div. 2019) (held an out-of-state employee may invoke NJLAD where New Jersey has the "most significant relationship" under Restatement choice-of-law analysis)
- Buccilli v. Timby, Brown & Timby, 283 N.J. Super. 6 (App. Div. 1995) (applied NJLAD only where employment occurred in New Jersey)
- Robins v. Max Mara, U.S.A., Inc., 923 F. Supp. 460 (S.D.N.Y. 1996) (discusses differences in available remedies between NJLAD and NYSHRL creating a conflict of laws)
- Beebe v. N.Y. Times Co., 666 F. Supp. 2d 321 (E.D.N.Y. 2009) (recognizes conflict between NJLAD and NYSHRL based on differing remedies)
- Neitzke v. Williams, 490 U.S. 319 (1989) (explains motion-to-dismiss purpose to avoid needless discovery)