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PATRICK v. ESSO STD. OIL CO.

November 1, 1957

Barbara PATRICK, John Patrick, Caroll Patrick, and Robert Patrick, minors, by their guardian ad litem, Alice Patrick, and Alice Patrick, individually and as Administratrix of the Estate of Francis J. Patrick, deceased, Plaintiffs,
v.
ESSO STANDARD OIL COMPANY, Defendant



The opinion of the court was delivered by: WORTENDYKE

This is a diversity action. Plaintiffs are residents of New Jersey, and defendant is a corporation of the State of Delaware, licensed to do business in the State of New Jersey. The plaintiffs Barbara, John, Caroll and Robert Patrick are surviving minor children, and the plaintiff Alice Patrick, in her individual capacity, is the surviving widow of Francis J. Patrick, deceased. Alice Patrick also sues as administratrix of the estate of said decedent. Defendant was the employer of decedent in his lifetime, until a date several months prior to his death.

Defendant has moved to strike the complaint and each of the four counts thereof, upon the asserted general ground that each of said counts fails to state a claim upon which relief can be granted, and invoking Rule 12(b)(6) of the Federal Rules of Civil Procedure, 28 U.S.C. Plaintiffs present a counter-motion for leave to permit the inspection and copying of certain documents embodying references concerning decedent, given by the defendant to potential employers of decedent after his discharge from defendant's employ.

 Upon the first count of the complaint all of the plaintiffs seek damages for an alleged wrongful discharge of the decedent from his employment by defendant. This discharge they allege was contrary to the provisions of a collective bargaining contract (to which the employer and the union of which the decedent was a member were parties), and without just cause. By reason of this discharge it is claimed that decedent was deprived of his livelihood, was rendered jobless, and was unable to secure employment for the support of the plaintiffs for the remainder of his natural life.

 The second count incorporates by reference the allegations of the first count respecting wrongful discharge, and it further alleges that the defendant maliciously caused decedent to be brought before the police under threat of arrest, indictment and conviction, thereby damaging his reputation and rendering him unable to secure employment for his own support and that of the plaintiffs.

 The third count incorporates by reference the same allegations of the first count as were similarly incorporated in the second count, and further charges that, following decedent's discharge, defendant, in answer to inquiries from prospective employers of the decedent, made false and malicious defamatory statements respecting decedent; thereby preventing him from securing employment and damaging his reputation, with consequent inability to support himself and the plaintiffs.

 In the fourth count, the factual allegations of the preceding counts are incorporated by reference and it is alleged that in consequence thereof each of the plaintiffs has sustained damage to his reputation to the extent of $ 10,000. The ad damnum clause in each count demands $ 50,000, but punitive damages are not expressly sought.

 Defendant's motion to strike is grounded upon the following contentions:

 (1) None of the plaintiffs, as an individual, may recover upon the allegations of any of the counts;

 (3) The alleged causes of action set forth in the second, third and fourth counts, because they sound in defamation, are barred by the New Jersey Statute of Limitations (N.J.S. 2A:14-3, N.J.S.A.); and

 (4) The causes of action sounding in defamation, embodied in the second, third and fourth counts, have not been pleaded in haec verbis and, in any event, did not survive the death of decedent.

 At the outset we must bear in mind that under Rule 8(a)(2) of the Rules of Civil Procedure a complaint need only 'contain a short and plain statement of the claim showing that the pleader is entitled to relief.' Further, upon a motion, under Rule 12(b)(6) of the same Rules, to dismiss a complaint for failure to state a claim upon which relief can be granted, the pleading attacked must be liberally construed in a light most favorable to the plaintiff, and all doubts on the face of the pleading must be resolved in the plaintiff's favor. Therefore, a complaint is not subject to dismissal unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. Seymour v. Union News Company, 7 Cir., 1954, 217 F.2d 168; Tobin v. Chambers Construction Co., D.C.Neb.1952, 15 F.R.D. 47; 2 Moore's Federal Practice, 2d Ed., 2245. Keeping the foregoing principles in mind, we proceed to an examination of the successive counts of the complaint to which the defendant's motion is addressed.

 The first count charges that the decedent was unlawfully or improperly discharged from his employment by the defendant and that in consequence of such discharge he, the decedent, 'was deprived of his livelihood, was rendered jobless and unable to secure work for the support of plaintiffs during the remainder of his natural life.' In such circumstances, a cause of action accrues for damages resulting from the breach of the employment contract. Miller & Sons Bakery Co. v. Selikowitz, App.Div.1950, 8 N.J.Super. 118, 73 A.2d 607. It is obvious that such cause of action as accrued to the decedent by reason of his discharge was personal to him and not to his wife or children. If his discharge was in violation of his contractual rights, there is no allegation or basis for inference that such contract was made for the benefit of anyone other than the decedent -- certainly not for the benefit of his wife or children. Therefore, none of the plaintiffs, in their individual capacities, may recover upon the allegations of the first count, and, as to them, that count must be dismissed.

 Defendant also contends that plaintiff administratrix may not maintain the cause of action set forth in the first count of the complaint because the provisions of Article XIV of the Collective Bargaining Agreement either limited the decedent to his remedy by arbitration or, in any event, precluded his right to seek judicial relief unless and until he had first exhausted his contractual arbitral remedy. Defendant argues, therefore, that the plaintiff administratrix would have no right to maintain the cause of action set forth in the first count. With this contention I must disagree. The cause of action alleged in the first count of the complaint in this case charges a breach of the contract between decedent's employer and his Union, and it is the law of New Jersey that, despite the provisions of such a contract, the discharged employee may treat his discharge as final and seek damages at law without either invoking the contractual remedy by arbitration or exhausting all of the stages of relief which the contract may provide. Anderson v. Odd Fellows Hall, E. & A. 1914, 86 N.J.L. 271, 90 A. 1007. See, also, McKeeby v. Arthur, 1951, 7 N.J. 174, 81 A.2d 1. The defendant's reference to Article XIV apparently focuses on sections 3 and 4 thereof. In neither of these sections do I find language which ...


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