through independent dealers -- in regulating the schedules for delivery: a company cannot allow independent salesmen to make delivery commitments to retailers without regard to the company's ability to meet the demand. In short, the fact that Dexter required weekly reports of, and regulated the distribution of shoes through, its salesmen points to a company that administers its affairs carefully through the monitoring of salesmen, rather than to the existence of an employer/employee relationship.
Further on the issue of control, Carney claims that he could only take vacations during the slow season and that he was reviewed twice a year by Dexter officials. While relevant, these facts do not rise to the level of control of the 'means and manner' of Carney's work efforts such that an employment relationship was established. Carney appears to have been free to set his daily schedule as he saw fit, so long as the customers he visited had certain characteristics (i.e., purchased at least fifty pairs of shoes) making them eligible Dexter customers. Compare Golden v. A.P. Orleans, Inc., 681 F. Supp. 1100 (E.D. Pa. 1988) (employer exercised abundance of control over daily activities; hours set by company, weekly sales meetings and seminars with company managers, oral and written reports of activities to be prepared daily, and compliance with periodic performance procedures required).
Even if it is concluded Dexter employed significant control over Carney, this is not enough to result in employee status. Zippo, supra, 713 F.2d at 38. Looking to the other factors articulated by Zippo, most of which go to the economic realities of the relationship, it appears clear Carney was not treated as a Dexter employee. He received as compensation for being a Dexter salesman, a straight five percent commission; he did not receive a yearly salary, a bonus, profit sharing, incentive pay or any other form of compensation; traditional employment benefits such as life insurance, health insurance and retirement plans were not made available to him; he was responsible for his own transportation; he was not provided with a company car, nor reimbursed for gas, mileage or wear and tear; Carney received no reimbursement for attending annual sales meetings; taxes were not withheld from his monthly commission check; Carney was liable for his own income tax payment and social security tax.
Carney testified he had use of a Dexter showroom in Manhattan for which he had to contribute a monthly fee. He also had an office in his home which operated and was furnished at his expense. He paid for the printing of his own business cards. He paid all of the travel and entertainment expenses which he incurred as a result of Dexter related business. No formal training or education was offered to Carney. In sum, as a matter of law, Carney was an independent contractor. Accordingly, the Dexter motion for summary judgment on the ADEA claim is granted.
C. New Jersey Age Discrimination and Common Law Claims
Having granted Dexter's motion for summary judgment as to the ADEA claim, the requested dismissal of the state law claims for lack of subject matter jurisdiction will be addressed.
Where there exists no federal claim as a matter of law, the rationale for exercising pendent jurisdiction over state law claims generally does not apply. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). While, for the reasons set for the below, it is perhaps understandable why Dexter has not argued this as an additional basis for granting its motion as to the state law claims, federal courts, sua sponte, should dismiss claims where subject matter jurisdiction is lacking. Cameron v. Hodges, 127 U.S. 322, 32 L. Ed. 132, 8 S. Ct. 1154 (1888); Randazzo v. Eagle-Picher Industries, Inc., 117 F.R.D. 557, 558 (E.D. Pa. 1987).
Although Carney has failed to allege in his complaint sufficient facts to support diversity jurisdiction,
it appears from what is stated in Dexter's brief that such a basis for federal jurisdiction may exist.
Presumably Dexter has refrained from raising the issue of the defect in Carney's complaint because it wishes to forego the formality of having Carney refile an amended complaint. Nonetheless, I note the defect and read the pleading requirements for diversity jurisdiction strictly. A plaintiff must clearly allege on the face of the complaint facts which demonstrate complete diversity and an amount in controversy of at least $10,000. Fed.R.Civ.P. 8(a)(1); Randazzo, supra, 117 F.R.D. at 558.
Although Carney states that jurisdiction is based upon the existence of both a federal question and diversity, he has failed to indicate what states Dexter is a resident of for diversity purposes. Corporations are residents in their state of incorporation and in the state which is their principal place of business. 28 U.S.C. § 1332(c). Although the complaint alleges that Dexter's principal place of business is in Massachusetts, complete diversity is not assured unless it is alleged that Dexter is incorporated in a state other than New Jersey, the state where Carney is a resident. Moreover, Carney has failed to allege any facts which satisfy the amount in controversy test, a necessary predicate to jurisdiction if the ADEA claim is dismissed.
Noting the foregoing pleading defects, however, and in light of the fact that it appears from other sources that the pleading requirements could probably be met in an amended complaint, I do not base my decision to grant Dexter's motion for summary judgment as to the state law claims solely on jurisdictional grounds. Accordingly, I have addressed below each of the state law claims individually.
New Jersey has enacted a statute which parallels closely the ADEA. In the Second Count of Carney's Complaint Carney claims that N.J.S.A. 10:5-12 was violated. That section, in pertinent part, provides:
It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination: