The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
Presently before this Court are two separate defense motions.
Defendant ACE Ltd. or ACE Limited has filed an unopposed motion
to dismiss for lack of jurisdiction. Defendant ACE American
Insurance Company ("ACE American") has filed a motion to dismiss
or to stay proceedings pending arbitration. Plaintiffs have
opposed Defendant ACE American's motion. For the reasons
discussed herein, Defendant ACE Limited's motion will be granted. Defendant ACE American Insurance Company's motion will
be granted in part and denied in part.
Plaintiffs are twenty-one former employees of ACE American, who
were assigned to the National Claims Facility of the ACE USA
Claims division. The following twenty individuals all reside in
New Jersey: Patricia Adams, Theresa Brewer, Kaye Campbell,
Barbara Clark, Patrick Carfagno, Steven Dondarski, Theresa Fox,
Donna Graham, Lisa Granroth, Roberta Harmon, Vicki Huseby, Mary
Beth Molloie, Jean Mangold, Jennifer Oakley, Barbara Scarpa,
Betsy Simpson, Susan Tiver, Rich Ventura, Janice Wick, and
Fiorella Wilkins. Plaintiff Susan Shue resides in California.
These twenty-one individuals are collectively referred to as
"Plaintiffs." When necessary, certain Plaintiffs will be
addressed by name.
Defendant ACE American Insurance Company ("ACE American") is a
Pennsylvania Corporation with its principal place of business in
Pennsylvania. Defendant ACE Ltd. or ACE Limited ("ACE Limited")
is a Cayman Islands corporation with its principal place of
business in Hamilton, Bermuda. ACE Limited is a holding company
that indirectly holds the stock of Defendant ACE American.
Neither defendant is a citizen of New Jersey. B. Factual Allegations
On or about July 2, 1999, Defendant ACE American acquired
CIGNA's Property and Casualty Division. (Compl. at ¶ 28.)
Eighteen of the Plaintiffs had been CIGNA employees and became
ACE American employees as a result of the acquisition. (Carson
Decl. ¶ 7.) Plaintiff Adams began her employment with ACE
American in April 2001. (Adams Decl. ¶ 2.) Plaintiff Harmon began
her employment with ACE American as a contract employee in August
2000 and became a full-time employee of ACE American in September
2000. (Harmon Decl. ¶ 3.) Plaintiff Scarpa had been a contract
claims representative for CIGNA and for ACE American after its
purchase of CIGNA. (Scarpa Decl. ¶ 2.) Scarpa became a full-time,
non-contract claims representative with ACE American in April
2000. (Id. ¶ 3.)
On February 21, 2000, ACE Human Resources sent an email to ACE
employees notifying them that the ACE Employee Guide was
available on the company's intranet. (Carson Decl. ¶ 17-18.) The
email highlighted numerous ACE policies and programs but did not
specifically mention the ACE American arbitration policy. (Carson
Decl., Ex. 1.) The email asked each employee to review the guide
and to complete the "Receipt and Agreement Form" that is
accessible through a link on the Introduction page of the guide.
(Carson Decl., Ex. 1.) All of the Plaintiffs except Adams signed
the ACE Employee Guide Receipt and Agreement form. (Carson Decl.
¶ 24.) The on-line Employee Guide begins with an introduction page
which contains two subsections. In the section labeled "About
This Guide," the following paragraph appears:
After you have familiarized yourself with the
contents of this guide, you must print out, date and
sign the receipt and agreement form (click the
underlined words to connect to the form) and return
it to your supervisor. All employees must have a
signed acknowledgement [sic] and agreement form in
their personnel file.
(Carson Decl., Ex. 2) (emphasis in original). Further down the
page is the section labeled "What's In This Guide," which
describes the general contents of the guide. The second paragraph
under this heading lists the only two terms of employment:
Although this guide contains descriptions of numerous
ACE policies, procedures, programs and benefits,
there are only two terms of your employment. . . .
The second is that you agree that you will not go to
court to decide any employment-related claim. Instead
you must resolve all employment-related legal
disputes by going to a neutral third-party arbitrator
(see the Employment Dispute Arbitration Policy).
Nothing in this guide changes, modifies or alters
these two terms of your employment.
(Carson Decl., Ex. 2) (emphasis in original). While the
discussion of the arbitration policy in the Introduction appears
on page two in the exhibit submitted by Defendants, as the Court
understands it, the Introduction's original form is a web page, which requires scrolling up and down to see the page in its
As mentioned above, each employee who accessed the Employee
Guide was prompted to access the "Receipt and Agreement" form
through the Introduction page. The "Receipt and Agreement" form
contains the following clause:
This is to acknowledge that I have received and will
take the time to review the ACE Employee Guide
available to me on ACE's intranet site. I agree that
it is my responsibility to read the Employee Guide
and to understand and abide by the rules, policies,
procedures and standards set for in the Guide.
(Carson Decl., Ex. 4.) The employee must print out the form,
print his or her name, sign and date the form. This form does not
specifically mention ACE's arbitration policy. (Carson Decl., Ex.
4.) Plaintiffs Brewer, Carfagno, Campbell, Clark, Dondarski, Fox,
Graham, Granroth, Harmon, Huseby, Mangold, Molloie, Oakley,
Scarpa, Shue, Simpson, Tiver, Ventura, Wick and Wilkins each
signed the "Receipt and Agreement" form. (Carson Decl. ¶ 24.)
In addition, Plaintiffs Adams, Granroth, Harmon, and Scarpa all
signed the ACE Employment Application. (Carson Decl. ¶ 25.) The
application included the following paragraph just above the space
for the employee signature:
I AGREE THAT IN RETURN FOR BEING CONSIDERED FOR
EMPLOYMENT AND/OR RECEIVING AN OFFER OF EMPLOYMENT, I
WILL RESOLVE ANY DISPUTE ABOUT MY CANDIDACY FOR EMPLOYMENT, EMPLOYMENT OR CESSATION
OF EMPLOYMENT EXCLUSIVELY THROUGH THE INTERNAL AND
EXTERNAL EMPLOYMENT DISPUTE RESOLUTION PROCESSES OF
MY EMPLOYER, WHICH INCLUDES FINAL AND BINDING
ARBITRATION WITH A NEUTRAL ARBITRATOR. I UNDERSTAND
THAT MY EMPLOYER ALSO AGREES TO FOLLOW THE DISPUTE
RESOLUTION PROCESSES AND THAT COPIES OF THE POLICIES
AND PROCEDURES DESCRIBING THE DISPUTE RESOLUTION
PROCESSES ARE AVAILABLE TO ME.
(Carson Decl., Ex. 5, 13, 14, 19) (capitalization and emphasis in
In August of 2002, ACE American decided to relocate the
National Claims Facility from Cherry Hill, New Jersey to
Wilmington, Delaware. (Shilow Decl. ¶ 9.) According to the
Plaintiffs, each was forced to resign between November 22, 2002
and May 23, 2003 based on the "hardship of their commutes, the
lack of functioning facilities and the lack of support personnel
in those ACE offices in Wilmington, Delaware." (Compl. at ¶¶ 26,
34.) Upon termination of their employment, Plaintiffs had worked
for ACE American and its predecessors for varying periods of
time, ranging from two years to over thirty years. (Compl. at ¶
26.) Plaintiffs allege that Defendants' decision to relocate the
National Claims Facility to Wilmington, Delaware was a calculated
move aimed at forcing workers over the age of forty to retire.
(Compl. at ¶ 31.) C. Complaint
On October 29, 2004, Plaintiffs filed their original Complaint
in the Superior Court of New Jersey, Law Division, Burlington
County, followed by an Amended Complaint on November 5, 2004. On
November 15, 2004, Plaintiffs filed this Second Amended Complaint
again in the Superior Court of New Jersey, Law Division,
containing nine counts stemming from events surrounding Defendant
ACE American's alleged constructive termination of Plaintiffs.
(Compl. at ¶ 33.) On December 16, 2004, Defendants filed a timely
Notice of Removal in this Court based on diversity of citizenship
under 28 U.S.C. § 1332(a)(1). While the Second Amended Complaint
does not list specific damages sought, Plaintiffs did not dispute
Defendants' contention that the amount in controversy exceeded
$75,000. Twenty of the twenty-one Plaintiffs are New Jersey
residents. The final Plaintiff is a resident of California.
Defendant ACE American is a Pennsylvania corporation, while ACE
Limited is a Cayman Islands corporation. Neither Defendant is a
corporate citizen of New Jersey.
Counts One through Six and Count Nine of the Amended Complaint
sound in state common law. Count One alleges that Defendants
breached their commitment to provide job security and severance
packages as contained in ACE American's personnel policy manual.
(Compl. at ¶¶ 47-49.) In Count Two, labeled "Promissory
Estoppel," Plaintiffs allege that they were damaged by their reasonable reliance upon Defendants' promise of
severance. (Compl. at ¶¶ 52-55.) Count Three alleges that
Defendants violated the covenant of good faith and fair dealing
implied in Defendants' employment relationship with Plaintiffs.
(Compl. at ¶¶ 57-59.) Count Four alleges that Defendants were
unjustly enriched through withholding the Plaintiffs' rightful
severance packages. (Compl. at ¶¶ 61-62.) Plaintiffs claim in
Count Five that Defendants made misrepresentations about
Plaintiffs' guaranteed compensation and severance packages in
order to secure Plaintiffs' assistance in the transition from
CIGNA to ACE American. (Compl. at ¶¶ 64-67.) Count Six, labeled
"Tortious Interference with Prospective Contractual Relations,"
alleges that Defendants conspired with unknown others to cause
Plaintiffs' constructive discharge through relocation of their
office from Cherry Hill, New Jersey to Wilmington, Delaware.
(Compl. at ¶¶ 69-71.) Count Nine states that Defendants conspired
with unknown others to commit unlawful acts against Plaintiffs.
(Compl. at ¶¶ 89-91.)
Counts Seven and Eight claim Defendants violated state and
federal statutes, respectively. In Count Seven, Plaintiffs claim
that Defendants discriminated against Plaintiffs because of their
age, in violation of the New Jersey Law Against Discrimination
("NJLAD"), N.J.S.A. 10:5-1 et seq. (Compl. at ¶¶ 73-84.)
Count Eight alleges that Defendants violated their fiduciary duty
to Plaintiffs under the Employment Retirement Income Security Act of
1974 ("ERISA"), 29 U.S.C. § 10001 et seq., which covers their
promised severance packages. (Compl. at ¶¶ 86-87.)
1. Defendant ACE Limited's Motion to Dismiss for Lack of
On January 10, 2005, Defendant ACE Limited filed its motion to
dismiss for lack of personal jurisdiction pursuant to
Fed.R.Civ. Pro. 12(h), claiming it is not a New Jersey corporation,
does not have any offices in New Jersey, does not conduct
business in New Jersey, and has not designated any agent or
public official to accept service of process in New Jersey. (Def.
ACE Limited Br. at 2-3.) While ACE Limited indirectly owns stock
in ACE American, a company that conducts business in New Jersey,
it claims that the actions of this ...