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Bell v. KA Industrial Services

July 25, 2008

JAY BELL, III, PLAINTIFF,
v.
KA INDUSTRIAL SERVICES, LLC, DEFENDANT.



The opinion of the court was delivered by: Irenas, Senior District Judge

OPINION

This matter appears before the Court on Defendant's Motion to Dismiss the Amended Complaint for Failure to State a Claim Upon Which Relief can be Granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons sets forth below, the Court will grant in part and deny in part the Motion.

I.

The following facts are alleged in the Amended Complaint. Defendant, KA Industrial Services, LLC, ("KA") employed Plaintiff, Jay Bell, III, ("Bell") as a backhoe operator/laborer beginning in September 2006.*fn1 (Amend. Compl. ¶ 3.) On March 3, 2007, Bell was involved in an ATV accident in which he suffered injuries including a shattered femur and a broken collar bone.*fn2 (Id. at ¶ 4). On that same date, Bell took disability leave from his employment with KA. (Id. at ¶ 5.)

Bell was "cleared" to return to work on September 3, 2007, and alleges that he advised KA that he would return to work on that day. (Amend. Compl. at ¶ 7.) However, when he arrived at the job site at 6:00 a.m. on September 3, he could not gain access to the premises because his badge would not work. (Id. at ¶ 8.) Bell went to the badging office at the Eagle Point refinery, and a call came into the office. (Id.) The secretary handed the phone to Bell, who was told by the site supervisor, Tom Kennedy: "Go home. I no longer have a position for you. You were replaced. Sorry, Jay." (Id.) Later, Bell received a call from his superintendent who informed Bell that he was being terminated because he did not follow orders. (Id. at ¶ 9.) Nothing in the materials presently before the Court indicates whether or not Bell has found new employment.*fn3

Bell filed his original complaint on March 24, 2008. KA then filed this Motion to Dismiss under Rule 12(b)(6) on May 22, 2008. Thereafter, Bell filed his Amended Complaint on June 2, 2008.

Count I of the Amended Complaint alleges that KA discriminated against Bell within the meaning of the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 et. seq. (Amend. Compl. ¶ 10.) Because of this alleged discrimination, Bell claims he has and will continue to suffer "injury and damage to his reputation, emotional distress, humiliation, the loss of past, present and future earnings and benefits." (Id. at ¶ 11.)

Count II of Bell's Amended Complaint alleges common law claims of breach of "contract."*fn4 (Amend. Compl. ¶ 17.)

Specifically, the Amended Complaint alleges,

Defendants had an employment contract with the plaintiff and their conduct of terminating him for seeking to return from [sic] work after suffering a serious physical injury breach [sic] the implied covenant of good faith and fair dealing in the employment contract and violated a clear mandate of public policy thereby breaching the employment contract, and/or constitutes a breach of an implied contract with the plaintiff by terminating plaintiff in violation of defendant's own policy.

(Id.)

Lastly, in Count III Bell alleges that John Does 1-40 were involved in the alleged discrimination and breach of contract or implied contract. (Amend. Compl. ¶¶ 21-25.) However, as no individuals or organizations have been named, the Court will not address Count III at this time.*fn5

For the reasons explained herein, the Court will deny Defendant's Motion to Dismiss as to Count I, and will ...


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