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Murray v. Beverage Distribution Center


November 23, 2010


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


This matter having appeared before the Court upon Plaintiff's Motion to Amend the Complaint (Docket #48), the Court having considered the submissions of the parties, and it appearing that:

(1) This is a employment discrimination / retaliation action. The facts and claims of this case are set forth at length in the Court's Opinion addressing Defendants' Motion for Summary Judgment, which is issued on even date herewith.

(2) Plaintiff presently seeks to add three claims to his Complaint: (a) intentional misrepresentation / fraud claims against Defendant Stanely; (b) a negligent misrepresentation claim against Defendant Stanely; and (c) a retaliation claim, pursuant to 42 U.S.C. § 1981 and New Jersey's Law Against Discrimination, against Defendant BDCI for failure to hire him for a Seasonal Night Loader position in February, 2010.*fn1

(3) Fed. R. Civ. P. 15(a)(2) provides, in relevant part, "[t]he court should freely give leave [to amend a pleading] when justice so requires." Reasons for denying leave to amend include "undue delay, bad faith or dilatory motive on the part of the movant... undue prejudice to the opposing party by virtue of the allowance of the amendment, [and] futility of amendment." Foman v. Davis, 371 U.S. 178, 182 (1962). "'Futility' means that the complaint, as amended, would fail to state a claim upon which relief could be granted." Travelers Indem. Co. v. Dammann & Co., 594 F.3d 238, 256 (3d Cir. 2010) (internal citation and quotation omitted).

(4) As to Plaintiff's common law fraud and negligent misrepresentation claims, amendment would be futile.

(5) In order to succeed on the common law fraud and negligent misrepresentation claims, Plaintiff must establish that he reasonably relied on the alleged misrepresentation. See Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997) (fraud); H. Rosenblum, Inc. v. Adler, 93 N.J. 324, 334 (1983) (negligent misrepresentation). The alleged misrepresentation is Defendant Stanley's written statement to Plaintiff that all job applicants must submit their applications through BDCI's recruiter. While Plaintiff does point to evidence that not all applicants were required to apply through the recruiter, that evidence alone is insufficient to establish a fraud claim. Plaintiff must also have relied on that representation. However, it is clear that Plaintiff did not rely on that representation because he undisputedly refused to submit his application through the recruiter. Indeed, Plaintiff's entire case rests upon his assertion that he was justified in refusing to go through the recruiters because they were employing an allegedly unfair and discriminatory screening process. Because Plaintiff cannot establish reliance on the alleged misrepresentation, his proposed misrepresentation / fraud claims fail.

(6) As to Plaintiff's proposed retaliation claim, allowing amendment at this time would cause undue delay in a case that is otherwise now concluded.*fn2 Additional discovery on the proposed claim would likely be necessary because the claim arises out of Defendant BDCI's failure to hire Plaintiff for a distinctly different position (a Seasonal Night Loader position) than the positions presently at issue in the case (Management Information Systems positions). While discovery in this case so far has focused on the decisionmaking process of personnel within Defendant BDCI's Information Systems Department during 2007 and 2008, the proposed claim would implicate decisionmaking during a different time period in, presumably, a different department.

(7) Additionally, while the Court makes no factual findings with regard to Plaintiff's intentions in seeking to add this new retaliation claim, it is worth noting that Defendants have a plausible basis for their allegation that the proposed claim is not asserted in good faith. Plaintiff's disputes with Defendant BDCI date back to at least March, 2007. By the time Plaintiff applied for the Seasonal Night Loader position, he had spent years zealously litigating two separate lawsuits against BDCI-- one in state court, and the instant suit. These facts certainly raise a question as to whether Plaintiff, who holds a bachelor of science degree and has extensive MIS experience, sincerely desired a night loader position with a company who he believes has repeatedly discriminated and retaliated against him.*fn3

(8) The futility of two of the three proposed claims, along with the undue delay that would result if Plaintiff were allowed to add the third claim, together, is sufficient reason for this Court to decline to exercise its discretion in Plaintiff's favor. Nonetheless, the possibility that the proposed third claim might not be asserted in good faith has factored into this Court's decision. And for good cause shown,

IT IS on this 23rd day of November, 2010,


Plaintiff's Motion to Amend (Docket #48) is hereby DENIED.

JOSEPH E. IRENAS Senior United States District Judge

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