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Janessa Smith v. Ta Operating LLC

March 29, 2011

JANESSA SMITH,
PLAINTIFF,
v.
TA OPERATING LLC, DEFENDANT.



The opinion of the court was delivered by: Wolfson, United States District Judge:

*NOT FOR PUBLICATION

OPINION

On August 17, 2010, this Court dismissed Plaintiff Janessa Smith's ("Plaintiff" or "Smith") New Jersey Conscientious Employee Protection Act ("CEPA") claim based on allegations involving trespass and theft of services pursuant to F.R.C.P 12(b)(6). The Court instructed Plaintiff to amend her Complaint to include only a CEPA claim based upon allegations of reporting an assault consistent with the Court's prior Opinion. Subsequently, Plaintiff amended the Complaint to include not only allegations pertaining to assault, but she amended the previously dismissed allegations regarding trespass and theft of services as well. In the instant matter, Defendant TA Operating, LLC ("Defendant" or "TA Operating") moves to dismiss the portion of the CEPA claim pertaining to those newly asserted allegations involving trespass and theft of services.*fn1

For the reasons that follow, Defendant's motion is granted.

I.BACKGROUND FACTS

The facts of this case were already recounted in this Court's prior Opinion and thus, the Court will refer to them. Smith is a former employee of TA Operating and held the position of truck service advisor. Am. Comp. at ¶¶ 1, 4. On or about August 20, 2009, Plaintiff observed two of Defendant's employees, an off-duty truck service advisor (the "Advisor"), and an on-duty mechanic, on Defendant's premises performing vehicle maintenance and service to the Advisor's vehicle. Id. at ¶ 14-15. Plaintiff reported the alleged incident to a manager Bart Moon, and to her supervisor, Mark Falk. Id. at ¶ 16.

Then, on August 27, 2009, the mechanic, who serviced the off-duty Advisor's vehicle, allegedly confronted Plaintiff after he learned that Plaintiff had reported the incident. Id. at ¶ 20. Plaintiff claims that the Advisor became agitated with her and threw his tools in her direction and called her a "rat." Id. at ¶ 21. Plaintiff reported this incident to the New Jersey State Police, as well as to Falk. Id. at ¶¶ 23-23. Subsequently, Plaintiff was terminated from her position with TA Operating. She brought this action alleging that the termination of her employment by Defendant violated CEPA because it was in retaliation of her reporting the conduct of the mechanic and the off-duty truck service advisor. Id. at ¶¶ 13, 39.

trespass, the Court will apply the

On August 17, 2010, this Court dismissed Plaintiff's original CEPA claim because Plaintiff lacked an objectively reasonable belief that a trespass or theft of service took place as required by statute. Instead, the Court concluded that Plaintiff's claim relied heavily on the violation of Defendant's Employee Handbook, which does not have the force of law. However, this Court granted Plaintiff leave to amend her Complaint to only include a CEPA claim based upon the reporting of the alleged assault.

Plaintiff timely filed an Amended Complaint that included the alleged assault, but she also asserted new allegations pertaining to trespass and theft of services. Specifically, Plaintiff asserts that she reasonably believed that the mechanic and the Advisor engaged in a "trespass" because personal vehicles were not permitted at Defendant's facility. Id. at ¶ 13. Additionally, with respect to "theft of services," Plaintiff alleges that the service being performed to the Advisor's vehicle involved Freon gas, which is a substance that is regulated by law. Id. Plaintiff claims that she did not see any money exchanged or any billing information that would indicate the purchase of Freon gas. Id.

In this matter, Defendant moves to dismiss the portions of the CEPA claim in the Amended Complaint pertaining to "theft of services" and "trespass" on the basis that this Court did not allow Plaintiff to amend her Complaint to include these allegations. To be clear, on this motion, Defendant is not moving to dismiss Plaintiff's CEPA claim relating to the reporting of the assault.

II.STANDARD OF REVIEW

The Federal Rules of Civil Procedure provide that a complaint "shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends ... (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks." Fed.R.Civ.P. 8(a). The purpose of a complaint is "to inform the opposing party and the court of the nature of the claims and defenses being asserted by the pleader and, in the case of an affirmative pleading, the relief being demanded." 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1182 (3d ed. 2004).

In reviewing a motion to dismiss for failure to state a claim under 12(b)(6), a Court must take all allegations in the complaint as true, viewed in the light most favorable to the plaintiff "and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citation and quotations omitted). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court "retired" the language in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 550 U.S. at 561 (quoting Conley, 355 U.S. at ...


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