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Alfred Bartone v. Netjets

June 24, 2011


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


The plaintiff, Alfred Bartone ("Plaintiff"), brings this action alleging violations of the Age Discrimination in Employment Act ("ADEA") and New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. § 10:5-1 et seq., as well as state law claims for defamation and tortious interference with prospective economic advantage. (Dkt. entry no. 1, Compl.) The defendants, NetJets, Inc., David Sokol, NetJets Services, Inc., and NetJets Executive Services, Inc. (collectively, "Defendants"), now move to dismiss the NJLAD claim insofar as it is asserted against Sokol, as well as the defamation and tortious interference claims, pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). (Dkt. entry no. 7, Mot. Dismiss.)*fn1 Defendants also move to dismiss the Complaint insofar as asserted against Sokol for lack of personal jurisdiction, pursuant to Rule 12(b)(2). (Id.) Plaintiff opposes the motion. (Dkt. entry no. 13, Pl. Br.) The Court determines the motion on the briefs without an oral hearing, pursuant to Rule 78(b). For the reasons stated herein, the Court will grant the motion.


Plaintiff was employed as a sales executive at Defendants' office at Teterboro Airport in New Jersey from 1998 until June 1, 2010. (Compl. at ¶¶ 5, 7-8.) At the time of his termination, he was 65 years old. (Id. at ¶ 4.)

Plaintiff alleges that Defendants implemented a new sales plan on or about January 1, 2010, that would make "significant changes to the earned commission structure" and would impact Plaintiff's ability to earn his previously high level of commissions. (Id. at ¶ 12.) Plaintiff requested that he be issued a sales territory so as to preserve his ability to earn commissions going forward. (Id.) Plaintiff states that he was assured by his immediate supervisor at the time that the supervisor was working to secure and assign the New England territory to Plaintiff. (Id. at ¶ 13.) The supervisor either resigned or was terminated shortly thereafter, however. (Id. at ¶ 14.)

Plaintiff alleges that although younger, less experienced sales executives were assigned sales territories, he ultimately was denied the same. (Id. at ¶ 16.) On or about May 8, 2010, Plaintiff received a telephone call from his supervisor, advising that he would not be assigned a sales territory and that the company had decided to "go in a different direction." (Id. at ¶ 17.) Soon thereafter, Plaintiff received an undated and unsigned "Confidential Severance Agreement and Release of Claims," which he did not execute. (Id.) Plaintiff then received a telephone call on or about June 1, 2010, informing him that his employment was terminated, effective immediately. (Id. at ¶ 18.) No reason was given for his termination at that time. (Id.) Plaintiff alleges that Defendants have subsequently asserted that Plaintiff was terminated for performance reasons, which Plaintiff disputes. (Id. at ¶ 19.)

Plaintiff alleges that Defendants made a decision "to create a younger work sales and executive team . . . by terminating high performing older employees such as Plaintiff." (Id. at ¶ 23.) In support of this contention, Plaintiff points to an August 16, 2010, televised interview of Sokol that aired on Bloomberg Television in which Sokol allegedly stated, "I've got a tremendously talented young management team in place now. . . . We have a great young team." (Id. at ¶ 24.) Thus, Plaintiff posits that any performance-related reasons proffered for his termination are pretext for Defendants' age discrimination. (Id. at ¶ 19.)

Plaintiff further alleges that Sokol defamed Plaintiff in December 2010 by telling Plaintiff's current employer, Jet Aviation, that Plaintiff "was publicly saying negative things about NetJets and the people that worked at NetJets." (Id. at ¶¶ 32-33.) Sokol and the president of Jet Aviation were apparently in negotiations to do business together at the time, and Sokol allegedly "communicated his expectation that future business for [Plaintiff's] employer was dependent upon quieting Mr. Bartone." (Id.) Plaintiff avers that these alleged statements were false, and harmed Plaintiff's reputation. (Id. at ¶ 34.) The statements also form the basis of Plaintiff's tortious interference claim, insofar as Plaintiff alleges that the statements interfered with his current employment situation, and therefore his ability to mitigate his damages. (Id. at ¶¶ 37-38.)


I. Applicable Legal Standards

A. Rule 12(b)(6) Standard

In addressing a motion to dismiss a complaint under Rule 12(b)(6), the court must "accept all factual allegations as true, construe the complaint 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). At this stage, a "complaint must contain sufficient factual matter, accepted as true to 'state a claim to relief that is plausible on its face.' A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'show[n]'--that the 'pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1950 (quoting Rule 8(a)(2)).

B. Personal Jurisdiction

Rule 4(e) allows a district court to assert personal jurisdiction over a non-resident defendant to the extent permitted by the law of the state where the district court sits. See Fed.R.Civ.P. 4(e). New Jersey's long-arm statute, N.J.Ct.R. 4:4-4, permits a court to exercise personal jurisdiction over a non-resident defendant to the furthest extent allowed by the United States Constitution. Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 96 (3d Cir. 2004); see Avdel Corp. v. Mecure, 277 A.2d 207, 209 (N.J. 1971) (noting that New Jersey's long-arm statute allows out-of-state service "to the uttermost limits permitted by the United States Constitution"). The Fourteenth Amendment Due Process Clause, however, prohibits the exercise of personal jurisdiction "over a nonresident defendant who does not have certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Provident Nat'l Bank v. Cal. Fed. Sav. & Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987) (internal quotations omitted; alteration in original).

A defendant's purposeful conduct and connection with the forum state must be such that the defendant "should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). "[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253 (1958). The purposeful availment requirement ensures that a defendant will not be required to litigate in a forum solely as a result of "random," "fortuitous," or "attenuated" contacts, or the unilateral activity of another person. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985); see also Hanson, 357 U.S. at 253.

Once a defendant raises lack of personal jurisdiction as a defense, the plaintiff must demonstrate that the defendant has sufficient contacts with the forum to justify the exercise of jurisdiction. N. Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687, 689 (3d Cir. 1990); Provident Nat'l Bank, 819 F.2d at 437. A plaintiff may meet this burden by establishing that the court has either "general" or "specific" jurisdiction. Provident Nat'l Bank, 819 F.2d at 437. A plaintiff need only make a prima facie demonstration of jurisdiction by showing with sufficient particularity the presence of contacts between the defendant and the forum. See, e.g., Mellon Bank (E.) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992).

General jurisdiction exists when the defendant has continuous contacts with the forum state that are unrelated to the events forming the basis of the cause of action. See Provident Nat'l Bank, 819 F.2d at 437; Machulsky v. Hall, 210 F.Supp.2d 531, 538 (D.N.J. 2002). To establish general jurisdiction, a plaintiff must show significantly more than mere minimum contacts with the forum state. Provident Nat'l Bank, 819 F.2d at 437; Decker v. Circus Circus Hotel, 49 F.Supp.2d 743, 747 (D.N.J. 1999). A plaintiff bears the "rigorous" burden of demonstrating that the defendant ...

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