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Stephen Simoni v. Katie Luciani

July 5, 2012

STEPHEN SIMONI,
PLAINTIFF,
v.
KATIE LUCIANI, INDIVIDUALLY AND AS SITE MANAGER OF JSUMC, MERIDIAN HEALTH SYSTEMS, INC., MERIDIAN HEALTH, INC., MERIDIAN HOSPITALS CORP., MERIDIAN HEALTH, AND JERSEY SHORE UNIVERSITY MEDICAL CENTER, DEFENDANTS.



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

**FOR PUBLICATION**

OPINION

This lawsuit involves a terminated employee suing his former employer over alleged violations of the Consolidated Omnibus Budget Reconciliation Act of 1986 ("COBRA"). In this Opinion, the Court determines whether to grant Defendants' Meridian Health Systems, Inc., Meridian Health, Inc., Meridian Hospitals Corp., Meridian Health, Jersey Shore University Medical Center (collectively, "Hospital Defendants") and Katie Luciani's (all defendants, collectively, "Defendants") motion to dismiss Plaintiff Stephen Simoni's ("Plaintiff's" or "Simoni's") Complaint. Defendants argue that the doctrine of res judicata mandates dismissal of the present complaint. For the reasons stated below, the Court denies Defendants' motion to dismiss.

I. BACKGROUND

Defendants' motion to dismiss focuses solely on the res judicata defense, which relates to the previous litigation between the parties that was instituted on December 28, 2010. As such, the following allegations are taken from the opinion in the prior suit, Roe v. Diamond, Civ. A. 10-6798 JAP, 2011 WL 4736353 (D.N.J. Oct. 6, 2011) ("Simoni I"), before the Hon. Joel A. Pisano, and the presently contested complaint. I begin by detailing the allegations and rulings in the prior suit and then address the allegations in this case.

A. The Prior Civil Suit

The allegations in the complaint in the prior litigation, Simoni I, are set forth concisely in Judge Pisano's Opinion, hence I quote the allegations from that opinion:

This action arises out of Plaintiff's employment with Jersey Shore University Medical Center ("JSUMC"), a member of the Meridian Health System. Plaintiff commenced his employment at JSUMC in August 2010. Although initially hired as a per diem Registered Nurse in JSUMC's Medical Intensive Care Unit, Plaintiff ultimately accepted a position in JSUMC's Cardiac Catheterization Laboratory ("Cath Lab"). After attending a mandatory Orientation program for new nurses on August 10, 2010-at which Plaintiff received a copy of the Collective Bargaining Agreement ("CBA") between the Union [the employee's union at JSUMC] and JSUMC, the pertinent provisions of which are discussed in detail below- Plaintiff began working in the Cath Lab.

Plaintiff was initially assigned to work under Defendant Distanislao as part of a Preceptor Program at JSUMC designed to orient and assess new nurses. Throughout the course of the assignment, Plaintiff requested that a different preceptor be assigned and complained that Distanislao was neither properly orienting him nor complying with Meridian's Code of Conduct. Distanislao was similarly critical of Plaintiff and reported to Defendants Diamond and Cusson that Plaintiff "was not getting the big picture." Am. Compl. ¶ 15.

Plaintiff was subsequently assigned Defendant Lovey as his next preceptor. Plaintiff maintains that his relationship with Lovey was positive for the duration of the preceptor period, up until the final twenty-four hours. At that point, Plaintiff alleges that Lovey's attitude changed, and Plaintiff was required to perform tasks that he had not previously been asked to perform. That same day, Plaintiff was also informed of purported deficiencies in his work that Lovey had provided to Defendant Cusson. Specifically, he was cited for failing to perform "time-outs" and for causing distraction by moving about the Cath Lab during procedures. He was further instructed that, unless his work improved, he would be terminated at the end of the probationary period.

Plaintiff was indeed terminated by JSUMC on October 18, 2010. Following his termination, Plaintiff contacted the Union to pursue a grievance. Frederick DeLuca, a Union representative, filed a grievance on Plaintiff's behalf, but the grievance was denied by JSUMC. DeLuca then informed Plaintiff that he would not be taking Plaintiff's grievance to arbitration because Plaintiff was terminated during his probationary period, and "past pattern and practice and the way the Union and Corporate Defendants read' the CBA" led them to conclude that the CBA's procedural and substantive protections do not apply to probationary employees. Id. ¶ 113. Dissatisfied with that response, Plaintiff filed the instant action on December 28, 2010. After separate motions to dismiss were filed by the Hospital and Individual Defendants and the Union Defendants, Plaintiff filed an Amended Complaint on April 18, 2011.

Id. at *1-2 (footnote omitted).

Plaintiff's complaint in Simoni I asserted seven claims: (1) that the Union and the Hospital Defendants violated Section 301 of the Labor Management Relations Act ("LMRA"), (2) the Hospital defendants violated Section 7 of the National Labor Relations Act ("NLRA"), (3) the Hospital defendants and other individuals violated the New Jersey Law Against Discrimination, (4) the Hospital Defendants and other individuals defamed Simoni, (5) the Hospital defendants breached the collective bargaining agreement ("CBA"), (6) the Hospital Defendants and other individuals violated the Conscientious Employee Protection Act ("CEPA") and (7) the Hospital Defendants and other individuals tortuously interfered with his prospective economic advantage.

The defendants in that action moved to dismiss the complaint in its entirety, and on October 6, 2011, Judge Pisano ruled on the motions. In the opinion, the Judge categorized the Plaintiff's claims into three groups.

The first group was the § 301 LMRA claims against the Union and the Hospital Defendants. In connection with these claims, Plaintiff alleged that "the Union breached its duty of fair representation by only 'perfunctorily' filing a grievance on [his] behalf [and] that the Union's failure to pursue arbitration after [he] was terminated at the conclusion of his probationary period was arbitrary and irrational in light of the 'explicit contractual language' in the CBA requiring 'just cause' removal for 'any employee." Id. at *7. Additionally, Plaintiff alleged that the Union acted in bad faith, asserting that "the Union's actions were motivated by its desire to avoid the potential windfall of liability that would result if it admitted that it had repeatedly violated its duty to probationary employees in the past by failing to enforce the CBA's 'just cause' provisions." Id. at *9. The Judge dismissed the LMRA claim against the Union, holding that the plaintiff "fail[ed] to state a claim that the Union breached its duty of fair representation." Id. at *6. Because of this failure, the § 301 LMRA claim against the Hospital Defendants, which was predicated on the claim against the Union, was also dismissed. Id.

The second category included Plaintiff's claims against the Hospital Defendants under Section 7 of the National Labor Relations Act. Plaintiff's unfair labor practice allegations were that the Hospital Defendants violated the NLRA "by terminating Plaintiff because of his complaints regarding Defendant Clark Distanislao and the preceptor program at large." Id. at 11. The Judge recognized that the Court could exercise jurisdiction over unfair labor practice charges if properly brought under § 301 of the LMRA. Id. However, the Judge further reasoned to the extent that the Plaintiff's second cause of action rests on the Hospital Defendants' alleged breach of the CBA or the Union's alleged breach of its duty of fair representation.... the Court has considered those claims and dismissed them above. Furthermore, to the extent that Plaintiff's claim is brought directly under § 7 and alleges that the Hospital Defendants engaged in an unfair labor practice as defined in the NLRA, ... [preemption] applies.

Id. at *8. In other words, the NLRA claim was dismissed on the merits to the extent it rested on the unfair representation allegations. To the extent that the section 7 claim did not rest on the unfair representation allegations, it was preempted.

The Judge declined to exercise supplemental jurisdiction over the third and final category of claims-the state law causes of action under the NJLAD and CEPA, and for breach of contract and tortuous interference. Id. Hence the Judge did not reach the merits of those claims. With each count of the Plaintiff's Complaint dismissed, the entire suit was dismissed and the case closed. Shortly thereafter, Plaintiff appealed to the Third Circuit. The appeal is still pending as of the date of this Opinion.

B. The Instant Suit

Several months after the suit was dismissed, Plaintiff filed the instant suit on, or about, December 28, 2011, against JSUMC, Katie Luciani, JSUMC's site manager, Meridian Health Systems, Inc., Meridian Health, Inc., Meridian Hospitals Corp., and Meridian Health. In the initial complaint*fn1 , Plaintiff alleged that JSUMC "wrongfully terminated Roe and then adamantly refused to send Roe the notifications required by the Consolidated Omnibus Budget Reconciliation Act ('COBRA') .." Compl., ¶1. Through the complaint, Plaintiff sought damages "upwards of $250,000 in medical, dental, pharmacy, and vision costs" that resulted from a lack of insurance coverage. Id. at ¶2. The complaint asserted a single Employee Retirement Income Security Program, 29 U.S.C. § 1001 et seq. ("ERISA") cause of action: violation of COBRA, 29 U.S.C. §1332(c). It asserts that the COBRA notices were due on December 1, 2010, but were never provided to Plaintiff. Id. at ¶ 15.

Defendants then jointly filed the instant motion to dismiss, arguing that Plaintiff's COBRA claim is precluded by the prior suit. Defendants' moving papers address Plaintiff's initial complaint, which was filed under the pseudonym Terry Roe. Not long after Defendants' motion was filed, on February 22, 2012, the Magistrate Judge ordered Plaintiff ...


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