GARY D. ABELLA, Plaintiff,
SEVEN SEVEN CORPORATE GROUP, et al., Defendants.
WILLIAM J. MARTINI, District Judge.
The Complaint in this retaliation case, filed on September 3, 2013, alleges that Plaintiff Gary Abella, a non-citizen, was terminated after he refused to waive his right to a "prevailing wage" under 8 U.S.C. § 1182(n)(1)(A). On October 18, 2013, the Court sua sponte ordered Abella to show cause why the case should not be dismissed for lack of subject matter jurisdiction. On December 18, 2013, Abella filed an Amended Complaint. Now before the Court are: (1) Abella's response to the order to show cause; (2) Abella's motion to amend the original Complaint pursuant to Federal Rule of Civil Procedure 15; (3) Defendant Adela Sering's motions to dismiss the original Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(7); and (4) Defendants Adela Sering, Seven Seven Software, Inc. and Elmer Maximo's motions to dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(7). There was no oral argument. Fed.R.Civ.P. 78(b). For the reasons set forth below, the Court will GRANT the Rule 12(b)(7) motions to dismiss the Amended Complaint. The Court will DENY the additional motions on mootness grounds.
Plaintiff Gary Abella is a native of the Phillipines. Am. Compl. ¶ 17, ECF No. 22. On July 12, 2004, Abella was hired by CyberJ Resources/Seven Seven Corporate Group and Seven Seven Global Services, Inc. ("Global"), a Phillipine corporation. Id. ¶¶ 12, 19. Abella claims that Seven Seven Corporate Group ("Corporate") "exercises dominion and control" over Global and Seven Seven Software, Inc. ("Software"). Id. ¶ 13. Notably, Abella describes Corporate as an unincorporated entity, but he fails to describe the nature of Corporate's legal status. Id. ¶ 10. Software, however, represents that Corporate is not an independent legal entity. ECF No. 12-1 at 3.
In November 22, 2006, Elmer Maximo, Vice President and Senior Managing Director for Global Human Resources at "Seven Seven Corporate Group/Seven Seven Software, " id. ¶ 15, sent Abella an offer letter from the offices of "Seven Seven Corporate/Seven Seven Global." Id. ¶ 22. The offer was for a position in the United States. Id. The offer resulted in a memorandum of understanding (the "MOU") signed by Abella and Global. Id. The MOU provided that Global would process an L1 visa for Abella, and that after six months, Global would sponsor an application for Abella's green card. MOU, ECF No. 12-4. Abella and Global both signed the MOU on December 2, 2006. Am. Compl. ¶ 22.
On June 14, 2007, "[a]ll rights and obligations of the parties pursuant to the [MOU] were transferred, assigned, or otherwise conveyed by [Global] by operation or effect" to Software. Id. ¶ 23. On June 15, 2007, Abella arrived in New Jersey to begin work at Bear Stearns. Id. ¶ 24. In 2008, roughly one year after he came to work in New Jersey, Abella began to discuss his green card application with Maximo. Id. ¶ 29. Abella prepared paperwork for the application, but an attorney for Corporate/Global told Abella that certain documents were missing. Id. ¶ 30. Maximo said he would provide the documents, but he never did. Id. On July 21, 2009, Abella contacted Maximo, Corporate, Global, and Software, requesting that his green card be processed in accordance with the MOU. Id. ¶ 31. Abella was told that he could either (a) resign, or (b) switch his visa classification from L-1A to H-1B and restart his green card application using the PERM Labor Certification process. Id. ¶ 32. Abella chose the latter. Id. ¶ 33.
In June 2010, Abella learned that he was being paid less than the "prevailing wage" for someone in his position. Id. ¶ 34. Title 8, Section 1182(n)(1)(A) provides that non-citizens cannot be provided H-1B status unless their employer certifies to the Secretary of Labor that the employer will provide wages "that are at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of employment, whichever is greater...."
Maximo asked that Abella waive Abella's right to be paid the "prevailing wage, " but Abella refused. Id. ¶¶ 34-35. Maximo told Abella that "the company" would continue with the green card process, but after Abella again refused to waive his right to be paid the prevailing wage, required immigration papers were not filed on Abella's behalf. Id. ¶¶ 36-37. On September 12, 2012, Maximo told Abella that Software could not provide the backpay that would bring Abella's compensation in line with the prevailing wage. Id. ¶ 47. On September 20, 2012, Maximo told Abella that Abella would be terminated, and that Software would not extend Abella's H-1B visa. Id. ¶ 48. Abella was forced to return to the Phillipines. Id. ¶ 50.
II. PROCEDURAL HISTORY
On September 3, 2013, Abella filed a six-count Complaint against Corporate, Software, Global, Maximo, and Adela Sering, Corporate's owner and a principal of Software, id. ¶ 14, as well as John Does and ABC Companies. Count I alleges retaliation under the New Jersey Conscientious Employee Protection Act ("CEPA"). In Count I, Abella claims that he was retaliated against because he refused to waive his right to be paid the prevailing wage. Count II alleges breach of contract. Count III alleges fraud. Count IV alleges negligent misrepresentations. Count V alleges civil conspiracy. Count VI alleges punitive damages. Notably, none of these causes of action are federal causes of action.
After the Complaint was filed, but before any motions were filed, the Court, sua sponte, ordered Abella to show cause why the Complaint should not be dismissed for lack of subject matter jurisdiction. Order to Show Cause, ECF No. 8. In that order, the Court noted an apparent lack of jurisdiction under both 28 U.S.C. § 1332 (diversity jurisdiction) and 28 U.S.C. § 1331 (federal question jurisdiction).
With respect to diversity jurisdiction, the Court explained that there can be no diversity jurisdiction when a plaintiff and a defendant are both aliens. Id. at 2 (citing Israel Aircraft Industries Ltd. v. Sanwa Business Credit Corp., 16 F.3d 198, 202 (7th Cir. 1994)). According to the Complaint, one of the Defendants, Global, is an alien corporation. The Complaint describes Abella as a "native" of the Phillipines. Because "native" appeared to mean citizen, the Court concluded that diversity jurisdiction was probably lacking.
With respect to federal question jurisdiction, the Court noted that federal question jurisdiction is usually absent when a Plaintiff's causes of action do not come from federal law. However, the Court noted that in Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., "the Supreme Court recognized a narrow exception to this general rule in cases where a state law cause of action necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.'" Id. (quoting Grable, 545 U.S. 308, 314 (2005)). The Court proceeded to explain:
Of the various state law causes of action asserted in the Complaint, it appears that only the CEPA cause of action could potentially implicate federal law. Under CEPA, an employer is barred from retaliating against an employee who refuses to take actions that the employee "reasonably believes" will violate the law. N.J.S.A. 34:19-3(c)(1). Here, Abella alleges that he was fired because he refused to waive his federal right under 8 U.S.C. § 1182(n)(1)(A) to receive compensation equal to that of a nonimmigrant employee. Even if Abella's CEPA claim necessarily raises a federal issue, it does not appear that the federal issue is substantial. Grable provides federal jurisdiction where disputes center around the meaning-as opposed to the application-of federal law. See Singh v. Duane Morris LLP, 538 F.3d 334, 339 (5th Cir. 2008) (no federal jurisdiction under Grable where disputed federal issue ...