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Dando v. Bimbo Food Bakeries Distribution, LLC

United States District Court, D. New Jersey

December 9, 2014

ROBERT DANDO, Plaintiff,
BIMBO FOOD BAKERIES DISTRIBUTION, LLC, BIMBO FOOD BAKERIES DISTRIBUTION, INC., BIMBO BAKERIES USA, INC., ABC COMPANIES (a series of fictitious entities), and JOHN DOES (a series of fictitious persons), Defendants.

Terance J. Bennett, Esquire Port Elizabeth, New Jersey, Attorney for Plaintiff Robert Dando.

Michael J. Puma, Esquire (admitted pro hac vice) Courtney Wirth Griffin, Esquire Morgan, Lewis & Bockius Philadelphia, Pennsylvania, Attorney for Defendants Bimbo Food Bakeries Distribution, LLC, et al.


NOEL L. HILLMAN, District Judge.

This breach of contract case was filed in New Jersey state court and removed to this Court on the basis of diversity. There are three motions pending before the Court: plaintiff's motion to remand, defendants' cross motion to amend/correct their notice of removal, and defendants' motion to dismiss. The Court has considered the parties' submissions and for the reasons expressed below, plaintiff's motion to remand will be denied and defendants' cross motion to amend will be granted. Defendants' motion to dismiss will be partially converted to a summary judgment motion and partially denied without prejudice.


Robert Dando (hereinafter "Dando") is a former independent operator[1] who entered into a distribution agreement on August 18, 2004, with George Weston Bakeries Distribution, Inc., which now operates as Bimbo Food Bakeries Distribution, LLC (hereinafter "BFBD").[2] Dando purchased the exclusive rights to sell and distribute BFBD's products in a geographic territory within Gloucester County, New Jersey.

Pursuant to the distribution agreement, Dando is authorized to sell his exclusive rights, so long as he gives BFBD written notice of his intentions. Compl., Count I ¶ 10. In exchange, BFBD agrees to not unreasonably withhold the pending sale. Id . Further, the distribution agreement gives BFBD the right of first refusal with respect to any proposed sale, such that, BFBD could repurchase the exclusive rights under the same terms and conditions offered to a bona fide purchaser by Dando. Id. at ¶ 12.

On or about March 26, 2014, Dando filed a two-count complaint in the Superior Court of New Jersey, Law Division, Gloucester County asserting various contractual, quasicontractual and tort claims under state law. In Count I, Dando alleges that in early 2014, he notified BFBD of his intent to sell the exclusive rights for $289, 900.00. Id. at ¶ 9. Dando claims that BFBD told him that the asking price was too high and in turn, he lowered it to $210, 000.00. Id. at ¶¶ 10-11. Then, BFBD exercised its right of first refusal and repurchased the exclusive rights for $210, 000.00. Id. at ¶ 13. Dando alleges that BFBD's actions constituted: (i) a breach of the implied covenant of good faith and fair dealing, (ii) intentional interference with contract and prospective economic advantage, (iii) unfair restraint on trade and competition, (iv) fraud, (v) franchise licensing unfair practice, and (vi) unjust enrichment. Id. at ¶¶ 17-24.

In Count II, Dando alleges that BFBD sold its products to Rastelli Foods Group ("RFG"), a food distributor located within Dando's geographic territory. Compl., Count II ¶¶ 2-4. Dando claims that these actions constitute (i) breach of contract, (ii) fraud, (iii) franchise licensing and unfair practice, and (iv) unjust enrichment. Id. at ¶¶ 4-9. Dando seeks monies owed to him under the distribution agreement from the alleged sales to RFG, $79, 900.00 in lost profit, as well as consequential damages, punitive damages, and exemplary damages and attorney fees.

On May 9, 2014, BFBD filed a petition for removal pursuant to 28 U.S.C. § 1441, 1446(b), and then subsequently filed a motion to dismiss. BFBD argues that this Court need not reach the underlying merits of Dando's claims because Dando "waived any and all such claims pursuant to a court-ordered release" entered in previous litigation, Scott v. Bimbo Bakeries USA, Inc., et al.[3] (hereinafter "Scott Litigation"). In the Scott Litigation, Dando was an opt-in plaintiff regarding claims brought pursuant to the Fair Labor Standards Act ("FLSA"). (Def. Br. 6). Defendants also argue that even if the release entered in the Scott Litigation does not bar Dando's claims in this matter, they fail pursuant to Rule 12(b)(6) for failure to state a claim.

On May 23, 2014, Dando filed a motion to remand to the Superior Court of New Jersey on grounds that jurisdiction is not proper in this Court. [Doc. No. 8].[4] Defendants filed a cross motion to amend their notice of removal. The Court will first address the motion to remand as it challenges this Court's jurisdiction.


Plaintiff filed a motion to remand on grounds that BFBD failed to state sufficiently its citizenship and thereby establish the diversity requirements found in 28 U.S.C. § 1332. Defendants responded that, as stated in their notice of removal, plaintiff is a citizen of New Jersey and defendants are citizens of Pennsylvania and Delaware. Defendants also filed a motion to amend their notice of removal to provide additional information regarding the citizenship of BFBD, LLC; specifically, that BFBD has only one member, defendant Bimbo Bakeries USA, Inc. ("BBUSA"), and BBUSA, Inc. is a registered Delaware corporation with its principal place of business in Pennsylvania.

Pursuant to 28 U.S.C. § 1653, "[d] efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." The removing party may amend its notice of removal beyond the 30-day deadline for amendment in order to clarify the basis for jurisdiction. See USX Corp. v. Adriatic Ins. Co., 345 F.3d 190, 204 (3d Cir. 2003); Advanced Technologies and Installation Corp. v. Nokia Siemens Networks US, LLC, No. 09-6233, 2011 WL 198033, at *4 (D.N.J. ...

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