Superior Court of New Jersey, Appellate Division, Essex
Decided: February 19, 2016
Bishop and David Klein for plaintiff (Brach Eichler, LLC, and
Kennedy Berg LLP, attorneys).
Vincent N. Avallone for defendants RB Group PLC, RB Corporate
Services, Ltd., and RB, LLC (K&L Gates LLP, attorneys).
matter comes before the court by way of defendant's
renewed motion to transfer venue from Essex County to Morris
County. Plaintiff's claims arise out of the alleged
wrongful termination of his employment as Senior Vice
President of Supply, Latin America, North, South and
Southeast Asia, Australia, and New Zealand by defendant
Reckitt Benckiser LLC ("RB LLC") in February, 2012.
This case arises out of a dispute over plaintiff's
employment at Reckitt Benckiser ("RB"). In 2007,
plaintiff began employment in Parsippany, New Jersey, for
defendant RB LLC. The terms of that employment agreement
stated that RB LLC could not terminate plaintiff's
employment without providing six months' notice. However,
the employment contract also allowed RB LLC to immediately
terminate plaintiff if he engaged in "gross misconduct,
" or was "guilty of any fraud, dishonesty, or such
November 2011, Amadeo Fasano ("Fasano"), Executive
Vice President of RBCS, RB LLC's parent corporation and
plaintiff's boss, informed plaintiff during a
videoconference that his position at RB LLC was being
eliminated. Simon Nash ("Nash"), Senior Vice
President of Reckitt Benckiser Corporate Services (RBCS), RB
LLC's parent company, allegedly acting on behalf of RB
Group and RB LLC, offered plaintiff a new position
("Senior Vice President LAPAC") requiring him to
move to Singapore. After consulting with his family and some
further negotiations, plaintiff signed the final offer
(letter of intent) on December 9, 2011. The letter of intent
contained a section identical to the RB LLC employment
agreement, allowing plaintiff's position to be terminated
without compensation or notice for misconduct.
to moving to Singapore, plaintiff inquired about the status
of his United States permanent residency card (green card)
with a New York City immigration lawyer, Ted Chiappari
("Chiappari"), who represented both plaintiff and
defendant in connection with the proposed transfer. Plaintiff
alleges that Chiappari informed him that as long as
plaintiff's wife maintained her green card,
plaintiff's children would be able to work and attend
college in the United States. Chiappari testified that he
laid out three options for plaintiff and his family: everyone
in the family would keep their green cards, everyone would
surrender them, or plaintiff individually would surrender his
and the rest of his family would retain theirs. Chiappari
testified that plaintiff understood the options and risks
involved with each option and would think it over. On January
31, 2012, plaintiff notified senior RB management of his
intention to surrender his green card.
February of 2012, Nash summoned plaintiff to London for a
meeting. Plaintiff alleges that Nash and Fasano, acting on
the orders of Rakesh Kapoor ("Kapoor"), Chief
Executive Officer of RB Group, told plaintiff that he had
been dishonest in failing to disclose his intention to
surrender his green card in order to receive additional
compensation during negotiations for the Singapore position
and avoid tax liability. When asked whether he thought
plaintiff had been dishonest when intending to surrender his
green card, Nash testified, "I concluded that it was
very likely [plaintiff] had been dishonest and in my thinking
he had been dishonest . . . the key fact is he did not tell
me he intended to surrender his green card and yet he
understood clearly that the offer had been made for Singapore
was inflated by a substantial number of dollars because we
had taken on the assumption he would be taxed as a U.S.
alleges Chiappari disclosed the advice to RB, which RB then
used to justify plaintiff's termination. In that regard,
Chiappari admitted to talking with Nash and Fasano on
February 6, 2012, about plaintiff's tax status. In a
letter signed by Nash, dated February 7, 2012, RB terminated
plaintiff's position. Plaintiff alleges that his
termination under the letter of intent was unjustified as his
actions did not rise to the level of "misconduct"
and that he was responsible under Section 15.02 of the letter
of intent for his own tax arrangements. Alternatively,
plaintiff alleges defendant justified this termination under
the employment agreement with RB LLC, even though it had
expired and plaintiff was formally working for RB Singapore.
plaintiff asserts that defendant never intended to continue
employing him after eliminating his position at RB LLC and
defendant engaged in a "bait-and-switch" designed
to terminate his employment without notice and without paying
him as required by the agreement. Plaintiff argues that the
Singapore position was created as a pretext to justify firing
him from RB LLC without six months' notice or
compensation, and thus save costs as part of a corporate
commenced the instant action against RB LLC, RBCS and Reckitt
Benckiser Group PLC (RB Group) (collectively referred to as
RB LLC or defendant) for wrongful termination on January 30,
2015, in Essex County. His complaint alleges that
defendant's stated basis for terminating his employment
was a pretext to avoid paying him a redundancy package.
Plaintiff is seeking damages under theories of fraud, breach
of contract, breach of the implied covenant of good faith and
fair dealing, promissory estoppel, and tortious interference.
facts that are pertinent to this change of venue motion are
as follows. Plaintiff is a French citizen who holds a United
States green card and is currently domiciled in Irvine,
California. During the course of his employment at RB LLC and
its affiliates, plaintiff held positions in Belgium, England,
Spain, and Parsippany, New Jersey. RB LLC is a Delaware
Limited Liability Company registered in Mercer County, New
Jersey with its principal place of business in Morris County,
New Jersey. RB LLC has no registered locations in Essex
uncontested that all events leading up to plaintiff's
termination occurred outside of Essex County. Specifically:
1.Plaintiff was employed at RB LLC's Morris County
2.Plaintiff and RB LLC entered into a letter of intent
regarding his employment with the Singapore Affiliate while
he was working in Morris County.
3.The decision to terminate plaintiff's employment was
allegedly made in Cape Town, South Africa.
4.Employees of RB LLC accused plaintiff of fraudulent
misrepresentation and terminated his employment during a
meeting in England.
cause of action did not arise in Essex County, the plaintiff
does not reside in Essex County, and defendant has no
registered locations in Essex County. Rather, plaintiff's
basis for laying venue in Essex County is Rule
4:3-2(B), in that RB LLC "actually does business"
in Essex County.
oral argument on defendant's motion to change venue, the
court determined, as an initial matter, that venue is proper
for limited liability companies where the company actually
does business. Accordingly, the issue during oral argument
focused on the extent of business and contact defendant's
sales representatives had with Essex County, as it appeared
undisputed that was the only business contact with the county
that might satisfy the "doing business"
requirement. Because the parties had not conducted discovery
relating to the issue, or briefed it in their underlying
motion papers, the court denied the application without
prejudice to afford the parties the opportunity to perform
discovery and renew the change of venue motion ...