United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court on Defendants' Motion to
Dismiss Plaintiffs Second Amended Complaint With Prejudice
For Failure To State A Claim Pursuant To Fed.R.Civ.P.
12(B)(6) (ECF No. 37).
January 25, 2017, the Court dismissed Counts II through VII
with prejudice. Count I was dismissed without prejudice, and
Plaintiff was allowed to amend Count I of the complaint
again. Accordingly, Plaintiff filed a Second Amended
Complaint ("SAC") (Dkt. No. 30) and Defendant filed
this motion to dismiss. (Dkt. No. 37).
to the SAC, on January 4, 2002, Plaintiff signed an
employment contract with AXA. (SAC at ¶ 7). Plaintiff
worked as a financial adviser, and during his career he was
awarded commendations by AXA for his superior work. (SAC
¶ 8). Roman alleges that he was "pressured,
encouraged and forced to make fraudulent and unethical
misrepresentations to clients with regard to the value,
quality and expenses of AXA proprietary products. [Roman]
viewed these representations as false and detrimental to his
clients." (SAC ¶ 15). Roman alleges that the
"employment of manipulative and deceptive devices is
prohibited under federal law6". 15 U.S.C. §78J.
(SAC ¶ 14). Plaintiff further alleges that Mr. Coppolla
instructed plaintiff to push AXA "proprietary
business." However, the Complaint does not set forth any
facts about the nature of any deceptive device, or the
misrepresentations he was coerced to communicate to clients.
was terminated after he received a "letter of reprimand
and fine, " based on a document integrity issue. Roman
alleges that this reprimand was a ruse to terminate
Roman's relationship with AXA because he was not selling
or marketing AXA's products to clients.
grounds his complaint on Pierce v. Ortho Pharmaceutical
Corp., 84 N.J. 58, (1980), because Roman was coerced to
deceive clients and disclose misrepresentations of AXA's
products to customers and fellow financial advisors in
violation of public policy.
motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6), the Court is required to accept as
true all allegations in the Complaint and all reasonable
inferences that can be drawn therefrom, and to view them in
the light most favorable to the non-moving party. See
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d
1380, 1384 (3d Cir. 1994).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)). While a court will
accept well-pleaded allegations as true for the purposes of
the motion, it will not accept bald assertions, unsupported
conclusions, unwarranted inferences, or sweeping legal
conclusions cast in the form of factual allegations.
Iqbal, 556 U.S. at 678-79; see also Morse v.
Lower Merion School District, 132 F.3d 902, 906 (3d Cir.
1997). A complaint should be dismissed only if the
well-pleaded alleged facts, taken as true, fail to state a
claim. See In re Warfarin Sodium, 214 F.3d 395,
397-98 (3d Cir. 2000). The question is whether the claimant
can prove any set of facts consistent with his or her
allegations that will entitle him or her to relief, not
whether that person will ultimately prevail. Semerenko v.
Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000),
cert, denied, Forbes v. Semerenko, 531 U.S. 1149,
121 S.Ct. 1091 (2001).
pleader is required to 'set forth sufficient information
to outline the elements of his claim or to permit inferences
to be drawn that these elements exist.'" Kost v.
Kozakewicz, 1 F.3d 176, 183 (3d Cir. 1993) (quoting 5A
Wright & Miller, Fed. Practice & Procedure: Civil 2d
§ 1357 at 340). "While a complaint attacked by a
Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiffs obligation to provide the
'grounds' of his ' entitle[ment] to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do,
... . Factual allegations must be enough to raise a right to
relief above the speculative level... on the assumption that
all the allegations in the complaint are true (even if
doubtful in fact). . . ." Twombly, 550 U.S. at
555, 127 S.Ct. at 1964-65 (internal citations and quotations
respect to Count I, there are three issues. Generally, the
wrongful discharge doctrine is grounded in public policy and
is designed to protect employees from injury when an employee
does not undertake an action that violates a clear mandate of
public policy. Pierce v. Ortho Pharmaceutical Corp.,
84 N.J. 58 (1980). Since Pierce is limited to
protecting employees, the first issue is whether Roman was an
employee of AXA Advisors at the time of the termination. See,
McDougall v. Weichert, 144 N.J. 380, 388 (1996).
That is, whether Roman's responsibility as a financial
advisor is akin to an employer/employee relationship, rather
than an independent contractor as AXA alleges. The complaint
should set forth more facts about Roman's alleged
employment relationship. Second, the complaint should more
specifically set forth the clear mandate of public policy
Roman was forced to violate.
Pierce Court held:
An employee has a cause of action for wrongful discharge when
the discharge is contrary to a clear mandate of public
policy. The sources of public policy include legislation;
administrative rules, regulations or decisions; and judicial
decisions. In certain instances, a professional code of
ethics may contain an expression of public policy.
(Pierce, 84 N.J. at 72).
should more particularly allege the "clear mandate of
public policy" ...