United States District Court, D. New Jersey
MCNULTY, UNITED STATES DISTRICT JUDGE
the Court is the motion (ECF no. 5) of the defendants
("CareOne") to dismiss Counts One and Two of the
Complaint for failure to state a claim. See Fed. R.
Civ. P. 12(b)(6). For the reasons stated herein, I will grant
the motion, which is unopposed. Because the federal claims
lack minimal substance and there have been no significant
proceedings in this case, I will decline to exercise
supplemental jurisdiction over the remaining state-law
claims, and dismiss the Complaint in its entirety.
12(b)(6) provides for the dismissal of a complaint, in whole
or in part, if it fails to state a claim upon which relief
can be granted. The defendant, as the moving party, bears the
burden of showing that no claim has been stated. Hedges
v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In
deciding a Rule 12(b)(6) motion, a court must take the
allegations of the complaint as true and draw reasonable
inferences in the light most favorable to the plaintiff.
Phillips v. County of Allegheny, 515 F.3d 224, 231
(3d Cir. 2008). The complaint's factual allegations must
be sufficient to raise a plaintiffs right to relief above a
speculative level, so that a claim is "plausible on its
face." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007); see also Ashcroft v. Iqbal. 556
U.S. 662, 678 (2009).
Complaint alleges that defendant CareOne wrongfully
terminated the employment of the plaintiff, Denisse Payne, on
August 31, 2015. The termination was purportedly based on Ms.
Payne's failure to observe safety precautions when
transporting residents in a shuttle van. She alleges that it
was really motivated by her sex and pregnancy, as well as her
Ecuadorian national origin.
Complaint asserts four causes of action:
Count 1: Title VII, 42 U.S.C. § 2000e (wrongful
termination based on national origin)
Count 2: Title VII, 42 U.S.C. § 2000e (wrongful
termination based on sex and pregnancy)
Count 3: New Jersey Law Against Discrimination
("NJLAD"), N.J. Stat. Ann. § 10:5-1 (wrongful
termination based on national origin)
Count 4: NJLAD, N.J. Stat. Ann. § 10:5-12(a)
(discriminatory layoff or reduction in force based on
has moved to dismiss the Title VII claims, Counts 1 and 2 of
the Complaint, as untimely.
prerequisite to filing suit under Title VII is exhaustion of
administrative remedies. The complainant must file a charge
within 180 days of the alleged discrimination. 42 U.S.C.
§ 200e-5(e)(1). If the EEOC decides not to pursue the
claim, it must so notify the claimant, generally through the
issuance of a "right to sue letter." See
Waiters v. Parson, 729 F.2d 233, 237 (3d Cir. 1984). The
claimant then has 90 days to file suit. 42 U.S.C. §
2000e-5(f)(1). The ninety-day statute of limitations is
"strictly enforced, " Burgh v. Borough Council
of Borough of Montrose, 251 F.3d 465, 472 (3d Cir.
2001), absent a sufficient basis for tolling, Mosel v.
Hills Dep't Store, Inc., 789 F.2d 251, 252-53 (3d
Complaint alleges that "[o]n or about September 10,
2015, Plaintiff filed a complaint with the Federal Equal
Employment Opportunity Commission ("EEOC"), as
required under 42 U.S.C. § 2000e-5. On or about October
26, 2015, the EEOC declined to pursue any action against
CareOne Wayne or against CareOne." (Cplt. ¶
The Complaint in this action was filed nearly six months
later, on April 19, 2017. It is untimely on its face.
plaintiff filed no response to the motion to dismiss. In
response to a telephone query from the clerk, counsel for the
plaintiff confirmed that the motion was uncontested and filed
a confirming letter (ECF no. 7). No reason appears that the
Court should not follow the usual course of dismissing such
an untimely complaint.
light of the foregoing, the motion to dismiss Counts 1 and 2
is granted. In light of the considered decision of plaintiffs
counsel to file no opposition to the motion, I conclude that
amendment would not be sought ...