United States District Court, D. New Jersey
LISA L. TONKINSON, Plaintiff,
DAVID BYRD, NEC NETWORK, LLC doing business as CAPTURERX, LLC, PATIENTCRAFT, LLC, BECKY SIMEON, CHRISTOPHER HOTCHKISS, and HOLLY RUSSO, Defendants.
H. SCHORR, ALAN H. SCHORR & ASSOCIATES, PC On behalf of
ROSEN ROGOFF, BENJAMIN EVAN GORDON, STRADLEY RONON STEVENS
& YOUNG LLP, KENNETH W. TABER, PILLSBURY WINTHROP SHAW
PITTMAN LLP, REBECCA CARR RIZZO, PILLSBURY WINTHROP SHAW
PITTMAN LLP On behalf of Defendants
L. HILLMAN, U.S.D.J.
case concerns Plaintiff's claims against her former
employer arising out of her alleged whistleblowing activity
related to compliance audits for a federal prescription drug
program. Before the Court are Defendants' motions to
dismiss Plaintiff's complaint, and if the complaint is
not dismissed in its entirety, to transfer venue to the
Western District of Texas.
reasons expressed below, Defendants' motion to dismiss
will be granted in part and denied in part, and
Defendants' motion to transfer venue will be denied.
to her complaint, Plaintiff, Lisa L. Tonkinson, signed her
employment contract with Defendant NEC Network, LLC d/b/a
CaptureRx (“CaptureRx”), a company based in
Texas, on December 3, 2015, with her first day of work
beginning on January 4, 2016. Plaintiff relates that she
worked out of her home office in New Jersey as a consultant
on behalf of CaptureRx for its Health Resources and Services
Administration (“HRSA”) 340B prescription drug
a governmental program that requires prescription drug
manufacturers to provide outpatient medications to eligible
health care organizations at significantly reduced prices.
Plaintiff relates that she prepared reports for clients and
then advised clients on how to improve or fix any
deficiencies that existed with relation to the 340B drug
program. Plaintiff further asserts that independent audits
are required by law, and hospitals are required to show the
independent audits to HRSA 340B inspectors upon request.
claims arise out of her 340B consulting services for the New
York City Health and Hospitals Corporation
(“NYCHH”). Plaintiff contends that her NYCHH
reports were very thorough and noted several deficiencies and
violations of law that could and would negatively affect
NYCHH. She alleges those violations were severe enough to
potentially lead to fines and even disqualification of NYCHH
from the 340B program if a government audit was conducted and
found the same deficiencies.
alleges that NYCHH insisted that she modify the independent
audit to remove references to many of the deficiencies in her
report. She claims that she refused to modify her report
because her data was correct, and she believed that changing
the report would unlawfully and fraudulently hide
deficiencies, that if left unattended, would break the law.
contends that Defendants, which in addition to CaptureRX also
include PatientCraft, LLC (“PatientCraft”), Holly
Russo, Becky Simeon, David Byrd, and Christopher Hotchkiss,
received complaints from NYCHH that Plaintiff would not
remove the deficiencies from her report. Plaintiff claims
that Defendants then began to exert pressure upon her to
change the report to reflect that NYCHH was complying with
the law, but she refused to do so. Plaintiff alleges that her
employment was terminated on September 6, 2016 as a result of
her refusal to change the report and violate the law by doing
her termination, Plaintiff claims that unbeknownst to her
Defendants changed her report as requested by NYCHH and
affixed her name to the modified report. Plaintiff relates
that NYCHH was subsequently audited by the government, which
found NYCHH to be noncompliant in the very ways Plaintiff
herself had found. Plaintiff further claims that when she
secured new employment with Johns Hopkins University
Hospitals, Defendant Russo provided disparaging information
about her to one of their contractors, who then refused to
work with Plaintiff, and she lost the contract.
claims that Defendants' actions violate the New
Jersey's Conscientious Employee Protection Act, N.J.S.A.
34:19-1 et seq. (“CEPA”) (Count One), and
constitute fraudulent misrepresentation (Count Two),
appropriation of name for commercial advantage (Count Three),
tortious interference with employment and prospective
economic advantage (Count Four), and defamation (Count Five).
have moved to dismiss all counts in Plaintiff's
complaint, arguing that they fail to state any cognizable
claims against them. Defendants have also moved to change the
venue of Plaintiff's case to the Western District of
Texas. Plaintiff has opposed both of Defendants' motions.
Subject matter jurisdiction
removed this action from New Jersey state court to this Court
pursuant to 28 U.S.C. § 1441. This Court has
jurisdiction over this matter pursuant to 28 U.S.C. §
1332 because there is complete diversity of citizenship
between the parties and the amount in controversy exceeds
$75, 000. Plaintiff if a citizen of New Jersey, and none of
the Defendants are citizens of New Jersey. (See Docket No.
Standard for Motion to Dismiss
considering a motion to dismiss a complaint for failure to
state a claim upon which relief can be granted pursuant to
Federal Rule of Civil Procedure 12(b)(6), a court must accept
all well-pleaded allegations in the complaint as true and
view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
It is well settled that a pleading is sufficient if it
contains “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Under the liberal federal pleading
rules, it is not necessary to plead evidence, and it is not
necessary to plead all the facts that serve as a basis for
the claim. Bogosian v. Gulf Oil Corp., 562 F.2d 434,
446 (3d Cir. 1977).
“[a]lthough the Federal Rules of Civil Procedure do not
require a claimant to set forth an intricately detailed
description of the asserted basis for relief, they do require
that the pleadings give defendant fair notice of what the
plaintiff's claim is and the grounds upon which it
rests.” Baldwin Cnty. Welcome Ctr. v. Brown,
466 U.S. 147, 149-50 n.3 (1984) (quotation and citation
district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail
but whether the claimant is entitled to offer evidence to
support the claim.'” Bell Atlantic v.
Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting
Scheuer v. Rhoades, 416 U.S. 232, 236 (1974));
see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009)
(“Our decision in Twombly expounded the
pleading standard for ‘all civil actions' . . .
.”); Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009) (“Iqbal . . . provides the
final nail-in-the-coffin for the ‘no set of facts'
standard that applied to federal complaints before
the Twombly/Iqbal standard, the Third Circuit has
instructed a two-part analysis in reviewing a complaint under
Rule 12(b)(6). First, the factual and legal elements of a
claim should be separated; a district court must accept all
of the complaint's well-pleaded facts as true, but may
disregard any legal conclusions. Fowler, 578 F.3d at
210 (citing Iqbal, 129 S.Ct. at 1950). Second, a
district court must then determine whether the facts alleged
in the complaint are sufficient to show that the plaintiff
has a “‘plausible claim for relief.'”
Id. (quoting Iqbal, 129 S.Ct. at 1950). A
complaint must do more than allege the plaintiff's
entitlement to relief. Id.; see also Phillips v.
Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)
(stating that the “Supreme Court's Twombly
formulation of the pleading standard can be summed up thus:
‘stating . . . a claim requires a complaint with enough
factual matter (taken as true) to suggest' the required
‘does not impose a probability requirement at the
pleading stage, ' but instead ‘simply calls for
enough facts to raise a reasonable expectation that discovery
will reveal evidence of' the necessary element”). A
court need not credit either “bald assertions” or
“legal conclusions” in a complaint when deciding
a motion to dismiss. In re Burlington Coat Factory Sec.
Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997). The
defendant bears the burden of showing that no claim has been
presented. Hedges v. U.S., 404 F.3d 744, 750 (3d
Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor,
Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
in reviewing a Rule 12(b)(6) motion must only consider the
facts alleged in the pleadings, the documents attached
thereto as exhibits, and matters of judicial notice. S.
Cross Overseas Agencies, Inc. v. Kwong Shipping Grp.
Ltd.,181 F.3d 410, 426 (3d Cir. 1999). A court may
consider, however, “an undisputedly authentic document
that a defendant attaches as an exhibit to a motion to
dismiss if the plaintiff's claims are based on the
document.” Pension Benefit Guar. Corp. v. White
Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993). If any other matters outside the pleadings are