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Baran v. ASRC Federal Mission Solutions

United States District Court, D. New Jersey, Camden Vicinage

June 20, 2018

ANNA BARAN, Plaintiff,

          Latonya N. Bland-Tull, Esq. HAGERTY & BLAND-TULL LAW, LLC Moorestown Times Square Counsel for Plaintiff

          Alexa Joy Laborda Nelson, Esq. LITTLER MENDELSON PC Three Parkway and William J. Leahy, Esq. LITTLER MENDELSON, PC Three Parkway Counsel for Defendants

          OPINION [DKT. NO. 13]


         This matter comes before the Court upon the filing of a motion to remand this matter to the Superior Court of New Jersey, Camden County and for payment of costs and attorney's fees, by Plaintiff Anna Baran (the “Plaintiff”). For the reasons stated below, Plaintiff's motion will be DENIED.[1]

         I. Factual and Procedural Background

         Plaintiff Anna Baran is a former employee of Defendant Mission Solutions, LLC (“MSE”)(incorrectly pled as ASRC Federal Mission Solutions), a defense contractor that supplies systems engineering, software engineering, integration services and products for mission-critical defense systems. Am. Compl. ¶ 3, Notice of Removal, Ex. C. This action arises from Plaintiff's termination from MSE in 2013 as the result of threatening comments Plaintiff allegedly made to Rose Wells, a software engineer manager at MSE. Wells reported both to the police and to Francis McKenna, a member of MSE security, that Plaintiff had threatened to bring a gun to work and shoot certain MSE employees. In addition to her unlawful termination, Plaintiff alleges, McKenna continued to disparage Plaintiff to potential employers, preventing her from finding new full-time employment by indicating to such employers that a “false report” placed on Plaintiff's “clearance record was true, that it was bad, and that [P]laintiff . . . [would] not be able to obtain clearance based on that report.” Am. Compl. ¶ 43. As it turns out, the “report” which McKenna was discussing was entered into the United States Department of Defense's (“DOD”) Joint Personnel Adjudication System (“JPAS”), which functions as the DOD's system of record for security clearance processing.

         This case comes to the Court under somewhat unusual procedural circumstances. It had been pending in state court for almost three years and was set for a trial when MSE removed it pursuant to 28 U.S.C. § 1442 (the “Federal Officer Removal Statute”). At issue is whether MSE is entitled to the benefit of that statute and, if so, at what point in the state court proceedings it could ascertain that the statute applied. Specifically, the resolution of this motion turns on the date that MSE could first have ascertained that Plaintiff was bringing a defamation claim against it not only on the basis of comments made by McKenna or other unnamed MSE employees, but based on the report entered into JPAS.

         On January 6, 2015, Plaintiff initiated this action by filing a pro se Complaint against MSE and Wells in the Superior Court of New Jersey, Law Division, Burlington County (Docket No. L-53-15). Plaintiff's initial pro se Complaint was vague and the details included therein were sparse, but it appears that Plaintiff alleged that Wells had made false statements concerning Plaintiff's intention to “harm others” with firearms, costing Plaintiff her job. See Jan. 6, 2015 Compl., Notice of Removal Ex. A. Plaintiff brought claims for (1) negligence; (2) malicious prosecution; (3) intentional and negligent infliction of emotional distress; (4) defamation and slander; (5) tortious interference; and (6) retaliation. See id.

         Plaintiff's pro se Complaint was dismissed, without prejudice, on April 24, 2015, subject to three conditions: (1) Plaintiff was required to obtain counsel by July 1, 2015, “with the understanding that she may have a claim for unlawful termination”; (2) MSE was required to “issue a neutral employment reference”; and (3) MSE was required to “use best efforts to assist Plaintiff in obtaining a security clearance, to the extent possible.” Notice of Removal ¶ 3, Ex. B.

         On June 27, 2015, while the case was still dismissed, Plaintiff sent a letter to the state court informing the court that Plaintiff was having a difficult time obtaining counsel. June 27, 2015 Letter, Certification of LaTonya Bland-Tull, Ex. C. In her letter, Plaintiff also indicated that she had “objective evidence that . . . [MSE] continue[d] to slander” her. Id. Specifically, she claimed that she lost two job opportunities because the company “verbally slander[ed]” her and “put false information on . . . [her] career record.” Id. She claimed to have spoken to McKenna, who told her that “he would correct the statement but then backed out of the system because he realized that it would make the company legally liable.” Id.

         The state court treated Plaintiff's pro se letter as a motion to enforce the conditions in the court's April 24, 2015 dismissal order. On August 12, 2015, it granted Plaintiff's request and ordered MSE's HR Department to issue Plaintiff a “neutral employment reference, ” without editorialization; provide neutral information if contacted about Plaintiff's future attempts to obtain a security clearance; and provide Plaintiff with a copy of her “entire personnel file.” Order Granting Plaintiff's Motion to Enforce, Certification of LaTonya Bland-Tull, Ex. D.

         On October 6, 2016, the state court reinstated Plaintiff's Complaint and granted her leave to file an amended complaint. October 18, 2016, having obtained counsel, Plaintiff filed an Amended Complaint against MSE, Wells, McKenna, Sue Goldberg, who at one time was Plaintiff's supervisor at MSE, and “ABC Business Entities 1-100.” See Notice of Removal, Ex. C. Two of the four counts in Plaintiff's Amended Complaint are relevant to this motion: (1) Count One for defamation, libel, and slander, and (2) Count Two for defamation, libel, and slander per se. In these Counts, Plaintiff alleges that McKenna[2], or another unnamed MSE employee, made slanderous statements about Plaintiff and about the nature of reports filed on Plaintiff's “record.” Specifically, Plaintiff alleges that McKenna or another MSE employee spoke by phone with employees from L-3 Communications, and that as a result of statements made about Plaintiff during those conversations, L-3 refused to hire Plaintiff.

         On February 10, 2017, Defendants sent their first set of interrogatories to Plaintiff. Interrogatory number 10 asked Plaintiff to identify “each communication that . . . [she] contend[ed] support[ed] . . . [her] claim(s) for defamation.” For each of these communications, interrogatory 10 asked Plaintiff to identify (1) who made the statement; (2) when the statement was made; (3) to whom the statement was communicated; and (4) any witnesses to the communication. On March 6, 2017, however, the state court dismissed Plaintiff's defamation, libel, and slander (including defamation, libel, and slander per se) claims as untimely. The state court's dismissal was without prejudice, and the court granted Plaintiff leave to amend. Plaintiff did not, however, amend her Amended Complaint.

         On April 28, 2017, Plaintiff submitted her responses to Defendant's first set of interrogatories. In response to interrogatory number 10, Plaintiff provided:

McKenna admitted that in August 2014, he represented to employees of L3 Communications that Plaintiff had threatened someone at work. McKenna admitted that he discussed a report that he created in JPAS database with L3 Communications. This report alleged that Plaintiff owns firearms.

See Pl.'s Answer to Interrogatories, Interr. 10, Cert. of LaTonya Bland-Tull, Esq., Ex. H. By this time, all of Plaintiff's defamation claims had been dismissed and the matter appeared to be moving forward as one for retaliation under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12(d) (“NJLAD”).

         On September 8, 2017, the state court held oral argument on a motion for summary judgment filed by Wells seeking the dismissal of the NJLAD claim against her and a motion filed by Plaintiff seeking reconsideration of the dismissal of her defamation claims. At oral argument, the court granted Wells' motion for summary judgment, dismissing Wells from the case.

         More relevant here, the court also granted Plaintiff's motion for reconsideration, restoring her defamation claims. As the state court's dismissal was based on the timeliness of those claims, the court inquired into the dates of the communications on which Plaintiff's defamation allegations are based. In response to a question from the court, MSE's counsel indicated that it was MSE's belief that Plaintiff's defamation claims were premised entirely on McKenna's communication with Plaintiff's prospective employer, L3. Tr. Of Sep. 8, 2017 Oral Arg. 12:20-24, Notice of Removal Ex. E. Notably, Plaintiff's counsel disputed that characterization, arguing that Plaintiff's defamation claims were based, in part, on McKenna's conversation with L3, but were also based on two JPAS entries related to Plaintiff; one in January of 2013 and one in May of 2014. Plaintiff further argued that she did not discover these JPAS entries until being alerted to them by L3 in August of 2014. The state court granted Plaintiff's motion ...

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