United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff George Annen's
motion to amend the cgmplaint pursuant to Fed.R.Civ.P. 15 and
to remand this matter to the Superior Court of New Jersey,
pursuant to 28 U.S.C. § 1447(e). (DE 10). No. federal
cause of action is stated; the defendants removed the matter
to this Court on the sole basis of diversity jurisdiction, 28
U.S.C. § 1332(a). (DE 1). Annen's amended complaint
seeks to add a non-diverse defendant.
reasons provided below, the Court grants Plaintiff
Annen's motion to amend as of right and to remand the
case to state court (DE 10). Defendants' motion to
dismiss is denied as moot and may be re-filed in state court
upon remand (DE 9).
15, 2018, plaintiff George Annen, a New Jersey resident,
filed a complaint in die Law Division of the Superior Court
of New Jersey, Morris County against defendants Morgan
Technical Ceramics ("MTC"), Morganite Industries,
Inc. ("Morganite"), and Morgan Advanced Ceramics,
Inc. ("MAC"). This complaint alleges that MTC
"registered as Certech, Inc." (Compl. ¶2).
Defendant MAC is incorporated in the State of Delaware and
has a principal place of business in California. (Compl.
¶3; NOR ¶ 12). MAC manufactures and markets
industrial ceramic components to the medical,
telecommunications, and aerospace markets. (NOR. ¶ 23).
Defendant Morganite is also incorporated in the State of
Delaware, but has a principal place of business in North
Carolina. (Compl. ¶4; NOR ¶13).
complaint alleges that defendant MTC "is a division of
Morgan Advanced Materials PLC, with its head office near
London." (Compl. ¶2). He further alleges that MTC
conducts business in New Jersey, where it "is registered
as Certech, Inc." [Id.). Defendants' notice
of removal asserts that MTC "is not an actual
entity," but is an alternative name for MAC. (NOR
¶14; DE 1-1 (State of New Jersey, Division of Revenue,
"Registration of Alternate Name" (Nov. 14, 1991)).
Certech is a separate entity, is incorporated in Delaware,
and has a principal place of business in New Jersey. (NOR
Annen's complaint alleges violations of New Jersey state
law under the New Jersey Law Against Discrimination
("NJLAD") and the New Jersey Conscientious Employee
Protection Act ("CEPA") related to his employment
with "defendants." The complaint does not
distinguish between the various entity defendants, and
instead, refers to them collectively as the "Morgan
defendants." As a result, the complaint does not
clarify, or factually substantiate, which defendant was
Annen's employer, or assert that all of the defendants
were "joint employers" under the NJLAD or CEPA.
(See Compl. ¶8).
was hired on or about January 20, 2017 as a Global Finance
Director for a division of MTC. (Compl. ¶7). Annen
alleges that this business unit division of MTC was managed
out of Certech's office in Woodbridge, New Jersey.
his one-year employment, Annen was supervised by three
different individuals. (Compl. ¶8). He claims that once
John Righini was hired and became his supervisor, he was
subjected to discrimination on the basis of his age. (Compl.
¶¶10-11). Annen asserts that he was passed over for
a promotion in favor of a candidate that was ten years
younger than him, and that age played a role in his eventual
termination. (Compl. ¶¶11, 18).
CEPA claim alleges that he objected to financial practices
that he believes were fraudulent. (Compl. ¶30). In
particular, Annen alleges that he believes that profits that
should have been reported in 2017 were deferred to 2018.
15, 2015, Annen filed his complaint and jury demand in the
Superior Court of New Jersey, Morris County. (DE 1-1). On
June 28, 2018, defendants removed the action to this Court,
on the basis of diversity jurisdiction. (DE 1). There is no
dispute that there is no federal cause of action in the
notice of removal clarified the citizenship status of the
defendant corporate entities. (NOR ¶¶ 12-15). The
notice of removal further stressed that Certech, the only
entity that shares citizenship with Annen, was not named as a
defendant, and to any extent that it would be considered a
defendant, it was fraudulently joined. (NOR ¶ 15).
Defendants'argument for fraudulent joinder turns on the
fact that only MAC was Annen's employer, and therefore,
there is no basis for liability that may be asserted against
Certech under the NJLAD and CEPA. (See generally, NOR
25, 2018, Annen filed a motion to amend the complaint and to
remand this matter to state court. He has certified that he
intended to name Certech as a defendant, and that defendants
are so interrelated that it is unclear which particular
defendant-entity was his employer. (PBr. at 7-8). Defendants
oppose plaintiffs' application. II. Motion to Amend The
Court addresses the motion to amend the complaint first,
given that the allegations in the operative complaint will
impact the Court's jurisdictional analysis. The plaintiff
has submitted a proposed amended complaint, redlined to
highlight the amendments. (DE 10-2 at 13-23) A clean copy of
the Amended Complaint (cited herein as "AC") may be
found as DE 10-2 at 25-35.
Rule of Civil Procedure 15(a) provides that a party may amend
its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or
21 days after service of a motion under Rule 12(b), (e), or
(f), whichever is earlier.
Fed. R. Civ. P. 15(a)(1). Otherwise, the party must seek
leave of court to amend. Fed.R.Civ.P. 15(a)(2).
clear that Annen is entitled to file the amended complaint as
a matter of right. Rule 15 grants a plaintiff the right to
file an amended complaint within "21 days after service
of a motion under Rule 12(b)," such as a motion to
dismiss brought pursuant to Rule 12(b)(6). Fed.R.Civ.P.
15(a)(1)(BJ; see Kundratic v. Thomas, 407 Fed.Appx.
625, 629 (3d Cir. 2011) (noting that plaintiff may file
amended complaint after defendant has "filed [its] first
motion to dismiss").
sought to amend this complaint on July 25, 2018, or five (5)
days after defendants' motion to dismiss was filed on
July 20, 2018. (DE 9). The Court concludes that Annen may
amend his complaint as of right under Rule 15(a)(1). Thus,
the Court does ...