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Annen v. Morgan Technical Ceramics

United States District Court, D. New Jersey

January 24, 2019

GEORGE ANNEN, Plaintiff,



         This 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.

         For the 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).

         I. Background[1]

         On May 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).

         Annen's 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 ¶15).

         Substantively, 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).

         Annen 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. (Id.).

         During 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).

         Annen's 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. (Compl. ¶30).

         On May 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 complaint.

         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 ¶¶ 27-34).[2]

         On July 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.

         Federal 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).

         It is 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").

         Annen 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 ...

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