D'Agostino v. Domino's Pizza

STEVEN D'AGOSTINO, Plaintiff, v. DOMINO'S PIZZA, et al., Defendants.

Civil Action No: 17-cv-11603 (PGS)(TJB)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

April 23, 2018

MEMORANDUM AND ORDER

Presently before the Court is Plaintiff Steven D'Agostino's Motion to Remand the case to the Superior Court of New Jersey, Ocean County (ECF No. 6) and Defendants Domino's Pizza, Inc., J&J Pizza, Inc., Jason and John Parmer's Motion to Dismiss (ECF No. 8). For the reasons discussed herein, Plaintiff's motion is denied, and Defendants' motion is granted in part and denied in part.

BACKGROUND

This matter arises from Defendant John and Jason Parmer's wrongful termination of Plaintiff Steven D'Agostino. The Parmers are sole owners of J&J Pizza, which operates a Domino's Pizza franchise in Barnegat, New Jersey. (Amended Complaint at ¶¶ 2-3). In September 2014, Plaintiff was hired by J&J as a pizza delivery driver and routinely delivered pizza in the Barnegat, New Jersey area. (Id. at ¶ 5). Plaintiff claims that he performed "dual jobs" with J&J that is, in addition to delivering pizza, he also worked at the pizzeria, "making pizza boxes, taking food out of the oven, hanging order slips, getting stuff out of the freezer." (Id. at ¶ 7). When he was not delivering pizza, Plaintiff claims he was paid below minimum wage, $5.15/ hour; Plaintiff also claims that he regularly worked 12 to 14 hour shifts, without receiving a break or being paid overtime. (Id. at ¶¶ 10-11, 14).

Shortly after being hired, Plaintiff claims that Defendant John Parmer accused Plaintiff of being a homosexual individual and regularly directed homophobic epithets at him. (Id. at ¶ 15). When Plaintiff addressed Defendant John Parmer and "told [him] off," Parmer responded by "drastically reducing" his hours. (Id.).

In January 2015, Plaintiff was hired as a full-time technician with another company, but continued to deliver pizzas for J&J on the weekends. (Id. at ¶ 17). According to Plaintiff, in late February, there was a major snowstorm and Defendant John Parmer threatened to fire any drivers who did not come into work. (Id. at ¶ 18). Plaintiff claims that he was one of the few drivers who arrived for work and, due to the shortage of drivers, had to make significantly more deliveries. (Id. at ¶¶ 19-20). During one round of deliveries, Plaintiff drove over a large ditch in the road, which he later discovered caused significant damage to his rear axle and front wheel hub. (Id. at ¶¶ 22-24). Although he continued to drive the car over the next few days, by Friday, he claimed that his car was "virtually undriveable." (Id. at ¶¶ 24-25).

Because his car was undriveable, Plaintiff contacted J&J and notified them that he would be unable to deliver pizzas for a few weeks, until his car was repaired. (Id. at ¶ 25). According to Plaintiff, J&J¹ had "no problem" with his situation because they had handled a similar matter a few months earlier, when another driver's car was in disrepair and was unable to deliver pizzas for a few months. (Id. at ¶ 26). Once the driver purchased another car, J&J "put [him] right back on the schedule, with no problems." (Id.). Such was not the case for Plaintiff. On March 25, 2015, after purchasing a new car, Plaintiff drove to J&J to notify them that he could resume deliveringpizzas again. (Id. at ¶ 27). However, much to his chagrin, when Plaintiff arrived at the pizzeria, he was terminated for being absent for three weeks. (Id. at ¶ 29). Plaintiff maintains that he did not receive the same treatment or leniency as the other driver who was unable to work for several months. (Id. at ¶ 32).

On March 27, 2017, Plaintiff filed his Original Complaint in New Jersey Superior Court, alleging only state-law claims. (ECF No. 8-5 at 2-6 "Original Complaint"). Thereafter, on November 6, 2017, a New Jersey Superior Court judge granted Plaintiff's motion to amend his complaint, which now alleges claims under state and federal law. (ECF No. 1-2 at 12). Specifically, the Amended Complaint alleges violations under the New Jersey Law Against Discrimination (LAD), N.J.S.A. § 10:5-1, et. seq.; underpaid wages contrary to the Fair Labor Standards Act (FLSA), 29 § U.S.C. 201-219, and New Jersey Minimum Wage Law (NJWML), N.J.S.A. § 34:11-56a; negligence; and violation of the New Jersey Consumer Fraud Act (NJCFA), N.J.S.A. § 56:8-2. Plaintiff claims that Defendants were served with the proposed Amended Complaint on October, 12, 2017. Nevertheless, on November 14, 2017, eight days after the Superior Court judge granted Plaintiff's motion to amend, Defendants removed the present matter to federal court, pursuant 28 U.S.C. § 1441, since Plaintiff's Amended Complaint alleges a federal cause of action under the Fair Labor Standards Act. (ECF No. 1).

ANALYSIS

I. Remand to State Court

As a preliminary issue, Plaintiff seeks to remand the present matter to state court, since Defendants failed to timely remove to federal court within thirty days, as required under 28 U.S.C. 1447(b)(1). According to Plaintiff, because Defendants were aware of Plaintiff's proposed Amended Complaint on October 12, 2017, their notice of removal, made on November 14, 2017,was untimely. Alternatively, Plaintiff argues that Defendants should be barred from seeking removal, since they did not seek to remove Plaintiff's Original Complaint. Defendants contend the time to remove commenced on November 6, 2017, the date when the Amended Complaint became effective, and as such the removal was timely. The Court agrees.

An action that has been removed to federal court can be remanded to state court, pursuant to 28 U.S.C. § 1447(c), if the removal procedure was defective. Section 1447(c) states, in relevant part, that "[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). According to the Third Circuit, the "party asserting jurisdiction bears the burden of showing that at all stages of the litigation the case is properly before the federal court." Samuel-Bassett v. Kia Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004). Accordingly, on a motion to remand, the burden of demonstrating a proper basis for removal remains with the removing party. See Carroll v. United Air Lines, 7 F. Supp. 2d 516, 519 (D.N.J. 1998).

A defendant may remove a claim from a state court to federal district court if the district court has original jurisdiction. See 28 U.S.C. § 1441(a). One basis for original jurisdiction is federal question. Under 28 U.S.C. § 1331, federal courts have original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States."

Here, Plaintiff relies principally on 28 U.S.C. § 1446(b)(3), in support of his contention that Defendants' removal was untimely. Section 1446(b)(3) states:

if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

Id. Because Defendants were purportedly aware of Plaintiff's Amended Complaint on October 12, 2017, Plaintiff contends that their notice of removal was untimely since it was filed on November 14, 2017, thirty-three days after receipt of the Amended Complaint.

In determining when a complaint becomes removable to federal court, for purposes under 28 U.S.C. § 1447(c), courts in this circuit have adopted the majority rule, which states, "an amended complaint that would provide a basis for subject matter jurisdiction does not become removable until the motion to amend is granted and the amended complaint becomes effective." McDonough v. UGL Unicco, 766 F. Supp. 2d 544, 547 (E.D. Pa. 2011). This is also consistent with majority of circuits that have also addressed this issue. See Freeman v. Blue Ridge Paper Prods., 551 F.3d 405, 409-10 (6th Cir. 2008); Savilla v. Speedway Superamerica, LLC, 91 F. App'x 829, 831-32 (4th Cir. 2004); Sullivan v. Conway, 157 F.3d 1092, 1094 (7th Cir. 1998); Concordia Partners, LLC v. Pick, No. 14-09, 2014 U.S. Dist. LEXIS 112571, at *6 (D. Me. Aug. 14, 2014).

Here, the Superior Court judge granted Plaintiff's motion to amend his complaint on November 6, 2017. (ECF No. 1-2 at 12). As such, the Amended Complaint became effective, at the earliest, on that date. Therefore, guided by the majority rule, the Court is satisfied that Defendant's removal was timely, since it was made eight days after the Superior Court granted Plaintiff's motion to amend. For these same reasons Plaintiff's alternative argument that Defendants should be barred from seeking removal since it did not seek removal of the Original Complaint also fails. Because the original complaint did not allege any federal claims, Defendants lacked any basis for removal; however, when the Amended Complaint, which includes a federal cause of action, became effective, Defendants then had a legal basis for removal. Therefore, sincethe Court finds that Defendants timely removed the Amended Complaint, Plaintiff's motion to remand is denied.

II. Rule 12 (b)(6)Motion to Dismiss

Having determined that the Court has jurisdiction over the present matter, the Court next considers Defendants' cross motion to dismiss. The Court addresses each count in turn.

On a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court is required to accept as true all allegations in the Complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ...