Venson v. Pro Custom Solar LLC

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ARK VENSON, ALISSA WINFREY, AHMED SUNKINS, O'NEIL HALL, and BASIL OGUEKWE, Plaintiffs, v. RO CUSTOM SOLAR LLC d/b/a MOMENTUM SOLAR, JEFFREY ANCLIEN and BRIAN ALPER, Defendants.

Civil Action No. 19-19227 (ES) (MAH)

United States District Court, D. New Jersey

September 30, 2022

Not for Publication

OPINION

ESTHER SALAS, U.S.D.J.

Plaintiffs Mark Venson, Alissa Winfrey, Ahmed Sunkins, O'Neil Hall and Basil Oguekwe filed this putative class action on behalf of themselves and all other similarly situated employees against Defendants Pro Custom Solar LLC d/b/a/ Momentum Solar (“Momentum”), Jeffrey Anclien, and Brian Alper (collectively, “Defendants”) for alleged violations of the Civil Rights Act of 1866, 42 U.S.C. § 1981, the New Jersey Law Against Discrimination (“NJLAD”), N.J.S.A. § 10:5-12, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”). (D.E. No. 73 (“SAC”)). Before the Court is Defendants' motion to dismiss the SAC and to compel arbitration against plaintiffs Ahmed Sunkins O'Neil Hall, and Basil Oguekwe only. (D.E. No. 74 (“Motion”)). Having considered the parties' submissions, the Court decides this matter without oral argument. See Fed.R.Civ.P. 78(b); L. Civ. R 78.1(b). For the reasons set forth below, Defendants' Motion is DENIED without prejudice pending limited fact discovery on the issue of arbitrability.

I. BACKGROUND

A. Factual Allegations and Procedural History

Plaintiffs are former Momentum employees who worked in Momentum's New Jersey call center at various times from 2018 to 2020. (SAC ¶¶ 27, 39, 42, 57, 69, 77 & 81).^[1] According to the SAC, Defendants regularly subjected Plaintiffs and other “Black call center employees who worked for Momentum” to racial hostility and discrimination, including “highly offensive and patently racist comments;” lower pay than “similarly-situated white employees;” and retaliation for reporting or complaining “about Defendants' discriminatory conduct.” (Id. at 18 ¶¶ 57 & 59). Plaintiffs allege that “discrimination and retaliation are not unusual at Momentum” but are “part and parcel to its standard operating patterns.” (Id. at 19 ¶ 62).

Venson initiated this action on October 22, 2019, alleging five causes of action against Defendants on behalf of himself and “[a]ll Black call center employees who worked for Momentum out of its New Jersey call center during the full statutory period.” (D.E. No. 1 ¶¶ 57 & 89-108). The initial complaint raised claims for discrimination and retaliation under § 1981 and the NJLAD. (Id. ¶¶ 89-108). On April 2, 2021, Venson filed an amended complaint which raised two additional claims under Title VII against Momentum. (D.E. No. 43 ¶¶ 108-15). On August 30, 2021, Venson filed a motion for leave to amend the amended complaint to add four putative class members, those being Winfrey, Sunkins, Hall, and Oguekwe. (D.E. No. 57; D.E. No. 57-1 at 1). Defendants opposed, arguing in part that the claims of Sunkins, Hall, and Oguekwe would be futile because they are subject to binding arbitration. (D.E. No. 60 at 19-27). Magistrate Judge Hammer granted in part Venson's motion for leave to amend and rejected Defendants' argument “without prejudice to their right to later file a motion to compel arbitration or to dismiss the [SAC].” (D.E. No. 69 at 11).

Venson filed the SAC on November 30, 2021, adding Winfrey, Sunkins, Hall, and Oguekwe as plaintiffs. (SAC). As permitted by Judge Hammer (D.E. No. 70), the SAC asserts the following claims: (i) discrimination in violation of § 1981 against all Defendants by all Plaintiffs; (ii) retaliation in violation of § 1981 against all Defendants by Venson and Oguekwe; (iii) discrimination in violation of NJLAD against Momentum by all Plaintiffs; (iv) retaliation in violation of NJLAD against Momentum by Venson and Oguekwe; (v) aiding and abetting violations of the NJLAD against defendants Anclien and Alper by all Plaintiffs; (vi) discrimination in violation of Title VII against Momentum by Venson; and (vii) retaliation in violation of Title VII against Momentum by Venson. (SAC at 24-29 ¶¶ 89-115).

On December 8, 2021, Defendants moved to dismiss the SAC and to compel plaintiffs Sunkins, Hall, and Oguekwe to arbitrate their claims pursuant to Federal Rule of Civil Procedure 12(b)(1), or, alternatively, to dismiss the SAC pursuant to Rule 12(b)(6). (D.E. No. 74-2 (“Mov. Br.”)). The Motion is fully briefed. (D.E. No. 77 (“Opp. Br.”); D.E. No. 79 (“Reply”)).

In their moving brief, Defendants assert, and Plaintiffs do not dispute, that Oguekwe, Sunkins, and Hall executed individual arbitration agreements with Momentum on August 2, 2019, September 9, 2019, and October 19, 2019, respectively (together, the “Arbitration Agreements”).^[2] (Mov. Br. at 2; see also Opp. Br. at 2).

The Arbitration Agreements read, in relevant part:

As a condition of Your employment or continued employment with the Company, You agree that all “Covered Claims” (as defined in Section 2, arising out of or relating to Your employment relationship with the Company or the termination of that relationship, must be submitted for final and binding resolution to an impartial Arbitrator[.]

(Mov. Br. at 12 (quoting D.E. No. 60-2, Exs. A, B & C to Pelosi Cert. at 1)). Claims covered by the Arbitration Agreements include:

c. Any employment-related dispute that could be asserted in court or any disputes, claims, or controversies with any entity or individual arising out of or related to the application for employment, background checks, privacy, the employment relationship or the termination of that relationship, . . . retaliation, discrimination or harassment and claims arising under the . . . Civil Rights Act of 1964, 42 U.S.C. §1981, . . . Civil Rights Acts of 1866 and 1871, the Civil Rights Act of 1991 . . . state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to Employee's employment or the termination of employment (including, unless excluded by state or federal law, torts and postemployment defamation or retaliation); and

d. Claims made against the Company or any of its subsidiary or affiliated entities, or its individual officers, directors or employees for any matters arising out of any of the above claims.

(Id. at 14-15 (quoting D.E. No. 60-2, Exs. A, B & C to Pelosi Cert. at 1-2)).

II. LEGAL STANDARDS

A. Rule 12(b)(1) Standard

The Court can adjudicate a dispute only if it has subject matter jurisdiction to hear the asserted claims. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). “Rule 12(b)(1) governs jurisdictional challenges to a complaint.” Otto v. Wells Fargo Bank, N.A., No. 15-8240, 2016 WL 8677313, at *2 (D.N.J. July 15, 2016). “When a motion under Rule 12 is based on more than one ground, the court should consider the 12(b)(1) challenge first because if it must dismiss the complaint for lack of subject matter jurisdiction, all other defenses and objections become moot.” Dickerson v. Bank of Am., N.A., No. 12-3922, 2013 WL 1163483, at *1 (D.N.J. Mar. 19, 2013) (quoting In re Corestates Trust Fee Litig., 837 F.Supp. 104, 105 (E.D. Pa. 1993)).

B. Rule 12(b)(6) Standard

In assessing whether a complaint states a cause of action sufficient to survive dismissal under Rule 12(b)(6), the Court accepts “all well-pleaded allegations as true and draw[s] all reasonable inferences in favor of the plaintiff.” City of Cambridge Ret. Sys. v. Altisource Asset Mgmt. Corp., 908 F.3d 872, 878 (3d Cir. 2018). “[T]hreadbare recitals of the elements of a cause of action, legal conclusions, and conclusory statements” are all disregarded. Id. at 878-79 (quoting James v. City of Wilkes-Barre, 700 F.3d 675, 681 (3d Cir. 2012)). The complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,” and a claim is facially plausible when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Zuber v. Boscov's, 871 F.3d 255, 258 (3d Cir. 2017) (first quoting Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010); and then quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

While the Court generally “may not consider matters extraneous to the pleadings” when deciding a Rule 12(b)(6) motion, In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997), an exception to this general rule provides that the Court may also consider “exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010)); see also Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (noting that pursuant to Rule 12(b)(6) the Court “may consider documents that are attached to or submitted with the complaint, and any ‘matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case.'”) (first citing Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); and then quoting 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d ed. 2004)). Thus, a court may consider “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.” Fuller v. Rozlin Fin. Grp., Inc., No. 19-20608, 2020 WL 5036215, at *2 (D.N.J. Aug. 26, 2020) (quoting Clemons v. Midland Credit Mgmt., Inc., No. 18-16883, 2019 WL 3336421, at *2 (D.N.J. July 25, 2019)).

III. DISCUSSION

The ...