RASKAS v. LATTICE, INC.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

SCOTT RASKAS, 1:18-cv-10332-NLH-AMD

Plaintiff, OPINION

v.

LATTICE, INC., PAUL BURGESS,

JOSEPH NOTO, and TERRY

WHITESIDE,

Defendants.

APPEARANCES

ADAM EDWARD GERSH

FLASTER/GREENBERG PC

1810 CHAPEL AVENUE WEST

CHERRY HILL, NJ 08002

On behalf of Plaintiff

DAVID J. SPRONG

BECKER LLC

354 EISENHOWER PARKWAY

EISENHOWER PLAZA II

STE 1500

LIVINGSTON, NJ 07039

On behalf of Defendants Lattice, Inc., Paul Burgess, and

Terry Whiteside

DARREN MATHEW PFEIL

SHAMY, SHIPERS & LONSKI, P.C.

334 MILLTOWN ROAD

EAST BRUNSWICK, NJ 08816

On behalf of Defendant Joseph Noto

HILLMAN, District Judge

Plaintiff has lodged a complaint against his former employer

for violations of the federal Fair Labor Standards Act and

various New Jersey state laws. Presently before the Court are

the motions of Defendants to dismiss Plaintiff’s claims against

them. For the reasons expressed below, the Court will grant

Defendants’ motions to dismiss as to Plaintiff’s FMLA claim, and

decline to retain jurisdiction over Plaintiff’s remaining state

law claims.

BACKGROUND & DISCUSSION

Plaintiff, Scott Raskas, claims that on December 2, 2014,

he accepted employment with Defendant, Lattice Inc., as the

Director of Marketing. Plaintiff claims that he: (1) “accepted

the position on a salary basis and was supposed to be an exempt

employee”; (2) “was to work as a full-time employee at an

executive level”; (3) “in early 2016, . . . [he] took on

additional responsibilities related to selling to correctional

facilities and managing the activities of the sales team”; and

(4) he “dutifully and faithfully performed his role,” including

the additional duties “without any increase in salary.” (Amend.

Compl. at 4, Docket No. 13 at 4.)

Plaintiff alleges that even though he “routinely worked in

excess of 40 hours per week,” in December 2016, “Lattice began

withholding significant portions of [his] salary from him,”

claiming that “unfavorable business conditions [] created short-

term cash flow issues for the business.” (Id. at 5.) Plaintiff

claims that while he continued to work and perform his duties,

and despite his inquiries and complaints, “Lattice failed to pay

him the salary he was owed.” (Id.) Plaintiff claims that after

working for almost a year without his full salary, Lattice

terminated him in retaliation for filing this action to collect

his wages.1 (Id. at 5-6.) Plaintiff claims that “[p]ast due

salary owed to [him] is in excess of $100,000.00.” (Id. at 6.)

Plaintiff has filed claims against Lattice and three of its

corporate officers for breach of contract under New Jersey state

law (Count I), violations of New Jersey’s Wage and Hour Laws

(Counts II and III), violation of the Fair Labor Standards Act

(“FLSA”), 29 U.S.C. § 201, et seq. (Count IV), and retaliation

under New Jersey’s Conscientious Employee Protection Act (Count

V). Plaintiff’s purported basis for subject matter jurisdiction

is under 28 U.S.C. § 1331 for his FLSA claim, and supplemental

jurisdiction under 28 U.S.C. § 1367 for his state law claims.

Three of the Defendants – Lattice, Paul Burgess, and Terry

Whiteside - filed an answer to Plaintiff’s amended complaint,

and then, somewhat incongruously, moved to dismiss Plaintiff’s

amended complaint for lack of subject matter jurisdiction.

These Defendants argue that Plaintiff cannot maintain his FLSA

1 Plaintiff filed his original complaint on June 8, 2018 while he

was still employed with Lattice. Plaintiff claims he was

terminated on November 27, 2018.

claim because he was exempt from the FLSA overtime requirements,

and without a viable federal claim, subject matter jurisdiction

is lacking. The fourth defendant, Joseph Noto, did not file an

answer, but instead filed a motion to dismiss under Fed. R. Civ.

P. 12(b)(6).2 Plaintiff opposes Defendants’ motions, arguing

that he has properly pleaded his FLSA claim, and the issue of

whether he is exempt from the FLSA overtime requirements is a

factual issue that cannot be resolved on a motion to dismiss.

Plaintiff also refutes the other bases for dismissal argued by

Noto.

1. Standard to Apply to Defendants’ Motions

As a primary matter, there is a meaningful and significant

difference between the dismissal of a case for lack of subject

matter jurisdiction and the dismissal of a federal claim for its

failure on the merits. “‘Whether the complaint states a cause

of action on which relief could be granted is a question of law

and ... it must be decided after and not before the court has

assumed jurisdiction over the controversy. If the court does

2 In addition to challenging the substance of Plaintiff’s claims

against him, Noto argues that the Court should sua sponte impose

sanctions pursuant to Fed. R. Civ. P. 11(c) against Plaintiff

for adding him to the complaint. Rule 11(c) provides, “On its

own, the court may order an attorney, law firm, or party to show

cause why conduct specifically described in the order has not

violated Rule 11(b).” As we note infra while Plaintiff’s FLSA

count is clearly defective it is not so implausible as to

warrant sua sponte sanctions nor do we find any other grounds to

impose sanctions.

later exercise its jurisdiction to determine that the

allegations in the complaint do not state a ground for relief,

then dismissal of the case would be on the merits, not for want

of jurisdiction.’” Growth Horizons, Inc. v. Delaware County,

Pa., 983 F.2d 1277, 1280 (3d Cir. 1993) (quoting Bell v. Hood,

327 U.S. 678, 682 (1946)). “‘[D]ismissal for lack of

jurisdiction is not appropriate merely because the legal theory

alleged is probably false, but only because the right claimed is

so insubstantial, implausible, foreclosed by prior decisions of

this Court, or otherwise completely devoid of merit as not to

involve a federal controversy.’” Id. at 1280-81 (quoting Kulick

v. Pocono Downs Racing Ass'n, 816 F.2d 895, 899 (3d Cir. 1987)

(quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661,

666 (1974)).

Here, although coached in the language of a Rule 12(b)(1)

motion, the essence of the motion by Lattice, Burgess, and

Whiteside is that Plaintiff has failed to assert a plausible

FLSA claim on the facts alleged and if this count falls away no

separate basis for jurisdiction exists for the other counts.

This is a motion to dismiss for failure to state a claim, not a

motion to dismiss for lack of subject matter jurisdiction.3

3 The group of three Defendants did not assist in adding clarity

to the issues raised in their motion when they failed to cite to

any federal rule or case law to support their argument that the

Court lacks subject matter jurisdiction over Plaintiff’s case.

While as explained infra the complaint, as pled, clearly

fails to assert a FLSA claim, the Court does not conclude that

the claim is “so insubstantial, implausible, foreclosed by prior

decisions of this Court, or otherwise completely devoid of

merit” as to deprive the Court of jurisdiction. Since the three

Defendants have filed an answer, the Court will consider their

application as Rule 12(c) motion.4 In contrast, the fourth

The Court must nonetheless be careful to properly characterize

the motion before it. “A plaintiff may be prejudiced if what

is, in essence, a Rule 12(b)(6) challenge to the complaint is

treated as a Rule 12(b)(1) motion. When subject matter

jurisdiction is challenged under Rule 12(b)(1), the plaintiff

must bear the burden of persuasion. On the other hand, under

Rule 12(b)(6) the defendant has the burden of showing no claim

has been stated. . . . [T]ransforming a 12(b)(1) motion into a

12(b)(6) motion would deprive the plaintiffs of the procedural

safeguards to which they were entitled.” Kehr Packages, Inc. v.

Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) (quotations,

citations, and alterations omitted). In Kehr, the defendants

filed a motion to dismiss for lack of subject matter

jurisdiction under Rule 12(b)(1), and the district court granted

the motion because it found the RICO claims in plaintiffs'

complaints to be legally insufficient. Although the court

denominated its order as one under Rule 12(b)(1), it appeared to

dismiss the complaint under Rule 12(b)(6) for failure to state a

claim upon which relief could be granted. The Third Circuit

found that even though the plaintiffs recognized defendants’

motion to be advanced pursuant to Rule 12(b)(1), they stated

that “Plaintiffs are treating the Motion of Defendants entitled

a ‘Motion to Dismiss' as one filed under Rule 12(b)(6).” The

Third Circuit found in that situation there was no harm in

treating the district court’s dismissal as having been made

under Rule 12(b)(6). The Third Circuit stressed, however, that

challenges for failure to state a claim ordinarily should be

made under Rule 12(b)(6). Id., 926 F.2d at 1408-09.

4 Because the three Defendants filed an answer to Plaintiff’s

amended complaint (Docket No. 19), Fed. R. Civ. P. 12(b)(6) is

not an available avenue for these three Defendants to challenge

defendant, Joseph Noto, did not file an answer, but instead

filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6). The

legal standard to be applied to the two motions is the same.5

2. Assessment of Plaintiff’s FLSA claim

The Third Circuit has explained that the “‘FLSA establishes

federal minimum-wage, maximum-hour, and overtime guarantees that

cannot be modified by contract.’” Davis v. Abington Memorial

Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (quoting Genesis

Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1527 (2013)).

Under the FLSA, an employer must pay its employees at least a

specified minimum hourly wage for work performed, and the

employer must pay one and one-half times the employer’s regular

the sufficiency of Plaintiff’s pleadings. See Fed. R. Civ. P.

12(b) (“A motion asserting [the defense of failure to state a

claim] must be made before pleading if a responsive pleading is

allowed.”); Fed. R. Civ. P. 12(h)(2) (“Failure to state a claim

upon which relief can be granted . . . may be raised: (A) in any

pleading allowed or ordered under Rule 7(a); (B) by a motion

under Rule 12(c); or (C) at trial.”). As a Rule 12 motion, the

Court will not consider any of the affidavits and other

documents filed by the parties, and instead only focus on the

claims in Plaintiff’s complaint.

5 In practical effect, there is no difference between a Rule

12(b)(6) motion and a Rule 12(c) motion. See Turbe v.

Government of Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991)

(because the defendant “filed its motion after it had already

filed an answer, the motion must be considered a Rule 12(c)

motion. Nevertheless, Rule 12(h)(2) provides that a defense of

failure to state a claim upon which relief can be granted may

also be made by a motion for judgment on the pleadings. In this

situation, we apply the same standards as under Rule 12(b)(6)”).

wage for hours worked in excess of forty hours per week. Id.

(citing 29 U.S.C. §§ 206, 207). Employers who violate these

provisions are “liable to the employee or employees affected in

the amount of their unpaid minimum wages, or their unpaid

overtime compensation, as the case may be, and in an additional

equal amount as liquidated damages.” Id. (quoting § 216(b)).

Thus, to recover overtime compensation under the FLSA, “an

employee must prove that he worked overtime hours without

compensation, and he must show the amount and extent of his

overtime work as a matter of just and reasonable inference.”

Id. (citations and quotations omitted).

Certain employees are exempt from the overtime wage

requirements, however. Under 29 U.S.C. § 213(a)(1), “any

employee employed in a bona fide executive, administrative, or

professional capacity (including any employee employed in the

capacity of academic administrative personnel or teacher in

elementary or secondary schools), or in the capacity of outside

salesman (as such terms are defined and delimited from time to

time by regulations of the Secretary,” is exempt from overtime

requirements. FLSA exemptions are to be given a fair (as

opposed to narrow) interpretation, Depalma v. Scotts Company,

LLC, 2019 WL 2417706, at *5 (D.N.J. June 10, 2019) (citing

Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018)

(quoting A. Scalia & B. Garner, Reading Law 363 (2012)), and

employers bear the burden to prove that an employee qualifies

for an FLSA exemption, Depalma, 2019 WL 2417706 at *6 (citing

Mazzarella v. Fast Rig Support, LLC, 823 F.3d 786, 790–91 (3d

Cir. 2016); Martin v. Cooper Elec. Supply Co., 940 F.2d 896, 900

(3d Cir. 1991)).

In this case, Plaintiff’s FLSA claim alleges:

52. Pursuant to the Fair Labor Standards Act,

Defendants are liable to Mr. Raskas for the foregoing

conduct, including, without limitation, failing to

compensate him for overtime because he was improperly

characterized as exempt when he was not paid on a salary

basis, failing to pay him the minimum wage, and withholding

wages from him.

53. As a result of this unlawful conduct, Mr. Raskas

has suffered, and will continue to suffer, substantial

damages.

(Docket No. 13 at 8.)

Applying the Rule 12(b)(6) standard to Plaintiff’s

complaint, 6 the Court accepts as true all of Plaintiff’s

6 When considering a motion to dismiss a complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6), a court must accept

all well-pleaded allegations in the complaint as true and view

them in the light most favorable to the plaintiff. Evancho v.

Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well settled

that a pleading is sufficient if it contains “a short and plain

statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). Under the liberal federal

pleading rules, it is not necessary to plead evidence, and it is

not necessary to plead all the facts that serve as a basis for

the claim. Bogosian v. Gulf Oil Corp., 562 F.2d 434, 446 (3d

Cir. 1977). However, “[a]lthough the Federal Rules of Civil

Procedure do not require a claimant to set forth an intricately

detailed description of the asserted basis for relief, they do

require that the pleadings give defendant fair notice of what

the plaintiff’s claim is and the grounds upon which it rests.”

allegations. In doing so, Plaintiff’s own allegations compel

the conclusion that Plaintiff was an exempt employee and not

covered by the FLSA’s overtime requirements.

Plaintiff states in his amended complaint that he was a

full-time, salaried, executive, exempt “Director of Marketing”

who managed the activities of the sales team, among other

duties. (Docket No. 13 at 3-6, 8.) Plaintiff claims that over

the course of a year, Lattice underfunded Plaintiff’s salary in

excess of $100,000. (Id. at 6-7.) The Court accepts

Plaintiff’s averments about himself to be true. As such,

Plaintiff’s description of his status as an employee with

Lattice falls squarely in the FLSA’s administrative exemption or

Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3

(1984) (quotation and citation omitted). A district court, in

weighing a motion to dismiss, asks “‘not whether a plaintiff

will ultimately prevail but whether the claimant is entitled to

offer evidence to support the claim.’” Bell Atlantic v.

Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting Scheuer v.

Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft v. Iqbal,

556 U.S. 662, 684 (2009) (“Our decision in Twombly expounded the

pleading standard for ‘all civil actions’ . . . .”); Fowler v.

UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (“Iqbal . . .

provides the final nail-in-the-coffin for the ‘no set of facts’

standard that applied to federal complaints before Twombly.”).

A court need not credit either “bald assertions” or “legal

conclusions” in a complaint when deciding a motion to dismiss.

In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-

30 (3d Cir. 1997). The defendant bears the burden of showing

that no claim has been presented. Hedges v. U.S., 404 F.3d 744,

750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor,

Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).

executive exemption, or both.7

(a) The term “employee employed in a bona fide

administrative capacity” in section 13(a)(1) of the Act

shall mean any employee:

(1) Compensated on a salary or fee basis at a rate of

not less than $455 per week . . .;8

(2) Whose primary duty is the performance of office or

non-manual work directly related to the management or

general business operations of the employer or the

employer's customers; and

(3) Whose primary duty includes the exercise of

discretion and independent judgment with respect to

matters of significance.

29 C.F.R. § 541.200.

a) The term “employee employed in a bona fide executive

7 The FLSA does not define the term “executive” or

“administrative” for purposes of the exemption, but the statute

directs the Department of Labor (“DOL”) to do so by regulation.

See 29 U.S.C. § 213(a)(1). The DOL promulgated a new version of

29 C.F.R. § 541.100(a)(1) regarding the minimum salary

requirement. Langston v. Lookout Mountain Community Services,

2019 WL 2372314, at *5 (11th Cir. June 5, 2019) (citing Defining

and Delimiting the Exemptions for Executive, Administrative,

Professional, Outside Sales and Computer Employees, 81 Fed. Reg.

32,391, 32,549 (May 23, 2016) (codified at 29 C.F.R. §

541.100(a)(1)). The U.S. District Court for the Eastern

District of Texas has held this new version to be invalid. Id.

(citing Nevada v. U.S. Dep’t of Labor, 275 F. Supp. 3d 795, 807-

08 (E.D. Tex. 2017)). Although it appears that the issue is

still unresolved and winding its way through the courts, it does

not affect the Court’s analysis in this case.

8 A yearly salary at that rate totals $23,660. Plaintiff claims

that he is owed at least $100,000 over the course of a year.

Even if Plaintiff was not paid at all – a claim that Plaintiff

does not make – his salary would be at least $100,000 a year,

which readily satisfies this requirement. Failing to pay

Plaintiff his salary gives rise to a breach of contract claim.

As explained infra, it does not compel the conclusion that he

becomes a de facto hourly employee.

capacity” in section 13(a)(1) of the Act shall mean any

employee:

(1) Compensated on a salary basis at a rate of not

less than $455 per week . . . ;

(2) Whose primary duty is management of the enterprise

in which the employee is employed or of a customarily

recognized department or subdivision thereof;

(3) Who customarily and regularly directs the work of

two or more other employees; and

(4) Who has the authority to hire or fire other

employees or whose suggestions and recommendations as

to the hiring, firing, advancement, promotion or any

other change of status of other employees are given

particular weight.9

29 C.F.R. § 541.100(a).

The regulations expand on the distinction between “blue

collar” and “white collar” employees for purposes of these

exemptions. Depalma v. Scotts Company, LLC, 2019 WL 2417706, at

*4 (D.N.J. June 10, 2019). The regulations explain that the

exemptions do not apply to manual laborers or other “blue

collar” workers who perform work involving repetitive operations

with their hands, physical skill and energy. 29 C.F.R. §

9 “An employee's suggestions and recommendations may still be

deemed to have ‘particular weight’ even if a higher level

manager's recommendation has more importance and even if the

employee does not have authority to make the ultimate decision

as to the employee's change in status.” 29 C.F.R. § 541.105.

Plaintiff does not aver that he had the authority to hire or

fire employees, and he does not say he provided suggestions or

recommendations to higher level managers regarding the hiring or

firing of employees, but Plaintiff states that he managed the

sales team, which by implication infers that Plaintiff exercised

some control and influence over subordinate employees.

541.3(a). The exemptions also do not apply to law enforcement,

firefighters, or paramedics, no matter their rank or how highly

they are paid. 29 C.F.R. § 541.3(b).

Plaintiff argues that he qualifies for the overtime wage

requirements under the FLSA because even though he was

“supposed” to be an exempt executive, the non-payment of his

full salary rendered him to be “improperly characterized as

exempt.” (Docket No. 13 at 8.) This position as alleged in

Plaintiff’s amended complaint is without merit.10

Accepting as true that Defendants did not pay Plaintiff his

full salary, that circumstance does not convert his executive

level position into a nonexempt, non-executive, “blue collar”

position. The regulations do not say that if an exempt employee

is not paid his full salary for whatever reason, that employee

is then considered to be nonexempt. Instead, “exempt or

nonexempt status of any particular employee must be determined

on the basis of whether the employee’s salary and duties meet

the requirements of the regulations in this part.” 29 C.F.R. §

541.2.

Regarding Plaintiff’s salary, Plaintiff does not plead the

10 In his opposition brief, Plaintiff contends that subject

matter jurisdiction may be premised on his FLSA retaliation

claim because his status as exempt or nonexempt is not material

to that analysis. Plaintiff, however, has not asserted an FLSA

retaliation claim in his amended complaint.

specific salary he was being paid, but he claims that over a

year Defendants withheld $100,000 of his salary. As noted

above, see supra note 8, to qualify as exempt, an employee must

earn at least $455 a week, which amounts to $23,660 a year. The

amount of salary allegedly withheld from Plaintiff shows that

his total salary easily meets that requirement.11 Additionally,

Plaintiff alleges that Defendants failed “to pay him the minimum

wage” (Docket No. 13 at 8, emphasis added), which in New Jersey

was $8.85 prior July 1, 2019.12 Plaintiff, however, provides no

factual support for that allegation.13 To the extent that

Plaintiff alleges that he was not paid his minimum wage,

Plaintiff fails to plead the amount of his hourly wage. Both of

these deficiencies do not meet the pleading standards under

Twombly/Iqbal.

As for the alleged overtime Plaintiff worked, Plaintiff

11 The provision that is currently subject to an injunction

barring enforcement, see supra note 7, which further provides,

“As of December 1, 2016, and until a new rate is published in

the Federal Register by the Secretary, [an exempt executive,

administrative or professional employee under section 13(a)(1)

of the Act] must be compensated on a salary basis at a rate per

week of not less than $913.” 29 C.F.R. § 541.600. That rate

amounts to an annual salary of $47,476. Plaintiff’s salary

would still qualify under this provision.

12 See https://www.nj.gov/labor/wagehour/content/general_

information.html.

13 The minimum wage paid for 40 hours of work for 52 weeks totals

$18,408 a year.

alleges, “Mr. Raskas routinely worked in excess of 40 hours per

week.” (Docket No. 13 at 4.) This allegation is also

insufficiently pleaded. See Davis v. Abington Memorial Hosp.,

765 F.3d 236, 242 (3d Cir. 2014) (concluding that the

plaintiffs’ allegations were insufficient because “[n]one of the

named plaintiffs has alleged a single workweek in which he or

she worked at least forty hours and also worked uncompensated

time in excess of forty hours,” and “[o]f the four named

plaintiffs who allege that they ‘typically’ worked at least

forty hours per week, in addition to extra hours ‘frequently’

worked during meal breaks or outside of their scheduled shifts .

. . none indicates that she in fact worked extra hours during a

typical (that is, a forty-hour) week”).

Regarding Plaintiff’s duties, he refers to himself as an

executive “Director of Marketing” who managed the activities of

the sales team and assumed additional responsibilities related

to selling to correctional facilities. Plaintiff does not

allege that he performed any “blue collar” or other duties that

would fall outside the scope of the FLSA overtime wage

exemptions.14

14 To qualify for exemption:

[A]n employee's “primary duty” must be the performance of

exempt work. The term “primary duty” means the principal,

main, major or most important duty that the employee

performs. Determination of an employee's primary duty must

In sum, Plaintiff is a self-described executive who was

hired as an exempt employee on a salary basis. When Plaintiff

learned of Lattice’s alleged financial difficulties, and was

informed that Lattice could not pay him his full salary,

Plaintiff voluntarily continued to work there for two years.15

Plaintiff may be entitled to the salary he earned under the

terms and conditions of his employment, but he has failed to

state a viable claim that he is a non-exempt employee entitled

to overtime pay under the FLSA.

Consequently, the Court will dismiss Plaintiff’s FLSA

claim. Because the remaining claims in Plaintiff’s complaint

sound under New Jersey state law and there is no independent

basis for subject matter jurisdiction absent the dismissed FLSA

claim, the Court will decline to exercise supplemental

be based on all the facts in a particular case, with the

major emphasis on the character of the employee's job as a

whole. Factors to consider when determining the primary

duty of an employee include, but are not limited to, the

relative importance of the exempt duties as compared with

other types of duties; the amount of time spent performing

exempt work; the employee's relative freedom from direct

supervision; and the relationship between the employee's

salary and the wages paid to other employees for the kind

of nonexempt work performed by the employee.

29 C.F.R. § 541.700.

15 Plaintiff’s amended complaint alleges that he was not paid his

full salary for over a year, but Plaintiff alleges the salary

reduction began in December 2016 and continued until he was

terminated on November 27, 2018. (Docket No. 13 at 5.)

jurisdiction over those claims.16 28 U.S.C. § 1367(c)(3).

CONCLUSION

For the foregoing reasons, Defendants’ motions to dismiss

will be granted. An appropriate Order will be entered.

Date: July 3, 2019 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

16 “In enacting section 1367, Congress intended to enhance a

district court's ability to gain jurisdiction over pendent

claims and parties while providing those courts with the

discretion to decline to exercise supplemental jurisdiction in

several express circumstances.” De Asencio v. Tyson Foods,

Inc., 342 F.3d 301, 308 (3d Cir. 2003). Importantly, pendent

jurisdiction is a doctrine of discretion, not a plaintiff's

right. See id. (citing United Mine Workers of Am. v. Gibbs, 383

U.S. 715, 726 (1966)). A district court may decline to exercise

supplemental jurisdiction where it “has dismissed all claims

over which it has original jurisdiction.” 28 U.S.C. §

1367(c)(3).