KEATON v. ARGO TURBOSERVE CORPORATION

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CLYDE KEATON, Civil Action No.: 2:17-cv-03978 (CCC-JBC)

Plaintiff,

v.

OPINION

ARGO TURBOSERVE CORPORATION, et

al.,

Defendants.

CECCHI, District Judge.

This matter comes before the Court by way of the motion to dismiss (ECF No. 108

(“Mot.”)) Plaintiff Clyde Keaton’s (“Plaintiff”) Third Amended Complaint (ECF No. 107

(“TAC”)) pursuant to Federal Rule of Civil Procedure 12(b)(6), filed by Defendant Argo

Turboserve Corporation (“ATC”) and Defendants John Calicchio, Lisa Jackson, Tate Jackson, and

Quinn Jackson (the “Individual Defendants,” together with ATC, “Defendants”). The Court

decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78(b). After

reviewing the submissions made in support of and in opposition to the instant motion (ECF Nos.

110 (“Opp.”), 111 (“Reply”)) and for the reasons set forth below, Defendants’ motion is granted

in part and denied in part.

I. BACKGROUND

The instant action arises out of Plaintiff’s termination by ATC under the “for cause”

provision of his employment contract. Plaintiff asserts, however, that he was actually terminated

“without cause.” His core complaint is that, by improperly branding his termination as “for cause,”

ATC denied him various bonus payments. Plaintiff also asserts that his termination was in

retaliation for his objections to occupational safety hazards, and that ATC failed to pay back a loan

and some deferred compensation.

a) Factual Background

Plaintiff founded ATC, a global supply chain services management company, in 1996 and

served as its President and Chief Executive Officer until February 2017. TAC ¶ 12. Throughout

his tenure, Plaintiff received a series of employment contracts from ATC. Id. ¶ 16. The most recent

contract between the parties (the “Employment Contract”) was agreed to in February of 2014, and

it provided, inter alia, that either party may terminate the contract before it expired on December

31, 2018. Id. ¶¶ 17–18. ATC could terminate the contract “for cause” or “without cause”; Plaintiff

was entitled to additional compensation if terminated “without cause.” Id. ¶¶ 19–20.

By letter dated February 1, 2017, ATC notified Plaintiff of its decision to terminate him

“for cause.” Id. ¶ 21. Accordingly, ATC did not provide Plaintiff various retirement bonuses or

termination bonuses due under the “without cause” provisions of the Employment Contract. Id. ¶

51. Plaintiff claims that ATC’s explanations for terminating him did “not fit the contractual

definition of ‘for cause,’ or are pure pretexts for removing [Plaintiff] without paying him the

compensation he is due under the ‘without cause’ provisions of the contract.” Id. ¶ 25. Plaintiff

also claims that his termination was in retaliation for his objections to hazardous conditions at one

of ATC’s subsidiary’s facilities. Id. ¶¶ 90–91. Plaintiff points to his termination letter, which states

that his termination was based in part on his approval of a new lease for one of ATC’s subsidiaries

in Houston, Texas, executed on May 29, 2015. Id. ¶¶ 33, 35. Plaintiff alleges that ATC’s

subsidiary required the new lease because its previous space (the “Houston Facility”) was

inadequately small, thus endangering company employees and placing ATC in jeopardy of

receiving health and safety violations. Id. ¶¶ 36, 88. Plaintiff claims that he raised his concerns to

the Board of Directors and refused to permit the hazardous conditions to continue by leasing a

larger space, with the Board’s approval. Id. ¶¶ 33, 38, 78.

In addition to denying him benefits due under a “without cause” termination, ATC

allegedly did not pay Plaintiff back for a loan he made to an affiliated entity and for bonuses that

he deferred to assist with ATC’s cash flow. Specifically, in 2014, he deferred the entirety of his

previous year’s bonus (totaling $1,150,000) and, in 2015, Plaintiff deferred a portion of his

previous year’s bonus (totaling $400,00). Id. ¶¶ 43–45. He has not received these deferred bonuses

from ATC. Id. ¶ 73. Additionally, on or about November 2016, ATC’s Chief Financial Officer

(the “CFO”) asked Plaintiff to wire $1,500,000 to Maxus Capital Group, LLC (“Maxus”), a

creditor of ATC, and represented to Plaintiff that any funds paid by him to Maxus would be repaid

to Plaintiff by the end of 2016. Id. ¶ 41. On November 4, 2016, Plaintiff wired $1,500,000 to

Maxus (the “Maxus Payment”). Id. ¶ 42. ATC has repaid Plaintiff $700,000 of the Maxus

Payment, and there remains a balance outstanding of $800,000. Id. ¶ 43.

b) Procedural Background

Plaintiff initiated this action on June 2, 2017, against ATC, the Individual Defendants, and

other unnamed individuals. ECF No. 1. Since then, the Court has granted Plaintiff multiple

opportunities to amend his complaint, to add relevant factual allegations, clarify claims, and assert

new claims. See ECF Nos. 19 (granting Plaintiff leave to file the First Amended Complaint), 43

(granting Plaintiff leave to file the Second Amended Complaint), 57 (granting Plaintiff leave to

file the corrected Second Amended Complaint), 106 (granting Plaintiff leave to file the Third

Amended Complaint). The Court has not yet adjudicated the merits of Plaintiff’s claims.

On October 29, 2020, Plaintiff filed the operative Third Amended Complaint. ECF No.

107. He asserts ten causes of action: (1) breach of the Employment Contract as to ATC; (2) breach

of contract as to ATC for failure to repay funds advanced by Plaintiff to Maxus; (3) breach of

contract as to ATC by equitable subrogation to the rights of Maxus; (4) unjust enrichment as to all

Defendants; (5) tortious interference with contractual relations as to the Individual Defendants;

(6) retaliation under the Conscientious Employee Protection Act (“CEPA”), N.J.S.A. 34:19-1, et

seq. as to all Defendants; (7) common law wrongful discharge as to all Defendants; (8) breach of

the implied covenant of good faith as to ATC; (9) declaratory judgment as to ATC; and (10) civil

conspiracy as to the Individual Defendants. Id. On November 12, 2020, Defendants filed the

instant motion to dismiss under Rule 12(b)(6). ECF No. 108. Therein, Defendants also request an

award of attorneys’ fees and costs. Id. at 30. Plaintiff filed an opposition on December 7, 2020

(Opp.), to which Defendants replied on December 14, 2020 (Reply).

II. LEGAL STANDARD

For a complaint to survive dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6),

it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). In evaluating the sufficiency of a complaint, the Court must accept all well-

pleaded factual allegations in the complaint as true and draw all reasonable inferences in favor of

the non-moving party. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).

“Factual allegations must be enough to raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555. “A pleading that offers ‘labels and conclusions . . . will not do.’ Nor

does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”

Iqbal, 556 U.S. at 678 (citations omitted). However, “the tenet that a court must accept as true all

of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals

of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

Thus, when reviewing complaints for failure to state a claim, district courts should engage in a

two-part analysis: “First, the factual and legal elements of a claim should be separated . . . .

Second, a District Court must then determine whether the facts alleged in the complaint are

sufficient to show that the plaintiff has a ‘plausible claim for relief.’” Fowler v. UPMC Shadyside,

578 F.3d 203, 210–11 (3d Cir. 2009) (citations omitted).1

III. DISCUSSION

The Court finds, as explained below, that the Third Amended Complaint sufficiently states:

breach of contract claims under Counts One and Two, an unjust enrichment claim under Count

Four, a tortious interference claim under Count Five, a claim for a violation of CEPA under Count

Six, and a civil conspiracy claim under Count Ten. Id. Plaintiff’s equitable subrogation claim

under Count Three is dismissed because Plaintiff fails to allege a right to subrogation. Counts

Seven through Nine are also dismissed, as they include duplicative claims.

a) Count One: Breach of the Employment Contract as to ATC

Under Count One, Plaintiff asserts a breach of contract claim against ATC, alleging that it

failed to provide him a series of payments under the Employment Contract by improperly branding

his separation from the company as a “for cause” termination. TAC ¶¶ 46–53. To establish a claim

for breach of contract, a plaintiff must show: (1) the existence of a valid contract; (2) a breach of

that contract; (3) resulting damages; and (4) that the plaintiff performed its own contractual

obligations. Frederico v. Home Depot, 507 F.3d 188, 203 (3d Cir. 2007).2 ATC contests only the

1 When assessing a motion to dismiss under Rule 12(b)(6), this Court is limited to considering the

allegations in the complaint, exhibits attached to the complaint, matters of public record, and

undisputedly authentic documents on which a plaintiff’s claims are based. Pension Benefit Guar.

Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).

2 As a preliminary matter, Plaintiff argues that Federal Rule of Civil Procedure 12(g)(2) bars ATC

from raising a defense to Counts One, Two, Three, and Eight because ATC did not move to dismiss

those claims in Plaintiff’s initial complaint despite having the opportunity to do so. See Opp. at 19,

22, 24–25. Rule 12(g)(2) generally prohibits a party from “raising a defense or objection that was

available to the party but omitted from its earlier motion.” Fed. R. Civ. Pr. 12(g)(2); see Leyse v.

Bank of Am. Nat. Ass’n, 804 F.3d 316, 320 (3d Cir. 2015). However, where, as here, “an amended

complaint contains new factual allegations in support of a claim, Rule 12(g)(2) does not apply and

the defendant may raise new defenses and objections to that claim.” Bhatti v. Republican Caucus

of Pennsylvania House of Representatives, No. 18-2178, 2020 WL 3412661, at *3 (M.D. Pa. June

22, 2020) (citation omitted); see Kroger Co. v. New Enter. Stone & Lime Co., 2018 WL 4615955,

second and fourth elements. Mot. at 22–24. The Court finds that all four elements are sufficiently

pleaded here.

First, Plaintiff pleads the existence of a valid contract: the Employment Contract. TAC ¶

16. Next, in support of the second element, Plaintiff alleges that ATC improperly terminated him

“for cause” and failed to pay him bonuses due under provisions of the Employment Contract that

provide for additional compensation if he is terminated “without cause.” Id. ¶ 20. He also includes

specific references to his termination letter and explains why the reasons stated therein did not

constitute “cause” for termination. TAC ¶¶ 26–34. By identifying the contractual provisions

allegedly breached by ATC’s conduct and explaining why those provisions were breached,

Plaintiff has met the second element. See Potter v. Newkirk, No. 17-08478, 2020 WL 6144756, at

*13 (D.N.J. Oct. 20, 2020) (“Under New Jersey law, a complaint alleging breach of contract must,

at a minimum, identify the contracts and provisions breached.”) (internal citation and quotations

omitted); Video Pipeline, Inc. v. Buena Vista Home Ent., Inc., 210 F. Supp. 2d 552, 561–62 (D.N.J.

2002) (defendant-counterclaimant met second element because it alleged specific contractual

provisions breached by the plaintiff’s conduct).

at *2 (E.D. Pa. Sept. 25, 2018) (“[W]hen a plaintiff’s amended complaint contains new factual

averments, Rule 12(g)(2) does not apply and defendants are entitled to challenge with another Rule

12(b)(6) motion.”). Because Plaintiff has added new factual allegations in support of his breach

of contract, tortious interference, and breach of implied covenant of good faith claims since the

filing of the initial complaint, Rule 12(g)(2) is inapplicable and the Court may consider ATC’s

objections. See Bhatti, 2020 WL 3412661, at *3; Kroger Co., 2018 WL 4615955, at *2. Moreover,

as to Count Three, Plaintiff did not assert the equitable subrogation claim at issue until his Second

Amended Complaint. ECF No. 45. And once the defense was available, Defendants asserted (in

their Motion to Dismiss the Second Amended Complaint) that Count Three should be dismissed

because Plaintiff has failed to state a breach of contract claim by Maxus against ATC. ECF No.

46-2 at 30.

Third, Plaintiff alleges that, as a result of ATC’s breach, he suffered monetary damages,

including the loss of bonus payments to which he was entitled under a “without cause” termination.

TAC ¶¶ 50–53.

With regard to the fourth element, Plaintiff alleges that he “performed all of his obligations

under the Employment Contract.” Id. ¶ 47. Although ATC argues that Plaintiff’s allegation is

conclusory and unsupported by sufficient factual allegations (Mot. at 23), Plaintiff has alleged

facts that, at a minimum, suggest his own performance under the contract. See Bittner v. Waterford

Twp. Sch. Dist., No. 18-12084, 2021 WL 1382156, at *3 (D.N.J. Apr. 13, 2021) (finding that the

plaintiff met the fourth element because it “alleged facts that suggest that it performed its

obligations under the [applicable a]greement”). Namely, Plaintiff has alleged that “as ATC’s

president, [he] successfully grew the company over two decades into an operation with four

distinct divisions that generated total annual revenues of over $300 million.” TAC ¶ 15. He also

fervently denies ATC’s assertions that he: (1) failed to devote his time, skills, energy and ability

as required under Article One of the Employment Contract; (2) engaged in acts of insubordination;

(3) failed to obtain board approval for a venture in Italy; (4) improperly disclosed the sale of one

of ATC’s divisions; or engaged in any conduct that may constitute cause for his termination. Id.

¶¶ 29–32. By contrast, in Rotante v. Franklin Lakes Board of Education, the plaintiff failed to

meet the fourth element because he “fail[ed] to provide any facts which point to the Plaintiff

performing his own contractual duties,” and instead argued that he had no duty to perform after

the defendant had allegedly breached the agreement. No. 13–3380, 2014 WL 6609034, at *7

(D.N.J. Nov. 20, 2014). Therefore, in consideration of the Court’s obligation to resolve all

reasonable inferences in favor of Plaintiff, the fourth element is satisfied.

Accordingly, Plaintiff has stated a claim for breach of the Employment Contract, and the

motion to dismiss Count One is denied.

b) Count Two: Breach of Contract as to ATC for Failure to Repay Maxus Loan

Under Count Two, Plaintiff alleges another breach of contract claim against ATC,

asserting that it failed to pay back funds that he advanced to Maxus on ATC’s behalf. TAC ¶¶ 54–

59. Plaintiff alleges that he “and ATC have an agreement that requires ATC to pay back the funds

which [Plaintiff] advanced to Maxus on ATC’s behalf” (TAC ¶ 55), an agreement separate from

the Employment Contract (see Opp. at 26).

ATC argues that Plaintiff has failed to plead the first element of a contract claim, the

existence of a contract, because Plaintiff voluntarily made the Maxus Payment and did not obtain

board approval before doing so. Mot. at 19–20. Under New Jersey law, “[a] contract arises from

offer and acceptance, and must be sufficiently definite ‘that the performance to be rendered by

each party can be ascertained with reasonable certainty.’ Thus, if parties agree on essential terms

and manifest an intention to be bound by those terms, they have created an enforceable contract.”

Mendonca & Partners, LLC v. Prakash Baskaran, Pawaa, Inc., No. 16-639, 2016 WL 3769749,

at *1–2 (D.N.J. July 13, 2016) (quoting West Caldwell v. Caldwell, 26 N.J. 9, 24–25 (1958)).

Here, ATC’s CFO allegedly requested that Plaintiff wire $1,500,000 to Maxus, to avoid a

default by ATC and a resulting freeze of its bank accounts, and represented to Plaintiff that the

funds would be paid back to him by the end of 2016 if he completed the wire. TAC ¶¶ 40–41.

Plaintiff alleges that he accepted the offer, “in furtherance of and in order to protect his interest as

an officer and employee of ATC,” by wiring $1,500,000 to Maxus on November 4, 2016. Id. ¶¶

42, 62. By specifying the price ($1,500,000) and duration of the contract (“by the end of 2016”),

Plaintiff has identified its essential terms. See Baer v. Chase, 392 F.3d 609, 619 (3d Cir. 2004)

(classifying price term and duration as essential terms of contracts). Plaintiff’s allegations indicate

that the parties agreed on these essential terms, manifested an intention to be bound by those terms

and thus, created an enforceable contract. See Weichert Co. Realtors v. Ryan, 128 N.J. 427 (N.J.

1992). While the parties disagree over whether board approval was necessary for the loan at issue

and whether there was a sufficient bargained-for exchange, at this stage, all reasonable inferences

and uncertainties in contractual language must be construed in Plaintiff’s favor. See Phillips, 515

F.3d at 234.

Therefore, Plaintiff has stated a claim for breach of a loan agreement related to the Maxus

Payment, and Count Two may proceed.3

c) Count Three: Breach of Contract as to ATC by Equitable Subrogation

Under Count Three, Plaintiff asserts a breach of contract claim against ATC by equitable

subrogation to the rights of Maxus. TAC ¶¶ 60–69. Plaintiff asserts that equitable subrogation is

warranted here because he made a payment to Maxus at ATC’s request, to avoid a default by ATC

under a Maxus financing agreement. Id. ¶ 40; see id. ¶¶ 62, 66. As explained by the Third Circuit

Court of Appeals:

Subrogation itself is not unusual; in general terms, it “simply means substitution of one

person for another; that is, one person is allowed to stand in the shoes of another and assert

that person’s rights against a third party.” US Airways v. McCutchen, 569 U.S. 88, 97 n.5,

(2013). Most often, it arises in the insurance context as a procedural mechanism to allow

an insurer (the subrogee) to step into the shoes of its insured (the subrogor) after it has

compensated the insured for harm caused by a third party. The subrogee, having stepped

into the shoes of the subrogor, is entitled to assert all of the subrogor’s rights and claims

against the responsible third party.

In re Frescati Shipping Co., Ltd., 886 F.3d 291, 309 (3d Cir. 2018), aff’d sub nom. CITGO Asphalt

Ref. Co. v. Frescati Shipping Co., Ltd., 140 S. Ct. 1081 (2020).

Here, Plaintiff (the subrogee) is attempting to step into the shoes of Maxus (the subrogor)

to assert a breach of contract claim against ATC. However, Plaintiff fails to sufficiently allege a

breach of contract claim that could be asserted by Maxus against ATC. Although Plaintiff

3 Because the Court finds that Plaintiff stated a claim under a standard breach of contract theory,

it need not address Plaintiff’s alternative argument that he stated a claim under an implied-in-law

contract theory. See Opp. at 23.

references a “financing agreement” between Maxus and ATC, he does not identify any contractual

provisions breached by ATC’s conduct. See Potter, 2020 WL 6144756 at *13 (dismissing breach

of contract claim because Plaintiff failed to identify the provisions of the contract that Defendant

breached, and only asserted conclusory allegations that Defendant breached by performing certain

actions). Nor does he allege that Maxus performed its obligations under the agreement between it

and ATC. See Frederico, 507 F.3d at 204. Accordingly, Plaintiff has failed to allege a right to

subrogation and Count Three is dismissed. See Holloway v. State, 125 N.J. 386, 398 (1991) (“The

fundamental principle of subrogation is that the subrogee’s rights rise no higher than those of the

subrogor.”); Feigenbaum v. Guaracini, 402 N.J. Super. 7, 22 (N.J. Super. 2008) (the “right of

subrogation . . . depends on the merits of the [subrogor’s] claim . . . and that claim is subject to all

defenses which [the third party] had against claims of the [subrogor]”) (citing Holloway, 125 N.J.

at 396).

d) Count Four: Unjust Enrichment as to All Defendants

Under Count Four, Plaintiff asserts an unjust enrichment claim against all Defendants,

alleging that the retention of his deferred compensation and the failure to repay the Maxus Loan

conferred an unjust benefit on ATC and its shareholders. TAC ¶¶ 70–76. Defendants argue that

Plaintiff has failed to establish the prima facie elements of an unjust enrichment claim, that the

claim is barred by virtue of the Employment Contract, and that the Individual Defendants are not

liable for ATC’s failure to repay Plaintiff. Mot. at 24–26. The Court addresses each argument in

turn below.

First, the Court finds that Plaintiff has sufficiently stated a claim for unjust enrichment

based on ATC’s failure to repay him the entirety of the Maxus Payment and his deferred bonuses

from 2013 and 2014. Under New Jersey law, “[t]o state a claim for unjust enrichment, a plaintiff

must show that ‘(1) at plaintiffs expense (2) defendant received [a] benefit

(3) under circumstances that would make it unjust for defendant to retain [the] benefit without

paying for it.’” Read v. Profeta, 397 F. Supp. 3d 597, 643 (D.N.J. 2019) (quoting Arlandson v.

Hartz Mt. Corp., 792 F. Supp. 2d 691, 711 (D.N.J. 2011)).

The first element is met here – it is uncontested that the Maxus Payment and deferred

bonuses were made at Plaintiff’s expense. See Mot. at 25–26. Further, Plaintiff satisfies the second

element by alleging that the “the deferral and Maxus Payment benefitted ATC and its

shareholders” (TAC ¶ 73) and specifically explaining that the Maxus Payment allowed ATC to

avoid default and “a resulting freeze of ATC’s bank accounts feared by ATC’s Chief Financial

Officer” (id. ¶ 40; see also id. ¶¶ 44–45 (the deferred bonuses assisted with ATC’s cash flow)).

The third element is also met. Plaintiff alleges that ATC’s CFO requested the Maxus Payment and

promised him that the entirety of the loan would be repaid. Plaintiff sufficiently alleges that it

would be unjust for ATC to repay only $700,000 of the Maxus Payment, in contravention to the

promises of its CFO. Likewise, Plaintiff adequately alleges that it would be unjust for ATC to

retain bonuses, which he was entitled to and were deferred to assist with the corporation’s cash

flow. Therefore, Plaintiff has stated a claim for unjust enrichment. See Mendonca & Partners,

LLC v. Prakash Baskaran, Pawaa, Inc., No. 16-639, 2016 WL 3769749, at *3 (D.N.J. July 13,

2016) (allowing unjust enrichment claim to proceed because the complaint “alleges that the

defendants represented that they would pay plaintiffs and give them equity interests for services

and other benefits conferred,” but they did not do so).4

4 Plaintiff may assert both a breach of contract and an alternative unjust enrichment claim against

ATC because ATC contests the validity of the supposed loan agreement between itself and

Plaintiff. See Grudkowski, 556 F. App’x at 170, n.8 (“[P]leading both breach of contract and unjust

enrichment is plausible only when the validity of the contract itself is actually disputed, making

unjust enrichment a potentially available remedy.”).

Next, insofar as Defendants assert that the Employment Contract bars the unjust

enrichment claim, the Court finds that it is unclear whether the Contract governs the benefits at

issue. The Third Circuit has held that “[r]ecovery under unjust enrichment may not be had when

a valid, unrescinded contract governs the rights of the parties.” Van Orman v. Am. Ins. Co., 680

F.2d 301, 310 (3d Cir. 1982). Here, Plaintiff claims that he conferred three benefits on Defendants:

(1) he made a payment to Maxus, which was promised by ATC to be repaid to him, and there

remains a balance of $800,000; (2) he “deferred a $1,150,000 bonus for 2013,” which was never

repaid; and (3) he “deferred a portion of his bonus earned in the year 2014” for $400,000 that was

never repaid. TAC ¶¶ 41–45.

The Employment Contract states under article 4(B)(e) that Plaintiff’s “annual bonus shall

be paid by Argo Turboserve no later than December 31 of the calendar year following the calendar

year for which the annual bonus is payable.” ECF No. 108-2 at 27. Article 2(D) states that “Keaton

will be reimbursed for reasonable business expenses, consistent with [ATC] policies regarding the

reimbursement of expenses . . . upon submission of appropriate documentation.” Id. at 26.

However, it is unclear whether the Employment Contract covered the deferment of bonuses and

whether such deferments qualify as a “reasonable business expense.” It is also unclear whether

the Employment Contract covered the Maxus Payment. Defendants point to article 2(B)(e) of the

Employment Contract, which states that, “[e]xcept for the assumption of trade debt in the ordinary

course (i.e., accounts payable), the approval of the Board will be required for the assumption of

any debt that is not on Argo Turboserve’s balance sheet as of December 31, 2013.” ECF No. 108-

2 at 25. Plaintiff argues that the term “assumption of debt” addresses only the assumption of new

debt, meaning that the Maxus Payment was excluded from the Employment Contract because it

only changed creditors. See Opp. at 22; TAC ¶ 40 (describing Maxus as a past creditor). Even

though ATC interprets article 2(B)(e) as covering all assumptions of debt (Mot. at 20),

uncertainties in contractual language must be resolved in Plaintiff’s favor at this stage. Plaintiff

has put forth sufficient facts to allow the Court to reasonably infer that the Employment Contract

does not govern the Maxus Payment or deferred bonuses. As such, the Employment Contract does

not bar Plaintiff’s restitution claim. See Horgan Bros., Inc. v. Monroe Prop., LLC, No. 07–3028,

2011 WL 794389, at *5 (D.N.J. Feb. 28, 2011) (an unjust enrichment claim may arise from a

relationship governed by a valid contract if certain benefits conferred upon the defendant extended

beyond the scope of the contract).

Lastly, the Court finds that the Individual Defendants may be held liable for unjust

enrichment. To succeed on an unjust enrichment claim, Plaintiff must allege that he expected

compensation from the Individual Defendants at the time of performance. See VRG Corp. v. GKN

Realty Corp., 641 A.2d 519, 526 (N.J. 1994). The Individual Defendants argue for dismissal of

the unjust enrichment claim because Plaintiff expected compensation from ATC, not them, at the

time of performance. Mot. at 26, n.5. However, Plaintiff sufficiently alleges that any compensation

expected from ATC (a closely held company) was also expected from the Individual Defendants

(the board members and shareholders of ATC). Furthermore, Plaintiff adequately alleges a course

of dealings with, and connection to, the Individual Defendants. See Stewart v. Beam Glob. Spirits

& Wine, Inc., 877 F. Supp. 2d 192, 197 (D.N.J. 2012) (“[T]he recognition that ‘some direct

relationship’ should exist between the parties to an unjust enrichment claim simply reflects the

need to curtail the reach of this equitable remedy—a so called ‘legal fiction’—to prevent a finding

of liability in cases where the defendant had absolutely no course of dealings with, and no other

demonstrated connection to, the plaintiff.”) (quoting Callano v. Oakwood Park Homes Corp., 91

N.J. Super. 105, 219 A.2d 332, 335 (N.J. 1966)).5

5 The Individual Defendants argue that, because Plaintiff seeks to hold them liable in their role as

shareholders, his claim against them is barred absent allegations of fraud or wrongdoing on their

Accordingly, the motion to dismiss Count Four is denied.

e) Count Five: Tortious Interference with Contractual Relations as to the

Individual Defendants

Under Count Five, Plaintiff asserts a tortious interference with contractual relations claim

against the Individual Defendants. TAC ¶ 80. “Under New Jersey law, there are five elements of

a claim for tortious interference with a contractual relationship: (1) plaintiff[’s] existing or

reasonable expectation of economic benefit or advantage; (2) a defendant’s knowledge of the

plaintiff’s expectancy; (3) wrongful and intentional interference with that expectancy by the

defendant; (4) a reasonable probability that the plaintiff would have received the anticipated

economic advantage absent such interference; and (5) damages resulting from the defendant's

interference.” SalandStacy Corp. v. Freeney, No. 11-3439, 2012 WL 959473, at *13 (D.N.J. Mar.

21, 2012) (citing DeJoy v. Comcast Cable Communs., 941 F. Supp. 468, 476–77 (D.N.J. 1996)).

The Individual Defendants do not appear to dispute that all five elements are pleaded here.

See Mot. at 15–16. They argue instead that Count Five must be dismissed because they were

acting as agents of ATC when recommending Plaintiff’s termination. Mot. at 15–16. However, a

claim for tortious interference may go forward if the defendant-agent was acting “outside the scope

of his employment and/or for his own personal gain.” Marrero v. Camden Cty. Bd. of Soc. Servs.,

164 F. Supp. 2d 455, 478 (D.N.J. 2001) (quoting Horvath v. Rimtec Corporation, 102 F. Supp. 2d

part. Reply at 10; see Wolinetz v. Weinstein, No. 08-5046, 2019 WL 1615134, at *5 (D.N.J. Apr.

16, 2019) (allowing unjust enrichment claim to proceed against defendant entity but dismissing

claim against individual defendant at summary judgment “because the evidence does not suggest

fraud or other wrongdoing on his part.”). Here, the Court finds sufficient allegations of

wrongdoing by the Individual Defendants to overcome dismissal at this stage. See infra Section

III(e); Equiom (Isle of Man) Ltd. v. Jacobs, No. 16-4362, 2017 WL 6550481, at *5 (D.N.J. Dec.

22, 2017) (allowing unjust enrichment claim to proceed, despite the lack of a direct relationship

between plaintiff and defendants, because Plaintiff’s allegations indicated that the defendants were

not in “the class of innocent, attenuated third parties the direct relationship requirement is intended

to protect”).

219, 236 (D.N.J. 2000)).6 Here, Plaintiff explicitly alleges that the Individual Defendants

“benefitted personally and directly from directing [Plaintiff’s] termination without cause,” (TAC

¶ 82) and “acted outside the scope of their employment, for personal gain and out of malice toward

[Plaintiff]” (id. ¶ 84). Moreover, Plaintiff explains that the Individual Defendants stood to

personally benefit from their recommendation because the termination benefits due to Plaintiff

under a ‘without cause’ termination “flow instead to the Individual Defendants as shareholders”

under a ‘for cause’ termination. Id. ¶ 81. These allegations are sufficient to overcome dismissal at

this point in the proceeding. See DeJoy v. Comcast Cable Commc’ns Inc., 941 F. Supp. 468, 477

(D.N.J. 1996) (plaintiff’s tortious interference claims against co-workers allowed to proceed

because plaintiff alleged that defendant-co-workers acted for personal gain and advancement).

Accordingly, Plaintiff states a claim for tortious interference under Count Five against ATC

and the Individual Defendants.

f) Count Six: Violation of the Conscientious Employee Protection Act as to all

Defendants

Under Count Six of the Third Amended Complaint, Plaintiff alleges that all Defendants

violated CEPA by terminating Plaintiff in retaliation for his objections to, and failure to accept,

the hazardous conditions at the Houston Facility. TAC ¶¶ 87–92. CEPA states, in relevant part:

An employer shall not take any retaliatory action against an employee because the

employee does any of the following:

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy

or practice of the employer or another employer, with whom there is a business

relationship, that the employee reasonably believes is in violation of a law, or a rule or

regulation promulgated pursuant to law

6 See also Emerson Radio, 253 F.3d at 173 (“Acts committed by an agent outside the scope of

employment or agency may satisfy the ‘tripartite relationship’ required for a tortious interference

claim.”); Varrallo v. Hammond Incorporated, 94 F.3d 842, 849 n.11 (3d Cir. 1996) (“An employee

who acts for personal motives, out of malice, beyond his authority, or otherwise not ‘in good faith

in the corporate interest’ falls outside the scope of the privilege.”).

. . . [or]

c. Objects to, or refuses to participate in any activity, policy or practice which the employee

reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . or

(2) is fraudulent or criminal . . . or

(3) is incompatible with a clear mandate of public policy concerning the public health,

safety or welfare or protection of the environment.

N.J.S.A. 34:19–3.

To establish a CEPA claim, a plaintiff must satisfy a four-prong test: “(1) he or she

reasonably believed that his or her employer’s conduct was violating either a law, rule, or

regulation promulgated pursuant to law, or a clear mandate of public policy; (2) he or

she performed a ‘whistle-blowing’ activity [as described in N.J.S.A 34:19–3]; (3) an adverse

employment action was taken against him or her; and (4) a causal connection exists between the

whistle-blowing activity and the adverse employment action.” Clayton v. City of Atl. City, 722 F.

Supp. 2d 581, 588–89 (D.N.J. 2010) (quoting Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003)).

Defendants contest the first, second and fourth prongs. Mot. at 6–11. The Court finds that Plaintiff

has sufficiently pleaded all four prongs.

Here, Plaintiff alleges that he objected to the conditions at ATC’s subsidiary’s former

facility because it: (1) did not comply with applicable law and safety regulations, “put[tting] the

company in jeopardy of receiving citations for multiple health and safety violations” (TAC ¶ 36);

and (2) endangered company employees, who were lifting and moving pump packages “using

forklifts and straps [instead of cranes], which was extremely dangerous and which could result in

death to workers involved” (id. ¶ 37). Plaintiff’s allegations satisfy the first prong because they

suggest that a reasonable lay person would conclude, as Plaintiff did, that ATC’s conduct was

violating a law, rule, regulation, and/or a clear mandate of public policy. See Blackburn v. United

Parcel Serv., Inc., 3 F. Supp. 2d 504, 515 (D.N.J. 1998), aff’d 179 F.3d 81 (3d Cir. 1999).7

Second, Plaintiff alleges that he performed whistle-blowing activity by “object[ing] to the

hazardous conditions in the Houston [F]acility, disclos[ing] to Defendants those conditions, and

refus[ing] to permit them to continue by entering into a new lease for a different facility.” TAC ¶

89. Courts have held that “[m]erely questioning or disagreeing with an employer’s policies or

practices does not constitute ‘whistle-blowing’ activity within CEPA’s meaning.” Gimello v.

Costco Wholesale Corp., No. A-1506-07T3, 2008 WL 5115884 at *4 (N.J. Super. Ct. App. Div.

Dec. 8, 2008) (citing Blackburn, 3 F. Supp. 2d at 517). However, here, Plaintiff alleges facts

suggesting that he went beyond merely questioning or disagreeing with ATC’s conduct. He

allegedly identified and explained the hazardous conditions at ATC’s subsidiary to the Board of

Directors (TAC ¶ 37–38), advised them that a larger space was necessary (id.), and refused to

participate in the allegedly unsafe practices by leasing a larger space for the ATC subsidiary (id. ¶

39). See Eng. v. Misys Int’l Banking Sys., Inc., No. 05-2540, 2005 WL 1703199, at *3 (D.N.J. July

20, 2005) (finding that the plaintiff met the second element because he was “entitled to a favorable

inference that by identifying and advising [his employer] of [their HR systems’s] security

problems, [the p]laintiff disclosed the problems and objected to its operation.”).8

7 Courts have dismissed CEPA claims where the plaintiff’s whistleblowing theory was

“implausible” (see Malia v. Amazon.com, Inc., No. 17-5155, 2017 WL 6619227, at *3 (D.N.J.

Dec. 28, 2017)) or involved “[v]ague and conclusory complaints, complaints about trivial or minor

matters, or generalized workplace unhappiness” (Battaglia v. United Parcel Serv., 214 N.J. 518,

559 (2013)). That is not the case here.

8 Note that, this court previously rejected a CEPA claim for failure to meet the second prong where

the plaintiff’s complaint was “vague as to what the claim addresses, who authored it, and whether

it remains pending.” Clayton v. City of Atl. City, 722 F. Supp. 2d 581, 586–87 (D.N.J. 2010). By

contrast, here, it is evident that Plaintiff made the complaint, and his objections clearly concerned

the allegedly hazardous conditions at ATC’s subsidiary. See id.

Plaintiff also alleges an adverse employment action (termination of employment) and a

causal connection between his whistle-blowing activity and termination, in satisfaction of the third

and fourth prongs. Even if, as Defendants argue, the temporal proximity between Plaintiff’s

whistleblowing and termination is not suggestive of retaliatory animus (Mot. at 10), Plaintiff has

alleged other facts suggestive of retaliation that suffice to survive 12(b)(6) dismissal. See Clayton,

722 F. Supp. 2d at 589 (D.N.J. 2010) (dismissing plaintiff’s CEPA claim because he did not allege

“any facts that could lead to an inference of causation”) (emphasis added). Namely, Plaintiff

alleges that his termination letter lists Plaintiff’s approval of the new Houston lease as a reason for

his termination. TAC ¶ 35. Therefore, Plaintiff has stated a viable CEPA claim.

The Individual Defendants nevertheless argue that the CEPA claim against them must be

dismissed because “[a] plaintiff is only able to maintain a common law wrongful discharge cause

of action against his employer, and not against individual employees.” Mot. at 14 (citing Bobo v.

Wildwood Pub. Sch. Bd. of Educ., No. 13–5007, 2014 WL 7339461, at *10 (D.N.J. Dec. 23, 2014).

This contention is unavailing. CEPA explicitly applies liability to “employers,” which it defines

as “any individual, partnership, association, corporation or any person or group of persons acting

directly or indirectly on behalf of or in the interest of an employer with the employer’s consent. .

.” N.J.S.A. 34:19–2(a) (emphasis added). Thus, CEPA “creates individual liability for agents of

the employer, including supervisory employees.” Palladino ex rel. U.S. v. VNA of S. New Jersey,

Inc., 68 F. Supp. 2d 455, 473 (D.N.J. 1999). Following from that proposition, this Court has held

that members of a board of directors may face individual liability under CEPA because they

“constitute persons or group of persons acting directly or indirectly on behalf of or in the interest

of an employer with the employer’s consent.” Dewelt v. Measurement Specialties, Inc., No. 02-

3431, 2007 WL 542234, at *7 (D.N.J. Feb. 16, 2007) (denying defendant-board members’

summary judgment motion on CEPA claim, even though there was “little proof that [some of the

board members] were aware that their acts impacted plaintiff’s employment,” because the

defendant-board members acted on behalf of the company and with the company’s consent;

moreover, some of the board members held supervisory authority over plaintiff). Thus, here, the

Individual Defendants may be held individually liable under CEPA because they served as board

members at all relevant times (TAC ¶¶ 3–6) and appeared to hold supervisory authority over

Plaintiff (see Dewelt, 2007 WL 542234, at *7).

Therefore, the motion to dismiss Count Six is denied.

g) Count Seven: Common Law Wrongful Discharge as to All Defendants

Under Count Seven, Plaintiff asserts a common law discharge claim (also known as a

Pierce claim) against all Defendants, alleging that they terminated him in retaliation for his

objections to hazardous conditions at the Houston Facility. TAC ¶¶ 93–98. However, Plaintiff

waived his right to assert such a claim by bringing a CEPA claim under Count Six. See N.J.S.A.

34:19–8 (“[T]he institution of an action in accordance with this act [CEPA] shall be deemed a

waiver of the rights and remedies available under any other contract, collective bargaining

agreement, State law, rule or regulation or under the common law.”).

Plaintiff does not appear to dispute that his Pierce claim is duplicative of his CEPA claim

and directly related to his termination due to the disclosure of wrongdoing at the Houston Facility.

Opp. at 14–15.9 Rather, Plaintiff argues that he should not be forced to elect his remedies at the

motion to dismiss stage. Id. The New Jersey Supreme Court has, however, applied the CEPA

waiver provision to bar duplicative common law claims at the motion to dismiss stage. Young v.

9 Causes of action that fall into the CEPA waiver provision are those that “are directly related to

the employee’s termination due to disclosure of the employer’s wrongdoing” (Ivan v. County of

Middlesex, 595 F. Supp. 2d 425, 465 (D.N.J. 2009) (quoting Falco v. Cmty. Med. Ctr., 296 N.J.

Super. 298, 318 (App. Div. 1997))) or “substantially duplicative of [a plaintiff’s] claim” (Lamond

v. Twp. of Nutley, 2016 WL 4216634, at *6 (N.J. Super. Ct. App. Div. Aug. 11, 2016)).

Schering Corp., 141 N.J. 16, 29 (1995). Moreover, Plaintiff has had sufficient opportunity––

through multiple rounds of repleading and with the benefit of discovery––to determine whether

his Pierce claim is duplicative of the CEPA claim. Therefore, he waived his right to assert a Pierce

claim. See Young, 141 N.J. at 29; Broad v. Home Depot U.S.A., Inc., 16 F. Supp. 3d 413, 418

(D.N.J. 2014) (allowing duplicative common law claim to proceed where plaintiff had filed only

one complaint, because he did not yet have “an opportunity to conduct discovery”).

Accordingly, Count Seven is dismissed.

h) Count Eight: Breach of Implied Covenant of Good Faith and Fair Dealing as

to ATC

Under Count Eight, Plaintiff asserts that ATC’s position that he was terminated “for cause”

constitutes a violation of the Employment Contract’s implied covenant of good faith and fair

dealing. TAC ¶¶ 99–102. “Under New Jersey law, ‘a breach of the covenant of good faith and

fair dealing must not arise out of the same conduct underlying an alleged breach of contract

action.’” CRA, Inc. v. Ozitus Int’l, Inc., No. 16-5632, 2017 WL 2779749, at *7 (D.N.J. June 27,

2017) (citing TBI Unlimited, LLC v. Clear Cut Lawn Decisions, LLC, No. 12-3355, 2013 WL

6048720, at *3 (D.N.J. Nov. 14, 2013)). If the factual allegations supporting an implied covenant

of good faith are the same as those supporting a breach of contract claim, the former claim will be

dismissed as duplicative under Rule 12(b)(6). CRA, Inc., 2017 WL 2779749, at *7; Oravsky v.

Encompass Ins. Co., 804 F. Supp. 2d 228, 239 (D.N.J. 2011). Here, the factual predicate for the

breach of the implied covenant of good faith claim is identical to that of the breach of contract

claim: by labeling Plaintiff’s termination as being “for cause,” ATC allegedly denied Plaintiff

benefits due under the Employment Contract. See TAC ¶¶ 46–53, 99–102. Therefore, the Court

will grant ATC’s motion to dismiss Count Eight as being duplicative of Count One. See CRA, Inc.,

2017 WL 2779749, at *7; Oravsky, 804 F. Supp. 2d at 239.

i) Count Nine: Declaratory Judgment as to ATC

Under Count Nine, Plaintiff seeks a declaration from the Court that: (1) the restrictive non-

compete covenants in Article Six of the Employment Contract are null and void; and (2) Plaintiff

is entitled to payments stated in Article Seven and Article Eight of the Employment Contract,

which provide for additional bonuses in the case of a “without cause” termination. TAC ¶¶ 103–

08; see ECF No. 108-2 at 35–36. “The Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202,

. . . provides that a court ‘may declare the rights . . . of any interested party,’ and contemplates that

district courts will exercise discretion in determining whether to entertain such actions.” State Auto

Ins. Companies v. Summy, 234 F.3d 131, 133 (3d Cir. 2000) (internal citations omitted). The Act

has been characterized as “an enabling Act, which confers a discretion on the courts rather than an

absolute right upon the litigant.” Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995) (internal

quotations and citation omitted).

Plaintiff’s first request, a declaration voiding the covenants in Article Six of the

Employment Contract, is moot. The restrictive covenants he challenges are effective up to three

years after Plaintiff’s termination. TAC ¶ 104; ECF No. 108-2 at 31–32. Thus, they expired on

February 1, 2020, three years after Keaton’s termination on February 1, 2017. See TAC ¶ 21.

Plaintiff’s second request is redundant. Like the breach of contract claim under Count One,

Plaintiff’s second request also seeks the award of bonuses due under a “without cause” termination

and contests ATC’s classification of his separation as being “for cause.” Compare TAC ¶¶ 46–53

with id. ¶¶ 103–08. Dismissal of the declaratory judgment claim will not prejudice Plaintiff

because adjudication of Count One will resolve the same issue.

Accordingly, the Court declines to grant declaratory relief here and dismisses Count Nine.

See AV Design Servs., LLC. v. Durant, No. 19-8688, 2021 WL 1186842, at *13 (D.N.J. Mar. 30,

2021) (dismissing declaratory judgment claim because it was duplicative of the plaintiff’s breach

of contract claim); Butta v. GEICO Cas. Co., 400 F. Supp. 3d 225, 233 (E.D. Pa. 2019) (collecting

cases where courts declined declaratory relief because it was duplicative of other claims).

j) Count Ten: Civil Conspiracy as to the Individual Defendants

Under Count Ten, Plaintiff alleges that the Individual Defendants “engaged in a civil

conspiracy to unlawfully and improperly deprive [Plaintiff] of payments justly due him under his

Employment Contract.” TAC ¶ 111. “There are four elements to the tort of civil conspiracy:

(1) a combination of two or more persons; (2) a real agreement or confederation with a common

design; (3) the existence of an unlawful purpose, or of a lawful purpose to be achieved by unlawful

means; and (4) proof of special damages.” Morganroth & Morganroth v. Norris, McLaughlin &

Marcus, P.C., 331 F.3d 406, 414 (3d Cir. 2003) (citation omitted). Courts also require that the

defendant commit “[s]ome act that is itself a tort . . . in pursuance of the [conspiratorial] agreement”

to assert a viable civil conspiracy claim. Morganroth, 331 F.3d at 414 (citing James v. Evans, 149

F. 136, 140 (3d Cir. 1906)).

The Individual Defendants do not appear to dispute that the first, second, and fourth

elements are satisfied, but rather, they focus their challenge on the third element. Mot. at 28–30.

However, Plaintiff sufficiently alleges that the Individual Defendants “agreed among themselves”

to a purpose, that is, to “unlawfully and improperly” interfere with Plaintiff’s rights under the

Employment Contract. See TAC ¶¶ 110–12.

The Individual Defendants also contend that Plaintiff has failed to plead a predicate tort

claim and that they are immune from suit because they acted within the scope of their employment.

Id. The Court finds that Plaintiff adequately pleads that the Individual Defendants committed a

tort in furtherance of the conspiracy, as he asserts a viable tortious interference with contractual

rights claim under Count Five. See supra Section III(e); Morganroth, 331 F.3d at 414 (allowing

civil conspiracy claim to proceed where the plaintiff alleged common law torts sounding in fraud

and an overt act committed by one or more of the conspirators in furtherance of the conspiracy);

Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 405–07 (3d Cir. 2000) (setting aside

jury verdict on civil conspiracy claim because jury had also rejected the predicate tortious

interference of contract claim, but suggesting that a viable tortious interference claim may serve

as the predicate for a conspiracy claim at the pleading stage); Alpart v. Gen. Land Partners, Inc.,

574 F. Supp. 2d 491, 506 (E.D. Pa. 2008) (finding that a tortious interference with contract claim

may serve as the predicate for a civil conspiracy claim).10

Lastly, the Individual Defendants are subject to suit for civil conspiracy because the Third

Amended Complaint alleges that they did not act in their corporate capacity, but rather acted for

their own personal gain. See supra Section III(e). Therefore, Plaintiff has stated a claim for civil

conspiracy and the motion to dismiss Count Ten is denied.

k) Attorneys’ Fees

Defendants request that this Court use its inherent authority to award attorneys’ fees and

costs, arguing that “Plaintiff’s repetitive amendments to his pleadings [] have caused delay and

unnecessary motion practice.” Mot. at 30. “District courts have ‘inherent power” to award

attorneys’ fees in certain situations, including “when the losing party has ‘acted in bad faith,

vexatiously, wantonly, or for oppressive reasons. . . .’ Garza v. Citigroup Inc., 881 F.3d 277, 284

(3d Cir. 2018) (quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 257 (1975)).

In support of their request, Defendants cite (Mot. at 30) Ruschel v. Nestle Holdings, Inc., wherein

the court awarded attorneys’ fees to the defendant because the record “amply support[ed] the

district court’s conclusion that [the plaintiff] engaged in a continuous course of conduct [in both

10 Note that, although Boyanowski and Alpart analyze Pennsylvania common law, both cases are

applicable here because Pennsylvania similarly requires a viable underlying tort to assert a civil

conspiracy cause of action. See Boyanowski, 215 F.3d at 405; Alpart, 574 F. Supp. 2d at 506.

state and federal court] to avoid confronting the merits of his action.” 89 F. App’x 518, 521 (6th

Cir. 2004) (internal quotations omitted). Here, the Court finds insufficient evidence that Plaintiff

acted in bad faith, vexatiously, wantonly, or for oppressive reasons. See id. Accordingly, the Court,

in its discretion, declines to award attorneys’ fees or costs to Defendants.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss (ECF No. 108) the Third

Amended Complaint (ECF No. 107) is granted in part and denied in part. Counts Three, Seven,

Eight and Nine are dismissed with prejudice.'' Counts One, Two, Four, Five, Six, and Ten may

proceed. Additionally, Defendants’ request for attorneys’ fees and costs (ECF No. 108) is denied.

An appropriate Order follows this Opinion.

Date: August 31°, 2021 LA. Lo

HON. CLAIRE C. CECCHI, U.S.D.J.

Plaintiff's claims are dismissed with prejudice given the multiple opportunities to amend,

Plaintiff's repeated failure to cure the deficiencies of Counts Three, and the futility of amending

Counts Seven, Eight, and Nine. See Foman v. Davis, 371 U.S. 178, 182 (1962) (claims may be

properly dismissed with prejudice for reasons “such as undue delay, bad faith or dilatory motive

on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,

undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of

amendment .. . The grant or denial of an opportunity to amend is within the discretion of the

District Court.”); Parson v. Home Depot USA, Inc., No. 13-4817, 2013 WL 65873 16, at *4 (D.N.J.

Dec. 13, 2013) (denying plaintiff leave to amend breach of the covenant of good faith claim

because it was duplicative).

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