DESIRE v. DREAMWEAR INC.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

FEDELINE DESIRE, TIFFANY No. 1:21-cv-16178-NLH-SAK

ROBERTSON, individually and

on Behalf of All Others

Similarly Situated, OPINION

Plaintiffs,

v.

DREAMWEAR INC. et al.,

Defendants.

APPEARANCES:

KWAME L DOUGAN

SCOTCH & PALM LAW GROUP

141 HARRIS RD.

PRINCETON, NJ 08540

On behalf of Plaintiffs.

JEFFREY DOUGLAS

DAVID ABRAHAM GOLD

KANE KESSLER, P.C.

600 THIRD AVENUE

35TH FLOOR

NEW YORK, NY 10016

On behalf of Defendant.

HILLMAN, District Judge

Before the Court is Defendants’ motion to dismiss the

amended complaint. (ECF 14). For the reasons expressed below,

the motion will be granted in its entirety and Plaintiffs will

be given thirty (30) days to amend their complaint.

BACKGROUND

For purposes of analyzing this motion to dismiss, the Court

takes the facts in the Amended Complaint as true. Plaintiffs in

this case are an employee, Tiffany Robertson, and former

employee, Fedeline Desire of Dreamwear Inc. (“Dreamwear”), a

company founded and owned by Joseph Franco and Elliot Franco

(together, with Dreamwear, “Defendants”). Plaintiffs are two

African American females who allege that Defendants unlawfully

discriminated against them and that they suffered “dueling

indignities of sexual harassment, racial discrimination, and

diminished economic opportunities because Defendants foster a

hostile work environment and enforce a de facto racial hierarchy

among its staff.” (ECF 12 at 3). The Amended Complaint alleges

that while the few African American women employed by the

company possess exceptional qualifications and perform well,

they experienced discrimination and limitations in terms of

their opportunities to advance their pay. (Id.)

In particular, the Amended Complaint alleges that the

African American women are promoted less in the company, are

subject to a hostile work environment, and denied advancement

opportunities to which they were otherwise entitled. (Id. at 3-

5). Further, Plaintiffs claim that they brought this

discrimination to the attention of Defendants and that

Defendants failed to investigate the claims or to remedy the

issue. (Id.) The Amended Complaint becomes slightly more

specific in that it specifically alleges that the Plaintiffs

notified Defendants that they had each experienced racial and

sexual discrimination at the hands of certain employees, which

the Amended Complaint identified by first names or initials.

(Id. at 5-6). Plaintiffs also state that Defendants retaliated

against them for raising their concerns in regard to harassment

and unsafe policies in response to Covid-19. (Id. at 9-14).

While the Amended Complaint alludes to concerning conduct in the

abstract, it does not allege any dates, locations, or specific

circumstances surrounding the alleged misconduct, making it

difficult to discern what actually happened, even taking the

facts in the Amended Complaint as true. (Id. at 1-14).

This action was originally filed on July 22, 2021 in New

Jersey Superior Court. (ECF 1 at 2). Plaintiffs proceeded

anonymously in the Complaint. (ECF 1-1 at 2). On August 27,

2021, Defendants removed the action to the United States

District Court for the District of New Jersey. (ECF 1 at 2).

Then, on August 30, 2021, the Court filed an Order To Show Cause

as to why Plaintiffs should be allowed to proceed anonymously.

The Order directed that if Plaintiffs failed to respond within

15 days, the Defendants could move to dismiss the case under

Federal Rule of Civil Procedure 10(a). (ECF 4 at 3).

Plaintiffs failed to respond in a timely manner to the

Order to Show Cause, first seeking leave to respond long after

the deadline on October 11, 2021 (ECF 8) and soon thereafter

filing an Amended Complaint on October 14, 2021 revealing the

identity of the Plaintiffs (ECF 12). Defendants moved to

dismiss the Amended Complaint on October 28, 2021. (ECF 14).

Plaintiffs never filed an opposition brief and Defendants filed

a brief in further support of their motion to dismiss on

November 24, 2021. (ECF 15). It is against this backdrop that

the Court will analyze the motion to dismiss the Amended

Complaint.1

DISCUSSION

I. Subject Matter Jurisdiction

This Court has jurisdiction over Plaintiffs’ federal claims

under 28 U.S.C. § 1331 and pendent jurisdiction over their state

law claims under 28 U.S.C. § 1367.

1 On December 6, 2021, counsel for Plaintiffs filed what appeared

to be a motion to seal so that he could explain his failure to

respond to the motion to dismiss. (ECF 17). The motion to seal

was nonsensical and did not comply with the Court’s local rules.

Therefore, the Court will deny that motion as well. L. R. Civ.

P. 5.3(c) (requiring among other things a single consolidated

motion clearly explaining the injury that would result if the

materials were not sealed). As of the date of this Opinion no

opposition to the Motion to Dismiss has been filed by

Plaintiffs. The Motion to Seal also refers to a motion to

remand. No such motion has been filed on the docket on

Plaintiff’s behalf.

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

When considering a motion to dismiss a complaint for

failure to state a claim upon which relief can be granted

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).

“While a complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations, a

plaintiff’s obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a

cause of action will not do . . . .” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (alteration in original)

(citations omitted) (first citing Conley v. Gibson, 355 U.S. 41,

47 (1957); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc.,

40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v.

Allain, 478 U.S. 265, 286 (1986)).

To determine the sufficiency of a complaint, a court must

take three steps: (1) the court must take note of the elements a

plaintiff must plead to state a claim; (2) the court should

identify allegations that, because they are no more than

conclusions, are not entitled to the assumption of truth; and

(3) when there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement for relief. Malleus v.

George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 664, 675, 679 (2009) (alterations,

quotations, and other citations 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.”

Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhoades, 416

U.S. 232, 236 (1974)); see also Iqbal, 556 U.S. at 684 (“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 motion to dismiss

should be granted if the plaintiff is unable to plead ‘enough

facts to state a claim to relief that is plausible on its

face.’” Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at

570).

A court in reviewing a Rule 12(b)(6) motion must only

consider the facts alleged in the pleadings, the documents

attached thereto as exhibits, and matters of judicial notice.

S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,

181 F.3d 410, 426 (3d Cir. 1999). A court may consider,

however, “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.” Pension Benefit Guar. Corp.

v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.

1993). If any other matters outside the pleadings are presented

to the court, and the court does not exclude those matters, a

Rule 12(b)(6) motion will be treated as a summary judgment

motion pursuant to Rule 56. Fed. R. Civ. P. 12(b).

III. Analysis

All fourteen Counts in the Amended Complaint must be

dismissed because they contain mere recitations of the elements

of the claims and the Amended Complaint does not have enough

factual underpinnings to sustain them.

a. Count I: Violation of the Equal Pay Act of 1963

Although, Plaintiffs do not cite a particular provision of

the Equal Pay Act, it appears that they are trying to state a

claim under 29 U.S.C. § 206(d)(1) as the Amended Complaint

quotes part of its provisions. (See ECF 12 at 15-16). Claims

under this provision are subject to a two-step burden shifting

process. Stanziale v. Jargowsky, 200 F.3d 101, 107 (3d Cir.

2000). First, a plaintiff must “establish a prima facie case by

demonstrating that employees of the opposite sex were paid

differently for performing ‘equal work’—work of substantially

equal skill, effort and responsibility, under similar working

conditions.” Id. (citing E.E.O.C. v. Delaware Dept. of Health

and Social Services, 865 F.2d 1408, 1413–14 (3rd Cir.1989)).

Once a plaintiff meets that burden, “[t]he burden

of persuasion then shifts to the employer to demonstrate the

applicability of one of the four affirmative defenses specified

in the Act.” Id. (emphasis in original).

The Amended Complaint does not meet this burden.

Plaintiffs have made boilerplate statements that “Plaintiffs

working in similar roles to non-black employees were paid less

than to nonblack employees and males performing similar roles,

albeit with different titles” and that “[n]on-black counterparts

received preferential payment and financial awards relative to

Plaintiffs.” (ECF 12 at 16). That is not enough. Smarte

Carte, Inc. v. Innovative Vending Sols. LLC, 2020 WL 5758363, at

*7 n.7 (D.N.J. Sept. 28, 2020) (stating that boilerplate

assertions are not enough to survive a motion to dismiss); Marra

v. Twp. of Harrison, 913 F. Supp. 2d 100, 104 (D.N.J. 2012) (“To

survive a motion to dismiss, a complaint must allege, in more

than legal boilerplate, those facts about the conduct of each

defendant giving rise to liability.”) Once these conclusory

assertions are taken out of the equation, the Court does not

perceive anything else in the Amended Complaint that would make

out a claim for sex discrimination under the Equal Pay Act.

b. Count II: Discrimination in Violation of the New Jersey

Law Against Discrimination (“NJLAD”), N.J.S.A. 10:5-1, et

seq.

“To state a claim for discrimination under the NJLAD, a

plaintiff must first establish that: (1) she is a member of a

protected class; (2) she was qualified for the position in

question; (3) she suffered an adverse employment action; and (4)

that adverse employment action gives rise to an inference of

unlawful discrimination.” Gaines v. Sec. Guard, Inc., 2021 WL

5833480, at *2 (D.N.J. Dec. 9, 2021) (internal quotation marks

omitted). Once that showing has been made for the claim,

“‘[t]he burden of going forward then shifts to the employer to

rebut the presumption of undue discrimination by articulating

some legitimate, nondiscriminatory reason for the’ adverse

action.” Tegler v. Glob. Spectrum, 291 F. Supp. 3d 565, 594–95

(D.N.J. 2018). At that point, “[t]he plaintiff then has the

opportunity to prove by a preponderance of the evidence that the

legitimate nondiscriminatory reason articulated by the defendant

was not the true reason for the employment decision but was

merely a pretext for discrimination.” Grigoletti v. Ortho Pharm.

Corp., 570 A.2d 903, 907 (1990).

This claim also fails because it makes only conclusory

allegations. As with Count I, Count II of the Amended Complaint

baldly states that “Plaintiffs suffered disparate treatment,

disparate impact, discriminatory intent, a pattern and practice

of discrimination, hostile work environment and evidence of

hostility by employers or agents” and that “[n]on-black

counterparts received preferential treatment relative to

Plaintiffs, despite offering up similar grievances.” (ECF 12 at

16). Again, Plaintiffs don’t offer any factual context for this

claim beyond statements such as these for the Court to assess

the plausibility of the allegations. Therefore, Count II must

also be dismissed. See Malleus, 641 F.3d at 563.

c. Count III: Retaliation in Violation of NJLAD

To make out a retaliation claim under the NJLAD, “an

employee must demonstrate: (1) the employee engaged in a

protected employee activity; (2) the employer took an adverse

employment action after or contemporaneous with the employee's

protected activity; and (3) a causal link exists between the

employee's protected activity and the employer's adverse

action.” Gaines, 2021 WL 5833480 at *2. As with a

discrimination claim under the NJLAD, once a plaintiff meets

that threshold, the burden shifts to the defendant to rebut the

claim, and, if they are able to do so, the plaintiff must show

that the defendant’s proffered reason is pretextual. See id. at

3.

Plaintiffs claim that Defendants retaliated against them

but do not offer enough facts to contextualize the claims.

Plaintiffs claim that after they brought complaints to

Defendants’ attention, they “they were subjected to an adverse

employment action when they were subsequently required to sign

documents that falsely claimed that they had suffered no

harassment in 2020, and were denied promotions, transfers and

bonuses earned or which they qualified.” (ECF 12 at 17). To be

sure, these kinds of statements provide more context than what

was provided for Count II, but it still is not enough.

Plaintiffs do not offer enough narrative regarding when and

where Plaintiffs raised complaints and when and where Plaintiffs

signed the documents in question for the Court to find that

their claims are plausible.2 See Twombly, 550 U.S. at 555.

d. Count IV: Retaliation Via Compulsory Arbitration

Plaintiffs claim in Count IV that after they raised certain

complaints, particularly in the wake of the #MeToo movement,

Defendants modified the company policy so that disputes had to

be handled via arbitration. (ECF 12 at 10-11). They also state

2 This Court and Count II also must fail because Plaintiffs

allege only that they worked in New York and NJLAD claims are

only applicable when the work location is in New Jersey. Peikin

v. Kimmel & Silverman, P.C., 576 F. Supp. 2d 654, 657 (D.N.J.

2008) “New Jersey courts have consistently applied the law of

the state of employment to claims of workplace discrimination,

and therefore only apply the NJLAD if the claimant was employed

in New Jersey.”) (internal quotation marks omitted) (emphasis in

original).

that signing the arbitration agreement was a condition of

continuing their employment. (Id.) The Amended Complaint

merely states that “Defendants enacted an unconscionable and

inapplicable arbitration agreement to muzzle Plaintiffs . . .

Defendants’ arbitration agreement further failed to meet the

applicable standards to enforce said agreement.” (Id. at 18).

Plaintiffs do not explain how or why the agreement is

unconscionable or inapplicable. Even if Plaintiffs had to sign

the arbitration agreement as a condition of employment, many

courts have held that that does not necessarily make the

agreement unconscionable. Montgomery v. Bristol-Myers Squibb

Co., 2020 WL 3169373, at *6 (D.N.J. June 15, 2020) (holding that

a plaintiff who lost her job because of her refusal to sign an

arbitration agreement could not show that the agreement was

unconscionable without showing other facts); Am. Fam. Life

Assurance Co. of New York v. Baker, 778 F. App'x 24, 27 (2d Cir.

2019) (“Additionally, as this Court has explained, neither the

FAA nor New York law precludes the enforcement of employment

contracts which make employment conditional upon an employee’s

acceptance of mandatory arbitration.”) (internal quotation marks

omitted); Lang v. Skytap, Inc., 347 F. Supp. 3d 420, 427 (N.D.

Cal. 2018) (“An arbitration agreement, however, is not rendered

unenforceable just because it is required as a condition of

employment or offered on a ‘take it or leave it’ basis.”)

(internal quotation marks omitted). Because Plaintiffs do not

offer any more context on the terms of the arbitration agreement

or the circumstances under which they signed it, this claim must

fail as well.

e. Count V: Violation of CEPA, N.J.S.A. 34:19-3a(1)

The Court can summarily dismiss Plaintiffs’ CEPA claim for

the simply reason that Plaintiffs never allege that the situs of

their work was in New Jersey. Peikin v. Kimmel & Silverman,

P.C., 576 F. Supp. 2d 654, 657 (D.N.J. 2008); Lee v. United

Airlines, Inc., 2021 WL 2679891, at *4 (D.N.J. June 29, 2021)

(“In determining whether a Plaintiff can pursue claims under

CEPA or LAD, the key question is the situs of Plaintiff's

employment.”). This claim therefore fails out of the gate and

must be dismissed.

f. Count VI, IX, X, XIII: Hostile Work Environment,

Retaliation, Defamation, and Conduct Giving Rise to

Punitive Damages

The Court will consider the claims that underly Counts VI,

IX, X, XIII together as the pleadings for each Count are so

paltry that it makes sense to discuss them as a group.

Ultimately, they all fail because the Amended Complaint does not

allege facts with particularity such that the claims are

plausible.

With respect to Count VI on a hostile work environment, the

Amended Complaint is replete with conclusory assertions that the

work environment was hostile, but does not outline the factual

background that would give rise to the inference that that was

in fact the case. It is also not clear the basis of the claim.

If the basis is the NJLAD, it automatically fails because

Plaintiffs have not alleged that they were employed in New

Jersey. Lee, 2021 WL 2679891 at *4. If the claims are under

Title VII, the claim still fails because Plaintiffs have not

pled the elements. “In order to establish a hostile work

environment claim under Title VII, a plaintiff must show that

(1) he suffered intentional discrimination because of his

[race]; (2) the discrimination was pervasive and regular; (3) it

detrimentally affected him; (4) it would have detrimentally

affected a reasonable person of the same protected class in his

position; and (5) there is a basis for vicarious liability.”

Hightower v. Roman, Inc., 190 F. Supp. 2d 740, 750 (D.N.J. 2002)

(internal quotation marks omitted). While the Amended Complaint

makes some gestures toward the first three elements with its

vague narrative, it completely disregards the last two.

Therefore, Count VI fails.

Count IX is much the same, if the basis for the retaliation

claim is the NJLAD, it fails because Plaintiffs have not alleged

that they work in New Jersey. Lee, 2021 WL 2679891 at *4. If

the claim is based on Title VII, it still fails because of vague

pleading. “A plaintiff seeking to establish a prima facie case

of retaliation under Title VII must show: (1) that she engaged

in a protected activity, which can include informal protests of

discriminatory employment practices such as making complaints to

management; (2) adverse action by the employer either after or

contemporaneous with the employee's protected activity; and (3)

a causal connection between the protected activity and the

adverse action.” Moore v. Sec'y U.S. Dep't of Homeland Sec.,

718 F. App'x 164, 166 (3d Cir. 2017) (internal quotation marks

omitted). Like with Count VI, Plaintiffs make vague statements

regarding the first two elements but do not provide enough

narrative for the Court to understand what allegedly happened.

Further, the Amended Complaint completely misses the third

element as it does not allege any facts to suggest a “causal

connection” between engagement in a protected activity and

adverse employment action.

Counts X and XII asserting defamation and conduct giving

rise to punitive damages provide so little context, that it is

hard to understand where they fit in the Amended Complaint at

all. “In order to prove defamation, a plaintiff must establish,

in addition to damages, that the defendant (1) made a defamatory

statement of fact (2) concerning the plaintiff (3) which was

false, and (4) which was communicated to a person or persons

other than the plaintiff.” Feggans v. Billington, 677 A.2d 771,

775 (App. Div. 1996). The Amended Complaint says, “Defendants

defamed Plaintiff Desire by speaking and publishing false

statements about her conduct after she separated employment.”

(ECF 12 at 22-23). This is a mere recitation of the elements of

defamation rather than a description of the facts underlying the

claim. This is not enough to pass muster and Count X fails.

For Count XIII the Amended Complaint only says, “An award of

punitive damages is warranted by the nature of wrongful

intentional acts of each Defendant and unwillingness to remedy

each act.” (Id. at 24). In addition to being conclusory, this

statement does not event point to what statutory scheme or other

legal entitlement that allows Plaintiffs to seek punitive

damages. Moreover, a prayer for an award of punitive damages is

a claim for a remedy not a standalone claim of liability.

Phillips v. New Jersey Transit, 2021 WL 1661087, at *13 (D.N.J.

Apr. 28, 2021) (“However, punitive damages are a remedy

incidental to a cause of action, not a substantive cause of

action in and of themselves.”) (internal alterations omitted).

Therefore, Count XIII fails as well.

g. Count VII: Violation of the New Jersey Constitution

Plaintiffs allege violation of the New Jersey Constitution, in

particular sections 1, 5, 6, 18, and 19 of Article I. (See id.

at 21). As the Court has explained with respect to the Counts

it has analyzed above, the Amended Complaint is devoid of

factual underpinnings to support Count VII. In addition, from

what the Court is able to glean from the narrative in the

Amended Complaint, it appears that the sections cited by

Plaintiffs are completely inapposite. Sections 1, 6, 18, and 19

deal with general statements on unalienable rights, free speech,

the right to petition the government, and the right to unionize.

See N. J. S. A. Const. Art. 1. Section 5, dealing with

discrimination in employment (see id.), perhaps comes the

closest to the context underlying the Amended Complaint, but

Plaintiffs have not alleged sufficient facts to state a

plausible claim under the provision. Nor, as with the state

statutory claims, does the Complaint assert facts that would

support the extraterritorial application of the New Jersey state

constitution. Therefore, Count VII shall be dismissed.

h. Counts XIII and XIV: Breach of Good Faith and Fair

Dealing and Breach of Contract

At the outset, the Court notes that “New Jersey law does not

allow supplementary common law causes of action when a statutory

remedy under the LAD exists.” Kuilan v. Sodexo Inc., 2012 WL

1964492, at *8 (D.N.J. May 31, 2012) (internal alterations

omitted). In any case, both Counts VII and XIV must be

dismissed. Starting with the breach of contract claim, Count

XIV, Plaintiffs do not identify a contract or its terms under

which they allege a breach. Accurate Abstracts, LLC v. Havas

Edge, LLC, 2015 WL 5996931, at *4 (D.N.J. Oct. 14, 2015) (“To

adequately plead a breach of contract claim a plaintiff must

specifically identify the portions of the contract that were

allegedly breached.”) (internal alterations omitted). Because

Plaintiffs do not identify the terms of the contract that have

been breached, Count XVI fails.

Count VIII also fails because Plaintiffs have not

adequately pled the existence of a contractual relationship.

Schneider v. Sumitomo Corp. of Am., 2010 WL 2521774, at *7

(D.N.J. June 14, 2010) (“Plaintiff's breach of the implied

covenant of good faith and fair dealing claim must be dismissed,

as such a claim does not arise in the absence of a contractual

relationship.”) (internal alterations omitted). The Amended

Complaint states that Plaintiffs “relied to their detriment” on

Defendants’ policies and procedures (ECF 12 at 21) but does not

give context of what the policies in question were and how they

relied. Therefore, Count VIII must be dismissed as well.

i. Count XI: Violation of 42 U.S.C. § 1983

Plaintiffs’ § 1983 claim fails for the simple fact that

Defendants are private actors and Plaintiffs have not alleged

that Defendants violated their rights while acting under color

of state law. Lentz v. Taylor, 2021 WL 5121247, at *3 (3d Cir.

Nov. 4, 2021) (noting that private actors, such as lawyers, are

not automatically liable under § 1983); Cofer v. Lanigan, 2019

WL 1772018, at *6 (D.N.J. Apr. 23, 2019) (“Additionally, to the

extent that plaintiff may be attempting to bring a § 1983 claim

against Master Lock, he fails to state a claim because he does

not allege with any facial plausibility that Master Lock, a

private corporation, was ‘acting under color of state law.’”)

Therefore, Count XI must be dismissed.

j. Count XII: Violation of 42 U.S.C. § 2000e-2 Unlawful

Employment Practices

This claim under Title VII fails for the simple reason that

Plaintiffs have not alleged that they have exhausted their

administrative remedies. Fletcher v. Gateway Grp. One, 2021 WL

2651254, at *2 (D.N.J. June 28, 2021) (noting that a plaintiff

seeking to sue under Title VII must have first filed a claim

with the Equal Employment Opportunity Commission); see also

O'Leary v. Cty. of Salem Corr. Facility & Sheriffs Off., 2017 WL

4548264, at *4 (D.N.J. Oct. 12, 2017), on reconsideration in

part sub nom. O'Leary v. Cty. of Salem, 2018 WL 1942517 (D.N.J.

Apr. 25, 2018). This alone requires dismissal of Count XII.3

Further, the Court notes that the pleadings underpinning Count

XII lack sufficient factual context to be plausible, and

therefore, the Count is subject to dismissal on that ground as

well.

3 The Court notes that for Counts VI and IX, this analysis

equally applies and requires dismissal.

CONCLUSION

For the reasons expressed above, Defendant’s motion to

dismiss the Complaint (ECF 14) will be granted in its entirety.

Plaintiffs shall have thirty (30) days to file an amended

complaint for all claims except their NJLAD, CEPA and § 1983

claims (Count II, III, V and XI), as the Court finds that

amendment would be futile in light of the fact that the situs of

the work was not in New Jersey and Plaintiffs have not alleged

the involvement of state actors. Fletcher-Harlee Corp. v. Pote

Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007)

(“Our precedent supports the notion that in civil rights cases

district courts must offer amendment—irrespective of whether it

is requested—when dismissing a case for failure to state a claim

unless doing so would be inequitable or futile.”)

An appropriate Order will be entered.

Date: February 10, 2022 /s Noel L. Hillman

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