# KALSKI v. BRANDYWINE SENIOR LIVING, LLC

> District Court, D. New Jersey · December 20, 2022

URL: https://www.frixlaw.com/law-library/cases/10274416

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** December 20, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10274416

## How later opinions describe it (automated extraction)

- explaining that even where defense counsel shows an intent to forego service, that behavior “f[a]ll[s] short of submitting to the jurisdiction of the court, and thus actually waiving any such objection” to service

## Opinion text

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

YAROSLAVA KALSKI,
Plaintiff,
Civil Action No. 22-4484 (MAS) (LHG)
V.
MEMORANDUM OPINION
BRANDYWINE SENIOR LIVING, LLC,
et al.,
Defendants.

SHIPP, District Judge
This matter comes before the Court on Defendants Brandywine Senior Living, LLC,
Brandywine Senior Living Management, LLC, Brandywine Senior Living at Mahwah, LLC
(collectively, the “Brandywine Defendants”), and BL Manager, LLC’s (“BL Manager,” and
together with the Brandywine Defendants, “Defendants”) Motion to Dismiss for Insufficient
Service of Process! and for Failure to State a Claim Pursuant to Federal Rules of Civil Procedure
12(b)(5) and 12(b)(6). (ECF No. 8.) Plaintiff Yaroslava Kalski (“Kalski’”) opposed Defendants’
Motion to Dismiss (ECF No. 9), and Defendants did not reply. The Court has carefully considered
the parties’ submissions and decides the matter without oral argument under Local Civil Rule 78.1.
For the reasons below, the Court denies Defendants’ Motion to Dismiss.

' BL Manager waived service in this action on its own prerogative (ECF No. 7); the Brandywine
Defendants did not do so, however, and, as a result, separately move to dismiss for insufficient
service of process under Federal Rule of Civil Procedure 12(b)(5). (Defs.’ Moving Br. 9-10, ECF
No. 8-1.)

IL BACKGROUND
This case is about an employer’s response to an employee’s diagnosis of COVID-19. (See
generally Am. Compl., ECF No. 5.) Until June 2020, Kalski worked as a Licensed Practical Nurse
at Brandywine Senior Living in Mahwah, New Jersey, and did so for over two years. (Id. JJ 4,
14-15, 33.) Defendants own and operate multiple senior living facilities on the east coast of the
United States, including the facility where Kalski worked. (/d. ff 4-7.)
This story begins, like it sadly did for thousands of other Americans, in April 2020, when
Kalski was diagnosed with COVID-19. (/d. 18.) Initially, Defendants granted Kalski a two-week
leave. (fd. ¥ 19.) But when Kalski’s ongoing symptoms prevented her from returning to work at the
end of the two weeks, Defendants decided that Kalski had resigned from her position, despite Kalski
telling Director of Nursing Barbara Sbarra (“Sbarra”) that she was still unwell. (Ud. J§ 17, 21-22.)
Kalski and Defendants attempted to move on from that incident. Executive Director Mariola Koldys
(“Koldys”)—the Executive Director of Brandywine in Mahwah, New Jersey to whom Sbarra
reported—subsequently contacted Kalski and allowed her to return to work, and Kalski did so at
the beginning of May 2020. Ud. {J 17, 24-26.) From that point on, everything was business as
usual—auntil Kalski made a vacation request in late May. (See id. § 27.)
In response to Kalski’s vacation request, Koldys allegedly made negative remarks regarding
Kalski*’s April 2020 medical leave, “including[,] but not limited to[,] telling [Kalski] that everyone
... had been working hard for the last month while she sat at home and that other people get sick
for three days and then get better but [Kalski] was out of work for a month.” (/d. J 28.) Koldys also
questioned whether Kalski was “sure” about wanting to take more time off. (/d.) Several days later,
Kalski was called to Defendants’ human resources (“HR”) office, where she met with Koldys and
Jessica Messina (“Messina”), the HR Manager. Ud. § 30-31.) There, Koldys and Messina told

Kalski that Defendants received “an anonymous e[-]mail claiming that [Kalski] had allegedly
abused a patient.” (Ud. | 32.) No further information was provided to Kalski on that matter except
that an investigation would be performed. (/d.) According to Kalski, that so-called investigation
was a sham—Kalski was never interviewed. (fd. JJ 32, 34.) Three days later, Kalski was terminated.
(id. ¥ 33.)
As part of Kalski’s termination, Koldys and Messina told Kalski that: (1) she was being
reported to the New Jersey Department of Health (the “Department’’); (2) they could not disclose
the reason for her termination; and (3) she would hear more from the Department on the allegations
against her. (/d.) Kalski argues, however, that the Department did not receive a report from
Defendants, and although Defendants conveyed to the New Jersey Department of Labor (“DOL”)
that Kalski was fired for “misconduct,” Kalski ultimately received unemployment compensation
benefits because “Defendants did not meet their burden of proof.” (/d. $4 35-38.) Following her
termination, Kalski unsuccessfully sought employment with other healthcare entities. (Jd. | 39.) It
was not until April 2022 that Kalski was informed by a prospective employer that the New Jersey
Division of Consumer Affairs (“Consumer Affairs”) maintained allegations against her. (/d. § 40.)
Kalski contacted Consumer Affairs to obtain a copy of the report, but an employee there denied its
existence. (/d. 4 41.) Kalski believes that Defendants retroactively filed a Health Care Professional
Responsibility and Reporting Enhancement Act* Reporting Form (the “Report”) pertaining to
Kalski’s alleged misconduct “almost two years after the alleged action that caused her termination
(and presumably only . . . because [Consumer Affairs] contacted Defendants after speaking to
[Kalski] in April of 2022. . .).” Ud. 42, 47.) After Consumer Affairs contacted Defendants, Kalski

* See “Health Care Professional Responsibility and Reporting Enhancement Act,” 2 L. 2005, c. 83
(codified at N.J.S.A. 26:2H—12.2a to —12.2d, with amendments to other statutory provisions) (the
“Cullen Act”),

finally received the Report; she again contacted Consumer Affairs, at which point she discovered
that it had only recently received the report from Defendants and that the Report was also sent to
the Board of Nursing. (/d. 43.) The Report, dated June 12, 2020, communicated only that Kalski’s
termination was related to her “incompetency which relates adversely to patient care or safety.” (Id.
44.) The Report also confirmed that Kalski never received a copy of the Report. (Id. ¥ 45.)
Kalski sued Defendants in New Jersey state court, and Defendants removed the action to
federal court. (ECF No. 1.) As relevant here, Kalski’s Amended Complaint alleges discrimination,
hostile work environment, and retaliation in violation of the New Jersey Law Against
Discrimination (“NJLAD”) (Count /) and retaliation and interference under the Family and Medical
Leave Act (“FMLA”) (Count I), with a related defamation claim under New Jersey common law
(Count IH). (See Am. Compl. 9-13.) Based on the above events, Kalski alleges that during and after
her FMLA-qualifying medical leave, also a reasonable employment accommodation under NJLAD,
she was subject to “hostility and animosity by Defendants’ management.” (/d. 4 18-20.) At all
relevant times, Sbarra and Koldys supervised Kalski. (/d. J 17.)
The Brandywine Defendants now move to dismiss Kalski’s Amended Complaint under
Federal Rule of Civil Procedurel2(b)(5) for insufficient service,’ and, collectively, Defendants
move to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief could be granted.
Defendants’ Motion to Dismiss is ripe for resolution.
Il. LEGAL STANDARD
A. Standard of Review for Failure to State a Claim
Rule 8(a)(2) “requires only ‘a short and plain statement of the claim showing that the pleader
is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the

> Hereinafter, all references to a “Rule” or “Rules” refer to the Federal Rules of Civil Procedure.

grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in
original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A district court conducts a three-part
analysis when considering a motion to dismiss pursuant to Rule 12(b)(6). Malleus v. George, 641
F.3d 560, 563 (3d Cir. 2011), as amended (June 6, 2011). “First, the [C]ourt must ‘tak[e] note of
the elements a plaintiff must plead to state a claim.’” /d. (alteration in original) (quoting Ashcroft
v. Igbal, 556 U.S. 662, 675 (2009)). Second, the court must accept as true all of a plaintiff's well-
pleaded factual allegations and construe the complaint in the light most favorable to the plaintiff.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted). In doing so,
however, the court is free to ignore legal conclusions or factually unsupported accusations that
merely state “the-defendant-unlawfully-harmed-me.” Jgbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555). Finally, the court must determine whether “the facts alleged in the complaint are
sufficient to show that the plaintiff has a ‘plausible claim for relief.’” Fowler, 578 F.3d at 211
(quoting /gbal, 556 U.S. at 679), A facially plausible claim “allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” /d. at 210 (quoting Iqbal, 556
U.S. at 678). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
On a motion to dismiss for failure to state a claim, the “defendant bears the burden of showing that
no claim has been presented.” Hedges v. United States, 404 F.3d 744, 750 (Gd Cir. 2005) (citing
Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (d Cir. 1991)).
B. Standard of Review for Insufficient Service of Process
A complaint may also be dismissed for insufficient service of process under Rule 12(b)(5),
Dimensional Comme’ns, Inc. vy. OZ Optics Ltd., 218 F. Supp. 2d 653, 655 (D.N.J. 2002). The party
responsible for service has the burden of demonstrating its validity when challenged. Grand Ent.

Grp., Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993). In considering a motion to
dismiss, a court can look to matters outside the pleadings. In re Bulk (Extruded) Graphite Prods.
Antitrust Litig., No. 02-6030, 2006 WL 1084093, at *2 (D.N.J. Apr. 24, 2006). District courts
possess broad discretion in deciding a motion to dismiss for insufficient service of process. Manning
v. Hudson County, No. 17-3450, 2018 WL 3601228, at * 1 (D.N.J. July 27, 2018) (citing
Umbenhauer v. Woog, 969 F.2d 25, 30 (3d Cir. 1992)). If service was ineffective, a court may
“dismiss the plaintiffs complaint .. . [or] simply quash service of process.” Umbenhauer, 969 F.2d
at 30. “[W]hen there exists a reasonable prospect that service may yet be obtained,” dismissal is
inappropriate and “the district court should, at most, quash service, leaving the plaintiff] free to
effect proper service.” /d. (citations omitted); see also Ramada Worldwide Inc. v. Shriji Krupa,
LLC, No. 07-2726, 2013 WL 1903295, at *6 (D.N.J. Apr. 17, 2013) (explaining that courts should
be “reluctant” to dismiss an action where a plaintiff acted in good faith but failed to properly serve).
Il. DISCUSSION
Defendants raise three main arguments in support of dismissal of the Amended Complaint:
that (1) the Brandywine Defendants were not Kalski’s “employer” under applicable law; (2) Kalski
has not adequately pleaded malice, as required to maintain a defamation claim, and any information
shared with prospective healthcare employers regarding her termination was required; and
(3) Kalski has failed to properly serve the Brandywine Defendants. (See Defs.’ Moving Br. 1-2.)
The Court begins with whether the Brandywine Defendants are Kalski’s employer, and then
addresses Defendants’ remaining arguments.
A. Motion to Dismiss for Failure to State a Claim
1. Kalski’s NJLAD (Count J) and FMLA (Count ID) Claims
To begin, the Brandywine Defendants contend that Kalski’s claims should be dismissed
because they are not her employer. (Defs.” Moving Br. 7-8.) Specifically, the Brandywine

Defendants assert that they had no part in Kalski’s employment and point to Kalski’s W-2 form and
her DOL unemployment compensation as evidence that BL Manager alone is her employer. (/d.;
see Williams Cert., Exs. A, B, ECF No. 8-3.) By contrast, Kalski proffers that the Brandywine
Defendants are her employer under single and joint employer theories of liability and hence
contends that, without the aid of discovery, she has stated enough to survive dismissal. (P1.’s Opp’n
Br. 12-19, ECF No. 9.)
Whether an employment relationship exists is usually a relatively simple inquiry,
particularly when an employee has only one employer. In employment law, however, it is
well-established that a plaintiff may have multiple employers. See N.L.R.B. v. Browning-Ferris
Indus. of Pa., Inc., 691 F.2d 1117, 1121-24 Gd Cir. 1982) (explaining “single employer” and “joint
employer” tests). Even where a traditional employment relationship is lacking, the “single
employer” and “joint employer” tests are applied in NJLAD and FMLA cases to determine whether
an employment relationship exists and, if so, to subsequently assess liability. Laurora v. Bayer
HealthCare LLC, No. 16-09041, 2018 WL 3586272, at *3-4 (D.N.J. July 26, 2018) (discussing
tests under NJLAD); Kieffer v. CPR Restoration & Cleaning Serv., LLC, 200 F. Supp. 3d 520, 529-
32 (considering tests under FMLA), aff'd 733 F. App’x 632 (3d Cir. 2018). “The ‘joint employer’
and ‘single employer’ concepts are distinct,” and the Court discusses them in more detail below.
See Browning-Ferris Indus., 691 F.2d at 1122. Notwithstanding the context, a single employer
exists when “two nominally independent enterprises, in reality, constitute only one integrated

* The Third Circuit has applied “single employer” and “joint employer” theories of liability in a
wide varicty of employment contexts, including in Fair Labor Standards Act (“FLSA”), Age
Discrimination in Employment Act (“ADEA”), Americans with Disabilities Act (“ADA”), and
Title VII cases. E.g., In re Enter. Rent-A-Car Wage & Hour Empl. Pracs. Litig., 683 F.3d 462 (3d
Cir. 2012); E.E.O.C. v. Zippo Mfg. Co., 713 F.2d 32 (3d Cir. 1983); Sulima v. Tobyhanna Army
Depot, 602 F.3d 177 (3d Cir. 2010); Plaso v. LIKG, LEC, 553 F. App’x 199 (3d Cir. 2014),

enterprise.” Id. at 1122 (emphasis in original); see also Nesbit v. Gears Unitd., Inc., 347 F.3d 72,
84 Gd Cir. 2003). In contrast, the “joint employer” concept assumes that companies are
“independent legal entities” that “chose[] to handle jointly . . . important aspects of their employer-
employee relationship.” Browning-Ferris Indus., 691 F.2d at 1122 (citations omitted). Thus, though
they may be separate, joint entities “share or co-determine those matters governing the essential
terms and conditions of employment.” /d. at 1123 (citations omitted) (emphasis omitted).
That said, “NJLAD generally require[s] an employment relationship to exist between a
plaintiff and a defendant to hold said defendant liable for acts of discrimination.” Galarza v.
Whittle-Kinard, No. 16-0764, 2017 WL 4329733, at *10 (D.N.J. Sept. 29, 2017) (alterations in
original); see Alston v. Monmouth Cnty. Prosecutor’s Office, No. 12-5633, 2014 WL 1095716, at
*8 (citing Pukowsky v. Caruso, 711 A.2d 398, 404 (N.J. Super. Ct. App. Div. 1998)). To prove the
existence of an employment relationship under a “joint employer” theory pursuant to NJLAD,
courts employ a twelve-factor test:
[(1)] the employer’s right to control the means and manner of the
worker’s performance; (2) the kind of occupation-supervised or
unsupervised; (3) skill; (4) who furnishes the equipment and
workplace; (5) the length of time in which the individual has worked;
(6) the method of payment; (7) the manner of termination of the work
relationship; (8) whether there is annual leave; (9) whether the work
is an integral part of the business of the employer; (10) whether the
worker accrues retirement benefits; (11) whether the employer pays
social security taxes; and (12) the intention of the parties.
Alston, 2014 WL 1095716, at *8 (internal quotations and citation omitted). On the other hand, a
plaintiff using the “single employer” test to prove an employment relationship pursuant to NJLAD
must show that the “operations of the companies are so united that... employees of one company
are treated interchangeably with those of another.” Bayer HealthCare LLC, 2018 WL 3586272, at
*4 (citing Nesbit, 347 F.3d at 87). Relevant factors under the “single employer” inquiry include:

(1) the degree of unity concerning ownership, management, and function; (2) whether third parties
view the entities as a single company; (3) whether a parent company is responsible for salaries,
expenses, or losses; and (4) whether one entity conducts business exclusively with the other. Nesbit,
347 F.2d at 87-88.
FMLA liability also requires a plaintiff to show that a defendant is an employer subject to
the requirements of the statute. Galarza, 2017 WL 4329733, at *11. Yet the FMLA has its own
separate multi-factor “joint employer” test. Bayer HealthCare LLC, 2018 WL 3586272, at *4, A
joint employer relationship generally exists under the FMLA where: (1) employers agree to
interchange employees or share employee services; (2) one employer acts, directly or indirectly, in
the interests of the other employer; or (3) employers appear to share control of the employee,
directly or indirectly. Carroll v. Sunrise Detox Cherry Hill, No. 19-17287, 2020 WL 4218409, at
*5 (D.N.J. July 22, 2020) (quoting 29 C.F.R. § 825.106(a)(1)-(3)). Similar to the “single employer”
test under NJLAD, the FMLA test examines: (1) interrelation of operations; (2) common
management; (3) centralized labor relations; and (4) common ownership or control. CPR
Restoration & Cleaning Servs., 200 F. Supp. 3d at 529; see also Spalla v. Mfg. Servs. Grp., Inc.,
No. 16-821, 2017 WL 569178, at *5 (M.D. Pa. Feb. 13, 2017),
The Amended Complaint describes the Brandywine Defendants as owning and operating
several senior living facilities on the east coast, including the facility where Kalski worked, and
describes BL Manager as the owner and operator of those Brandywine entities. (Am. Compl.
{9 4-7.) The Amended Complaint further provides that “Defendants are referred to interchangeably
by employees and the public,” maintain central management, and operate “various branches or
divisions in numerous locations.” Ud. J 9.) In support of that proposition, Kalski claims that she
“observed documentation” referring to Defendants interchangeably and that Defendants’ website

“holds [Defendants] out as a unified business enterprise.”* (/d. 4 10.) Based on this information,
Kalski concludes that the Brandywine Defendants and BL Manager have an “interrelation of
operations, common ownership or management, centralized control of labor relations, common
financial controls, and other factors,” so they are “sufficiently interrelated and integrated .. . [such]
that they may be treated as a single and/or joint employer of [Kalski] for purposes of this instant
action.” (Am. Compl. { 8; see PL.’s Opp’n Br. 15-16.)
At this stage of the litigation, the Court agrees with Kalski. Whether an employment
relationship exists “can only be established by a careful factual inquiry.” Washington v. Client
Network Servs. Inc., 590 F. App’x 126, 129-30 (3d Cir. 2014) (citing Graves v. Lowery, 117 F.3d
723, 729 (3d Cir. 1997)). And the issue “may generally require resolution at the summary judgment
stage, rather than the motion to dismiss stage.” Jd. at 130 (citing Mariotti v. Mariotti Bldg. Prods.,
Inc., 714 F.3d 761, 768 n.5 (3d Cir. 2013)). As it relates to Kalski, the alleged discriminatory and
retaliatory interactions involved “Defendants’ high-level management,” including Koldys and
Messina. (See Am. Compl. ff] 11, 17-35.) Kalski communicated with Koldys regarding
employment-related matters, such as medical leave, returning to work, vacation time, and
termination. Ud. 4 22-33.) The Brandywine Defendants contend that they “had no part in the
decisions surrounding [Kalski’s] employment,” yet as discussed, Koldys and Messina, employees
of the Brandywine Defendants, were responsible for terminating Kalski’s employment. Ud. § 33;

> Also attached to Kalski’s Opposition Brief are the “LinkedIn.com” profiles of Koldys and Messina
and print-out images of Defendants’ website. (See PI.’s Opp’n Br. Ex. B, ECF No. 9-2.) “As a
general matter, a district court ruling on a motion to dismiss may not consider matters extraneous
to the pleadings. However, an exception to the general rule is that a document integral to or
explicitly relied upon in the complaint may be considered... .” In re Burlington Coat Factory Sec.
Litig., 114 F.3d 1410, 1426 (Gd Cir. 1997) (internal quotations and citations omitted) (emphasis in
original). Noticeably, there is no mention of the LinkedIn.com profiles in Kalski’s Amended
Complaint; thus, the Court declines to consider them. The Court, however, takes into consideration
Defendants’ website, which the Amended Complaint does rely upon. (Am. Compl. { 10.)
10

Defs.’ Moving Br. 8.) Construing all facts and inferences in the light most favorable to Kalski, the
Court finds that she has, at this stage of the litigation, pleaded sufficient facts to demonstrate that
the Brandywine Defendants are her employer and may proceed to discovery to prove the viability
of her claims.
2. Kalski’s Defamation Claim (Count ID)
Count Hl of Kalski’s Amended Complaint alleges defamation under New Jersey common
law. (Am. Compl. 4 70-82.) This claim is based on the disclosures, described above, that
Defendants allegedly made to prospective employers and Consumer Affairs concerning Kalski’s
termination. (Defs.’ Moving Br. 10-13; Am. Compl. §] 70-82.) Defendants submit that portions of
the Cullen Act insulate them from liability and that Kalski has not adequately pleaded malice
regarding their Report. (Defs.’ Moving Br. 10-13.) Kalski counters that the Cullen Act does not
immunize false or malicious reporting and further maintains that Defendants failed to meet several
statutory requirements, such as the timeliness of the Report and the requirement to provide Kalski
with a copy of the performance evaluation that Defendants shared with others. (PI.’s Opp’n Br.
19-24.)
To sufficiently state her defamation claim, Kalski must adequately allege: (1) that
Defendants made a false and defamatory statement concerning her; (2) that the statement was
communicated to a third party and not privileged; and (3) when the plaintiff is a private individual,
fault that amounts to negligence. Mangan v. Corp. Synergies Grp., Inc., 834 F. Supp. 2d 199, 204,
206-07 (D.N.J. 2011) (citing Singer v. Beach Trading Co., 876 A.2d 885, 894-95 (N.J. Super. Ct.
App. Div. 2005)).
In relevant part, the Cullen Act obligates health care entities to report information to
Consumer Affairs if, “for reasons relating to the health care professional’s impairment,
incompetency, or professional misconduct, which incompetency or professional misconduct relates

11

adversely to patient care or safety,” a health care worker has privileges revoked or suspended or is
“discharged from the staff” at the “health care entity.” Alexander v. Hackensack Meridian Health,
No. 19-18287, 2020 WL 5810526, at *11 (D.N.J. Sept. 30, 2020) (quoting N.J.S.A.
§ 26:2H-12.2b(a)(1)). This reporting “shall be made within seven days of the date of the action,
settlement, judgment, or award.” N.J.S.A. 26:2H-12.2(b)(e). Notice of the reporting must also be
provided to the health care professional who is the subject of the notice. /d. at 26:2H-12.2(h).
Moreover, information about a current or former employee’s job performance can be provided to
another health care entity only if: (1) a signed performance evaluation has been shared with the
employee; (2) the employee was provided an opportunity to respond; and (3) the employee’s
response was considered when providing the information to another health care entity. N.J.S.A.
12:2H-12.2(c). The immunity provision of the Cullen Act further provides that a health care entity
reporting to Consumer Affairs or to “another health care entity concerning a health care
professional, including information about a current or former employee’s job performance as it
relates to patient care, is not liable for civil damages in any cause of action arising out of the
provision or reporting of the information.” Senisch v. Carlino, 32 A.2d 217, 280 (N.J. Super. Ct.
App. Div. 2011) (quoting N.J.S.A, 26:2H-12.2(c)). The protections do not necessarily apply where
the reporting was made in “bad faith or with malice.” /d. at 281.
Here, the Court finds that Kalski has adequately stated a defamation claim. Kalski alleges
that the bases for her termination as provided in the Report—that she “was involved in an incident
at [Defendants’] facility wherein she showed incompetency relating adversely to patient care or
safety”’—were false, and that Defendants knew such statements to be untrue but were intending to
harm her reputation. (Am. Compl. 4 75-79.) In turn, Kalski alleges that the real reason Defendants
terminated her was because of her COVID-19 leave. Ud. J 21-23.) Putting forward more support

12

for this theory, as the Court explained above, Kalski remains uninformed as to the allegations that
formed the basis for her termination and further alleges that the DOL awarded her unemployment
compensation after Defendants failed to meet their burden of proof for their claim that she was fired
for misconduct. Ud. 32-38.) And Kalski believes that the Report was filed and post-dated nearly
two years after Defendants terminated her. Ud. J§ 40-44.) Thus, Kalski does not challenge the
underlying determination made by Defendants about the reason for her termination but instead
contends that Defendants knowingly submitted a false report. Ud. 71-74; see also Pl.’s Opp’n
Br. 23-24.) Accepting Kalski’s allegations as true, and without more factual discovery, “a
reasonable inference can be made that the Report[] w[as] not made ‘in good faith and without
malice.’” Alexander, 2020 WL 5810526, at *13. As such, the Court denies Defendants’ Motion to
Dismiss Kalski’s defamation claim based on the immunity afforded by the Cullen Act.
B. Motion to Dismiss for Insufficient Service of Process
Finally, the Brandywine Defendants contend that service of process was improper because
the employee served at Brandywine Senior Living in Mahwah, New Jersey, is neither “an officer
or managing agent” authorized to receive service on their behalf. (Defs.’ Moving Br. 5.) The
Brandywine Defendants are limited liability corporations. (See Gershuny Cert. E-G, ECF No. 8-2.)
As such, Kalski must abide by Rule 4(h), which governs service of process for corporations and
unincorporated associations. See Fed. R. Civ. P. 4(h).° Service on limited liability corporations may
be effectuated by: (1) following state law for serving a summons in the state where the district court
is located or where service is made; or (2) “delivering a copy of the summons and of the complaint
to an officer, a managing or general agent, or [] any other agent authorized by appointment or by

° Rule 4(h)(1)(A) provides that an entity may be served “in the manner prescribed by Rule 4(e)(1)
.... Fed. R. Civ. P. 4(h)C)(A).

13

law.” Mettle v. First Union Nat. Bank, 279 F. Supp. 2d. 598, 602 (D.N.J. 2003) (quoting Fed. R.
Civ. P. 4(h)).
New Jersey allows for a limited liability corporation to be served through “an officer or
managing agent.” N.J. Ct. R. 4:4-4(a)(5); Erwin v. Waller Cap. Partners, LLC, No. 10-03283, 2010
WL 4053553, at * 5 (D.N.J. Oct. 14, 2010) (‘The [New Jersey court rules] do not specifically use
the word ‘limited liability company’ or address the impact of service upon this particular form of
business organization. However, it is this Court’s view that limited liability companies fall under
the category of ‘unincorporated associations’ specified in N.J. Ct. R. 4:4-4(a)(5).”). Accordingly,
Kalski has the burden of proving that the individual served, C. Bannister (“Bannister”), held a
position of “managing or general agent,” or an equivalent. See Gottlieb v. Sandia Am. Corp., 452
F.2d 510, 513 Gd Cir. 1971).
Here, the Court finds that Kalski has not met her burden of proving Bannister’s authorization
to receive service of process for the Brandywine Defendants. The Brandywine Defendants point to
the state court action affidavits of service as evidence that neither their correct address nor agent
have been served in this action. (See Def.” Moving Br. 9-10; Gershuny Cert., Exs. B-G, ECF No.
8-2 (corporate status reports for the Brandywine Defendants designating Brenda Bacon as the
registered agent for those entities and a Mt. Laurel, New Jersey receipt address.).) In response,
Kalski does not aver that Bannister is an officer or managing agent of Defendants or that Bannister
was authorized to accept service. (See Pl.’s Opp’n Br. 11.) Instead, Kalski contends that
Defendants’ service of process argument is moot. (/d.)
The thrust of Kalski’s mootness argument involves e-mail exchanges between her counsel,
Allison Barker, Esq. (“Barker”), and counsel for Defendants, Lauren Gershuny, Esq. (“Gershuny”).
By way of brief background, Defendants moved to dismiss Kalski’s original complaint—which

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Kalski first filed in state court—in July 2022, raising the same arguments, including insufficient
service of process. (See generally Defs.’ July 2022 Mot. to Dismiss, ECF No. 4.) Thereafter, Kalski
filed her Amended Complaint. (ECF No. 5.) When the Brandywine Defendants again raised the
service of process issue in their present Motion, it came as a surprise to Barker, who was under the
impression that Gershuny’s firm, Genova Burns, “haf[d] accepted service on behalf of the[]
[Brandywine] Defendants.” (See Pl.’s Moving Br., Ex. A, ECF No. 9-1.) In Barker’s August 2022
e-mail to Gershuny expressing this surprise, Barker sought to clear up the issue of service and asked
Gershuny to confirm whether she would accept service of the Amended Complaint on behalf of the
Brandywine Defendants. (/d.) She also stated that if Gershuny would not accept service, she would
re-serve them, but thought it to be a waste of resources. (/d.) Gershuny responded and “agree[d] to
accept service on [the Brandywine Defendants]” behalf, but at the same time disagreed with
Kalski’s “position regarding maintaining the action against [the Brandywine Defendants], . . .
reserv[ing] all rights with respect to the same.” (/d.) Based on that e-mail, Kalski contends that the
issue regarding service is “moot.” (Pl.’s Opp’n Br. 11.) To be clear, Gershuny never signed an
acceptance of the service of summons for the Brandywine Defendants.
The question becomes whether the Brandywine Defendants waived service of process.
First, although New Jersey law provides that “[a] general appearance or an acceptance of the service
of a summons, signed by the defendant’s attorney . . . shall have the same effect as if the defendant
had been properly served,” that rule is construed narrowly, to Kalski’s detriment. See Adv. Surgery
Ctr. v. Conn, Gen. Life Ins. Co., No. 12-2715, 2012 WL 3598815, at *14 (D.N.J. July 31, 2022)
(quoting N.J. Ct. R. 4:4-6)). Second, and fatal to Kalski’s argument, is Third Circuit case law
holding that e-mail messages “evincing an intent to forego an objection to formal service . . . [are]
insufficient to constitute a waiver of service.” See Di Loreto v. Costigan, 351 F. App’x 747, 753

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(3d Cir. 2009). In the particularly instructive case Di Loreto, a pro se defendant e-mailed the
plaintiffs counsel, acknowledged service of the complaints, and expressed a clear intent to formally
waive service. Jd. at 750 (“Be advised that I will be appearing pro se in the cases and that I
acknowledge service of both complaints effective today. I [sic] you require something more formal,
just send it to me.”). The Di Loreto court found that the plaintiff's intent was insufficient to forego
objection to the defective service with the court. /d. at 752-53. Rather, defense counsel waives
service only upon submission of a completed acceptance of service form to the court. Jd. Thus,
because Gershuny’s “behavior was directed at plaintiff's counsel, and not at the court itself... it
was insufficient to waive service.” Jd. (citing Cmiech v. Electrolux Home Prods., Inc., 520 F. Supp.
2d 671, 675 (M.D. Pa. 2007) (explaining that even where defense counsel shows an intent to forego
service, that behavior “f[a]ll[s] short of submitting to the jurisdiction of the court, and thus actually
waiving any such objection” to service) (internal quotations and citations omitted) (alterations
adopted)).
In any event, however, the Court does not wish “to make the service of process more
difficult, time consuming, and expensive for plaintiff.” Mercedez-Benz Fin. Servs. USA LIC vy.
Chandler, 19-15716, 2020 WL 3892360, at *5 (D.N.J. July 2, 2020). As detailed above, because
there is nothing in the record that suggests Kalski would be unable to serve the Brandywine
Defendants, dismissal of the Amended Complaint would be inappropriate at this time. See Bright
v. Tyson, No. 15-8038, 2016 WL 3219876, at * 2 (D.N.J. June 6, 2016) (explaining that where a
plaintiff acts in good faith yet fails to effect proper service of process, “courts are reluctant to
dismiss an action”). Kalski served Defendants, albeit unsuccessfully, within the ninety-day period
proscribed by Rule 4(m) and in good faith sought to clarify the insufficient service of process issue
with counsel for the Brandywine Defendants in August 2022, well before the Rule 4(m) deadline.

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(See Gershuny Cert., Exs. B-D; Pl.’s Opp’n Br., Ex. A.)’ Kalski first filed her complaint in state
court on June 8, 2022, attempted service several days later, and Defendants moved to dismiss less
than a month later; thus, it is clear that the Rule 4(m) deadline had not yet expired at the time
Defendants first moved to dismiss. (See Defs.’ Not. of Removal 2, ECF No. 1; Gershuny Cert., Exs.
B-D.) Therefore, “there exists a reasonable prospect that service may yet be obtained,” and
dismissal of Kalski’s Amended Complaint with respect to the Brandywine Defendants would be
improper. See Umbenhauer, 969 F.2d at 30. “Instead, the Court will quash service, strike the entry
of service from the docket, and grant [Kalski] a short extension to effect proper service.” Manning,
2018 WL 3601228, at *3 (citing Umbenhauer, 969 F.2d at 30). In the alternative, the Brandywine
Defendants may forego any challenge to the defective service by returning an acceptance of service
form to the court. See Di Loreto, 351 F. App’x at 753.
IV. CONCLUSION
For the reasons stated above, the Court denies Defendants’ Motion to Dismiss. Within thirty
days of the date of this Memorandum Opinion, and in accordance with the Rules, Kalski must
effectuate proper service of the Amended Complaint and summons upon the Brandywine
Defendants. An appropriate Order accompanies this Memorandum Opinion.

?

UNITED STATES DISTRICT JUDGE

7 Under Rule 4(m), a plaintiff must effectuate service within ninety days after the complaint is filed.
Fed. R. Civ. P. 4(m). Failing to meet this deadline results in dismissal of the action without
prejudice. See id. “But if the plaintiff shows good cause for the failure, the [C]ourt must extend the
time for service for an appropriate period.” Jd.; see also Ramada Worldwide Inc., 2013 WL
1903295, at *6 (“Where a plaintiff acts in good faith, but fails to effect proper service of process,
courts are reluctant to dismiss an action.”).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10274416. Public record. Not legal advice.