WILLIAMS v. INTERNATIONAL PAPER COMPANY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

KWAMI WILLIAMS,

Plaintiff,

v.

Civil No. 21-19765 (MJS)

INTERNATIONAL PAPER COMPANY,

et al.,

Defendants.

OPINION AND ORDER

This matter comes before the Court on the letter, ECF No. 84, filed by defendant

International Paper Company (“IPC”) renewing its motion to dismiss the fourth amended

complaint (“FAC”), ECF No. 78, pursuant to Federal Rule of Civil Procedure 12(b)(6).

Plaintiff Kwami Williams (“Plaintiff”) opposes dismissal as unwarranted as a matter of law.

ECF No. 88. The Court hears this matter with the written consent of the parties to conduct all

proceedings in this matter in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil

Procedure 73. ECF Nos. 13, 27. Having considered the parties’ submissions,1 the Court decides

this matter without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local

Civil Rule 78.1(b). For the reasons that follow, IPC’s letter motion is DENIED.

1 Defendant Air Conveying Corporation (“ACC”) filed its answer to the FAC on August 9,

2024, and has not taken a position as to IPC’s motion to dismiss. ECF No. 80.

I. Background2

Plaintiff was hired by IPC as a machine operator in its Bellmawr, New Jersey, location

in April 2015. ECF No. 78 at ¶8. IPC is a pulp and paper company that operates its Bellmawr

location as a corrugated box manufacturing facility. Id. at ¶2. As part of the box-making

process, “materials are fed through the trench conveyor trim removal system.” Id. at ¶10. The

trench conveyor trim removal system is a piece of machinery comprised of a system of

conveyor belts and pulleys which deliver waste materials to a collection chute. Id. at ¶67. In

general, “most of the waste material” is collected by the system, but not all of it, and some

“falls off the conveyor belt and lands in the pit/trench area.” Id. at ¶11. This area “is about five

feet deep” and must be accessed by ladder. Id. at ¶26. An overaccumulation of waste in the pit

area can create a fire hazard and pose a risk of jamming the system’s conveyor belt. Id. at ¶11.

As a result, IPC employees cleaned the pit area “manually.” Id. at ¶11. However, IPC did not

specially train employees in cleaning the pit area, and there was “no one employee or group of

employees at the Bellmawr facility . . . whose job duty . . . was to remove the waste from the

trench conveyor trim removal system.” Id. at ¶¶27-28. Instead, IPC “often offered entry level

employees[] a few ‘overtime hours’ to clean the pit/trench.” Id. at ¶28.

On June 9, 2019, the day of Plaintiff’s injury, Plaintiff was cleaning the pit/trench of

the trench conveyor trim removal system. Id. at ¶42. At the direction of his supervisor, Plaintiff

did so “while the machine was still in operation and the conveyor belt was in motion.” Id. at

¶43. Although IPC “was fully aware of the danger of exposing employees to machines that

2 For the purposes of this Motion, the Court accepts as true all the factual allegations in the

FAC, as well as all reasonable inferences that could be drawn from them, and construes them

in a light most favorable to Plaintiff. See Sheridan v. NGK Metals Corp., 609 F.3d 239, 262

n.27 (3d Cir. 2010).

were not completely stopped and de-energized prior to cleaning and unjamming same because

of prior OSHA, [California regulator], and complaints from employees who were not trained

and/or previously injured,” id. at ¶33, “employees were directed to clean [the] pit/trench while

the trench conveyor trim removal system was still in operation.” Id. at ¶30. The removal

system’s moving parts were “unguarded” by design, and there were “no safety guards in place”

at the time of Plaintiff’s accident. Id. at ¶¶67, 24 Thus, while Plaintiff was “cleaning the debris,

the roller on the conveyor belt caught Plaintiff’s gloves and rolled his left hand into the

machine,” ultimately crushing Plaintiff’s left arm. Id. at ¶43. Because the employees who

cleaned the pit area did not have access to and “were not trained in lock out tag out (LOTO)”

procedures, other employees on the floor were unable to stop the machine without the

assistance of a manager. Id. at ¶¶40-41.

Plaintiff filed suit on or about June 8, 2021, in the Superior Court of New Jersey,

Camden County, alleging that IPC had “committed an intentional tort by inducing its

employee, Plaintiff, who was not trained or qualified to enter the scrap trench conveyor area,

with overtime pay to perform the dangerous task of cleaning the pit while the machine and

plant was in full operation.” ECF No. 1-1 at ¶20. Plaintiff also asserted claims of negligent

hiring/retention and a respondeat superior theory of negligence based on the unidentified

supervisor’s directives. Id. at ¶¶31-36. IPC subsequently removed the action to federal court

on November 5, 2021, on the basis of diversity jurisdiction. ECF No. 1. Plaintiff filed his first

amended complaint on March 27, 2022, which joined ACC to the action and alleged products

liability and negligent supervision claims against it. ECF No. 15 at ¶¶31-35. After ACC filed

a motion to dismiss the first amended complaint for, among other things, failure to state a claim

and insufficient pleading [ECF No. 23], Plaintiff sought leave to amend his complaint to

address the deficiencies identified by ACC and further clarify his claims. ECF No. 28. Plaintiff

ultimately filed his second amended complaint on September 12, 2023.3 ECF No. 46. The

Court held a conference with counsel for all parties on October 20, 2023, at which the parties

raised the issue of a potential third amended complaint (“TAC”). ECF No. 54. Following this

conference, the Court directed Plaintiff’s counsel to confer with counsel for defendants “so

that th[e] complaint is filed on consent and consistent with the Court’s earlier order.” Id. With

the consent of all parties, the TAC was filed on October 27, 2023. ECF No. 55. On December

8, 2023, ACC filed an answer to the TAC and IPC moved to dismiss the TAC. ECF Nos. 63,

64.

Dismissal of the Third Amended Complaint

On June 28, 2024, the Court granted IPC’s motion to dismiss the third amended

complaint (“TAC”). ECF No. 74. The second through fifth counts were dismissed “[b]ecause

Plaintiff acknowledge[d] in his brief that ‘only the First Count is directed towards IPC alleging

an “Intentional Tort.”’” Id. at 6 n.5. “Taking all of the allegations in the TAC as true and giving

Plaintiff the benefit of all reasonable inferences, the Court [found] that the facts as alleged in

the TAC [did] not plausibly demonstrate that IPC’s alleged practices rise to the level of

intentional wrong.” Id. at 10. The Court accepted, “for the purposes of [that] motion,” “that

3 This Court initially denied Plaintiff’s motion without prejudice due to the motion’s

noncompliance with the pertinent local rules, failure to explain why amendment was proper

under Federal Rule of Civil Procedure 15(a)(2), and insufficient pleading regarding the

applicable statutes of limitations and Plaintiff’s claims against ACC. ECF No. 37. Plaintiff

renewed his motion as directed by the Court on February 13, 2023, after correcting these

deficiencies. ECF No. 38. In an opinion and order dated September 5, 2023, this Court granted

the renewed motion as it pertained to the products liability claims against ACC, but denied the

motion insofar as Plaintiff sought to add claims against Weyerhaeuser Company regarding its

alleged design of the machine’s electrical system. ECF No. 43.

clearing the pit area carried a great risk of injury.” Id. However, the Court observed the TAC

alleged IPC “was ‘aware of the risk and danger of cleaning the pit/trench area while the trench

conveyor trim removal system was in operation,’” yet under New Jersey law “mere awareness

of a risk does not equate to a virtual certainty of injury.” Id. (citing Van Dunk v. Reckson

Assocs. Realty Corp., 45 A.3d 965, 978 (N.J. 2012); Millison v. E.I. du Pont de Nemours &

Co., 501 A.2d 505, 514-15 (N.J. 1985)).

Further, the Court found “the TAC [did] not allege the existence of any safety standard

or protocol, internal or external, that would have put IPC on notice that clearing the trench area

without stopping operations carried a substantial certainty of injury.” Id. at 11. “Moreover, the

TAC [did] not allege that there were any prior incidents or injuries, employee complaints, or

OSHA citations arising out of IPC’s decision.” Id. The Court also found the TAC deficiently

plead the context prong, “because it contains no facts which would suggest that Plaintiff’s

injury and the circumstances surrounding it were ‘more than a fact of life of industrial

employment.’” Id. at 12 (quoting Hocutt v. Minda Supply Co., 235 A.3d 1047, 1059 (N.J. App.

Div. 2020)).

The Court held that “[b]ecause it is not clear that any attempt to amend the complaint

against IPC would be futile, Plaintiff should have one last opportunity to state a sufficient

factual basis for the ‘conduct’ and ‘context’ elements of IPC’s alleged ‘intentional wrong,’ if

counsel can do so within the constraints of Fed. R. Civ. P. 11(b).” Id. at 13. The Court provided

Plaintiff fourteen days to file “an amended complaint reasserting his intentional tort claim to

the extent he can in good faith cure the deficiencies identified herein.” Id. The Court extended

this deadline until July 26, 2024, upon a joint application by the parties. ECF No. 77.

The Fourth Amended Complaint

Plaintiff filed the FAC on July 26, 2024. ECF No. 78. The FAC states four counts: (1)

intentional tort by IPC; (2) products liability against defendant ACC; (3) negligence claims

against fictitious defendants based on the conduct of employees pled as fictitious defendants,

under a theory of respondeat superior; (4) negligent hiring/retention/supervision against

fictitious defendants; and (5) products liability claims against fictitious defendants.

IPC filed this renewed motion to dismiss in lieu of an answer on August 23, 2024. ECF

No. 84. Plaintiff’s opposition to the motion was received on September 6, 2024. ECF No. 88.

II. Legal Standard

“In a Rule 12(b)(6) motion, the court evaluates the merits of the claims by accepting

all allegations in the complaint as true, viewing them in the light most favorable to the

plaintiffs, and determining whether they state a claim as a matter of law.” Gould Elecs. Inc. v.

U.S., 220 F.3d 169, 178 (3d Cir. 2000). “The defendant bears the burden of showing no claim

has been stated.” Id. “The court may only consider the facts alleged in the pleadings, any

attached exhibits, and any matters of judicial notice.” Alsaidi v. Hubert, 750 F.Supp.3d 411,

416 (D.N.J. 2024).

The Third Circuit frames this analysis in three steps: (1) identify “the elements plaintiff

must plead to state a claim;” (2) identify allegations that merely restate the elements of a claim,

because conclusions “are not entitled to the assumption of truth;” and (3) assume the remaining

allegations are true and “determine whether they plausibly give rise to an entitlement to relief.”

Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quoting Ashcroft v. Iqbal,

556 U.S. 662, 675-79 (2009)).

III. Discussion

IPC argues the FAC fails to cure the deficiencies within the prior complaints because

“[n]one of the new allegations . . . demonstrate intentional conduct as to Plaintiff or knowledge

of ‘substantial certainty’ of Plaintiff’s injury, as required under the case law.” ECF No. 84 at

2. IPC asserts that even if it were true “that IPC ignored OSHA’s guidance regarding safety

procedures (which IPC disputes), such conduct still falls short of the high standard required to

establish an intentional wrong under the [Workers’ Compensation] Act.” Id. IPC maintains the

same logic applies to any decision “to forego additional training and to continue production

while employees cleared the trench area.” Id. at 4. Additionally, IPC asserts some of Plaintiff’s

new allegations concern different equipment and other unrelated circumstances that do not

establish intentional conduct. Id. at 5-6. “The result of applying such a broad brush,

unconnected to Plaintiff’s accident, is that any incident could be exempted from the Workers’

Compensation exclusive remedy bar so long as there have been any prior workplace accidents

within the company.” ECF No. 89 at 2.

Plaintiff contends the deficiencies spotlighted by the Court in its dismissal of the TAC

were cured in the FAC. ECF No. 88 at 1. Plaintiff argues any inconsistencies identified by IPC

between Plaintiff’s injury and other incidents described in the complaint are not addressable

in a motion to dismiss, where all reasonable factual inferences must be drawn in Plaintiff’s

favor. Id. at 2. Plaintiff asserts these other incidents establish “that more than 15,000 injuries

occurred as a result of [IPC’s] conduct.” Id. at 9.

As a threshold matter, counts two through five are not subject to this motion to dismiss,

as the counts are alleged against ACC and fictitious defendants, not movant IPC. Plaintiff

followed this Court’s guidance in dismissing the TAC to revise these counts “to remove

references to IPC as to those counts” because “it appear[ed] undisputed that the second through

fifth counts of the TAC should be dismissed against IPC.” ECF No. 78 at 13.

The Court’s dismissal of the TAC identified two general legal deficiencies in the

pleading: (1) the conduct prong was not “pled [with] sufficient facts to plausibly demonstrate

that IPC acted with the knowledge that its conduct carried a ‘substantial certainty’ of injury or

death;” and (2) the context prong insufficiently pled Plaintiff’s “injury and the circumstances

in which the injury [was] inflicted are ‘plainly beyond anything the legislature could have

contemplated as entitling the employee to recover only under the Compensation Act.’” ECF

No. 74 at 7-8 (quotations omitted).

Conduct: Like the TAC, the FAC alleges that IPC’s alleged “intentional wrong” lies in

its decision to direct Plaintiff, an individual who was “not trained or qualified to enter the scrap

trench conveyor area,” to clear the trench area “in proximity to hazardous moving parts” while

the machine was in “full operation” without providing access to the machine’s LOTO

procedures. ECF Nos. 74 at 10; 78 at ¶¶46-47. The FAC further mirrors the TAC in alleging

that the hazard stemmed from the “unguarded” pulleys which created a “nip hazard” with each

other. ECF Nos. 74 at 10, 78 at ¶67. Thus, as was the case in addressing the motion to dismiss

the TAC, “the Court accepts that clearing the pit area carried a great risk of injury.” ECF No.

74 at 10 (quoting Laidlow v. Hariton Mach. Co., Inc., 790 A.2d 884, 896 (N.J. 2002)). The

TAC was deficient because “the TAC fail[ed] to explain how IPC’s decisions to forego

additional training and to continue production while employees cleared the trench area elevated

the risk of injury to a virtual certainty.” Id. The Court cited to Hocutt, which observed that

conduct “repeated in the face of efforts by government regulators or others to put a stop to the

practice” or “deception [] used to conceal the repetition” can elevate conduct to meet the

“‘substantial certainty’ test” that “replaced the ‘deliberate intention’ standard.” 235 A.3d at

1058-59.

The FAC attempts to cure these deficiencies with several examples of warnings and

injuries to demonstrate the substantial certainty of future injury by continuing established

policy. First, Plaintiff alleges IPC was on notice that clearing the trench area without stopping

operations carried a substantial certainty of injury because “in 2013, five years prior to

Plaintiff’s injuries, 15,000 [IPC] employees were injured as a result of being exposed to

machineries that were not completely de-energized prior to performing tasks on those

machines, including the Flexo machines, a similar machine on which Plaintiff was injured.”

ECF No. 78 at ¶36. Further, in 2014, the United States Department of Labor’s Occupational

Safety and Health Administration (“OSHA”) fined IPC for “failure to implement procedures

and protocols that would prevent workers from contacting and operating energized machinery

parts.” Id. at ¶12. OSHA allegedly issued IPC “3 ‘repeated’ violations and 2 ‘serious’ safety

violations” in connection with this failure. Id. Plaintiff alleges “OSHA advised [IPC] that

workers should never conduct maintenance and troubleshooting without first shutting down all

electrical sources to prevent severe injuries to workers.” Id. at ¶13. Plaintiff alleges OSHA

required IPC to conduct employee training in 2013 for similar issues with cleaning machines

powered by electricity. Id. at ¶14. Further, Plaintiff alleges OSHA investigated IPC in 2015

after an employee died in a New York facility while cleaning machines, and found IPC’s

LOTO procedures “incomplete” and that IPC “failed to complete annual evaluations to ensure

the procedures were effective.” Id. at ¶15. “In 2015, OSHA placed [IPC] in the ‘severe violator

enforcement program,’ a program for recalcitrant employes who endanger workers by

committing willful, repeated or failure to abate violations.” Id. at ¶16. Plaintiff alleges a

California regulator investigated IPC in 2017 for similar unsafe practices and stressed the need

for effective LOTO when cleaning or maintaining electrically-powered conveyor systems. Id.

at ¶18. The California regulator allegedly found the “procedure inadequate to prevent injuries

because this did not completely de-energize the machine.” Id. at ¶19. Plaintiff alleges IPC did

not follow OSHA and California’s instructions, and “in 2018, another [IPC] employee’s hand

was amputated and crushed in a machine that he was cleaning, repairing, and or removing jam

debris while the machine was in operation.” Id. at ¶22. Plaintiff asserts these prior incidents

and engagement with OSHA and state regulators made IPC “fully aware of the danger of

exposing employees to machineries that were not completely stopped and de-energized while

performing unjamming tasks based on prior injuries and prior violations by OSHA.” Id. at ¶31.

Plaintiff additionally alleges IPC was advised in 2017 “that employees should not wear

hand protection, such as gloves, where there is a danger of the hand protection becoming

entangled in moving machinery or materials.” Id. at ¶21. Plaintiff alleges that, nevertheless,

he “was again directed [in 2019] to wear gloves while cleaning debris around the roller of the

Flexo machine” and “Plaintiff suffered serious injuries when his glove became caught and

entangled on the roller on the Flexo machine.” Id. at ¶23.

These warnings and injuries allege awareness by IPC that continuing to direct

employees to continue production while employees cleared the trench area would cause

injuries similar to Plaintiff’s with “substantial certainty.” Plaintiff alleges that across more

than five years preceding his injury, IPC employees have regularly been injured under orders

to address machines that should have been de-energized, and OSHA recommended the same

after investigating such injuries. Critically, these allegations address IPC’s appreciation of the

risk before the accident, not after as criticized in the Court’s dismissal of the TAC. ECF No.

74 at 12. This appreciation is reinforced by the allegation that IPC engaged in deception when

it “misrepresented its practices to OSHA and often falsely claimed that employees did not

follow procedures; however, IPC never provided training to employees on any procedures

regarding energy source machines which resulted in the injuries of several employees prior to

and after the incident alleged in Plaintiff’s Complaint.” ECF No. 78 at ¶39. Coupled with the

allegation that IPC continued to direct its employees to address machines while they were

operating, and that Plaintiff’s injury was suffered under similar circumstances, the FAC, as

now pled, cures this deficiency to withstand dismissal at this stage of the proceeding.

Context: “As for the context prong, [the Court found] the TAC [] deficient because it

contain[ed] no facts which would suggest that Plaintiff’s injury and the circumstances

surrounding it were ‘more than a fact of life of industrial employment.’” ECF No. 74 at 12.

The Court observed that the “TAC allege[d], essentially, that Plaintiff was injured as a result

of IPC’s deliberate decision to incur some risk to employees for the purpose of maximizing

the facility’s productivity,” and found that “‘such decisions are a type of mistaken judgment

that is a fact of life in industrial workplaces,’ and therefore, as pled, IPC’s alleged conduct

[was] not ‘plainly beyond anything the Legislature intended the WCA to immunize.’” Id. at

12-13 (quoting Hocutt, 235 A.3d at 1060).

The FAC, as now pled, cures this deficiency with the allegations summarized above

that detail years of IPC ignoring escalating warnings from OSHA, misrepresenting compliance

with such warnings, and continuing their policies as numerous employees were injured in the

way warned of by OSHA and other regulators. Plaintiff alleges IPC “misrepresented its

practices to OSHA and often falsely claimed that employees did not follow procedures;

however, [IPC] never provided training to employees on any procedures regarding energy

source machines which resulted in the injuries of several employees prior to and after

[Plaintiff’s injury].” ECF No. 78 at ¶39. Further, IPC allegedly willfully did not implement the

previous recommendations of OSHA and CDOSA and in 2018, another [IPC] employee’s hand

was amputated and crushed in a machine that he was cleaning, repairing, and or removing jam

debris while the machine was in operation.” ECF No. 78 at ¶22. Plaintiff further alleges IPC

“intentionally misrepresented to OSHA during the investigation [of Plaintiff’s own injury] that

‘[Plaintiff] did not lockout the machine properly’ . . . [when IPC] knew there was no lockout

option on the machine.” Id. at ¶48. Additionally, IPC allegedly “intentionally misrepresented

to OSHA during the investigation when [IPC] indicated that ‘employees required to enter the

pit were trained on LOTO procedure and that the machine had an interlock as an extra level of

protection’” because IPC “never trained Plaintiff on the LOTO procedure and there was no

interlock at the time of Plaintiff’s injuries.” Id. at ¶¶48-49. Plaintiff’s allegations in the FAC,

which were not as detailed or fulsome in the TAC, describe a nexus between the employer’s

previous alleged misconduct and the injury at issue and compels a finding that the “context”

prong is sufficiently pled to withstand dismissal at this stage of the proceedings.

IPC contends “Plaintiff’s new allegations . . . include unrelated incidents, different

types of equipment, different locations and different circumstances from the incident involving

Plaintiff.” ECF No. 84 at 6. Contrary to Plaintiff’s pleading in the FAC that he “suffered

serious injuries when his glove became caught and entangled on the roller on the Flexo

machine,” ECF No. 78 at ¶23, IPC maintains “Plaintiff was not operating or performing

maintenance on a Flexo machine at the time of the incident.” ECF No. 84 at 6. IPC argues:

“Therefore, all allegations regarding ‘Flexo’ equipment or other types of machinery cannot

support Plaintiff’s claims . . . .” Id. IPC also asserts “Plaintiff was not engaged in

‘troubleshooting’ or performing any maintenance or repairs of the conveyor system,” Id. at 7,

contrary to the FAC’s statement that Plaintiff was injured after he was “directed to wear gloves

while cleaning the debris around the roller of the Flexo machine.” ECF No. 78 at ¶23. IPC

argues: “Therefore, any alleged facts that relate to such unrelated incidents do not lend

credence to the [substantial certainty argument].” ECF No. 84 at 7.

IPC’s arguments, however, are entirely derivative of disagreements with the facts

alleged in the complaint, which are appropriately raised in a motion for summary judgment,

not a motion to dismiss. Edmonson v. Lincoln Nat. Life Ins. Co., 777 F.Supp.2d 869, 884-85

(E.D. Pa. 2011) (legal issue of whether a person acted as a fiduciary could not be resolved by

a motion to dismiss “if the parties dispute the facts that establish the defendant’s fiduciary

status”). Indeed, the two opinions cited by IPC reflect this distinction between a motion to

dismiss, where facts asserted in the complaint are presumed true, and a motion for summary

judgment, where facts are only accepted if supported by the evidence produced in discovery.

See Id. at 4-5 (citing Torres v. Lucca’s Bakery, 487 F.Supp.2d 507, 512 (D.N.J. 2007); Tomeo

v. Thomas Whitesell Constr. Co., 823 A.2d 769, 776-78 (N.J. 2003)). Both Torres and Tomeo

found their respective plaintiff’s claims failed at summary judgment, where the facts did not

substantiate the complaint’s allegations. Id. Categorically, whether an employer’s conduct

constitutes “an ‘intentional wrong’ will be dependent on the facts of each case.” Tomeo, 823

A.2d at 773 (citing Mabee v. Borden, Inc., 720 A.2d 342, 348 (N.J. App. Div. 1998)).

Accordingly, IPC’s concerns that the alleged facts, now included in the FAC, do not reflect

the truth cannot sustain a motion to dismiss; only in a motion for summary judgment can IPC

present evidence contradicting the veracity of the facts in the complaint.

IPC’s arguments concerning “alleged ‘after-the-fact misrepresentations’ to OSHA

about the incident,” ECF No. 84 at 7, do not change the Court’s judgment to allow the FAC to

proceed. Although IPC argues: “The FAC contains the same claims of alleged post-accident

misrepresentations, which this Court has found to be insufficient,” Id., such allegations are

only one factor in the analysis. Before finding these allegations “insufficient” in dismissing

the TAC, the Court observed that “the TAC does not allege that there were any prior incidents

or injuries, employee complaints, or OSHA citations arising out of IPC’s decision.” ECF No.

74 at 11. The Court cited to Hocutt, 235 A.3d at 1059, which stated “an employer’s

longstanding practice of violating an OSHA regulation . . . [could] rise to the level of

intentional wrong” based on “proof submitted showing that there were prior forklift-related

accidents or injuries, prior OSHA violations pertaining to forklift operations, a failure to abate

such OSHA violations, or prior complaints from workers about forklift practices.” Id. As the

Court has detailed above, the FAC supplements the TAC with the allegations summarized

above that detail years of IPC allegedly ignoring escalating warnings from OSHA,

misrepresenting compliance, and continuing their policies as numerous employees were

injured in the way warned of by OSHA and other regulators. Accordingly, the “alleged ‘after-

the-fact misrepresentations to OSHA about the incident” cited by IPC, ECF No. 84 at 7, are

only part of the totality of the allegations that now bear on this issue.

The Court will permit the FAC to proceed because, as now pled, it sufficiently cures

the deficiencies the Court identified with the TAC. IPC’s challenges to the allegations in the

FAC may be meritorious and very well may result in a summary judgment motion, after the

facts of this case are developed in discovery. See Van Dunk v. Reckson Assocs. Realty Corp.,

45 A.3d 965, 979-80 (N.J. 2012) (dismissing employee’s claims at summary judgment because

“the court, as the gatekeeper policing the Act’s exclusivity requirement,” must consider

whether “as a matter of law an employee’s injury and the circumstances in which the injury

is inflicted are ‘plainly beyond anything the legislature could have contemplated as entitling

the employee to recover only under the Compensation Act’”) (first emphasis added). But at

this stage of the case, the FAC is sufficiently pled to survive dismissal, and the Court cannot

order otherwise based on disputes of fact that are better resolved at summary judgment.

IT IS, therefore, on this 20th day of June 2025,

ORDERED that IPC’s motion to dismiss the fourth amended complaint is DENIED.

IPC shall file an answer to the complaint no later than July 2, 2025.

s/ Matthew J. Skahill

MATTHEW J. SKAHILL

United States Magistrate Judge