Opposition Brief — Gina Russomanno, Petitioner v. Dan Dugan, et al.
Supreme Court briefJan 27, 2022
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No. 21-787
In The
Supreme Court of the United States
-------------------------- ʕ ---------------------------
GINA RUSSOMANNO,
Petitioner,
v.
DAN DUGAN; JENNA YACKISH;
TREVOR VOLTZ; ERIC WEEDON;
SUNOVION PHARMACEUTICALS, INC.,
Respondents.
-------------------------- ʕ --------------------------
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
-------------------------- ʕ --------------------------
RESPONDENTS’ BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
-------------------------- ʕ --------------------------
Ivan R. Novich
Counsel of Record
Christie Pazdzierski
LITTLER MENDELSON, P.C.
One Newark Center, 8th Floor
Newark, New Jersey 07102
(973) 848-4700 (Telephone)
(973) 643-5626 (Facsimile)
inovich@littler.com
cpazdzierski@littler.com
Counsel for Respondents
Dated: January 27, 2022
THE LEX GROUPDC i 1050 Connecticut Avenue, N.W. i Suite 500, #5190 i Washington, D.C. 20036
(202) 955-0001 i (800) 856-4419 i www.thelexgroup.com
i
QUESTIONS PRESENTED
1.
Did the Third Circuit Court of Appeals
properly affirm the District Court’s dismissal of
Plaintiff-Petitioner Gina Russomanno’s (“Plaintiff”
or “Russomanno”) second complaint against
Defendant-Respondent Sunovion Pharmaceuticals,
Inc. (“Sunovion” or “Company) on res judicata grounds
where Russomanno’s original and subsequent
complaints both complained of the circumstances
surrounding her placement on a Performance
Improvement
Plan (“PIP”)
and
subsequent
termination of employment?
2.
Did the Third Circuit properly affirm the
District Court’s decision that res judicata barred
Russomanno’s second complaint against DefendantsRespondents Dan Dugan, Jenna Yackish, Trevor
Voltz, and Eric Weedon on the grounds that the
individual defendants were in privity with Sunovion?
ii
CORPORATE DISCLOSURE STATEMENT
Respondent Sunovion Pharmaceuticals, Inc., a
non-governmental corporate party, has a parent
company, Sumitomo Dainippon Pharma America, Inc.
Sumitomo Dainippon Pharma America, Inc. has a
parent company, Sumitomo Dainippon Pharma Co.,
Ltd. Sumitomo Dainippon Pharma Co., Ltd. is a publicly
traded company. As to Sunovion Pharmaceuticals,
Inc., there is no publicly held corporation that owns
10% or more of its stock.
iii
STATEMENT OF RELATED PROCEEDINGS
The instant case is the second case filed against
Sunovion, and/or individuals with whom it is in privy
with, by Russomanno arising out of her placement on
a PIP and ultimate termination. While the instant
matter, Russomanno v. Dugan, et al., Dkt. No. 3:20cv-12336 (D.N.J.) (hereinafter “Russomanno II”)
alleges that these acts were discriminatory in
violation of a variety of state and federal laws,
the former matter, Russomanno v. Sunovion
Pharmaceuticals, et al., Dkt. No. 3:19-cv-05945
(D.N.J.) (hereinafter “Russomanno I”), alleged that
these same acts constituted violations of contract law.
(5a-6a, 18a, 26a, 50a n.5). Russomanno I was
dismissed with prejudice on May 18, 2020. (37a, 64a65a). Russomanno did not appeal the dismissal of
Russomanno I. (2a).
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................ i
CORPORATE DISCLOSURE STATEMENT ............ ii
STATEMENT OF RELATED PROCEEDINGS .......iii
TABLE OF CONTENTS............................................ iv
TABLE OF AUTHORITIES ..................................... vii
STATEMENT OF THE CASE ................................... 1
ARGUMENT ............................................................... 4
I.
II.
The Lower Courts Correctly Concluded
That Russomanno’s Two Lawsuits Involve
The Same Cause Of Action .............................. 5
A.
Russomanno’s
Different
Legal
Theories Do Not Preclude the
Application of Res Judicata .................. 5
B.
Russomanno Raised Discrimination
In Russomanno I and Has Not Set
Forth Any Evidence of Due Diligence
or Fraudulent Concealment .................. 8
The Lower Courts Correctly Concluded
That Russomanno’s Two Lawsuits Involve
The Same Parties ........................................... 12
CONCLUSION ......................................................... 14
v
APPENDIX:
Opinion Affirming the Judgment of the
District Court, United States Court of
Appeals for the Third Circuit, (from
Case No. 3:20-cv-12336-FLA-DEA)
(No. 20-12336)
entered September 8, 2021 ................. 1a
Judgment, United States Court of
Appeals for the Third Circuit (from
Case No. 3:20-cv-12336-FLA-DEA)
(No. 20-12336)
entered September 8, 2021 ............... 10a
Entry of Judgment, United States
Court of Appeals for the Third Circuit
(from Case No. 3:20-cv-12336-FLADEA) (No. 20-12336)
entered September 8, 2021 ............... 12a
Opinion Granting Defendants’ Motion
to Dismiss the Amended Complaint,
United States District Court for the
District of New Jersey, (from Case
No. 3:20-cv-12336-FLA-DEA)
(No. 20-12336)
entered May 4, 2021 .......................... 15a
Order Granting Defendants’ Motion to
Dismiss the Amended Complaint,
United States District Court for the
District of New Jersey, (from Case
No. 3:20-cv-12336-FLA-DEA)
(No. 20-12336)
entered May 4, 2021 .......................... 30a
vi
Order Denying Appellant’s Sur Petition
for Rehearing, United States Court of
Appeals for the Third Circuit (from
Case No. 3:20-cv-12336-FLA-DEA)
(No. 20-12336)
entered October 15, 2021 .................. 32a
Order Denying Plaintiff’s Request for
Reconsideration, May 24, 2021
Letter from Judge Wolfson to Litigants
Re: Russomanno v. Dugan, et al. Civil
Action No. 3:20-cv-12336 (FLW)
(“Russomanno II”)
entered May 24, 2021 ........................ 34a
Opinion Granting Defendants’
Motions to Dismiss and Denying
Plaintiff’s Motion for Reconsideration,
Russomanno v. Sunovion
Pharmaceuticals, et al., No. 195945(FLW), 2020 WL 2520761 (D.N.J.)
(“Russomanno I”)
entered May 18, 2020 ........................ 37a
Order Granting Defendants’
Motion to Dismiss and Denying
Plaintiff’s Motion for Reconsideration,
Russomanno v. Sunovion
Pharmaceuticals, et al., No. 195945(FLW), 2020 WL 2520761 (D.N.J.)
entered May 18, 2020 ........................ 64a
vii
TABLE OF AUTHORITIES
Page(s)
CASES
Burton v. Ozburn Hessey Logistic,
615 Fed. App’x 84 (3d Cir. 2015) ..................... 7
Byrd v. Fed. Exp. Corp.,
318 Fed. App’x 102, 104-05 (3d Cir. 2009) .... 10
Churchill v. Star Enters.,
183 F.3d 184 (3d Cir. 1999) ....................... 6, 12
Davis v. U.S. Steel Supply,
688 F.2d 166 (3d Cir. 1982) ......................... 4, 6
EEOC v. U.S. Steel Corp.,
921 F.2d 489 (3d Cir. 1990) ........................... 12
Elkadrawy v. Vanguard Grp., Inc.,
584 F.3d 169 (3d Cir. 2009) ................. 4, 6, 7, 9
Gambocz v. Yelencsics,
468 F.2d 837 (3d Cir. 1972) ........................... 13
In re Mullarkey,
536 F.3d 215 (3d Cir. 2008) ............................. 6
Jackson v. Dow Chem. Co.,
902 F. Supp. 2d 658 (E.D. Pa. 2012) ............. 13
Lubrizol Corp. v. Exxon Corp.,
929 F.2d 960 (3d Cir. 1991) ................. 6, 12, 13
Marmon Coal Co. v. Dir., Office
Workers’ Comp. Programs,
726 F.3d 387 (3d Cir. 2013) .......................... 5-6
viii
Marran v. Marran,
376 F.3d 143 (3d Cir. 2004) ........................... 12
Salerno v. Corzine,
449 Fed. App’x 118 (3d Cir. 2011) ................. 13
Sheridan v. NGK Metals Corp.,
609 F.3d 239 (3d Cir. 2010) ......................... 5, 6
Tri-M Grp., LLC v. Sharp,
638 F.3d 406 (3d Cir. 2011) ........................... 11
United States v. Athlone Indus., Inc.,
746 F.2d 977 (3d Cir. 1984) ............................. 6
STATUTES
29 U.S.C. § 206(d) ....................................................... 3
29 U.S.C. § 623............................................................ 3
42 U.S.C. § 1981.......................................................... 7
42 U.S.C. § 2000e-2(a) ................................................ 3
N.J. Stat. Ann. § 10:5-12 ............................................ 3
OTHER AUTHORITIES
Age Discrimination in Employment Act of 1967 ..... 2, 3
Equal Pay Act of 1963 ................................................ 2
New Jersey Law Against Discrimination ............ 2, 12
New Jersey’s Diane B. Allen Equal Pay Act .......... 2-3
Protecting Older Workers Against
Discrimination Act...................................................... 3
Title VII of the Civil Rights Act of 1964 ............ 2, 3, 7
1
STATEMENT OF THE CASE
Russomanno worked in a sales position for
Sunovion, her former employer, from August 15, 2016
until her termination on January 4, 2019.
(Russomanno I, Dkt. No. 3:19-cv-05945-FLW-DEA,
ECF No. 1, Ex. A (hereinafter, “Russomanno I
Compl.”), pg. 2, ¶5, 6-8, Ex. B (New Hire Letter)).
After being advised repeatedly since 2017 that she
was falling short of her quarterly sales quotas, and
advised in August 2018 that a PIP would be the next
step should she continued to fail to meet her quarterly
quotas, Russomanno was finally placed on a PIP in
October 2018. (Russomanno I Compl., ¶¶9-13, Ex. B).
Sunovion placed Russomanno on a PIP under a newly
implemented policy that required any salespersons
who did not reach 100% of their sales goals during
any of the previous eight fiscal quarters to be placed
on a PIP (referred to as the “8-Quarter-Rule”).
(Russomanno I Compl., ¶¶7-13).
The PIP expressly warned Russomano that a
“[f]ailure to comply with the expectations [herein]
and to sustain this performance . . . may result in
further disciplinary action, up to and including
termination.”
(Russomanno I Compl., Ex. B).
Russomanno never met her sales goals during her
two-year employment with Sunovion, and Sunovion
terminated Russomanno on January 4, 2019.
(Russomanno I Compl., ¶19, Ex. B; 39a-40a).
On January 11, 2019, Russomanno filed a
Complaint in New Jersey state court against
Sunovion claiming “wrongful termination, without
real just cause, by Covenant of Good Faith (and fair
dealing) Exception.” (Russomanno I Compl., pg. 2-3).
2
Russomanno challenged her placement on the PIP
and her subsequent discharge, which she contributed
to geographical realignments of territories, and
“inflated sales reporting” or “misreporting” of sales
figures. (Russomanno I Compl., pg. 2-3; 17a).
After removing Russomanno I to federal court
based on diversity jurisdiction, the District Court
dismissed Russomanno’s Complaint with prejudice,
concluding that Sunovion employed Plaintiff on an
“at-will” basis and that Russomanno did not have an
express or implied contract for employment.
(Russomanno I, 3:19-cv-05945-FLW-DEA (D.N.J.),
ECF. No. 1; 18a, 38a, 40a, 50a-60a). Therefore,
Russomanno could not “assert a wrongful termination
claim.” (18a, 59a). Russomanno did not appeal that
decision. (2a).
On July 31, 2020, Russomanno filed a second
and separate action against Sunovion in New Jersey
state court and added several Sunovion employees as
individual defendants. (Russomanno II, Dkt. No.
3:20-cv-12336-FLW-DEA, ECF No. 1). Respondents
removed the action to federal court on September 4,
2020. (Id.). On December 11, 2020, Russomanno filed
an Amended Complaint to add additional claims to
her suit. (Russomanno II, Dkt. No. 3:20-cv-12336FLW-DEA, ECF No. 33 (hereinafter, “Russomanno II
Compl.”)). In her Amended Complaint, Russomanno,
again, challenges her placement on a PIP and her
subsequent discharge, which she now claims was in
violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), the Age Discrimination in Employment
Act of 1967 (“ADEA”), the Equal Pay Act of 1963, the
New Jersey Law Against Discrimination (“NJLAD”),
New Jersey’s Diane B. Allen Equal Pay Act, and the
3
not-yet-passed Protecting Older Workers Against
Discrimination Act. (3a; Russomanno II Compl., pg.
2; see 42 U.S.C. § 2000e-2(a); 29 U.S.C. § 623; 29
U.S.C. § 206(d); N.J. Stat. Ann. 10:5-12. Specifically,
Russomanno contends that the 8-Quarter-Rule was
unfair because it was discriminatory in that she was
the only one who faced consequences under it, and
that she was wrongfully terminated because she was
the only single, childless, middle-aged, conservative
white woman on her team. (Russomanno II Compl.,
pg. 2-3, 8 ¶6).
Recognizing that Russomanno II was simply a
reiteration of Russomanno I under a different legal
theory, the District Court granted Respondents’
Motion to Dismiss the Amended Complaint based on
res judicata. The District Court also noted that
Russomanno’s Title VII and ADEA claims were
barred for failure to exhaust administrative remedies.
(28a n.5, 29a) The Third Circuit affirmed the District
Court’s decision on res judicata grounds, but did
not address Russomanno’s failure to exhaust
administrative remedies. (9a). On October 15, 2021,
the Third Circuit denied Russomanno’s petition for
rehearing by the panel and the Court en banc. (32a33a).
4
ARGUMENT
In her Petition, Russomanno largely reiterates
arguments that were soundly rejected by the Third
Circuit.
First, Russomanno suggests that res judicata
should not apply because her original suit
encompassed a breach of contract claim, and her
second suit involves discrimination claims. As a
matter of law, Russomanno’s differing theories of
recovery across her multiple lawsuits is not
dispositive as res judicata does not depend on the
specific theory invoked, but rather on “the essential
similarity of the underlying events giving rise to the
various legal claims.’” Elkadrawy v. Vanguard Grp.,
Inc., 584 F.3d 169, 173 (3d Cir. 2009) (quoting Davis
v. U.S. Steel Supply, 688 F.2d 166, 171 (3d Cir. 1982)).
Second, Russomanno disingenuously claims
that she was not aware of a potential discrimination
claim until Sunovion filed its motion to dismiss in
Russomanno I. As a threshold matter, Russomanno
suggested a discrimination theory in her Russomanno
I Complaint: “It has been observed and noted that
other representatives have been treated differently
based on age, sex or race, and, in the past, have been
omitted from this supposed 8 consecutive-quarter,
rule.” In any event, the law is clear that where the
facts supporting the second lawsuit’s claims existed
prior to the commencement of the first lawsuit, they
could have, and should have, been brought in the first
lawsuit.
Third, Russomanno contends that the parties
named in Russomanno I are not the same parties as
those in Russomanno II, an argument that she failed
5
to raise in the District Court. In any event, the lower
courts properly concluded that the individual
defendants are in privity with their employer,
Sunovion, given that all of the conduct alleged
occurred during the course of their employment.
Notably, the Complaint in Russomanno I identified
all of the named defendants in Russomanno II, even
though there were not named defendants in
Russomanno II. See Sheridan v. NGK Metals Corp.,
609 F.3d 239, 261 (3d Cir. 2010) (concluding that the
“same parties” requirement was met, despite the
addition of defendants in a subsequent lawsuit).
I.
The Lower Courts Correctly Concluded
That Russomanno’s Two Lawsuits Involve
The Same Cause Of Action.
A.
Russomanno’s
Different
Legal
Theories Do Not Preclude the
Application of Res Judicata.
Russomanno argues that res judicata only
applies where both actions include claims under
the same statutes. She repeats throughout her brief
that res judicata bars “duplicative discrimination
statutes.” Russomanno argues that res judicata
should not apply because her original suit
encompassed a breach of contract claim, and her
second suit involves discrimination claims. (Pet. 1-2,
4). Her arguments are without merit and contrary to
well-established law.
Three elements are required for res judicata to
apply: “(1) a final judgment on the merits in a prior
suit involving (2) the same parties or their privies and
(3) a subsequent suit based on the same cause of
action.” Marmon Coal Co. v. Dir., Office Workers’
6
Comp. Programs, 726 F.3d 387, 394 (3d Cir. 2013)
(internal quotation marks omitted). As to the third
element, courts “‘take a ‘broad view’ of what
constitutes the same cause of action.” Sheridan, 609
F.3d at 260. The essential purpose of the doctrine is
to bar claims that were brought or could have been
brought in a previously filed action. In re Mullarkey,
536 F.3d 215, 225 (3d Cir. 2008). In short, a plaintiff
is required to “present in one suit all the claims for
relief that he may have arising out of the same
transaction or occurrence.” Lubrizol Corp. v. Exxon
Corp., 929 F.2d 960, 963 (3d Cir. 1991).
Russomanno’s differing theories of recovery
across her multiple lawsuits is not dispositive as to
the “same claim” analysis because res judicata “does
not depend on the specific theory invoked, but rather
[on] ‘the essential similarity of the underlying events
giving rise to the various legal claims.’” Elkadrawy,
584 F.3d at 173 (quoting Davis, 688 F.2d at 171).
Importantly “[a] single cause of action may comprise
claims under a number of different statutory and
common law grounds. . . . Rather than resting on the
specific legal theory invoked, res judicata generally is
thought to turn on the essential similarity of the
underlying events giving rise to the various legal
claims[.]” United States v. Athlone Indus., Inc., 746
F.2d 977, 983 (3d Cir. 1984) (quoting Davis, 688 F.2d
at 171).
Thus, even if a second suit alleges new or
different events, it is still based on the same cause of
action if the new allegations “seek[] recovery for
essentially the same wrongful conduct” or a “single
course of wrongful conduct.” Churchill v. Star Enters.,
183 F.3d 184, 195 (3d Cir. 1999). “The fact that
7
several new and discrete [actionable] events are
alleged does not compel a different result” because
“[a] claim extinguished by res judicata includes all
rights of the plaintiff to remedies against the
defendant with respect to all or any part of the
transaction, or series of connected transactions, out of
which the action arose.” Elkadrawy, 584 F.3d at 174.
Russomanno II is indisputably connected to
Russomanno I in that it arises out of Russomanno’s
employment with Sunovion and the same alleged bad
acts. Russomanno I and Russomanno II seek recovery
for the same set of “bad acts” and material facts:
Plaintiff’s failure to meet sales quotas, her placement
on a PIP pursuant to the 8-Quarter Rule, and her
ultimate termination for her continued failure to meet
sales goals. The only material distinction between
Russomanno I and Russomanno II is the legal theory
on which they are premised, which cannot bar the
application of res judicata. See Elkadrawy, 584 F.3d
at 173 (res judicata applied to plaintiff’s subsequent
§ 1981 claim where plaintiff previously pursued Title
VII claims); Burton v. Ozburn Hessey Logistic, 615
Fed. App’x 84, 87 (3d Cir. 2015) (plaintiff’s second
lawsuit was indisputably connected to the first in that
they both arose out of the same employment
relationship and bad act, plaintiff’s termination).
In short, the lower courts correctly determined
that Russomanno’s different legal theories, when
based on the same transaction, do not preclude the
application of res judicata.
8
B.
Russomanno Raised Discrimination
In Russomanno I and Has Not Set
Forth Any Evidence of Due Diligence
or Fraudulent Concealment.
Russomanno contends that her second lawsuit
against Sunovion should have been permitted to
continue because she was “unaware” of the alleged
discrimination until Sunovion filed its Motion to
Dismiss in Russomanno I. (Pet. 6, 12-13, 21-22, 2728).
As a threshold issue, Russomanno’s averments
as to her purported unawareness are disingenuous.
Russomanno conclusively stated in her Russomanno
I Complaint, absent any elaboration, “[i]t has been
observed and noted that other representatives have
been treated differently based on age, sex or race,
and, in the past, have been omitted from this
supposed 8 consecutive-quarter, rule.” (Russomanno
I Compl., pg. 11, ¶13; Pet. 20). She also claimed,
“discrimination favoritism.” (Russomanno I Compl.
¶14). In fact, to this Court, Russomanno recognizes
that her allegations “address[ed] plaintiff’s past
perceptions to a ‘company culture of discrimination’
and was noting that past employees (no longer
employed), seemed to have not been required to
adhere to the ‘supposed’ 8- quarter standard policy
(the company was now enforcing).” (Pet. 20, 23).
Russomanno I further referenced purported
harassment. (Russomanno I Compl. ¶17, and Ex. C,
pg. 3). In other words, it belies credulity that
Russomanno was not aware of a potential
discrimination claim prior to filing Russomanno I.
9
However, even assuming Russomanno was
unaware of the alleged discriminatory act until after
Russomanno I was dismissed, the law is clear that
where the facts supporting the second lawsuit’s
claims existed prior to the commencement of the first
lawsuit, they could have, and should have, been
brought in the first lawsuit. Elkadrawy, 584 F.3d at
173-74 (barring claims raised in second lawsuit on
basis of res judicata, concluding that whether plaintiff
“may have learned additional information supporting
her claims has no bearing on whether she could have
brought the claim in her original complaint.”).
Accordingly, Russomanno could have pursued a
discrimination claim along with her breach of
contract claim in Russomanno I, but chose not to do
so.
Specifically, Russomanno contends that she
was incapable of pleading a claim of discrimination
until “Defendants gave tangible testimony by [their]
[sic] own admission per Motion to Dismiss [Doc. 331, pgID 508], that they acted in discriminatory action
with a new policy, (discriminatory on its face), stating:
‘new management implemented a new policy.,.’ Until
that statement, Plaintiff was under [a][sic] normal
expectation that the new policy was being equitably
applied to every salesperson within the same
Neurology Division.” Dkt. No. 21-2004 (3d Cir.), ECF
No. 5, p. 6 (emphasis in original).
To support this argument, Russomanno makes
a strained interpretation of the following line in
Sunovion’s motion to dismiss Russomanno I, which
relied on the allegations in the Complaint in
Russomanno I: “Plaintiff’s new management
implemented a policy that team members who did not
10
reach 100% of their sales goals for more than eight
consecutive quarters would be placed on a
performance improvement plan. Russomanno I, Dkt.
No. 19-cv-05945-FLW-DEA (D.N.J.), ECF No. 33-1,
pg. 2 (citing Russomanno I Compl., ¶13). The
assertions in Sunovion’s motion to dismiss did not
assert, as Russomanno claims, that the new policy
was not “applied to every salesperson within the same
Neurology Division.”1
Russomanno further laments that she was
denied the opportunity “to reinstate any further
claims” against Sunovion in Russomanno I since the
Court entered an Order dismissing the Complaint
with prejudice. (Pet. 28). However, after Sunovion
filed its brief in support of its motion to dismiss on
October 11, 2019, which purportedly contained this
“new evidence” upon which Russomanno relies,
Russomanno did not amend her complaint, or
otherwise take any steps to plead a discrimination
claim in Russomanno I prior to the District Court
issuing its decision to dismiss Russomanno’s
Complaint over seven months later, on May 18, 2020.
Russomanno provides no explanation for her failure
to exercise any diligence in seeking to amend her
Complaint during those seven months, after she
purportedly discovered a new cause of action.
1 Russomanno has done nothing to explain how the policy, or its
application, was laden with discriminatory animus. In point of
fact, Russomanno makes the bald assertion that since she was
the only one who was punished under the policy for her failure
to meet goal for eight consecutive quarters, the Company must
have it out for single, childless, middle-aged, “conservative”
white women. See Byrd v. Fed. Exp. Corp., 318 Fed. App’x 102,
104-05 (3d Cir. 2009).
11
Additionally, Russomanno, for the first time in
her Petition to this Court, alleges that Respondents
fraudulently concealed information concerning her
discrimination claim. Russomanno did not present
this argument to the District Court or to the Third
Circuit Court of Appeals. Given that Russomanno
failed to present this argument to the courts below,
this argument should be disregarded. See Tri-M Grp.,
LLC v. Sharp, 638 F.3d 406, 416 (3d Cir. 2011)
(“arguments asserted for the first time on appeal are
deemed to be waived and consequently are not
susceptible to review in this Court absent exceptional
circumstances.”).
Even though Russomanno did not make a
fraudulent concealment argument below, the Third
Circuit, nonetheless, aptly noted that “Russomanno
relies on her debatable interpretation of a line in a
legal brief as new evidence. While Russomanno
reassessed her previous assumption about the scope
of the policy, she has not shown that the defendants
concealed the nature of the policy or that she
investigated with due diligence.”
Russomanno’s
Petition to this Court similarly does not set forth any
facts whatsoever to establish fraudulent concealment,
or that she investigated her claims with due diligence.
(See, e.g., Pet. 10, 18).
In short, the lower courts correctly concluded
that litigating the instant matter would involve the
same underlying events, witnesses and documentary
evidence involved in Russomanno I, including a
review of the sales quota data, Russomanno’s PIP,
and testimony from her supervisors. Plaintiff cannot
ferry the same lawsuit through the court system,
12
albeit parading under a different legal theory,
without running afoul of the doctrine of res judicata. 2
II.
The Lower Courts Correctly Concluded
That Russomanno’s Two Lawsuits Involve
The Same Parties.
Russomanno further argues that the parties
named in Russomanno I are not the same parties as
those in Russomanno II. According to Russomanno,
this is so because the NJLAD permits individual
liability under an “aiding and abetting” theory. (Pet.
30-32, 34-36).
Regardless of the addition of the individual
defendants in Russomanno II, these individuals are
in privity with Sunovion, rendering them the same
parties for purposes of res judicata. See Lubrizol, 929
F.2d at 966. As recognized by the Third Circuit,
privity is “merely a word used to say that the
relationship between one who is a party on the record
and another is close enough to include that other
within the res judicata.” Marran v. Marran, 376 F.3d
143, 151 (3d Cir. 2004) (quoting EEOC v. U.S. Steel
Corp., 921 F.2d 489, 493 (3d Cir. 1990)); see also
Churchill v. Star Enters., 183 F.3d 184, 194 (3d Cir.
1999) (recognizing that res judicata prohibits
successive suits against same defendants and those in
privity with them based on same underlying events).
“[A] lesser degree of privity is required for a
new defendant to benefit from claim preclusion than
Russomanno continues to conflate New Jersey’s “entire
controversy” doctrine with the wholly separate legal doctrine
from “res judicata.” (Pet. 25-26). Respondents have never
argued the entire controversy doctrine.
2
13
for a plaintiff to bind a new defendant in a later
action.” Lubrizol, 929 F.2d at 966. “[R]es judicata
may be invoked against a plaintiff who has previously
asserted essentially the same claim against different
defendants where there is a close or significant
relationship
between
successive
defendants.”
Gambocz v. Yelencsics, 468 F.2d 837, 841 (3d Cir.
1972).
“[E]mployees have the sort of close and
significant relationship with their employers that has
been found to justify preclusion.” Jackson v. Dow
Chem. Co., 902 F. Supp. 2d 658, 671 (E.D. Pa. 2012)
(recognizing that privity exists between employer and
employees, where employees are being sued for
actions arising out of their employment) (citing
Salerno v. Corzine, 449 Fed. App’x 118, 122-23 (3d
Cir. 2011) (finding “ample grounds to find the privity
requirement satisfied” where newly named employees
and defendant-employer in first suit “advance
common goals as agents of a single employer.”)).
Here, Russomanno’s Amended Complaint
makes clear that the individual defendants are (1)
employees of Sunovion that (2) were acting within the
scope of their employment. Moreover, even though
Russomanno did not name the individual defendants
in Russomanno I, they were all identified in her
previous Complaint. (See Russomanno I Compl. ¶6,
11, 12, 14-17). Therefore, the lower courts correctly
determined that their addition to this suit does not
bar the application of res judicata.
14
CONCLUSION
For the foregoing reasons, the Respondents
respectfully request that the Petition be denied.
Respectfully submitted,
LITTLER MENDELSON, P.C.
Attorneys for Respondents
One Newark Center, 8th Floor
Newark, NJ 07102
Tel: (973) 848-4700
Fax: (973) 643-5626
By:
/s/Ivan R. Novich_____
Ivan R. Novich, Esq.
Counsel of Record
Email: inovich@littler.com
Christie Pazdzierski, Esq.
Email: cpazdzierski@littler.com
APPENDIX
ia
APPENDIX TABLE OF CONTENTS
Page
Opinion Affirming the Judgment of the
District Court, United States Court of
Appeals for the Third Circuit, (from Case
No. 3:20-cv-12336-FLA-DEA) (No. 20-12336)
entered September 8, 2021 ............................ 1a
Judgment, United States Court of
Appeals for the Third Circuit (from Case
No. 3:20-cv-12336-FLA-DEA) (No. 20-12336)
entered September 8, 2021 .......................... 10a
Entry of Judgment, United States Court of
Appeals for the Third Circuit (from Case
No. 3:20-cv-12336-FLA-DEA) (No. 20-12336)
entered September 8, 2021 .......................... 12a
Opinion Granting Defendants’ Motion to
Dismiss the Amended Complaint,
United States District Court for the
District of New Jersey, (from Case
No. 3:20-cv-12336-FLA-DEA) (No. 20-12336)
entered May 4, 2021 .................................... 15a
Order Granting Defendants’ Motion to
Dismiss the Amended Complaint,
United States District Court for the
District of New Jersey, (from Case
No. 3:20-cv-12336-FLA-DEA) (No. 20-12336)
entered May 4, 2021 .................................... 30a
iia
Order Denying Appellant’s Sur Petition for
Rehearing, United States Court of
Appeals for the Third Circuit (from Case
No. 3:20-cv-12336-FLA-DEA) (No. 20-12336)
entered October 15, 2021 ............................. 32a
Order Denying Plaintiff’s Request for
Reconsideration, May 24, 2021
Letter from Judge Wolfson to Litigants
Re: Russomanno v. Dugan, et al. Civil Action
No. 3:20-cv-12336 (FLW) (“Russomanno II”)
entered May 24, 2021................................... 34a
Opinion Granting Defendants’ Motions to
Dismiss and Denying Plaintiff’s Motion for
Reconsideration, Russomanno v. Sunovion
Pharmaceuticals, et al., No. 19-5945(FLW),
2020 WL 2520761 (D.N.J.) (“Russomanno I”)
entered May 18, 2020................................... 37a
Order Granting Defendants’ Motion to
Dismiss and Denying Plaintiff’s Motion for
Reconsideration, Russomanno v. Sunovion
Pharmaceuticals, et al., No. 19-5945(FLW),
2020 WL 2520761 (D.N.J.)
entered May 18, 2020................................... 64a
1a
[ENTERED: September 8, 2021]
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 21-2004
GINA RUSSOMANNO,
Appellant
v.
DAN DUGAN; JENNA YACKISH; TREVOR
VOLTZ; ERIC WEEDON; SUNOVION
PHARMACEUTICALS, INC
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 3-20-cv-12336)
District Judge: Honorable Freda L. Wolfson
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 26, 2021
Before: AMBRO, PORTER and
SCIRICA, Circuit Judges
(Opinion filed September 8, 2021)
2a
OPINION *
PER CURIAM
Pro se appellant Gina Russomanno appeals
from the District Court’s order granting the
defendants’ motion to dismiss her complaint. For the
following reasons, we will affirm.
I.
Russomanno worked in a sales role for
Sunovion Pharmaceuticals, Inc. from 2016 until she
was terminated in January 2019. She alleges that she
was placed on a Performance Improvement Plan prior
to her termination pursuant to a newly implemented
policy that required any salespersons who did not
reach 100% of their sales goals during any of the
previous eight fiscal quarters to be placed on such a
plan. She alleges that the policy was a pretext for
discrimination, especially in light of documented
inaccuracies in sales data.
In January 2019, Russomanno filed a first
lawsuit against Sunovion and another company for
wrongful termination. The defendants in that suit
removed the case from the Superior Court of New
Jersey to federal court. In May 2020, the District
Court granted the defendants’ motion to dismiss with
prejudice. Russomanno did not appeal.
* This disposition is not an opinion of the full Court and pursuant
to I.O.P. 5.7 does not constitute binding precedent.
3a
In July 2020, Russomanno filed this lawsuit
against Sunovion and four of its employees and
directors in the Superior Court of New Jersey. 1 These
defendants also removed to federal court.
Russomanno then filed an amended complaint
identifying claims for alleged discrimination under
Title VII of the Civil Rights Act of 1964 (“Title VII”),
the Age Discrimination in Employment Act of 1967
(“ADEA”), the Equal Pay Act of 1963, the New Jersey
Law Against Discrimination (“NJLAD”), and New
Jersey’s Diane B. Allen Equal Pay Act.2 See 42 U.S.C.
§ 2000e-2(a); 29 U.S.C. § 623; 29 U.S.C. § 206(d); N.J.
Stat. Ann. 10:5-12. The District Court granted the
defendants’ motion to dismiss with prejudice based on
res judicata. Russomanno appeals. 3
1 It is not clear whether Russomanno intended that another
Sunovion executive, Jeffrey Aromando, be added as a defendant
in her amended complaint. Regardless, Aromando was never
served and never appeared, and the possibility that she wished
to include him as a defendant does not affect our jurisdiction. See
United States v. Studivant, 529 F.2d 673, 674 n.2 (3d Cir. 1976).
2 Russomanno also outlined a claim based on a proposed federal
act, but later conceded that the bill remained pending in
Congress. The District Court properly dismissed the claim on
that basis. Opinion 4 n.3, ECF No. 49.
In her reply brief, Russomanno asks that we disregard the
defendants’ brief as overlong and untimely. It is neither. Under
Federal Rule of Appellate Procedure 32, a brief is acceptable if it
complies with either the page limitation of Rule 32(a)(7)(A) or
the type- volume limitation of Rule 32(a)(7)(B). The defendants’
counsel accurately certified that their brief complied with the
type-volume limitation. Def.’s Br. 34, 3d Cir. ECF No. 11.
3
The defendants’ brief was timely filed pursuant to the
Briefing and Scheduling Order and Federal Rule of Appellate
Procedure 26. The Order required that the defendants’ brief be
filed and served within 30 days of service of Russomanno’s brief.
3d Cir. ECF No. 4 at 1. Russomanno filed and served her brief
4a
II.
We have jurisdiction under 28 U.S.C. § 1291.
We exercise plenary review over the application of res
judicata. See Elkadrawy v. Vanguard Grp., 584 F.3d
169, 172 (3d Cir. 2009). We review de novo a District
Court’s determination that amendment would be
futile. U.S. ex rel. Schumann v. AstraZeneca Pharms.
L.P., 769 F.3d 837, 849 (3d Cir. 2014).
“Res judicata, also known as claim preclusion,
bars a party from initiating a second suit against the
same adversary based on the same ‘cause of action’ as
the first suit.” Duhaney v. Attorney Gen. of U.S., 621
F.3d 340, 347 (3d Cir. 2010). A party seeking to invoke
res judicata must establish three elements: “(1) a final
judgment on the merits in a prior suit involving (2)
the same parties or their privies and (3) a subsequent
suit based on the same cause of action.” Lubrizol
Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991).
“In evaluating whether those elements exist, we do
not proceed mechanically, ‘but focus on the central
purpose of the doctrine, to require a plaintiff to
present all claims arising out of the same occurrence
in a single suit.’” Davis v. Wells Fargo, 824 F.3d 333,
341 (3d Cir. 2016) (quoting Blunt v. Lower Merion
Sch. Dist., 767 F.3d 247, 277 (3d Cir. 2014)). To avoid
piecemeal litigation, “[t]he doctrine of res judicata
bars not only claims that were brought in a previous
on June 4, 2021, by first class mail. Under these circumstances,
Rule 26(c) applies and “3 days are added” to the defendants’ time
to respond “after the period would otherwise expire under 26(a).”
Fed. R. App. P. 26(c). Here, the 30 days would have otherwise
expired under Rule 26(a) on July 6. Under Rule 26(c), three days
are added beyond that date and the defendants timely filed their
brief on July 8.
5a
action, but also claims that could have been brought.”
In re Mullarkey, 536 F.3d 215, 225 (3d Cir. 2008).
III.
Russomanno
does
not
(and
cannot)
meaningfully dispute that her prior lawsuit resulted
in a final judgment on the merits, but she contests the
two remaining elements of res judicata.4 To
determine whether both lawsuits are based on the
same cause of action, we look not to “the specific legal
theory invoked,” but to the “essential similarity of the
underlying events giving rise to the various legal
claims.” Sheridan v. NGK Metals Corp., 609 F.3d 239,
260 (3d Cir. 2010) (quoting United States v. Athlone
Indus., Inc., 746 F.2d 977, 983-84 (3d Cir. 1984)). We
consider the following factors: “(1) whether the acts
complained of and the demand for relief are the same
. . . ; (2) whether the theory of recovery is the same;
(3) whether the witnesses and documents necessary
at trial are the same . . . ; and (4) whether the material
facts alleged are the same.” Id. (quoting Athlone, 746
F.2d at 984). Because these are factors rather than
strict requirements, “[a] mere difference in the theory
of recovery is not dispositive.” Lubrizol, 929 F.2d at
963; see Athlone, 746 F.2d at 984.
While Russomanno’s first suit was grounded
in contract principles and this action is based on
federal and state anti-discrimination statutes, the
underlying acts and material facts that she alleged,
and the evidence that she would need to prove her
4 “A dismissal with prejudice ‘operates as an adjudication on the
merits,’ so it ordinarily precludes future claims.” Papera v. Pa.
Quarried Bluestone Co., 948 F.3d 607, 610 (3d Cir. 2020)
(quoting Landon v. Hunt, 977 F.2d 829, 832-33 (3d Cir. 1992)).
6a
claims, are overwhelmingly alike. In both lawsuits,
Russomanno complained of the circumstances
surrounding her placement on a Performance
Improvement Plan and subsequent termination.
Given this essential similarity, this case involves the
same cause of action as Russomanno’s first action. See
Sheridan, 609 F.3d at 239; Cieszkowska v. Gray Line
New York, 295 F.3d 204, 206 (2d Cir. 2002) (per
curiam) (determining that an employee’s wrongful
discharge and national origin discrimination suits
involved the same factual predicate for res judicata
purposes); cf. Brzostowski v. Laidlaw Waste Sys., Inc.,
49 F.3d 337, 339 (7th Cir. 1995) (noting previous
holding that res judicata bars an employee’s breach of
contract action arising from the same events as a
prior age discrimination suit). 5
Russomanno argues that she could not have
brought her discrimination claims in the first lawsuit
Russomanno contends that New Jersey’s entire controversy
doctrine would not bar her suit, relying on our decision in
Bennun v. Rutgers State University. 941 F.2d 154, 163 (3d Cir.
1991), abrogated on other grounds by St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 515–16 (1993). While she admits that the
entire controversy doctrine does not apply here, she reasons that
because that doctrine is broader and “more preclusive than” res
judicata, Kozyra v. Allen, 973 F.2d 1110, 1112 (3d Cir. 1992), res
judicata cannot bar what the entire controversy doctrine
permits. That transitive logic is questionable, and our Bennun
decision did not adopt the principle that Russomanno invokes.
While the District Court in that case “held the entire controversy
doctrine did not foreclose any of Bennun’s federal actions
because” his earlier state lawsuit “sought relief relating solely to
the employment agreement and not as to protection of Bennun’s
[c]onstitutional and [c]ivil rights,” we did not endorse that
reasoning and expressly relied “on a different rationale” not
applicable here. Bennun, 941 F.2d at 163 (internal quotation
marks omitted).
5
7a
because those claims are informed by a line in one of
Sunovion’s filings in that action. Within a statement
of facts, Sunovion, citing Russomanno’s complaint,
stated that after she was “placed in a new sales
territory with different management,” her “new
management implemented” the eight-quarter policy.
Sunovion’s Mem. of Law in Supp. of Mot. to Dismiss
2, Russomanno v. Sunovion, D.N.J. 3:19-cv-05945,
ECF No. 33. Russomanno interprets this as
“testimony” that the eight-quarter policy was limited
to her regional sales team, rather than the entire
Sunovion sales department. She alleges that she was
previously unaware of that limitation, which she
argues is key to her discrimination claims because the
effect of the policy was thus limited to the few
members of her team with sufficient tenure.
We do not appear to have addressed in a
precedential opinion whether newly discovered
evidence can constitute an exception to res judicata.
But other courts have recognized such an exception
only where the newly discovered evidence was either
fraudulently concealed or could not have been
discovered with due diligence. See, e.g., L-Tec
Electronics Corp. v. Cougar Elec. Org., Inc., 198 F.3d
85, 88 (2d Cir. 1999). Here, Russomanno relies on her
debatable interpretation of a line in a legal brief as
new evidence. While Russomanno reassessed her
previous assumption about the scope of the policy, she
has not shown that the defendants concealed the
nature of the policy or that she investigated with due
diligence. Furthermore, Russomanno expressly alleged
in the first lawsuit that the eight-quarter policy had
been applied in a discriminatory manner. Suppl.
App’x 151. While she may view the allegations in her
new complaint as stronger and more complete, she
8a
could have brought discrimination claims in her first
action. See Mullarkey, 536 F.3d at 225; Elkadrawy,
584 F.3d at 174 (explaining that allegations of
“several new and discrete discriminatory events” did
prevent application of res judicata).
Turning to the remaining element of res
judicata, the identity of the parties, Russomanno
named Sunovion as a defendant in both suits. The
District Court determined that the individual
defendants were in privity with Sunovion. Privity is
“merely a word used to say that the relationship
between one who is a party on the record and another
is close enough to include that other within the res
judicata.” E.E.O.C. v. U.S. Steel Corp., 921 F.2d 489,
493 (3d Cir. 1990) (quoting Bruszewski v. United
States, 181 F.2d 419, 423 (3d Cir. 1950) (Goodrich, J.,
concurring)); see Taylor v. Sturgell, 553 U.S. 880, 894
n.8 (2008). “[A] lesser degree of privity is required for
a new defendant to benefit from claim preclusion than
for a plaintiff to bind a new defendant in a later
action.” Lubrizol, 929 F.2d at 966. “[R]es judicata may
be invoked against a plaintiff who has previously
asserted essentially the same claim against different
defendants where there is a close or significant
relationship
between
successive
defendants.”
Gambocz v. Yelencsics, 468 F.2d 837, 841 (3d Cir.
1972). Here, the allegations against the individual
defendants exclusively concern matters within the
course of their employment with Sunovion that were
the subject of the Russomanno’s first action. In these
circumstances, the relationship is sufficiently close
and significant for the individual defendants to
invoke res judicata. See Lubrizol Corp. v. Exxon
Corp., 871 F.2d 1279, 1288 (5th Cir. 1989) (explaining
that most federal circuits have concluded that
9a
employer-employee relationships may ground a claim
preclusion defense under similar circumstances). 6
Res judicata thus bars Russomanno’s claims,
and the District Court did not err in determining that
amendment would be futile. See Grayson v. Mayview
State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). We need
not reach the other issues discussed by the District
Court and the parties.
IV.
Accordingly, we will affirm the judgment of the
District Court. 7
Russomanno notes that the NJLAD provides for individual
liability for aiding and abetting of violations and implies that the
individual defendants therefore cannot invoke res judicata. We
disagree. A difference in the theory of liability does not
necessarily alter the close relationship between the defendants.
And Russomanno’s aiding and abetting claims are deeply
intertwined with her claims against Sunovion. See Failla v. City
of Passaic, 146 F.3d 149, 159 (3d Cir. 1998) (“[I]t is fundamental
to aiding and abetting liability that the aider and abettor acted
in relation to a principal.”); Tarr v. Ciasulli, 853 A.2d 921, 929
(N.J. 2004).
6
7 To the extent that Russomanno requested relief in her “Notice
of Petition for Review,” 3d Cir. ECF No. 10, the request is denied.
10a
[ENTERED: September 8, 2021]
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 21-2004
GINA RUSSOMANNO,
Appellant
v.
DAN DUGAN; JENNA YACKISH; TREVOR
VOLTZ; ERIC WEEDON; SUNOVION
PHARMACEUTICALS, INC
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 3-20-cv-12336)
District Judge: Honorable Freda L. Wolfson
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 26, 2021
Before: AMBRO, PORTER and SCIRICA,
Circuit Judges
JUDGMENT
This cause came to be considered on the record
from the United States District Court for the District
of New Jersey and was submitted pursuant to Third
11a
Circuit LAR 34.1(a) on August 26, 2021. On
consideration whereof, it is now hereby
ORDERED and ADJUDGED by this Court
that the judgment of the District Court entered May
4, 2021, be and the same is hereby affirmed. Costs
taxed against the appellant. All the above in
accordance with the opinion of this Court.
ATTEST:
s/ Patricia S. Dodszuweit
Clerk
Dated: September 8, 2021
12a
[ENTERED: September 8, 2021]
PATRICIA S. DODSZUWEIT
TELEPHONE
215-597-2995
CLERK
OFFICE OF THE CLERK
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
21400 UNITED STATES COURTHOUSE
601 MARKET STREET
PHILADELPHIA, PA 19106-1790
Website: www.ca3.uscourts.gov
September 8, 2021
Ivan R. Novich
Littler Mendelson
1085 Raymond Boulevard
One Newark Center, 8th Floor
Newark, NJ 07102
Gina Russomanno
385 Ocean Boulevard
Unit 1D
Long Branch, NJ 07740
RE: Gina Russomanno v. Dan Dugan, et al
Case Number: 21-2004
District Court Case Number: 3-20-cv-12336
ENTRY OF JUDGMENT
Today, September 08, 2021 the Court entered its
judgment in the above-captioned matter pursuant to
Fed. R. App. P. 36.
13a
If you wish to seek review of the Court’s decision, you
may file a petition for rehearing. The procedures for
filing a petition for rehearing are set forth in Fed. R.
App. P. 35 and 40, 3rd Cir. LAR 35 and 40, and
summarized below.
Time for Filing:
14 days after entry of judgment.
45 days after entry of judgment in a civil case if the
United States is a party.
Form Limits:
3900 words if produced by a computer, with a
certificate of compliance pursuant to Fed. R. App. P.
32(g).
15 pages if hand or type written.
Attachments:
A copy of the panel’s opinion and judgment only.
Certificate of service.
Certificate of compliance if petition is produced by a
computer.
No other attachments are permitted without first
obtaining leave from the Court.
Unless the petition specifies that the petition seeks
only panel rehearing, the petition will be construed as
requesting both panel and en banc rehearing.
Pursuant to Fed. R. App. P. 35(b)(3), if separate
petitions for panel rehearing and rehearing en banc
are submitted, they will be treated as a single
document and will be subject to the form limits as set
forth in Fed. R. App. P. 35(b)(2). If only panel
rehearing is sought, the Court’s rules do not provide
for the subsequent filing of a petition for rehearing en
14a
banc in the event that the petition seeking only panel
rehearing is denied.
A party who is entitled to costs pursuant to
Fed.R.App.P. 39 must file an itemized and verified bill
of costs within 14 days from the entry of judgment.
The bill of costs must be submitted on the proper form
which is available on the court’s website.
A mandate will be issued at the appropriate time in
accordance with the Fed. R. App. P. 41.
Please consult the Rules of the Supreme Court of
the United States regarding the timing and
requirements for filing a petition for writ of certiorari.
Very truly yours,
Patricia S. Dodszuweit, Clerk
By: s/Laurie
Case Manager
267-299-4936
15a
[ENTERED: May 4, 2021]
*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GINA RUSSOMANNO
Plaintiff,
vs.
:
:
:
: Civil Action No.
: 20-12336 (FLW)
:
DAN DUGAN, et al,
Defendants.
:
:
:
:
:
OPINION
WOLFSON, Chief Judge:
Plaintiff Gina Russomanno (“Plaintiff”),
proceeding pro se, brings this employment action
against
her
former
employer
Sunovion
Pharmaceuticals, Inc. (“Sunovion” or the Company)
and Dan Dugan, Jenna Yackish, Trevor Volz, and
Erik Weeden (“Individual Defendants”) (Sunovion
and Individual Defendants, collectively, “Defendants”),
who are directors and officers of Sunovion, alleging
that they discriminated against her based on age,
familial status, and conservative belief, which
resulted in her discharge from the Company.
Defendants move to dismiss Plaintiff’s claims as
barred by the doctrine of res judicata, and for failure
to state a claim under Federal Rule of Civil
Procedure 12(b)(6). Plaintiff opposes the motion.
16a
For the reasons set forth below, Defendant’s
motion is GRANTED.
I.
FACTUAL
BACKGROUND
PROCEDURAL HISTORY
AND
For the purposes of this motion, the relevant
facts are derived from Plaintiff’s Amended
Complaint (“Am. Compl.”) and assumed as true.
Plaintiff began her employment at Sunovion
in 2016. Am. Compl. p. 20. 1 Plaintiff alleges that
during her time at Sunovion she “suffered Disparate
Treatment to Similarly situated employees in the
following ways: Sales bucket changes, zip code
geography changes and realignments, Leadership
Roles and Advocate Roles; Insights Council,
Pharmacy Consultant, Optum Rx Advocate, PIP
Threats and implementation, (all specific to
colleagues: Cheryl Bozinis, Bernie McDade, Debra
Camp-Frye, Courtney Jograj, Craig Agrusti, and
others with similar background experience in
similarly situated roles and all hired just ‘after’ the
plaintiff by the same Regional Business Manager,
Jeffrey Aromando).” Id. at p. 5. During Plaintiff’s
employment, Sunovion’s directors and officers
allegedly implemented a new policy (“the 8-Quarter
Rule”), which applied only to Plaintiff’s sales team.
Id. at p. 4. Pursuant to the 8-Quarter Rule, any
salesperson who had not reached 100% of his or her
sales goal during one of the previous eight fiscal
quarters, would be placed on a Performance
Plaintiff’s Amended Complaint does not include
consecutively numbered paragraphs, accordingly, this Opinion
references page numbers, rather than paragraphs.
1
17a
Improvement Plan (“PIP”). Id. at p. 8, 27. Plaintiff
alleges that Defendants manipulated the sales
quotas reporting “to positively impact sales results
in favor [of] certain ‘chosen’ sales representatives,”
and to disadvantage Plaintiff. Id. at 29. As a result,
Plaintiff was purportedly placed on a PIP beginning
in October 2018, and then terminated on January 4,
2019. Id. at p. 2, 20.
Plaintiff further alleges that the 8-Quarter
Rule, which led to Plaintiff’s placement on a PIP and
her eventual termination, were merely pretexts for
Sunovion’s discriminatory behavior. Specifically,
Plaintiff alleges that “her age, race and creeds
became focus factors for removing her from
employment,” and that she was the “only
representative on the nine-member Philadelphia
team with separate marital and familial status that
differed by singlehood with no caregiving/ dependent
responsibility.” Id. at p. 23. In that regard, Plaintiff
identifies specific employees who were purportedly
protected from being placed on a PIP through the
use of “inaccurate, inflated sales numbers.” Id. at p.
9-13, 14-16, 22-25. Plaintiff alleges that each of those
employees was otherwise similarly situated to her
but, each differed from her based on age, gender,
marital status, creed, and race, and as a result,
Defendants afforded them preferential treatment.
A.
Plaintiff’s Prior Lawsuit
In 2019, prior to initiating the current
lawsuit, Plaintiff filed suit against Sunovion. See
Russomanno v. Sunovion Pharm., Inc., No. 19-5945
18a
(FLW) (“Russomano I”). 2 There, like in the present
matter, Plaintiff alleged that while employed at
Sunovion, she was placed on a PIP after failing to
achieve 100% of her sales goals for eight consecutive
quarters, and that she was subsequently terminated.
Id. at 3-4. Plaintiff further alleged that there were
reporting issues with the sales quotas, and
geographical differences between her and other
teammates
which
negatively
impacted
her
performance. Id. at 4. In that lawsuit, Plaintiff
asserted a cause of action for “wrongful termination,
without real just cause, by Covenant of Good Faith
(and fair dealing) Exception.” Id. at 4. On May 18,
2020, I dismissed Plaintiff’s Complaint with
prejudice, holding that Plaintiff’s employment was
“at-will” and therefore, Plaintiff could not assert a
wrongful termination claim. Id. at 17-18. Moreover, I
concluded that since Plaintiff had not “alleged the
existence of an express or implied contract, she
[could not] assert a wrongful termination claim
based on Sunovion’s purported breach of the implied
covenant.” Id. at 19.
Three months after the dismissal of
Russomano I, on July 31, 2020, Plaintiff filed the
instant lawsuit against Defendants in New Jersey
state court. Defendants, subsequently, removed the
The facts regarding Plaintiff’s prior lawsuit are taken
from this Court’s opinion in that matter. See Russomano I, 195945, ECF No. 61, Opinion (May 18, 2020); see also Toscano v.
Connecticut General Life Ins. Co., 288 F. App’x. 36 (3d Cir.
2008) (“The defense of claim preclusion, however, may be raised
and adjudicated on a motion to dismiss and the court can take
notice of all facts necessary for the decision. Specifically, a
court may take judicial notice of the record from a previous
court proceeding between the parties.” (internal citations
omitted)).
2
19a
matter to this Court, and Plaintiff sought leave to
amend her complaint. On December 11, 2020,
Plaintiff filed her Amended Complaint alleging
violations of the New Jersey Law Against
Discrimination (“NJLAD”), Title VII of the Civil
Rights Act of 1964 (“Title VII), the Age
Discrimination in Employment Act (“ADEA”), the
Equal Pay Act of 1963, and the Diane B. Allen Equal
Pay Act. 3 Defendants now move to dismiss all of
Plaintiff’s claims.
II.
STANDARD OF REVIEW
A.
Federal Rule of Civil Procedure
12(b)(6)
In reviewing a motion to dismiss for failure to
state a claim upon which relief can be granted,
pursuant to Federal Rule of Civil Procedure 12(b)(6),
“courts accept all factual allegations as true,
construe the complaint in the light most favorable to
the plaintiff, and determine whether, under any
reasonable reading of the complaint, the plaintiff
may be entitled to relief.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (internal
quotation marks and citation omitted). While
Federal Rule of Civil Procedure 8(a) does not require
that a complaint contain detailed factual allegations,
“a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and
Plaintiff also alleges violations of the “Protecting Older
Workers against Discrimination Act (HR 1230).” Am. Compl., p.
2. In her opposition brief, Plaintiff concedes that she “had
overlooked that this legislation had not yet passed.” Pl. Br. at
28-29. Plaintiff cannot assert a claim based on pending
legislation; accordingly, that claim is dismissed.
3
20a
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) (citation
omitted). Thus, to survive a Rule 12(b)(6) motion to
dismiss, the Complaint must contain sufficient
factual allegations to raise a plaintiff’s right to relief
above the speculative level, so that a claim “is
plausible on its face.” Id. at 570; Phillips v. Cty. of
Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). “A claim
has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the
reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
To determine whether a plaintiff has met the
facial plausibility standard mandated by Twombly
and Iqbal, courts within this Circuit engage in a
three-step progression. Santiago v. Warminster
Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the
court must “outline the elements a plaintiff must
plead to state a claim for relief.” Bistrian v. Levi, 696
F.3d 352, 365 (3d Cir. 2012). Next, the Court “peel[s]
away those allegations that are no more than
conclusions and thus not entitled to the assumption
of trust. Id. Finally, where “there are well-pleaded
factual allegations, the court should assume their
veracity and then determine whether they plausibly
give rise to an entitlement to relief.” Iqbal, 556 U.S.
at 679.
III.
ANALYSIS
A.
Res Judicata
Res judicata “encompasses two preclusion
concepts—issue preclusion, which forecloses litigation
21a
of a litigated and decided matter often referred to as
direct or collateral estoppel, and claim preclusion,
which disallows litigation of a matter that has never
been litigated but which should have been presented
in an earlier suit.” Simoni v. Luciani, 872 F. Supp. 2d
382, 387–88 (D.N.J. 2012) (quoting Bierley v.
Dombrowski, 309 F. App’x. 594, 596-97 (3d Cir. 2009)).
Claim preclusion gives a judgment “preclusive effect”
by “foreclosing litigation of matters that should have
been raised in an earlier suit.” Migra v. Warren City
Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1 (1984).
A party seeking to invoke claim preclusion
must establish three elements: “‘(1) a final judgment
on the merits in a prior suit involving (2) the same
parties or their privies and (3) a subsequent suit
based on the same cause of action.’” Strunk v. Wells
Fargo Bank, N.A., 614 F. App’x. 586, 588 (3d Cir.
2015) (quoting Lubrizol Corp. v. Exxon Corp., 929
F.2d 960, 963 (3d Cir. 1991)). The Third Circuit has
advised that this test should not be applied
“mechanically” and instead, courts should “‘focus on
the central purpose of the doctrine, to require a
plaintiff to present all claims arising out [of] the
same occurrence in a single suit.’” Sheridan v. NGK
Metals Corp., 609 F.3d 239, 260 (3d Cir. 2010)
(quoting Churchill v. Star Enterprises, 183 F.3d 184,
194 (3d Cir. 1999)). Requiring plaintiffs to present
all claims arising out of the same occurrence in a
single suit is designed to “avoid piecemeal litigation
and conserve judicial resources.” Id. at 260.
Here, Defendants argue that Plaintiff’s claims
are barred under the doctrine of res judicata because
all three elements warranting claim preclusion are
present. ECF No. 34, Def. MTD 20- 23, Def. Br. 21-
22a
23. First, Russomano I was dismissed with prejudice
for failure to state a claim. Id. Second, this matter
involves the same parties as the prior matter, Plaintiff
and Sunovion, and the Individual Defendants, as
Sunovion employees, are in privity with Sunovion.
Id. Third, both the present matter and Russomano I
involve the same underlying harms: Plaintiff’s
termination after she was placed on the PIP. Id.
In response, Plaintiff argues that res judicata
does not apply because “[a]nti-discrimination is a
wholly separate policy matter and principle of law
which was not directly or substantially of principle
issue in the previous case.” ECF No. 43-1, Pl. Opp.
Br. at 24. 4 Moreover, Plaintiff asserts that “[r]es
judicata is applicable under the entire controversy
doctrine which applies to judgements issued by New
Jersey state courts” and here, “the doctrine does not
apply because Russomano I was removed to federal
court.” Id. at 24-25. Plaintiff highlights that “the
Third Circuit has recently held that the entire
controversy doctrine would not apply to a judgment
entered by a federal court in New Jersey” and
therefore, “[r]es [j]udcata does not apply and the
defense is invalid.” Id.
As an initial matter, Plaintiff is correct that
the entire controversy doctrine does not apply where
Plaintiff filed several different versions of her brief in
opposition to Defendants’ motion to dismiss. See ECF Nos. 35,
38, 42, and 43. However, Plaintiff acknowledged that all three
opposition briefs “are all actually ‘duplicative’ of one another
(and not ‘body’ amended as it would appear). The only changes
made for these docket items were in reference to the date/time
of docket entry.” See ECF No. 48, Pl. Letter. Accordingly, the
Court relies on ECF No. 43, Plaintiff’s most recently filed
opposition brief, for her arguments on this motion.
4
23a
the prior judgment was entered by a federal court,
rather than a New Jersey state court. See
Paramount Aviation Corp. v. Agusta, 178 F.3d 132
(3d Cir. 1999) (explaining that the entire controversy
doctrine “is not the right preclusion doctrine for a
federal court to apply when prior judgments were
not entered by the courts of New Jersey”); see
Simoni, 872 F. Supp. 2d at 389 (“While the entire
controversy doctrine is applied by federal courts
interpreting a prior state court decision . . . it does
not apply to a federal court’s interpretation of a prior
federal decision. Federal preclusion law determines
that question”). However, Plaintiff erroneously
conflates that principle with the doctrine of res
judicata, a separate, albeit related, federal doctrine.
Indeed, the entire controversy doctrine is “New
Jersey’s specific, and idiosyncratic, application of
traditional res judicata principles.” Ricketti v. Barry,
775 F.3d 611, 613 (3d Cir. 2015) (quoting Rycoline
Prods., Inc. v. C & W Unlimited, 109 F.3d 883, 886
(3d Cir. 1997)) (internal quotations omitted). In that
regard, the entire controversy doctrine may only be
raised as an affirmative defense in federal courts
when there was a previous state court action
involving the same transaction. Ricketti, 775 F.3d at
613 (emphasis added); Yantai N. Andre Juice Co. v.
Kupperman, No. 05-1049, 2005 WL 2338854, at *3
(D.N.J. Sept. 23, 2005) (“In this case, the issuing
court in 2002 was the United States District Court
for the District of New Jersey. Therefore, the New
Jersey Entire Controversy Doctrine is inapplicable.”).
However, Defendants, here, are not relying on the
entire controversy doctrine, but rather, res judicata
– a general claim preclusion principle which applies
in federal courts, regardless of which court rendered
24a
the judgment. See Hoffman v. Nordic Nats., Inc., 837
F.3d 272, 278 (3d Cir. 2016) (“when the first
judgment is rendered by a federal district court in
New Jersey sitting in diversity, as it was here,
federal claim preclusion, not New Jersey's entire
controversy doctrine, determines whether a successive
lawsuit is permissible.”). Having found that
Defendants are permitted to rely on the doctrine of res
judicata, I, now, assess its application to this matter.
First, I find that this Court’s May 18, 2020
Order dismissing Russomano I with prejudice clearly
constitutes a final judgment on the merits. See
Simoni, 872 F. Supp. 2d at 390 (“Dismissal for
failure to state a claim serves as a final judgment on
the merits.”); Gimenez v. Morgan Stanley DW, Inc.,
202 F. App’x. 583, 584 (3d Cir.2006) (“A dismissal
that is specifically rendered ‘with prejudice’ qualifies
as an adjudication on the merits and thus carries
preclusive effect”). Plaintiff’s claims in that matter
were adjudicated on the merits, and were not
dismissed for lack of jurisdiction or another
procedural infirmity. See Costello v. United States, 365
U.S. 265, 285(1961) (“If the first suit was dismissed
for a want of jurisdiction, or was disposed of on any
ground which did not go to the merits of the action,
the judgment rendered will prove no bar to another
suit.”); Shih– Liang Chen v. Township of Fairfield,
354 F. App’x. 656, 659 (3d Cir. 2009) (noting that
dismissals based on “lack of jurisdiction, improper
venue or failure to join a party” are not adjudications
on the merits) (citing Fed. R. Civ. P. 41(b)).
Second, I find that this matter involves the
same parties as Russomano I. Plaintiff and Sunovion
are parties to both suits, and clearly satisfy the
25a
requirements for that prong of the res judicata
analysis. However, in this action, Plaintiff has also
named Dan Dugan, Jenna Yackish, Trevor Volz, and
Erik Weeden as defendants, each of whom is a
Sunovion employee. The Third Circuit has explained
that claim preclusion “may be invoked against a
plaintiff who has previously asserted essentially the
same claim against different defendants where there
is a close or significant relationship between
successive defendants.” Lubrizol, 929 F.2d at 966
(quoting Gambocz v. Yelencsics, 468 F.2d 837, 841
(3d Cir. 1972)). Where there is an employeeemployer relationship between defendants, that is
generally sufficient to satisfy the privity
requirement. See e.g., Gupta v. Wipro Ltd., 749 F.
App'x 94, 96 (3d Cir. 2018) (“Although Gupta did not
name Wipro's president as a defendant in the 2014
action, the close and significant relationship between
those two defendants satisfies the privity
requirement.”); Jackson v. Dow Chem. Co., 902 F.
Supp. 2d 658, 671 (E.D. Pa. 2012) (finding that
employees sued for acts arising from the course of
the employment “have the sort of close and
significant relationship with their employers that
has been found to justify preclusion”). Accordingly, I
find that the addition of the Individual Defendants
does not preclude a finding that this matter involves
the “same parties,” because the Individual
Defendants are in privity with Suonvion.
Third, I find that the claims asserted in this
matter are based on the same underlying events as
Russomano I, and therefore, constitute the same
claims. Courts in this Circuit “take a ‘broad view’ of
what constitutes the same cause of action.”
Sheridan, 609 F.3d at 261. To that end, courts “look
26a
toward the ‘essential similarity of the underlying
events giving rise to the various legal claims.’”
Lubrizol, 929 F.2d at 963 (quoting Davis v. U.S.
Steel Supply, Div. of U.S. Steel Corp., 688 F.2d 166,
171 (3d Cir. 1982)). Specifically, courts analyze “(1)
whether the acts complained of and the demand for
relief are the same ...; (2) whether the theory of
recovery is the same; (3) whether the witnesses and
documents necessary at trial are the same ...; and (4)
whether the material facts alleged are the same.”
U.S. v. Athlone Industries, Inc., 746 F.2d 977, 984
(3d Cir. 1984). “It is not dispositive that a plaintiff
asserts a different theory of recovery or seeks
different relief in the two actions.” Blunt, 767 F.3d at
277 (internal quotation marks and citation omitted);
Lubrizol, 929 F.2d at 963 (“A mere difference in the
theory of recovery is not dispositive.”).
In this matter, Plaintiff asserts various
statutory employment discrimination claims related
to her termination under state and federal law; in
Russomano I, Plaintiff alleged a wrongful
termination claim based on contract principles. The
claims in this matter and in Plaintiff’s prior action
are not identical, but they stem from the same set of
facts regarding Plaintiff’s placement on the PIP and
her eventual termination. Hence, Plaintiff’s
discrimination claims should have been raised in the
prior action, because they arise from the same set of
facts as the wrongful termination claim already
adjudicated
in
Russomano I.
See
Matrix
Distributors, Inc. v. Nat'l Ass'n of Boards of
Pharmacy, No. 18-17462, 2020 WL 7090688, at *4
(D.N.J. Dec. 4, 2020) (finding that although the legal
theories in two lawsuits were not identical, they
nonetheless, involved “the same claim’ because
27a
[they] involve[d] a ‘common nucleus of operative
facts’”). Significantly, the events supporting
Plaintiff’s discrimination claims had already
occurred at the time she filed Russomano I. Gupta v.
Wipro Ltd., 749 F. App'x 94, 97 (3d Cir. 2018)
(affirming district court’s finding that two lawsuits
were based on the same cause of action, even where
plaintiff raised new claims in the second action,
claims arose from the same employment relationship
and “because the facts supporting those claims
existed during and immediately after Gupta's
employment at Wipro – which occurred between
2003 and 2006, and again briefly in 2008 – the
claims could have been brought in the 2014 action”).
This is not an instance where the allegedly
discriminatory conduct giving rise to Plaintiff’s
claims, here, occurred after she filed her prior
lawsuit; indeed, all of the factual underpinnings
alleged in the instant Amended Complaint – with
the exception of the information regarding Plaintiff’s
similarly situated colleagues – were included in
Plaintiff’s prior Complaint. Although Plaintiff’s
theory of recovery is different, Plaintiff’s instant
claims indisputably arise out of the same
employment relationship and involve the same
wrongful acts – her termination and the events
surrounding it– at issue in her prior lawsuit. See
Harding v. Duquesne Light Co., No. CIV. 95-589,
1995 WL 916926, at *3 (W.D. Pa. Aug. 4, 1995)
(finding that two suits were “identical” for claim
preclusion purposes where the first suit alleged
“breach of contract” and violations of a state wage
payment law, stemming from plaintiff’s termination
and second suit alleged violations of the Americans
with Disabilities Act and state discrimination
28a
statues stemming from plaintiff’s termination). In
that regard, litigation of the instant matter would
certainly involve the same witnesses and
documentary evidence at play in Russomano I,
including a review of the sales quota data, Plaintiff’s
PIP, and testimony from her supervisors. Accordingly,
I find that all three requirements for claim preclusion
are satisfied, and Plaintiff’s Complaint is dismissed. 5
Generally, dismissal of a complaint with
prejudice is appropriate if amendment would be ...
Moreover, I note that even if Plaintiff’s Title VII and
ADEA claims were not barred by the claim preclusion doctrine,
I would, nonetheless, dismiss those claims because Plaintiff has
not exhausted her administrative remedies. Slingland v.
Donahue, 542 F. App'x 189, 193 (3d Cir. 2013) (holding Title
VII and ADEA claims require administrative exhaustion). Both
statutes require employees to timely file a charge with the
Equal Employment Opportunity Commission (“EEOC”), as a
pre-requisite to filing a discrimination action. See 42 U.S.C.
§ 2000e-5(e) (requiring plaintiff to file a timely charge with the
EEOC within 180 days after the alleged unlawful practice, or
within 300 days if the plaintiff initiates proceedings in a state
agency); 29 U.S.C. § 626(d)(1)(A-B) (requiring plaintiff to file a
timely charge with the EEOC within 180 days after the alleged
unlawful practice, or within 300 days if the plaintiff initiates
proceedings in a state agency). Plaintiff has not alleged that
she timely field a charge with the EEOC, and thus, has not
exhausted her administrative remedies. Allen v. New Jersey,
Pub. Def., No. 16-8661, 2017 WL 3086371, at *9 (D.N.J. July
20, 2017) (dismissing plaintiff’s Title VII claims because
“paintiff has failed to allege in his Complaint that he timely
filed his charge of discrimination with the EEOC with respect
to the instant claims”); Edwards v. Bay State Mill. Co., No. 10 5309, 2012 WL 3133800, at *2 (D.N.J. July 30, 2012)
(dismissing plaintiff’s ADEA claim for failure to timely file a
charge with the EEOC). Moreover, Plaintiff was terminated in
January 2019, more than two years ago, and the time period for
filing such an EEOC charge has presumably expired, absent
the application of any potentially applicable tolling doctrines.
5
29a
futile.” Bankwell Bank v. Bray Entertainment, Inc.,
No. 20-49, 2021 WL 211583, at *2 (D.N.J. Jan. 21,
2021). “An amendment is futile if it is frivolous or
advances a claim or defense that is legally
insufficient on its face.” Lombreglia v. Sunbeam
Prod., Inc., No. 20-0332, 2021 WL 118932, at *5
(D.N.J. Jan. 13, 2021). Because Plaintiff’s claims are
barred under the doctrine of res judicata I find that
any further amendment would be futile and dismiss
Plaintiff’s Complaint with prejudice. 6 See Kolodzij v.
Borough of Hasbrouck Heights, No. 18-CV-00481,
2021 WL 753885, at *4 (D.N.J. Feb. 26, 2021)
(dismissing plaintiff’s complaint with prejudice
based on claim preclusion grounds).
IV.
CONCLUSION
For the reasons set forth above, Defendant’s
Motion to Dismiss is GRANTED, because Plaintiff’s
claims are barred under the claim preclusion
doctrine.
Date: May 4, 2021
/s/ Freda L. Wolfson
Hon. Freda L. Wolfson
U.S. Chief District Judge
Defendants have also requested that, in the event this
Court found dismissal appropriate, this Court require Plaintiff
to seek leave of Court before filing any further lawsuits against
Defendants. Def. Br. at 23. Defendant’s request is denied;
however, Plaintiff is forewarned that the Court may grant such
injunctive relief or impose sanctions, pursuant to the All Writs
Act, if Plaintiff files further frivolous lawsuits. See Gupta v.
Wipro Ltd., 765 F. App'x 648, 650 (3d Cir. 2019) (“Under the All
Writs Act, 28 U.S.C. § 1651(a), District Courts can impose filing
injunctions on litigants who have engaged in abusive,
groundless, and vexatious litigation.”).
6
30a
[ENTERED: May 4, 2021]
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GINA RUSSOMANNO
Plaintiff,
vs.
:
:
:
: Civil Action No.
: 20-12336 (FLW)
:
DAN DUGAN, et al,
Defendants.
:
:
:
:
:
ORDER
THIS MATTER having been opened to the
Court by Ivan R. Novich, Esq., counsel for
Defendants Sunovion Pharmaceuticals, Inc. and Dan
Dugan, Jenna Yackish, Trevor Volz, and Erik
Weeden (collectively, “Defendants”) on a Motion to
Dismiss the Amended Complaint, filed by pro se
plaintiff Gina Russomanno (“Plaintiff”), pursuant to
Federal Rule of Civil Procedure 12(b)(6); it appearing
that Plaintiff opposes the motion; the Court having
considered the submissions of the parties without
oral argument, pursuant to Fed. R. Civ. P. 78; for the
reasons set forth in the Opinion filed on this date,
and for good cause shown,
IT IS on this 4th day of May, 2021,
ORDERED that Defendants’ Motion to
Dismiss the Amended Complaint [ECF No. 34]
is GRANTED; and it is further
31a
ORDERED that Plaintiff’s claims are
dismissed with prejudice and the Clerk of the
Court is directed to close this case
/s/ Freda L. Wolfson
Freda L. Wolfson
U.S. Chief District Judge
32a
[ENTERED: October 15, 2021]
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 21-2004
GINA RUSSOMANNO,
Appellant
v.
DAN DUGAN; JENNA YACKISH; TREVOR
VOLTZ; ERIC WEEDON; SUNOVION
PHARMACEUTICALS, INC.
(D.N.J. Civ. No. 3-20-cv-12336)
SUR PETITION FOR REHEARING
Present: SMITH, Chief Judge, McKEE, AMBRO,
CHAGARES, JORDAN, HARDIMAN, GREENAWAY,
JR., SHWARTZ, KRAUSE, RESTREPO, BIBAS,
PORTER, MATEY, PHIPPS, and SCIRICA *, Circuit
Judges
The petition for rehearing filed by appellant in
the above-entitled case having been submitted to the
judges who participated in the decision of this Court
and to all the other available circuit judges of the
circuit in regular active service, and no judge who
* Judge Scirica’s vote is limited to panel rehearing only.
33a
concurred in the decision having asked for rehearing,
and a majority of the judges of the circuit in regular
service not having voted for rehearing, the petition
for rehearing by the panel and the Court en banc, is
denied.
BY THE COURT,
s/Anthony J. Scirica
Circuit Judge
Date: October 15, 2021
Lmr//cc: Gina Russomanno
Ivan R. Novich
34a
[ENTERED: May 24, 2021]
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
(609) 989-2182
CHAMBERS OF
FREDA L. WOLFSON
CHIEF JUDGE
Clarkson S. Fisher
Federal Building &
U.S. Courthouse
402 East State Street
Trenton, New Jersey 08608
May 24, 2021
Gina Russomano
Pro se Plaintiff
385 Ocean Blvd. Unit 1D
Long Branch, NJ 07740
Ivan R. Novich, Esq.
Littler Mendelson, P.C.
One Newark Center
8th Floor
Newark, NJ 07102
RE:
Russomano v. Dugan, et al.
Civ. Action No. 20-12336(FLW)
Litigants:
The Court is in receipt of pro se Plaintiff’s
letter, dated May 10, 2021, in response to the Court’s
May 4, 2021 Opinion [ECF No. 50] (the “Opinion”)
and Order [ECF No. 51]. In it, Plaintiff expresses
concern that the Court may have overlooked
Plaintiff’s Memorandum of Law [ECF No. 42] in
ruling on Defendants’ motion to dismiss. The
following Footnote in the Opinion may have caused
35a
Plaintiff to believe that the Memorandum was not
considered:
Plaintiff filed several different versions
of her brief in opposition to Defendants’
motion to dismiss. See ECF Nos. 35, 38,
42, and 43. However, Plaintiff
acknowledged that all three opposition
briefs “are all actually ‘duplicative’ of
one another (and not ‘body’ amended as
it would appear). The only changes
made for these docket items were in
reference to the date/time of docket
entry.” See ECF No. 48, Pl. Letter.
Accordingly, the Court relies on ECF
No. 43, Plaintiff’s most recently filed
opposition brief, for her arguments on
this motion.
I note that ECF Nos. 42 and 43 were filed on the
same date and contain, inter alia, both a
Memorandum and a Brief in support of Plaintiff’s
Opposition. The omission of ECF No. 42 in the
Footnote may have caused Plaintiff to believe that
the Court only considered ECF 43, but I considered
all of Plaintiff’s filings and arguments prior to
granting Defendants’ motion to dismiss.
Indeed, the Court reviewed and considered
each of Plaintiff’s voluminous filings, including the
Opposition Memorandum of Law [ECF No. 42] and
Plaintiff’s January 26, 2021 letter to Chambers,
[ECF No. 48], which was filed in lieu of request to
submit a sur-reply. In that regard, the Court’s
summary of Plaintiff’s arguments was, in fact,
largely derived from Plaintiff’s Memorandum – the
36a
very document claimed to be overlooked. Because
both the Memorandum and Brief were considered by
the Court, there is no need reconsider the ruling on
Defendants’ motion on this basis.
s/ Freda L. Wolfson
Hon. Freda L. Wolfson
U.S. Chief District Judge
37a
[ENTERED: May 18, 2020]
*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
:
:
Plaintiff,
: Civil Action No.
v.
: 19-5945 (FLW)
:
SUNOVION PHARMACEUTICALS :
OPINION
and IQVIA INC.,
:
:
Defendants.
:
:
GINA RUSSOMANNO,
WOLFSON, Chief Judge:
Plaintiff Gina Russomanno (“Plaintiff”),
proceeding pro se, brings this employment action
against
her
former
employer,
Sunovion
Pharmaceuticals Inc. (“Sunovion”), and IQVIA, Inc.,
(“IQVIA”), (cumulatively, “Defendants”). Pending
before the Court are the following: (1) each
Defendant’s separate Motion to dismiss Plaintiff’s
Complaint, wherein Plaintiff alleges a claim for
“wrongful termination, without real just cause, by
Covenant of Good Faith (and fair dealing) Exception”;
and (2) Plaintiff’s Motion for Reconsideration of a
prior Court Order that denied her request for remand.
For the reasons expressed herein, Defendants’
Motions to Dismiss are GRANTED, and Plaintiff’s
Motion for reconsideration is DENIED.
38a
I.
FACTUAL
BACKGROUND
PROCEDURAL HISTORY
AND
The following facts are drawn from the
Complaint and are assumed to be true for the purpose
of this Motion. 1 On August 15, 2016, Plaintiff received
a formal written job offer from Sunovion for a position
as a Therapeutic Specialist (the “Letter Offer”).
Complaint (“Compl.”), Ex. B. The Letter Offer, which
Plaintiff signed and accepted on that same date,
included information about compensation and
training associated with the position of a Therapeutic
Specialist. Id. In addition, the first page of the Letter
Offer explained that Plaintiff would be hired on an atwill basis: “[p]lease note that neither this letter nor
any other materials constitute a contract of
employment with Sunovion; your employment with
Sunovion will be on an at-will basis.” Id.
On August 24, 2016, Plaintiff signed an
“Invention, Non-Disclosure, Restricted Activity and
Personal Conduct Agreement” (the “NDA”). The NDA
contained a non-compete clause, and various terms
and provisions that Plaintiff was required to adhere
to during the course of her tenure at Sunovion. Id.
Moreover, the NDA reiterated Plaintiff’s at-will
status under a section entitled “No Employment
Contract”: “I understand that this Agreement, alone
or in conjunction with any other document agreement
I note that the Plaintiff attaches voluminous exhibits to
the Complaint, including various signed agreements, that this
Court can consider on a Motion to dismiss. Schmidt v. Skolas,
770 F.3d 241, 249 (3d Cir. 2014) (“To decide a motion to dismiss,
courts generally consider only the allegations contained in the
complaint, exhibits attached to the complaint and matters of
public record.”).
1
39a
whether written or oral, does not constitute a contract
of employment and does not imply that [my]
employment will continue for any period of time.” Id.
As a Therapeutic Specialist, Plaintiff conducted
“customer engagement” telephone calls, and sold
pharmaceutical products to consumers who resided in
New Brunswick, New Jersey. Id., Ex. B. In
performing these tasks, Plaintiff alleges that she was
required to meet sales quotas each quarter, and
Sunovion assessed her performance based on data
that it received from IQVIA. Id. at I, 13. While she
worked at Sunovion, Plaintiff alleges that she
maintained “acceptable goal attainment percentages,”
ranging from “80%” to “over 85%.” Id. at 2.
Nevertheless, Plaintiff avers that her manager,
Jenna Yackish (“Ms. Yackish”), placed her on a
performance improvement plan (“PIP”) for failing to
reach 100% of her quotas for eight consecutive
quarters. 2 Id. at 13.
The PIP was implemented with a timeline that
spanned from October 24, 2018 to January 8, 2019.
Id., Ex., B. However, the plan’s first paragraph
informed Plaintiff that, “[a]t any time either during or
after the PIP’s conclusion . . . management may make
a decision about your continued employment, up to
and including termination[.]” Id. Moreover, a similar
warning was contained in the last section of the plan,
under the heading “Consequences of Continued
Non-Performance”: “[f]ailure to comply with the
An Exhibit attached to the Complaint indicates that
Plaintiff fell short of her sales goals, as she attained the following
percentages during the first eight quarters of her tenure at
Sunovion: 97.75%; 79.73%; 89.19%; 93.52%; 99.05%; 84.91%;
84.33%; 87.57%. See Compl., Ex. B.
2
40a
expectations [herein] and to sustain this performance
. . . may result in further disciplinary action, up to and
including termination. All employment at Sunovion is
at will. Employees are subject to discharge at any
time with or without cause or notice.” Id.
While the PIP was in effect, Ms. Yackish held
progress “updates” with Plaintiff once a week. Id. at
17. During their meetings, Plaintiff alleges that Ms.
Yackish made the following statements which are
characterized as “oral agreements” in the Complaint:
“[w]e don’t want to let you go”; “[w]e want you to
succeed”; “I want you to succeed”; “[d]o you want this.
If you do then I want this for you”; “[t]his is going to be
your quarter, I can feel it”; “I want this for you”; “[t]he
PIP can be extended”; “[t]he PIP doesn’t necessarily
mean termination. It can always be extended if you
still don’t make goal.” Id. Despite these encouraging
remarks, however, according to Plaintiff, Ms. Yackish
“shut[] [her] down” on “field rides” and “debat[ed]
Plaintiff’s action[s] toward success.” Id. Thereafter,
Plaintiff alleges that she was terminated from
Sunovion on January 4, 2019, before “the documented
PIP end date” on January 9, 2019. Id. at 5.
Prior to her termination, Plaintiff alleges that
she raised a concern about the calculation of her sales
quotas to Sunovion. Id. at 4, 16. In particular,
according to Plaintiff, she informed Sunovion that her
geographic market, i.e., New Brunswick is a “longstanding, unchanged” region with a “conforming
footprint,” unlike other cities in the tri-state area
which, for example, had “undergone multiple
realignment shifts in footprint” that “affect the
formula settings for sales history, market potential,
and volumes[.]” Id. at 4. For reasons that are unclear
41a
from the Complaint, Plaintiff alleges that these
geographical differences had an impact on her
performance. Id. at 4, 16. However, Plaintiff states
that Sunovion investigated these alleged matters,
and concluded that the quota calculations for her
geographic market were, in fact, accurate.
Separate and apart from Sunovion’s own
alleged miscalculations, Plaintiff alleges that it
received inaccurate statistical data from IQVIA that
impacted Sunovion’s assessment of her job
performance. Id. at II-IV. In particular, Plaintiff
alleges that on January 4, 2019, Sunovion held a
conference call with its “salesforce” to explain that
IQVIA had furnished inaccurate data to Sunovion
during the prior two years. Id. at II, 6. However,
rather than discuss these alleged issues with her,
Plaintiff alleges that Sunovion placed her on a PIP
with the intention of terminating her, “to avoid . . .
addressing how IQVIA[’s] negligent reporting and
other Sunovion miscalculations” impacted her
performance in her assigned market of New
Brunswick. Id. at III-IV, 3.
On January 11, 2019, Plaintiff filed a
Complaint in the Superior Court of New Jersey, Law
Division, Monmouth County, asserting a claim for
“wrongful termination, without real just cause, by
Covenant of Food Faith (and fair dealing) Exception,”
against Sunovion and IQVIA. On February 15, 2019,
Defendants removed that case to this Court, on the
basis of diversity jurisdiction pursuant to 28 U.S.C.
§ 1441(a). On February 22, 2019, Plaintiff filed a
motion to remand that this Court denied, finding that
Defendants’ removal of this action was proper. On
October 3, 2019, Plaintiff moved for reconsideration of
42a
the Court’s prior remand denial Order. On October
11, 2019, Defendants filed separate motions to
dismiss Plaintiff’s Complaint for the failure to state a
viable cause of action. I first address Plaintiff’s motion
for reconsideration.
II.
MOTION FOR RECONSIDERATION
In the prior Order, the Court denied Plaintiff’s
motion to remand for lack of diversity, finding that
Defendants had satisfied their burden of establishing
complete diversity, on the basis of sworn certifications
that each submitted. Indeed, in those certifications,
Defendants attested as follows: (1) Sunovion is
incorporated in Delaware, with its principal place of
business in Massachusetts; and (2) IQVIA, too, is a
Delaware corporation that maintains “dual corporate
headquarters” in Connecticut and North Carolina,
and the “key business leaders” for the “business at
issue” are employed in Pennsylvania. In moving for
reconsideration, Plaintiff argues that the Court
overlooked various documents which reveal that
IQVIA maintains a principal place of business, or a
“nerve center,” in this State.
Fed. R. Civ. P. 59(e) and Local Civil Rule 7.1
govern motions for reconsideration. In particular,
pursuant to Local Civil Rule 7.1(i), a litigant that is
moving for reconsideration is required to “set[] forth
concisely the matter or controlling decisions which
the party believes the Judge or Magistrate Judge has
overlooked[.]” L. Civ. R. 7.1(i). Moreover, motions for
reconsideration are considered “extremely limited
procedural vehicle[s].” Resorts Int’l v. Greate Bay
Hotel & Casino, 830 F. Supp. 826, 831 (D.N.J. 1992);
see also Leja v. Schmidt Mfg., 743 F. Supp. 2d 444,
43a
456 (D.N.J. 2010). Indeed, requests seeking
reconsideration “are not to be used as an opportunity
to relitigate the case; rather, they may be used only to
correct manifest errors of law or fact or to present
newly discovered evidence.” Blystone v. Horn, 664
F.3d 397, 415 (3d Cir. 2011) (citing Howard Hess
Dental Labs., Inc. v. Dentsply Int’l Inc., 602 F.3d 237,
251 (3d Cir. 2010)); see also N. River Ins. Co. v. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995).
A “judgment may be altered or amended [only]
if the party seeking reconsideration shows at least one
of the following grounds: (1) an intervening change in
the controlling law; (2) the availability of new
evidence that was not available when the court
granted the motion for summary judgment; or (3) the
need to correct a clear error of law or fact or to prevent
manifest injustice.” Blystone, 664 F.3d at 415
(quotations omitted). “A party seeking reconsideration
must show more than a disagreement with the
Court’s decision, and ‘recapitulation of the cases and
arguments considered by the court before rendering
its original decision fails to carry the moving party’s
burden.’” G-69 v. Degnan, 748 F. Supp. 274, 275
(D.N.J. 1990) (citations omitted). That is, “a motion
for reconsideration should not provide the parties
with an opportunity for a second bite at the apple.”
Tischio v. Bontex, Inc., 16 F. Supp. 2d 511, 533 (D.N.J.
1998). Rather, a difference of opinion with the court’s
decision should be dealt with through the appellate
process. Florham Park Chevron, Inc. v. Chevron
U.S.A., Inc., 680 F. Supp. 159, 162 (D.N.J. 1998).
In seeking reconsideration, Plaintiff disputes
the Court’s previous finding of complete diversity, and
argues that IQVIA is a New Jersey citizen. As a
44a
threshold matter, however, I note that Plaintiff does
not advance valid grounds for reconsideration, such
as a change in law, new evidence, or manifest error.
Instead, she relies upon the same documents that this
Court considered and rejected in the previous Order.
Therefore, while Plaintiff’s request can be denied on
these grounds alone, see Oritani Sav. & Loan Ass’n v.
Fidelity & Deposit Co., 744 F. Supp. 1311, 1314
(D.N.J. 1990) (explaining that “[a] motion for
reconsideration is improper when it is used to ask the
Court to rethink what is had already thought
through—rightly or wrongly”) (internal quotations
and citation omitted), the consideration of Plaintiff’s
new arguments would not otherwise change the
outcome of this action. For Plaintiff’s benefit, I will
once again explain my rulings.
As explained in the previous Order, to establish
jurisdiction under 28 U.S.C. § 1332(a), the amount in
controversy must exceed $75,000, and there must be
complete diversity of citizenship among the adverse
parties. As to the latter requirement, each plaintiff
must be a citizen of a different state from each
defendant. See Owen Equip. and Erection Co. v.
Kroger, 437 U.S. 365 (1978). Courts determine the
citizenship of a corporation on the basis of the
company’s “place of incorporation” and its “principal
place of business.” See 28 U.S.C. §1332(c)(1).
Moreover, a corporation’s principal place of business
is its “nerve center,” or the location from which “a
corporation’s high level officers direct, control, and
coordinate the corporation’s activities.” Hertz Corp. v.
Friend, 559 U.S. 77, 80, 93 (2010) (explaining that, “in
practice [the nerve center] should normally be the
place where the corporation maintains its
headquarters . . . . ”); see also Brooks-McCollum v.
45a
State Farm Ins. Co., 376 Fed. Appx. 217, 219 (3d Cir.
2010).
Here, as in her previous remand motion,
Plaintiff attaches “New Jersey Business Gateway”
status reports for IQVIA and IQVIA Medical
Communications and Consulting, Inc. (“IQMCC”), a
non-defendant. In particular, the report for IQVIA
shows that it is registered as a “Foreign Profit
Corporation” in this State, with a “Home Jurisdiction”
of Delaware. Moreover, the IQVIA report lists two
separate addresses, including an out-of-state “Main
Business Address” in Connecticut, and a “Principal
Business Address” in New Jersey. In addition, and
unlike the documents for IQVIA, the IQMCC report
specifies a “Domestic Profit Corporation” registration
status, with a New Jersey “Home Jurisdiction” and
“Main Business Address.” Based on these records,
Plaintiff again contends that IQVIA operates a
principal place or business in New Jersey. In that
connection, because she resides in this State, Plaintiff
maintains that the Court erred in finding that the
parties to this action are diverse. However, Plaintiff’s
position lacks merit.
At most, Plaintiff has shown that IQVIA
maintains an office in this State in adherence to the
regulations governing foreign corporate entities. See
N.J.S.A. § 14A:4-1(1). However, as I explained in the
previous Order, registering as a “Foreign Profit
Corporation” to conduct business in this State does
not suffice to establish New Jersey citizenship. See
e.g., Display Works, LLC v. Bartley, 182 F. Supp. 3d
166, 179 (D.N.J. 2016) (holding that “New Jersey’s
registration and service statutes do not constitute
consent to general jurisdiction[.]”); McClung v. 3M
46a
Co., No. 16-2301, 2018 U.S. Dist. LEXIS 220393, at
*12 (D.N.J. July 5, 2018) (finding that the “mere
registration of a business does not amount to consent
to general jurisdiction in New Jersey.”); Boswell v.
Cable Servs. Co., No. 16-4498, 2017 U.S. Dist. LEXIS
100708, at *14 (D.N.J. June 29, 2017) (concluding
that the defendant’s “registration to do business in
New Jersey does not mean it consented to general
jurisdiction in New Jersey.”). Thus, to the extent that
Plaintiff raises this position, these grounds fail to
provide an appropriate basis for reconsideration.
Moreover, Plaintiff’s reliance on the “Domestic
Profit Corporation” registration status for IQMCC is
misplaced. Indeed, because IQMCC is not named as a
defendant in this action, its state of incorporation is
irrelevant for jurisdictional purposes. And, regardless
of whether some kind of affiliation exists, in contrast
to Plaintiff’s position, the Court cannot find that
IQVIA operates a principal place of business in this
State, based on the mere presence of a related
corporation such as IQMCC. See Mellon Bank, N.A. v.
Metro Communications, Inc., 945 F.2d 635, 643 (3d
Cir. 1991) (“[T]here is a presumption that a
corporation, even when it is a wholly owned subsidiary
of another, is a separate entity.”). Rather, imputing
IQMCC’s principal place of business to IQVIA, as
Plaintiff purports to do, requires her to demonstrate
that the entities are alter egos. However, Plaintiff has
not conducted the required fact intensive examination3
The Third Circuit has set forth several factors in
determining whether entities are alter egos, including: “gross
undercapitalization . . . ‘failure to observe corporate formalities,
non-payment of dividends, the insolvency of the debtor
corporation at the time, siphoning of funds of the corporation by
the dominant stockholder, non-functioning of other officers or
3
47a
to support such a finding, either in her initial remand
motion or in the current reconsideration motion.
Thus, IQMCC’s presence in this State, too, fails to
provide proper grounds for reconsideration. 4
Accordingly, the Court’s findings in the prior
remand Order remain unchanged. I proceed to
directors, absence of corporate records, and the fact that the
corporation is merely a facade for the operations of the dominant
stockholder or stockholders.’” Bd. of Trs. v. Foodtown, Inc., 296
F.3d 164, 172 (3d Cir. 2002) (citation omitted). Rather than
address each of these elements, Plaintiff emphasizes that IQVIA
and IQMCC share a corporate executive named Eric Sherbert.
However, as I explained in the previous Order, an overlapping
board of directors, with nothing more, does not suffice to
establish a corporate alter ego. See United States v. Bestfoods,
524 U.S. 51, 69 (1998) (“It is a well-established principle [of
corporate law] that directors and officers holding positions with
a parent and its subsidiary can and do ‘change hats’ to represent
the two corporations separately, despite their common
ownership.”); see also Leo v. Kerr-McGee, No. 93-1107, 1996 U.S.
Dist. LEXIS 6698, at *6 (D.N.J. May 10, 1996) (“A significant
degree of overlap between directors and officers of a parent and
its subsidiary does not establish an alter ego relationship.”).
As explained in greater detail below, even if IQVIA
operates a principal place of business in this State, Plaintiff’s
failure to assert connections between IQVIA and her wrongful
termination, particularly since there are a dearth of factual
allegations as to IQVIA, support the fact that Plaintiff has
fraudulently joined IQVIA in this action. See Briarpatch Ltd.,
L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 302 (2d Cir. 2004)
(“The doctrine of fraudulent joinder is meant to prevent
plaintiffs from joining non-diverse parties in an effort to defeat
federal [diversity] jurisdiction.”); see, e.g., Sussman v. Capital
One, N.A., 14-01945, 2014 U.S. Dist. LEXIS 151866, at *19
(D.N.J. Oct. 24, 2014) (finding fraudulent joinder where there
were “simply no allegations” in the plaintiff’s complaint to
substantiate a claim against a named defendant). In that
connection, IQVIA’s citizenship could be disregarded for
diversity purposes.
4
48a
address whether Plaintiff has alleged a cognizable
wrongful termination claim against Sunovion and
IQVIA.
III.
MOTION TO DISMISS
A.
Standard of Review
Under Fed. R. Civ. P. 12(b)(6), a complaint can
be dismissed for “failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). In
reviewing a dismissal motion, courts “accept all
factual allegations as true, construe the complaint in
the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of
the complaint, the plaintiff may be entitled to relief.”
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d
Cir. 2008) (citation and quotations omitted). Under
this standard, the factual allegations set forth in a
complaint “must be enough to raise a right to relief
above the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Indeed, “the tenet
that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “[A] complaint must do more than allege the
plaintiff's entitlement to relief. A complaint has to
‘show’ such an entitlement with its facts.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
However, Rule 12(b)(6) only requires 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
grounds upon which it rests.” Twombly, 550 U.S. at
555. The complaint must include “enough factual
matter (taken as true) to suggest the required element.
49a
This does not impose a probability requirement at the
pleading stage, but instead simply calls for enough
facts to raise a reasonable expectation that discovery
will reveal evidence of the necessary element.” Phillips,
515 F.3d at 234 (citation and quotations omitted);
Covington v. Int’l Ass’n of Approved Basketball
Officials, 710 F.3d 114, 118 (3d Cir. 2013) (“[A]
claimant does not have to set out in detail the facts
upon which he bases his claim. The pleading standard
is not akin to a probability requirement; to survive a
motion to dismiss, a complaint merely has to state a
plausible claim for relief.”) (quotations and citations
omitted).
In sum, under the current pleading regime,
when a court considers a dismissal motion, three
sequential steps must be taken: first, “it must take
note of the elements the plaintiff must plead to state
a claim.” Connelly v. Lane Constr. Corp., 809 F.3d
780, 787 (3d Cir. 2016) (citation, quotations, and
brackets omitted). Next, the court “should identify
allegations that, because they are no more than
conclusions, are not entitled to the assumption of
truth.” Id. (citations and quotations omitted). Lastly,
“when there are well-pleaded factual allegations, the
court should assume their veracity and then
determine whether they plausibly give rise to an
entitlement to relief.” Id. (citations, quotations and
brackets omitted); Robinson v. Family Dollar, Inc.,
679 Fed. Appx. 126, 132 (3d Cir. 2017).
B.
SUNOVION
i.
Wrongful Termination
In the Complaint, Plaintiff asserts a claim for
“wrongful termination, without real just cause, by
50a
Covenant of Good Faith (and fair dealing)
Exception.” 5 See Compl. In support, Plaintiff avers
that “[t]he covenant of good faith means that the
employer and employee have to be fair and forthright
with each other, and employers must have ‘just cause’
to fire someone.” Plaintiff’s Opp., at 10. Despite these
obligations, Plaintiff argues that Sunovion created “a
new rule under new management” to “fabricate[]” a
reason for her termination. Id. However, despite
acknowledging that her “poor performance” and
“missed” sales quotas were based on inaccurate data
from IQVIA, Sunovion, Plaintiff contends, did not
recalculate her performance measures, and instead,
terminated her without “legitimate just cause.” Id. at
10, 14-16.
At the outset, I cannot discern whether
Plaintiff has alleged two separate causes of action in
the Complaint. Indeed, Plaintiff appears to assert a
wrongful termination claim, because, according to
her, she was discharged from Sunovion without just
cause. In addition, as a separate and independent
basis, Plaintiff seems to allege that Sunovion
breached the covenant of good faith and fair dealing
by fabricating a basis for her termination.
Nevertheless, even if the Court, out of an abundance
of caution, construed Plaintiff’s Complaint to plead
In her opposition brief, Plaintiff confirms that her
wrongful termination claim is pled in contract, not tort.
Plaintiff’s Opp., at 1 (“Plaintiff entered original complaint for
wrongful termination by Covenant of Good Faith (and Fair
Dealing) Exception as per New Jersey state law.”). In addition,
on the “Civil Case Information Statement” that accompanies her
Complaint, Plaintiff identifies this action as arising under
common law, as opposed to the “Conscientious Employees
Protection Act” or Law Against Discrimination LAD.” See Notice
of Removal, Exhibit A.
5
51a
two different causes of action, both claims fail for the
same reason—she has not alleged the existence of an
express or implied contractual obligation that
Sunovion violated.
Under New Jersey law, it is axiomatic that
“employment is presumed to be ‘at will’ unless an
employment contract states otherwise.” Varrallo v.
Hammond, Inc., 94 F.3d 842, 845 (3d Cir. 1996)
(citing Witkowski v. Thomas J. Lipton, Inc., 136 N.J.
385, 396 (1994)); see Witkowski, 136 N.J. at 397 (“An
employment relationship remains terminable at the
will of either an employer or employee, unless an
agreement exists that provides otherwise.”); McCrone
v. Acme Mkts., 561 Fed. Appx. 169, 172 (3d Cir. 2014)
(“While exceptions to this doctrine do exist, [t]oday,
both employers and employees commonly and
reasonably expect employment to be at-will, unless
specifically stated in explicit, contractual terms.”)
(quotations and citation omitted). 6 In an at-will
relationship, a worker can be terminated “for good
reason, bad reason, or no reason at all.” Witkowski,
136 N.J. at 397 (citing English v. College of Medicine
& Dentistry, 73 N.J. 20, 23 (1977)); see Velantzas v.
Colgate-Palmolive Co., 109 N.J. 189, 191 (1988) (“An
employer can fire an at-will employee for no specific
For purposes of completeness, I note that there are
certain legislative and judicial exceptions to the at-will rule,
neither of which Plaintiff has alleged here. For example, an
employer cannot discharge “a worker for a discriminatory
reason.” Witkowski, 136 N.J. at 398 (citing N.J.S.A. 10:5-1 to 28). In addition, “an employer may not fire an employee if the
‘discharge is contrary to a clear mandate of public policy[.]’” Id.
(quoting Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 73
(1980)); see also Pierce, 84 N.J. at 73 (“[E]mployers will know
that unless they act contrary to public policy, they may discharge
employees at will for any reason.”).
6
52a
reason or simply because an employee is bothering
the boss.”).
In the absence of an express agreement, a
plaintiff can assert a wrongful termination claim on
the basis of an implied contract. For instance, in
Woolley v. Hoffmann-La Roche, 99 N.J. 284, 285
(1985), the NJ Supreme Court held that barring “a
clear and prominent disclaimer,” a handbook or
manual can create an “implied promise” to refrain
from terminating an employee unless just cause
exists. Id. at 285-86. The Court explained that an
actionable breach can arise from an at-will
termination when an employer hires an employee
without an “individual employment contract,” and
“widely distribute[s,] among a large workforce,” a
handbook that includes “definite and comprehensive”
provisions regarding “job security.” Id. at 294, 302; see
Witkowski, 136 N.J. at 396. Such provisions, the
Court held, include those which list specific examples
of “terminable offenses,” or designate “a set of detailed
procedures” to implement before an employee is
discharged. See Woolley, 99 N.J. at 308; see
Witkowski, 136 N.J. at 394.
In addition to corporate-wide policies, a verbal
promise or representation to an individual employee
can serve as grounds for an implied contract. For
example, in Shebar v. Sanyo Bus. Sys. Corp., 111 N.J.
276 (1988), the plaintiff was hired on an at-will basis.
Id. However, after the plaintiff attempted to resign
and accepted another job offer, his supervisor
promised to refrain from firing the plaintiff without
cause, if the plaintiff continued to work for his current
organization. Id. at 280. Despite agreeing, the
plaintiff was discharged about four months later,
53a
following which he filed a wrongful termination suit
on the basis of a verbal contract. Id. at 283. In
considering the plaintiff’s claims, the Court
recognized the “enforceability of an oral contract of
employment,” and held that a cause of action arising
therefrom “should be analyzed by those contractual
principles that apply when the claim is one that an
oral employment contract exists.” Id. at 288 (citing
Shiddell v. Electro Rust-Proofing Corp., 34 N.J.
Super. 278, 290 (App. Div.1954)).
Here, the factual allegations in the Complaint
fail to establish that an employment contract exists
between Plaintiff and her employer. Indeed, a review
of the exhibits to the Complaint reveals that Plaintiff,
in two separate agreements, acknowledged her at-will
status in explicit terms. First, on August 15, 2016,
before she began her tenure as a Therapeutic
Specialist, Plaintiff executed a Letter Offer from
Sunovion that included the following language on the
first page: “[p]lease note that neither this letter nor
any other materials constitute a contract of
employment with Sunovion; your employment with
Sunovion will be on an at will basis.” Compl., Ex. B.
Less than two weeks later, on August 24, 2016,
Plaintiff acknowledged her at-will status for a second
time in a binding NDA. In fact, under a section entitled
“No Employment Contract,” the NDA contained an
explicit disclaimer which provided: “I understand that
this Agreement, alone or in conjunction with any
other document or agreement whether written or oral,
does not constitute a contract of employment and does
not imply that my employment will continue for any
period of time.” Id. Thus, Plaintiff has not alleged the
existence of an express agreement that would require
cause for her termination.
54a
In addition, Plaintiff has not pled that an
implied agreement existed that would have altered
her at-will status at Sunovion. Although the New
Jersey Supreme Court has recognized that an implied
contract can arise from a handbook or a verbal
promise, neither are alleged in the Complaint. For
instance, Plaintiff does not assert that Sunovion
circulated a handbook throughout its workforce that
included, for example, a list of “terminable offenses,”
or designated “a set of detailed [disciplinary]
procedures” that could be construed to require just
cause before she was discharged. Rather, Plaintiff
claims that she was placed on a PIP and that
Sunovion “terminated Plaintiff earlier than the
documented PIP end date.” Compl., 5. However, the
allegations of such a program, as a result of Plaintiff’s
“performance concerns,” do not amount to an
agreement that modified her at-will status. Indeed,
the PIP, attached to the Complaint, reiterates in its
first and last paragraphs Plaintiff’s at-will status, and
warned that she could be terminated while the plan
was in effect: “[at] any time either during or after the
PIP’s conclusion . . . employment is at will or
management may make a decision about your
continued employment, up to and including
termination from the company.” Compl., Ex. B. As
such, Plaintiff has not pled factual allegations to
conclude that she was fired in breach of an implied
contract.
Moreover, the alleged “oral agreements” in the
Complaint do not suffice to create an implied contract.
In particular, the pleadings assert that Ms. Yackish
made the following remarks during Plaintiff’s tenure
at Sunovion: “[w]e don’t want to let you go”; “[w]e
want you to succeed”; “I want you to succeed”; “[d]o
55a
you want this. If you do then I want this for you”;
“[t]his is going to be your quarter, I can feel it”; “I want
this for you”; “[t]he PIP can be extended”; “[t]he PIP
doesn’t necessarily mean termination. It can always
be extended if you still don’t make goal.” Id. However,
these alleged statements differ from those at issue in
Shebar, wherein the at-will plaintiff rejected a job
offer, because his supervisor assured him that he
would not be fired without just cause, if he continued
his employment. In contrast, the alleged “oral
agreements” that Plaintiff has referenced in her
Complaint, here, present nothing more than
encouraging remarks that do not suffice to create an
enforceable oral contract between Plaintiff and
Sunovion. See e.g., Bell v. KA Indus. Servs., LLC, 567
F. Supp. 2d 701, 710 (D.N.J. 2008) (dismissing a
Shebar claim where the plaintiff did not allege “facts
that if proven true, would support a conclusion that the
implied contract was supported by consideration.”).
However, even if Plaintiff alleged the existence
of an implied agreement, the fact that Plaintiff has
acknowledged, on multiple occasions, that she was an
at-will employee dooms her implied contract claims.
For example, the Third Circuit’s decision in Radwan.
v. Beecham Laboratories, Div. of Beecham, Inc., 850
F.2d 147 (3d. Cir. 1998) illustrates this point. In that
case, the plaintiff alleged that certain provisions in
his handbook created an implied promise that was
breached, when he was discharged without just cause.
Id. at 148. However, the Third Circuit rejected the
plaintiff’s claims, finding that his “employment
application” included an express provision that set
forth his at-will status, stating: “I understand and
agree that my employment is for no definite period
and may, regardless of the date of payment of my
56a
wages and salary, be terminated at any time without
previous notice.” Id. at 148-149. Indeed, because the
plaintiff accepted “a term of employment providing
without qualification that he could be terminated at
any time without previous notice,” the Third Circuit
explained that “he could hardly have any reasonable
expectation that [his] manual granted him the right
only to be discharged for cause.” Id. at 150.
Like the employee in Radwan, Plaintiff, here,
acknowledged her at-will status in two separate
agreements, including the Letter Offer and the NDA.
Thus, because Plaintiff’s “tenure was specifically
dealt with in writing when [she] was hired,” she could
not reasonably believe that, for example, a handbook
or a similar resource modified her at-will status. Id.;
see, e.g., Schlichtig v. Inacom Corp., 271 F. Supp. 2d
597, 606 (D.N.J. 2003) (rejecting a breach of an
implied contract claim, where the plaintiff, prior to
the commencement of his employment, signed a
contract stating that he “could be ‘terminated with or
without cause or notice at any time.’”); McDermott v.
Chilton Co., 938 F. Supp. 240, 245 (D.N.J. 1995)
(finding the plaintiff’s breach of an implied contract
claim failed, because the plaintiff signed an
“application form” when he started working that read
“I specifically agree that my employment may be
terminated, with or without cause or notice, at any
time at the option of either the Company or myself.”);
D’Alessandro v. Variable Annuity Life Ins. Co., 892052, 1990 U.S. Dist. LEXIS 16092, at *4, 10 (D.N.J.
Nov. 20, 1990) (holding that a “standard practice
memoranda” that the defendants distributed throughout
the workforce did not create an enforceable
agreement, because the plaintiff executed a contract
57a
that stated that it could “be terminated by either
party for any reason”).
In sum, Plaintiff has not sufficiently alleged
that her job at Sunovion was anything other than an
at-will employment. 7 Nor has she pled that Sunovion
discharged her in breach of an express of verbal
implied contract. Therefore, because the Complaint
describes northing more than an at-will relationship,
Plaintiff’s wrongful termination claim arising from
Sunovion’s alleged failure to establish cause is
dismissed. See, e.g., Day v. Wells Fargo & Co., No. 176237, 2018 U.S. Dist. LEXIS 66807, at *14 (D.N.J.
April 20, 2018) (“In short, the Court concludes that a
plaintiff cannot plead an action under the common
law of New Jersey for wrongful discharge in breach of
an implied term of an employment contract in the
absence of an employment contract.”). I next address
Plaintiff’s allegations as to the alleged breach of the
covenant of good faith and fair dealing.
Plaintiff’s opposition attaches an unsigned Severance
Agreement that she received from Sunovion. The terms of the
Agreement contain a general release provision that encompasses
claims arising under “the implied obligation of good faith and
fair dealing; or any express, implied, oral, or written contract.”
Pl.’s Opp., at 2. Moreover, according to Plaintiff, the general
release provision in the Severance Agreement demonstrates
Sunovion’s “admitted acknowledgment relating to a contract and
contract obligations for plaintiff[’s] employment.” Pl.’s Opp., at
3. However, Plaintiff’s position is without merit. Indeed, the
general release provision in the Severance Agreement does not
establish that an employment contract existed between her and
Sunovion, particularly since, as explained supra, Plaintiff
executed two separate agreements, including the Letter Offer
and NDA, which set forth her at-will status in explicit terms.
7
58a
ii.
The Covenant of good faith
and fair dealing.
In New Jersey, contracting parties are “bound
by a duty of good faith and fair dealing in both the
performance and enforcement of the contract.”
Brunswick Hills Racquet Club, Inc. v. Route 18
Shopping Ctr. Assocs., 182 N.J. 210, 224 (2005). While
the concept of good faith is difficult to define in precise
terms, “[g]ood faith performance or enforcement of a
contract emphasizes faithfulness to an agreed common
purpose and consistency with the justified expectations
of the other party[.]” Wilson v. Amerada Hess Corp.,
168 N.J. 236, 245 (2001). To allege such a claim, a
plaintiff must assert: “(1) a contract exists between
the plaintiff and the defendant; (2) the plaintiff
performed under the terms of the contract . . . ; (3) the
defendant engaged in conduct, apart from its
contractual obligations, without good faith and for the
purpose of depriving the plaintiff of the rights and
benefits under the contract; and (4) the defendant’s
conduct caused the plaintiff to suffer injury, damage,
loss or harm.” Wade v. Kessler Inst., 343 N.J. Super.
338, 347 (App. Div. 2001).
As such, a claim based on a “[b]reach of the
implied covenant of good faith and fair dealing is not
a free-standing cause of action; such a covenant is an
implied covenant of a contract.” Luongo v. Vill.
Supermarket, Inc., 261 F. Supp. 3d 520, 532 (D.N.J.
2017) (emphasis in original); Wade v. Kessler Inst.,
172 N.J. 327, 345 (2002) (“To the extent plaintiff
contends that a breach of the implied covenant may
arise absent an express or implied contract, that
contention finds no support in our case law. In that
respect, we agree with the court below that an implied
59a
contract must be found before the jury could find that
the implied covenant of good faith and fair dealing
had been breached.”); Noye v. Hoffmann-La Roche
Inc., 238 N.J. Super. 430, 433 (App. Div. 1990) (“In the
absence of a contract, there can be no breach of an
implied covenant of good faith and fair dealing.”)
(citing McQuitty v. General Dynamics Corp., 204 N.J.
Super. 514, 519-20 (App.Div.1985)); see also Varrallo
v. Hammond Inc., 94 F.3d 842, 848 (3d Cir. 1996).
Here, because Plaintiff has not alleged the
existence of an express or implied contract, she cannot
assert a wrongful termination claim based on
Sunovion’s purported breach of the implied covenant;
indeed, a breach of the implied covenant cannot occur
in the absence of a contractual agreement. See
Schlichtig v. Inacom Corp., 271 F. Supp. 2d 597, 606
(D.N.J. 2003) (“[B]ecause the Court has concluded
that the terms of this employee manual could not
have given rise to an implied contract of employment,
it necessarily follows that the manual’s provisions do
not contain an implied covenant of good faith and fair
dealing.”); Barone v. Leukemia Society of America, 42
F. Supp. 2d 452, 457 (D.N.J. 1998) (“In the absence of
a contract, there is no implied covenant of good faith
and fair dealing which might be used as a basis
for finding a right to continued employment.”);
McDermott, 938 F. Supp. at (“Under New Jersey law,
an implied covenant of good faith and fair dealing
may not be invoked to restrict the authority of
employers to fire at-will employees.”); Argush v. LPL
Fin. LLC, No. 13-7821, 2014 U.S. Dist. LEXIS
107148, at *10 (D.N.J. Aug. 5, 2014) (“[I]t is well
settled that the implied term of fair dealing will not
work to constrain an employer’s discretion to
terminate an at-will employee.”) (quotations and
60a
citations omitted); Alessandro, 1990 U.S. Dist. LEXIS
16092, at *14 (“New Jersey courts have uniformly
‘rejected the proposition that there is an implied
covenant of good faith and fair dealing between an
employer and employee in an at-will situation.’”).
C.
IQVIA
IQVIA challenges the pleadings under Fed. R.
Civ. P. 8(a)(2). Rule 8(a)(2) requires “a short and plain
statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). To meet the
pleading requirements of Rule 8(a)(2) in multiple
defendant actions, such as the one here, “the complaint
must clearly specify the claims with which each
individual defendant is charged.” Kounelis v. Sherrer,
No. 04-4714, 2005 U.S. Dist. LEXIS 20070, at *11
(D.N.J. Sept. 6, 2005); see Major Tours, Inc. v. Colorel,
720 F. Supp. 2d 587, 604 (D.N.J. 2010) (“Because the
Complaint involves multiple claims and multiple
defendants, the Court must carefully determine
whether the Complaint provides each defendant with
the requisite notice required by Rule 8 for each claim,
and whether the claim itself presents a plausible basis
for relief.”); Pushkin v. Nussbaum, No. 12-0324, 2014
U.S. Dist. LEXIS 52349, at *14 (D.N.J. April 15, 2014)
(“Rule 8(a) . . . ‘requires that a complaint against
multiple defendants indicate clearly the defendants
against whom relief is sought and the basis upon
which the relief is sought against the particular
defendants.’”) (quoting Poling v. K. Hovnanian
Enterprises, 99 F. Supp. 2d 502, 517-18 (D.N.J. 2000)).
Here, the factual allegations in the Complaint
do not assert a viable claim against IQVIA. For
instance, the first paragraph of the pleadings state that
61a
the instant action arises not from the alleged conduct
of IQVIA—a corporation that Plaintiff does not work
for—but from Sunovion’s purported “wrongful
termination, without real just cause by Covenant of
Good Faith (and fair dealing) Exception . . . .” Compl.,
pg. 1-2. In addition, throughout the Complaint,
Plaintiff alleges Sunovion’s failure to establish “just
cause” for her discharge, and the bad-faith conduct
that Sunovion exhibited towards Plaintiff, in breach
of the implied convent of good faith and fair dealing.
Indeed, time and time again, the pleadings state that
Plaintiff was harmed as a result of Sunovion’s alleged
conduct, with no mention of a specific, actionable
wrongdoing that IQVIA performed. In fact, Plaintiff
pleads no factual allegations that IQVIA should be
held liable for her alleged wrongful termination.
Rather, as to IQVIA, the Complaint alleges that
IQVIA supplied certain data to Sunovion, which
Sunovion then used to assess the performance of its
workers. Id. at I. However, Plaintiff cannot assert a
wrongful termination claim against IQVIA on the
basis of its business relationship with Sunovion. 8
Therefore, IQVIA is dismissed as a defendant to this
action.
Nonetheless, I note that the pleadings include
passing references to IQVIA’s alleged “negligent
reporting.” Id. at II-IV. Assuming that Plaintiff is
I note that, even if Plaintiff asserts that IQVIA is liable
for her alleged wrongful termination, her claim still fails. Indeed,
it is axiomatic that an at-will employee’s wrongful termination
claim lies against his or her employer. See Velantzas v. ColgatePalmolive Co., 109 N.J. 189, 191-192 (1988) (“[A] terminated atwill employee has a cause of action against the employer for
wrongful termination . . . . ”) (citing Pierce v. Ortho Pharmaceutical
Corp., 84 N.J. 58 (1980)).
8
62a
asserting a claim for negligence against IQVIA, that
cause of action cannot stand. To assert such a claim,
a litigant must allege four elements: “(1) [a] duty of
care, (2) [a] breach of [that] duty, (3) proximate cause,
and (4) actual damages[.]” Brunson v. Affinity Federal
Credit Union, 199 N.J. 381, 400 (2009) (quotations
and citations omitted). Here, because no relationship
whatsoever is pled between Plaintiff and IQVIA, she
has not alleged the first element of a negligence claim.
See NCP Litig. Trust v. KPMG LLP, 187 N.J. 353, 901
(2006) (“Ultimately, the duty owed to another is
defined by the relationship between the parties.”); see
also Willekes v. Serengeti Trading Co., No. 13-7498,
2016 U.S. Dist. LEXIS 129404, *49-50 (D.N.J. Sept.
21, 2016) (“In determining the existence of a duty of
care . . . [t]he relationship between the parties is itself
a critical factor.”); Magnum LTL, Inc. v. CIT
Group/Bus. Credit, Inc., No. 08-5345, 2009 U.S. Dist.
LEXIS 32340, at *4 (D.N.J. Apr. 16, 2009) (“Based on
the Complaint, no relationship between [the plaintiff]
and [the defendant] exists. Lacking such a
relationship, [the plaintiff] cannot establish a duty of
care, a breach of that duty, or any other of the . . .
necessary elements for a negligence claim.”). Thus, to
the extent such a claim has been plead, Plaintiff’s
negligence cause of action is dismissed.
Moreover, in contrast to Plaintiff’s contentions,
IQVIA is not a “necessary party.” Compl., pg. 2. Rule
19(a), which governs the joinder of indispensible
persons, provides that parties are required to be
joined in an action when: “(A) in that person’s
absence, the court cannot accord complete relief
among existing parties . . . . ” Fed. R. Civ. P. 19(a).
“Under Rule 19(a)(1), the Court must consider
whether—in the absence of an un-joined party—
63a
complete relief can be granted to the persons already
parties to the lawsuit.” Huber v. Taylor, 532 F.3d 237,
248 (3d Cir. 2008). Here, Plaintiff claims that she was
terminated without “legitimate just cause,” as a
result of Sunovion’s alleged conduct—no other harms
are identified in the Complaint. Moreover, the
pleadings do not assert that IQVIA is somehow
responsible for Plaintiff’s alleged wrongful termination
from Sunovion; Plaintiff has not asserted that she
works for IQVIA, or that IQVIA was involved in the
decision making process that lead to Plaintiff’s
termination from Sunovion. Therefore, based on the
pleadings, the relief which Plaintiff seeks for the
alleged wrongdoing in the Complaint can only be
obtained from Sunovion, her employer.
Having determined that Plaintiff has not
alleged a plausible claim against IQVIA, and that
Sunovion is the only appropriate defendant in this
action, IQVIA is dismissed from this lawsuit.
IV.
CONCLUSION
For the reasons set forth above, Defendants’
Motions to dismiss are GRANTED, and Plaintiff’s
Motion for reconsideration is DENIED. Plaintiff’s
claims are dismissed with prejudice.
DATED: May 18, 2020
/s/ Freda L. Wolfson
Freda L. Wolfson
U.S. Chief District Judge
64a
[ENTERED: May 18, 2020]
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
:
:
Plaintiff,
: Civil Action No.
v.
: 19-5945 (FLW)
:
SUNOVION PHARMACEUTICALS :
ORDER
and IQVIA INC.,
:
:
Defendants.
:
:
GINA RUSSOMANNO,
THIS MATTER having been opened to the
Court by Ivan R. Novich, Esq., and Dana B.
Klinges, Esq., counsel for Defendants Sunovion
Pharmaceuticals Inc. and IQVIA Inc. (“Defendants”),
respectively, on separate Motions to dismiss the
Complaint of pro se Plaintiff Gina Russomanno
(“Plaintiff”); it appearing that Plaintiff opposes the
Motions and moves for reconsideration of the Court’s
prior Order that denied her request for remand; it
appearing that the Court having considered the
parties’ submissions in connection with the Motions
pursuant to Fed. R. Civ. P. 78, for the reasons set forth
in the Opinion filed on this date, and for good cause
shown;
IT IS on this 18th day of May, 2020,
ORDERED that Defendants’ Motions to
Dismiss are GRANTED, and Plaintiff’s Motion for
reconsideration is DENIED; and it is further
65a
ORDERED that
dismissed with prejudice.
Plaintiff’s
claims
are
/s/ Freda L. Wolfson
Freda L. Wolfson
U.S. Chief District Judge
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