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.

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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

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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

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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

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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.

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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

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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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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