INTERNATIONAL TOWER SUPPLY, LLC v. MOSKOWITZ et al, No. 1:2015cv02680 - Document 27 (D.N.J. 2016)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 8/11/2016. (dmr)
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INTERNATIONAL TOWER SUPPLY, LLC v. MOSKOWITZ et al Doc. 27 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY INTERNATIONAL TOWER SUPPLY, LLC, : Plaintiff, : v. : Hon. J oseph H. Rodriguez Civil Action No. 15-2680 OPINION MICHAEL MOSKOWITZ, : CLAUDIA SURACE, MCALISTER STEEL & TOWER SUPPLY, : MCALISTER WELDING & FABRICATING, : Defendants. : This m atter is before the Court on a m otion to dism iss the Com plaint filed by Defendants [Doc. 19] and on the Court’s Order to Show Cause why the m atter should not be rem anded for want of federal subject m atter jurisdiction [Doc. 23]. Oral argument was heard on August 10 , 20 16 and the record of that proceeding is incorporated here. Because this Court lacks subject m atter jurisdiction, the m atter m ust be remanded to State court. Background Plaintiff International Tower Supply, LLC filed this action in State court seeking equitable and legal relief for alleged violations of its March 14, 20 14 Em ployment Agreem ent 1 with Defendant Moskowitz. Allegedly, Moskowitz was the m ajority owner of International Tower until his 1 Com pl., Ex. B. 1 Dockets.Justia.com m ajority interest was purchased by Blue Diam ond, LLC with the express understanding that Moskowitz would rem ain a m inority owner and em ployee of International Tower, resulting in an Operating Agreement 2 dated February 28, 20 14 between Plaintiff and Blue Diam ond, LLC and Defendant Moskowitz. (Com pl., ¶¶ 11-13.) Further, pursuant to a March 19, 20 14 Prom issory Note, 3 Moskowitz was obligated to pay International Tower $ 35,0 0 0 plus yearly interest of 5% in twenty-four m onthly installm ents beginning April 1, 20 15. International Tower term inated Moskowitz’s em ploym ent by letter dated February 20 , 20 15. (Compl. ¶ 46, Ex. E.) Plaintiff has alleged that, while in its em ploy, Moskowitz diverted m oney owed to International Tower to him self or an entity form ed by him or Defendant Surace. (Com pl., ¶¶ 33, 34.) In addition, Plaintiff alleges that Moskowitz, through Surace and the McAlister Defendants, acted in direct com petition with International Tower and solicited its custom ers and em ployees in violation of paragraph 11 of the Em ployment Agreement, resulting in loss of revenue for International Tower. (Compl., ¶¶ 35-42.) Count One of the Com plaint is against Moskowitz for breach of the Em ploym ent Agreem ent and Operating Agreement and seeks injunctive 2 3 Com pl., Ex. A. Com pl., Ex. C. 2 relief and damages. Count Two alleges that Surace and the McAlister Defendants intentionally and/ or negligently interfered in the two agreements between International Tower and Moskowitz, and claim s injunctive relief and dam ages. Count Three states Moskowitz breached the im plied duty of good faith and fair dealing inherent in the agreements and seeks dam ages for the breach. Count Four seeks dam ages for Moskowitz’s breach of fiduciary duty owed to Plaintiff. Count Five is for breach of contract by Moskowitz in that he has failed to pay the $ 35,0 0 0 allegedly owed under the prom issory note. Count Six alleges breach of contract in that Moskowitz has failed to relinquish his ownership interest in International Tower as called for by the Operating Agreem ent. Finally, Count Seven seeks dam ages from Moskowitz for his alleged breach of International Tower’s “contractual expectations.” Applicable Standards Federal Rule of Civil Procedure 12(b)(6) allows a party to m ove for dism issal of a claim based on “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A com plaint should be dism issed pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to state a claim . Fed. R. Civ. P. 12(b)(6). When deciding a m otion to dism iss pursuant to Rule 12(b)(6), ordinarily only the allegations in the com plaint, m atters of public record, orders, and exhibits attached to the com plaint, are 3 taken into consideration. 1 See Chester County Interm ediate Unit v. Pa. Blue Shield, 896 F.2d 80 8, 812 (3d Cir. 1990 ). It is not necessary for the plaintiff to plead evidence. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). The question before the Court is not whether the plaintiff will ultim ately prevail. Watson v. Abington Twp., 478 F.3d 144, 150 (20 0 7). Instead, the Court sim ply asks whether the plaintiff has articulated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twom bly, 550 U.S. 544, 570 (20 0 7). “A claim has facial plausibility2 when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (citing Twom bly, 550 U.S. at 556). “Where there are wellpleaded factual allegations, a court should assum e their veracity and then 1“Although a district court m ay not consider m atters extraneous to the pleadings, a document integral to or explicitly relied upon in the com plaint m ay be considered without converting the m otion to dism iss into one for sum m ary judgment.” U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 20 0 2) (internal quotation m arks and citations om itted) (em phasis deleted). Accord Lum v. Bank of Am ., 361 F.3d 217, 221 n.3 (3d Cir. 20 0 4) (citations om itted). 2 This plausibility standard requires m ore than a m ere possibility that unlawful conduct has occurred. “When a com plaint pleads facts that are ‘m erely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlem ent to relief.’’” Id. 4 determ ine whether they plausibly give rise to an entitlem ent to relief.” Iqbal, 556 U.S. at 679. The Court need not accept “‘unsupported conclusions and unwarranted inferences,’” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 20 0 7) (citation om itted), however, and “[l]egal conclusions m ade in the guise of factual allegations . . . are given no presum ption of truthfulness.” Wyeth v. Ranbaxy Labs., Ltd., 448 F. Supp. 2d 60 7, 60 9 (D.N.J . 20 0 6) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Kanter v. Barella, 489 F.3d 170 , 177 (3d Cir. 20 0 7) (quoting Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 20 0 5) (“[A] court need not credit either ‘bald assertions’ or ‘legal conclusions’ in a com plaint when deciding a m otion to dism iss.”)). Accord Iqbal, 556 U.S. at 678-80 (finding that pleadings that are no m ore than conclusions are not entitled to the assum ption of truth). Further, although “detailed factual allegations” are not necessary, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlem ent to relief’ requires m ore than labels and conclusions, and a form ulaic recitation of a cause of action’s elem ents will not do.” Twom bly, 550 U.S. at 555 (internal citations om itted). See also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by m ere conclusory statements, do not suffice.”). 5 Thus, a m otion to dism iss should be granted unless the plaintiff’s factual allegations are “enough to raise a right to relief above the speculative level on the assum ption that all of the com plaint’s allegations are true (even if doubtful in fact).” Twom bly, 550 U.S. at 556 (internal citations om itted). “[W]here the well-pleaded facts do not perm it the court to infer m ore than the m ere possibility of m isconduct, the com plaint has alleged-but it has not ‘shown’-‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). However, in the absence of subject m atter jurisdiction, the Court cannot consider the m otion of the Defendants, and “[i]f at any tim e before final judgm ent it appears that the district court lacks subject m atter jurisdiction, the case shall be rem anded.” 28 U.S.C. § 1447(c); Boyer v. Snap-on Tools Corp., 913 F.2d 10 8, 111 (3d Cir. 1990 ). Invoking diversity jurisdiction, 28 U.S.C. § 1332(a)(1), Defendants rem oved the case to this Court. See 28 U.S.C. § 1441(a), (b). For diversity jurisdiction to exist, no defendant in a civil action m ay be a citizen of the same state as any plaintiff. See 28 U.S.C. § 1332(a)(1). Because this matter began in State court, diversity m ust have existed both when the Com plaint was filed and when the m atter was removed. 14B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 3723 & n. 15 (4th ed. 20 0 9) (collecting cases). The rem oving party m ust establish federal 6 jurisdiction. Hertz Corp. v. Friend, 559 U.S. 77, 96-97 (20 10 ). In determ ining whether diversity exists, “the court m ay . . . insist that jurisdictional facts be established . . . by a preponderance of evidence.” McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189 (1936). Finally, “[a] civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title m ay not be rem oved if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b)(2). 4 “Because a party who urges jurisdiction on a federal court bears the burden of proving that jurisdiction exists, a rem oving party who charges that a plaintiff has fraudulently joined a party to destroy diversity of jurisdiction has a ‘heavy burden of persuasion.’” Boyer v. Snap-on Tools Corp., 913 F.2d 10 8, 111 (3d Cir. 1990 ) (citation om itted). “[J ]oinder is fraudulent where there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendant or seek a joint judgm ent. . . . If there is even a possibility that a State court would find that the com plaint states a cause of action against any one of the resident defendants, the federal court m ust find that joinder was proper and rem and the case to state court.” Id. 4 7 Conclusion As discussed during oral argum ent, it is undisputed Plaintiff is a citizen of New J ersey, as are the McAlister Defendants. Accordingly, there is no diversity of citizenship and the case m ust be remanded. An agreed upon Order accompanies this Opinion. Dated: August 11, 20 16 / s/ J oseph H. Rodriguez J OSEPH H. RODRIGUEZ USDJ 8
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