PRIMITIVO CHANDELARIA v. RENT-A-CENTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2320-05T52320-05T5

PRIMITIVO CHANDELARIA,

Plaintiff-Appellant,

v.

RENT-A-CENTER,

Defendant-Respondent,

and

ASSOCIATED PERSONNEL TECHNICIANS,

Defendant.

___________________________________________

 

Telephonically argued December 1, 2006 - Decided March 30, 2007

Before Judges Lisa and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Burlington County,

Docket No. L-2210-02.

Seth Lesser argued the cause for appellant

(Locks Law Firm and William Riback,

attorneys; Mr. Lesser, Fran Rudich and

Mr. Riback, on the brief).

Matthew V. DelDuca argued the cause for

respondent (Dechert LLP, attorneys;

Mr. DelDuca, on the brief).

PER CURIAM

Plaintiff Primitivo Chandelaria appeals following a final judgment in favor of his former employer, defendant Rent-A-Center (RAC). That judgment was entered at the close of plaintiff's case during a trial on his claim of retaliatory discharge. Plaintiff does not challenge that ruling on appeal. Rather, he contends that the trial judge erred in denying his pretrial motion for leave to amend his complaint to assert a class action. We affirm.

On June 28, 2002, plaintiff, Warren Cubbage and Kelvin Hyke commenced this litigation alleging that RAC violated the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, by using the Minnesota Multiphasic Personality Inventory I (MMPI) to screen applicants for employment and promotion. On February 26, 2003, the complaint was dismissed for lack of prosecution. On September 12, 2003, the court granted an unopposed motion to reinstate the complaint.

On January 20, 2004, plaintiff, Cubbage and Hyke moved to amend the complaint to assert a class action on behalf of all applicants and employees whom RAC required to take the MMPI. They sought declaratory and injunctive relief and damages on behalf of the class. On December 3, 2004, the claims asserted by Cubbage and Hyke were dismissed with prejudice. On December 17, 2004, the trial judge denied plaintiff's motion to amend the complaint. The judge noted that the proposed amendment was late and failed to state a claim upon which relief could be granted.

Plaintiff alleged the following in his proposed amended complaint. See R. 4:6-2. At RAC's request, plaintiff submitted to pre-employment testing in 1997. He was hired in April 1997. He did not meet the criteria for promotion and was denied promotions and advancement as a result of RAC's use of the MMPI, which he alleged is an illegal test for mental or emotional conditions. In August 2000 in connection with litigation that plaintiff did not identify, RAC entered into a consent order in which it agreed to cease use of the MMPI. Nonetheless, RAC retains results of prior employment tests. In December 2001 RAC terminated plaintiff's employment because he indicated his intention to file this litigation and because he "was a witness in the NJLAD case," Bassett v. Rent-A-Center.

Plaintiff did not allege that he is or that RAC perceived him to be disabled and discriminated against him on that basis. He did not allege any specific facts demonstrating that he was aggrieved by the testing. On the motion, he did not dispute that he was promoted while working for RAC.

The law governing amendment of a complaint is well-settled. After an answer has been filed, "a party may amend a pleading only by written consent of the adverse party or by leave of court which shall be freely given in the interest of justice." R. 4:9-1. "The determination of a motion to amend a pleading is generally left to the sound discretion of the trial court, and its exercise of discretion will not be disturbed on appeal, unless it constitutes a 'clear abuse of discretion.'" Franklin Med. Assocs. v. Marucci, 362 N.J. Super. 494, 506 (App. Div. 2003) (internal citations omitted). "[C]ourts are free to refuse leave to amend when the newly asserted claim is not sustainable as a matter of law." Balthazar v. Atlantic City Med. Ctr., 358 N.J. Super. 13, 27 (App. Div.), certif. denied, 177 N.J. 221 (2003). Even where the merits of the claim asserted in a proposed amendment are "marginal," it is not an abuse of discretion to deny leave to add such a claim when it is likely to prolong the litigation. Stuchin v. Kasirer, 237 N.J. Super. 604, 609 (App. Div.), certif. denied, 121 N.J. 660 (1990); see Pressler, Current N.J. Court Rules, comment on

R. 4:9-1 (2007).

When the trial judge considered this motion, plaintiff remained the only potential representative of the class action that he sought to maintain. There are four threshold requirements for certification of a class action: numerosity, commonality, typicality and adequacy of representation. In re Cadillac V8-6-4 Class Action, 93 N.J. 412, 425 (1983); see

R. 4:32-1(a). We recognize that the merits of a class action are generally irrelevant to class certification. Delgozzo v. Kenny, 266 N.J. Super. 169, 180-81 (App. Div. 1993). Because a class requires an adequate representative, the merits of the representative's claim are relevant to a late motion to amend a complaint to assert a class action. See Winslow v. Corporate Express, Inc., 364 N.J. Super. 128, 143 (App. Div. 2003) (noting that it is unnecessary to rule on a plaintiff's qualification to serve as a class representative when the plaintiff's claims are dismissed on summary judgment); Blecker v. State, 323 N.J. Super. 434, 437 n. 3 (App. Div. 1999) (noting that plaintiff's claims were dismissed on grounds of failure to state a claim and summary judgment before the class was certified); Rebish, supra 224 N.J. Super. at 624-26 (discussing qualifications of the representative and her attorney).

We reject plaintiff's claim that the trial court misapplied the LAD in concluding that his proposed amendment failed to state a claim. R. 4:6-2(e). While N.J.S.A. 10:5-12c prohibits an employer from making "inquiry in connection with prospective employment, which expresses, directly or indirectly, any limitation, specification or discrimination as to . . . disability . . . unless based upon a bona fide occupational qualification," a person must be "aggrieved by an unlawful employment practice or an unlawful discrimination" to file a complaint under the LAD, N.J.S.A. 10:5-13. See also N.J.A.C. 13:13-2.4.

Plaintiff's proposed amended complaint did not include any factual allegation that would support a finding that he was aggrieved by unlawful discrimination or an unlawful employment practice. He did not allege that he is disabled or that RAC perceived him to be disabled. He did not allege that the tests he was required to take were designed to disclose a disability or that the results reported were unrelated to a bona fide occupational qualification. He did not allege any specific promotion that he was denied and does not dispute the fact that he was promoted during the course of his employment with RAC. His proposed amended complaint did not even include a citation to N.J.S.A. 10:5-12, the statute upon which he now relies. The merits of the representative's complaint clearly were barely "marginal." Stuchin, supra, 237 N.J. Super. at 609.

We see no abuse of discretion in the trial court's decision that this was not a case in which the interests of justice warranted a grant of leave to amend the complaint as plaintiff proposed more than three years after he left his employment with RAC. Accordingly, the denial of the motion to amend is affirmed.

 

RAC provided a decision issued on summary judgment by the District Court for the District of New Jersey in Bassett v. Rent-A-Center, Civ. Action No. 99-6140 (D.N.J. Nov. 6. 2002). Judge Orlofsky's decision indicates that Bassett's complaint was filed in the Superior Court of New Jersey on November 16, 1999 and removed to federal court on December 29, 1999. The claims raised included challenges to testing. Mr. Riback, who represented Bassett in that litigation, represents plaintiff in this action. See also Witherspoon v. Rent-A-Center, Civ. Action No. 01-1836 (D.N.J. May 21, 2003) (Mr. Riback representing Witherspoon). As the trial court noted, the motion to reinstate this complaint and the motion to amend followed the dismissal of both actions filed in District Court. See generally Rebish v. Great Gorge, 224 N.J. Super. 619, 624-26 (App. Div. 1988).

(continued)

(continued)

7

A-2320-05T5

March 30, 2007