Preview
OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 1 of 21 Trans ID: LCV20232164992
Kelly E. Adler, Esq. - NJ ID # 019242008
kea@njlegal.com
Jaclyn E. Alston, Esq. - NJ ID # 406252022
jea@njlegal.com
McOMBER McOMBER & LUBER, P.C.
39 East Main Street
Marlton, New Jersey 08053
(856) 985-9800 Phone
(856) 263-2450 Fax
Attorneys for Plaintiff, Veronica Vondrag
VERONICA VONDRAG, SUPERIOR COURT OF NEW JERSEY LAW
DIVISION
Plaintiff, OCEAN COUNTY
vs. DOCKET NO.: OCN-L-651-23
RAREBREED VETERINARY PARTNERS, Civil Action
INC., LORIENT PET SERVICES LLC,
WHITING VETERINARY CLINIC LLC,
COURTNEY STRODEL, DEBORAH ADAMS,
BRITTANY HEIL, KRISTY GRECO, ABC
CORPORATIONS 1-5 (fictitious names
describing presently unidentified business
entities); and JOHN DOES 1-5 (fictitious names
of unidentified individuals),
Defendants.
PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANTS’
MOTION TO DISMISS PLAINTIFF’S COMPLAINT AS AGAINST INDIVIDUAL
DEFENDANTS BRITTANY HEIL AND KRISTY GRECO
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TABLE OF CONTENTS
Page
I. Introduction………………………………………………………………………. 1
II. Facts……………………………………………………………………………….1
A. The Parties……………………………………………………………………. 1
B. Plaintiff’s Employment with Corporate Defendants…………………………..2
C. Plaintiff’s Objections to Employees of Corporate Defendant Stealing
Medicine from the Pharmacy for Personal Use………………………………..2
D. Plaintiff Reports Defendants’ Unlawful Conduct to Corporate Defendants’
Human Resources, Only to Face Further Retaliation at the Hands of
Defendants Heil and Greco. ………………………………………………….. 3
III. Legal Standard……………………………………………………………………...5
A. Motion to Dismiss for Lack of Personal Jurisdiction…………………………..5
B. Motion to Dismiss for Failure to State a Claim…………………………………6
IV. Argument……………………………………………………………………………7
A. This Court Can Exercise Personal Jurisdiction Over Individual Defendants
Heil and Greco…………………………………………………………………..7
1. The Exercise of Specific Personal Jurisdiction Over Individual
Defendants Heil and Greco Will Not Offend Traditional Notions of Fair
Play and Substantial Justice……………………………………………..11
B. CEPA Generally…………………………………………………………………12
1. Plaintiff Sufficiently Pled a Prima Facie CEPA Case Against
Individual Defendants Heil and Greco…………………………………16
C. At a minimum, Leave to Amend Should be Granted to Cure Any Deficiency…..16
V. Conclusion……………………………………………………………………………17
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TABLE OF AUTHORITIES
Page(s)
Cases
Advel Crop v. Mecure,
58 N.J. 264 (1971) .....................................................................................................................8
Asahi Metal Indus. Co. v. Superior Court of Cal.,
480 U.S. 102 (1987) .................................................................................................................11
Blakey v. Cont'l Airlines,
164 N.J. 38 (2000) ...........................................................................................................8, 9, 10
Burger King v. Rudzewicz,
471 U.S. 462 (1985) ...............................................................................................................8, 9
Calabotta v. Phibro Animal Health Corp.,
460 N.J. Super. 38 (2019) ..........................................................................................................7
Carteret Sav Bank v. Shushan,
954 F.2d 141 (3d Cir. 1992).......................................................................................................6
Chiofalo v. State,
238 N.J 527 (2014) ..................................................................................................................13
Citibank, N.A. v. Estate of Simpson,
290 N.J. Super. 519 (App. Div. 1996) .......................................................................................5
D’Agostino v. Johnson & Johnson, Inc.,
133 N.J. 516 (1933) ...................................................................................................................7
Donelson v. DuPont Chambers Works,
206 N.J. 243 (2011) .................................................................................................................14
Dzwonar v. McDevitt,
177 N.J. 451 (2003) ...........................................................................................................15, 16
Ketcham v. Charles R. Lister International, Inc.,
167 N.J. Super. 6 (App. Div. 1979) .........................................................................................11
Lippman v. Ethicon, Inc.,
222 N.J. 362 (2015) ...........................................................................................................12, 14
Maimone v. City of Atlantic City,
188 N.J. 221 (2006) .................................................................................................................15
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Meade v. Twp. of Livingston,
249 N.J. 310 (2021) .................................................................................................................16
Mellon Bank (East) PSFS, Nat. Ass’n v. Farino,
960 F.2d 1217 (3d Cir. 1992).....................................................................................................8
NCP Litig. Trust v. KPMG LLP,
187 N.J. 353 (2006) ...................................................................................................................7
Printing Mart-Morristown v. Sharp Elecs. Corp.,
116 N.J. 739 (1989) .............................................................................................................6, 17
Rippon v. Smigel,
449 N.J. Super. 344 (App. Div. 2017) .................................................................................7, 11
Waste Management v. Admiral Ins. Co.,
138 N.J. 106 (1994) .................................................................................................................11
Zacharias v. Whatman PLC,
345 N.J. Super. 218 (App. Div. 2001) .....................................................................................16
Statutes
CEPA ..................................................................................................................................... passim
Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq. .................................................1
N.J.S.A. 34:19-3.......................................................................................................................14, 15
N.J.S.A. 34:19-3(c)(1) and (c)(3)...................................................................................................15
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I. INTRODUCTION
This is a wrongful termination action brought by Plaintiff against Defendants Rarebreed
Veterinary Partners, Inc. (“Defendant Rarebreed”), Defendant Lorient Pet Services LLC
(“Defendant Lorient”), Defendant Whiting Veterinary Clinic, LLC, (“Defendant Whiting”)
(collectively “Corporate Defendants”), and individual defendants Courtney Strodel (“Defendant
Strodel”), Defendant Deborah Adams (“Defendant Adams”), Defendant Brittany Heil (“Defendant
Heil”) and Defendant Kristy Greco (“Defendant Greco”) (collectively “Defendants”) (collectively
“Defendants”), under the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq.
(“CEPA”). In their motion to dismiss, Defendants argue that Defendants Heil and Greco are not
subject to personal jurisdiction in New Jersey, and further, that Plaintiff’s CEPA claim cannot
stand against Defendants Heil and Greco.
To the contrary, this Court can exercise specific personal jurisdiction over Individual
Defendants Heil and Greco who participated in the termination of Plaintiff’s employment in
November 2022. As Defendants Heil and Greco were present at the termination meeting conducted
via Zoom from Defendant Rarebreed’s New Jersey office, it is therefore clear that Defendants Heil
and Greco were directly involved in the decision to terminate Plaintiff’s employment. As Plaintiff
resided and worked in New Jersey at all relevant times, it cannot be disputed that Defendants Heil
and Greco made sufficient minimum contacts with New Jersey, and the exercise of jurisdiction
over her would not offend traditional notions of fair play and substantial justice.
For these reasons, Plaintiff respectfully submits that this Honorable Court should deny
Defendants’ Motion.
II. FACTS
A. The Parties
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Plaintiff is a New Jersey resident residing in Toms River, New Jersey, and at all relevant
times was employed by Corporate Defendants. Ex. A to Certification of Kelly E. Adler, Esquire
(hereinafter “Adler Cert.”), Compl., ¶ 1. Defendant Rarebreed is a corporation organized and
existing under the laws of the State of Maine. Id. at ¶ 2. Defendant Lorient is a limited liability
company organized and existing under the laws of the State of Delaware, with a main business
address in Maine. Id. at ¶ 3. Defendant Whiting is a limited liability company organized and
existing under the laws of the State of Delaware. Id. at. ¶ 4. Soon after Plaintiff commenced
employment with Defendant Whiting, Defendant Whiting was acquired by Defendant Lorient,
who later merged with Defendant Rarebreed in 2022. Id. at ¶ 16. Defendant Strodel is a citizen of
New Jersey and is Corporate Defendants’ Hospital Manager. Id. at ¶ 7. Defendant Adams is a
citizen of New Jersey and is Corporate Defendants’ Medical Director. Id. at ¶ 8. Defendant Heil
is Corporate Defendants’ People Operations Business Partner. Id. at ¶ 9. Defendant Greco is
Corporate Defendants’ Vice President of People Operations. Id. at ¶ 10.
B. Plaintiff’s Employment with Corporate Defendants.
Plaintiff commenced employment with Defendant Whiting in April 2022 as a pharmacy
technician. Id. at ¶ 14. She was a superior employee who dedicated herself to the position. Plaintiff
consistently worked hard in the hopes of earning a promotion to veterinary assistant as was
promised to her upon her hiring. Id. at ¶ 15. Plaintiff was initially excited to learn and grow within
the company; however, Plaintiff soon realized that Corporate Defendants’ workplace was rife with
unlawful business practices and retaliation for reporting the same. Id. at ¶ 17.
C. Plaintiff’s Objections to Employees of Corporate Defendant
Stealing Medicine from the Pharmacy for Personal Use.
In August of 2022, Plaintiff observed her coworkers taking medications from the pharmacy
for personal use, and without a prescription. Ex. A, Compl., ¶ 19. Plaintiff reasonably believed
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stealing medications from the veterinary pharmacy was a violation of law that could expose those
employees to criminal liability, and could implicate Plaintiff if she did not report such misconduct,
and thus, Plaintiff reported the act to her immediate supervisor. Id. at ¶ 18-19. However, instead of
Corporate Defendants addressing the theft of medications, Plaintiff was told she was “too
sensitive” and was placed on a performance improvement plan (“PIP”) for the same. Id. at ¶ 21-
22.
On October 17, 2022, Plaintiff’s job responsibilities again increased due to her superior
performance over the month, and her PIP was updated to indicate Plaintiff’s exceptional
performance. Id. at ¶ 27. Unfortunately, on November 3, 2022, the pattern of unlawful theft of
medications continued as Plaintiff observed Corporate Defendants’ Medical Director remove a
prescription antibiotic for her own personal use without a prescription. Id. at ¶ 28-29. Plaintiff was
intimidated by the authority of the Medical Director, and she feared that she would be subjected
to further retaliation if she reported Defendant Adams’ unlawful conduct. However, Plaintiff still
reasonably believed this to be a violation of law, and accordingly was compelled to report this to
her direct supervisor once more. Id. at ¶ 31-34. However, it became apparent Corporate
Defendants’ workplace was only concerned with sweeping such unlawful activity under the rug.
Id. at ¶ 35. Indeed, Plaintiff’s supervisor only retaliated further and informed Plaintiff that because
Plaintiff was “so worried about it,” Plaintiff would no longer be responsible for handling inventory
as her supervisor would handle it from now on. Id. at ¶ 35.
D. Plaintiff Reports Defendants’ Unlawful Conduct to Corporate
Defendants’ Human Resources, Only to Face Further
Retaliation at the Hands of Defendants Heil and Greco.
Plaintiff reached out to Corporate Defendants’ Human Resources (HR) department that same
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day to inquire about Defendants’ reporting mechanisms. Ex. A, Compl., ¶ 36. Plaintiff was put in
contact with Defendant Heil. Ex. B to Adler Cert., Vondrag Cert., ¶ 11. Notably, as Corporate
Defendants did not have HR staff in the New Jersey offices, Plaintiff’s only option was to speak
with Corporate Defendants’ HR representatives in a remote capacity. Id. at ¶¶ 9-10. While speaking
with Defendant Heil, Plaintiff alluded to the fact that she was witnessing reportable issues in the
workplace, but feared retaliation if she reported them. Ex. A at ¶ 37; Ex. B at ¶ 12. Remarkably,
Defendant Heil did not inquire further into what Plaintiff witnessed and did not assure Plaintiff she
would protect her from retaliation. Ex. A at ¶ 38; Ex. B at ¶ 13. Worse, hours after Plaintiff spoke
to Defendant Heil about the unlawful conduct and her fear of retaliation should she report it,
Plaintiff was informed by her direct supervisor that there would be an evaluation for her PIP that
same day despite the next evaluation being scheduled for several weeks later. Ex. A at ¶ 39; Ex. B
at ¶ 14. During this evaluation, Plaintiff was informed that she was no longer performing to
standards under her PIP, despite the glowing review she received only two weeks prior. Ex. A at ¶
40.
In the weeks following this review, Plaintiff’s supervisor began lowering the quantities of
medications during the pharmacy inventory, Plaintiff’s PIP was extended into January because of
her “poor performance” and Plaintiff’s coworkers began threatening her, including a threat to
“drop kick her right in the face.” Id. at ¶¶ 41-44. As Plaintiff reasonably believed Defendants were
continuing in unlawful conduct, and she knew they were retaliating against her to stage a pretextual
termination, Plaintiff reported this conduct to Defendant Heil on November 25, 2022. Id. at ¶¶ 44-
45. Plaintiff then followed up with an additional complaint to Defendant Heil on November 28,
2022, as her initial complaint went unanswered. Id. at ¶ 46. Defendant Heil responded to the
subsequent complaint by stating that Plaintiff’s complaints would be investigated. Id. at ¶ 47.
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Merely four days later, on December 2, 2022, Plaintiff was called into her supervisor’s
office in New Jersey for a Zoom call with her supervisor, Defendant Strodel, Corporate
Defendants’ Director of People Operations, Defendant Greco, and Defendant Heil. Ex. A at ¶ 48;
Ex. B at ¶ 18. During this meeting, Defendants Greco and Heil informed Plaintiff that her
complaints were investigated and found her allegations of unlawful workplace conduct and
retaliation to be unfounded. Ex. A at ¶ 49; Ex. B at ¶ 19. Despite Plaintiff’s reiteration that the
PIPs were being used as a mechanism for retaliation, Plaintiff was then terminated. Id. at ¶¶ 50-
51.
In sum, Plaintiff, a New Jersey resident and employee, was terminated by Corporate
Defendant from their New Jersey location, for reasons that give rise to a cause of action under
CEPA. Further, Defendants Heil and Greco not only maintained sufficient contacts with Plaintiff
and the State of New Jersey to subject them to the laws of New Jersey, but participated in the
retaliatory decision to terminate Plaintiff, which was an act that caused harm to Plaintiff in New
Jersey.
III. LEGAL STANDARD
A. Motion to Dismiss for Lack of Personal Jurisdiction.
On a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of
proving, through affidavits or other competent evidence, that jurisdiction is proper. R. 4:6-2(b).
The plaintiff is not entitled to a presumption that personal jurisdiction exists simply because the
plaintiff asserts that to be the case. Citibank, N.A. v. Estate of Simpson, 290 N.J. Super. 519, 534
(App. Div. 1996). Therefore, unlike a motion to dismiss for failure to state a claim under Rule 4:6-
2(E), a motion to dismiss for lack of personal jurisdiction is not confined by the pleadings in
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making a jurisdictional determination. Carteret Sav Bank v. Shushan, 954 F.2d 141, 142 (3d Cir.
1992).
B. Motion to Dismiss for Failure to State a Claim.
The standard for a motion to dismiss limits the court to examining the facts in the complaint,
accepting them as true, and giving Plaintiff every favorable inference and an opportunity to amend
prior to dismissing any count of the complaint. Printing Mart-Morristown v. Sharp Elecs. Corp.,
116 N.J. 739 (1989). This is a very liberal and generous standard:
1. The test for determining the adequacy of a pleading is whether a
cause of action is “suggested” by the facts and examining the legal
sufficiency of the facts alleged on the face of the complaint.
2. The court is limited to examining the legal sufficiency of the facts
alleged on the face of the complaint.
3. The court must search the complaint in depth and with liberality
to ascertain whether the fundament of a cause of action may be
gleaned even from an obscure statement of claim, opportunity being
given to amend if necessary.
4. At this preliminary stage of the litigation, the Court is not
concerned with the ability of plaintiffs to prove the allegation
contained in the complaint.
4. Plaintiffs are entitled to every reasonable inference of fact.
5. The examination of a complaint's allegations of fact should be
one that is at once painstaking and undertaken with a generous and
hospitable approach.
[Id. at 747.]
Under this liberal standard on a motion to dismiss,
a trial court should grant a dismissal “in only the rarest of
instances.” [Printing Mart, 116 N.J. at 772]. A court’s review of a
complaint is to be “undertaken with a generous and hospitable
approach,” id. at 746, and the court should assume that the
nonmovant’s allegations are true and give that party the benefit of
all reasonable inferences, Smith v. SBC Communications Inc., 178
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N.J. 265, 282 (2004). If “the fundament of a cause of action may
be gleaned even from an obscure statement of claim,” then the
complaint should survive this preliminary stage. Craig v. Suburban
Cablevision, Inc., 140 N.J. 623, 626 (1995) (citation omitted).
[NCP Litig. Trust v. KPMG LLP, 187 N.J. 353, 365 (2006); see also
Printing Mart, 116 N.J. at 746 (directing trial courts to “approach
with great caution applications for dismissal under Rule 4:6-2(e),”
as “such motions, almost always brought at the very earliest stage of
the litigation, should be granted only in the rarest of instances”).]
See also Calabotta v. Phibro Animal Health Corp., 460 N.J. Super. 38, 38 (2019) (citing Printing
Mart, 116 N.J. at 772) (deciding a conflict-of-law issue “on a motion to dismiss claim . . . under
Rule 4:6-2(e),” where the court “must presume, for present purposes, that [the] plaintiff’s factual
allegations pled in the complaint are true.”); D’Agostino v. Johnson & Johnson, Inc., 133 N.J.
516, 519 (1933) (applying conflict-of-law analysis at summary judgment, where “the facts are
assumed to be as [the] plaintiff alleges them”).
Under these standards, Defendants’ Motion should be denied.
IV. ARGUMENT
A. This Court Can Exercise Personal Jurisdiction Over Individual
Defendants Heil and Greco.
Defendants’ Motion to Dismiss Individual Defendants Greco and Heil for lack of personal
jurisdiction should be denied, as specific jurisdiction over Individual Defendants Greco and Heil
can be exercised because they made sufficient minimum contacts with New Jersey, and the
exercise of jurisdiction over them would not offend traditional notions of fair play and substantial
justice.
“New Jersey’s ‘long-arm rule’ permits personal jurisdiction to be established over
nonresidents by service of a summons and complaint in whatever manner ‘due process of law’
permits.” Rippon v. Smigel, 449 N.J. Super. 344, 360 (App. Div. 2017) (citing R. 4:4-4(a)(6) and
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Advel Crop v. Mecure, 58 N.J. 264, 268 (1971). “Our courts []will allow out-of-state service to
the uttermost limits permitted by the United States Constitution.[]” Ibid. (quotation omitted).
A Court may exercise specific jurisdiction over a non-resident defendant for forum-related
activities where the “relationship between the defendant and the forum falls within the ‘minimum
contacts’ framework of International Shoe v. Washington and its progeny.” Mellon Bank (East)
PSFS, Nat. Ass’n v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992). Defendants who “’reach out
beyond one state’ and create continuing relationships and obligations with the citizens of another
state are subject to regulation and sanctions in the other state for consequences of their actions.”
Burger King v. Rudzewicz, 471 U.S. 462, 475 (1985). The New Jersey Supreme Court has found
minimum contacts where the plaintiff alleged that the individual defendants posted alleged
discriminatory defamatory comments on an employee message board where they were not posted
within the State. Blakey v. Cont'l Airlines, 164 N.J. 38, 69 (2000). In finding minimum contacts
there, the Court reasoned that the “question [wa]s whether the act was expected or intended to
cause harm in New Jersey. The fact that the actions causing the effects in New Jersey were
performed outside the state did not prevent the state from asserting jurisdiction over a cause of
action arising out of those effects.” Id. At 67-68 (quoting Calder v. Jones, 465 U.S. 783, 787
(1984)).
Here, Plaintiff sufficiently alleges and demonstrates that Defendants Greco and Heil were
directly involved in the “investigation” into Plaintiff’s claims and Plaintiff’s ultimate termination
from Corporate Defendants’ New Jersey location. Defendants Greco and Heil are subject to
personal jurisdiction in New Jersey as both intentionally reached out beyond their respective
domiciles to create a continuing relationship, and obligation, to Plaintiff in New Jersey, where she
was both employed and a citizen.
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Specifically, after repeatedly witnessing unlawful theft of medications in the workplace,
Plaintiff decided to report the conduct to Corporate Defendants’ Human Resources department.
As Corporate Defendants did not maintain Human Resources personnel in the New Jersey office
where Plaintiff worked, her only option was to contact Corporate Defendants Human Resources
department remotely, via phone or email. Corporate Defendants put Plaintiff in touch with
Defendant Heil, who remained Plaintiff’s primary contact for internal complaints moving forward.
Thereafter, Defendants Heil and Greco informed Plaintiff that they investigated her complaints
and immediately after, Plaintiff was terminated.
Defendants Heil’s and Greco’s acts were expected to cause harm in New Jersey.
Specifically, Plaintiff demonstrates that much like in Burger King, where the defendant created an
ongoing contractual relationship with the plaintiff in a different state, here Defendants Heil and
Greco clearly created an ongoing employment relationship with Plaintiff through her work. Both
Defendant Heil and Greco were on notice of Plaintiff’s whistleblower reports, and both Defendants
Heil and Greco were directly involved in the investigation into Plaintiff’s complaints of unlawful
conduct and retaliation occurring at Corporate Defendants’ New Jersey location. In fact, both
Defendants Greco and Heil admitted during the termination meeting that they had participated in
the investigation into Plaintiff’s whistleblower complaints. Therefore, the ongoing relationship and
obligation created by Defendants Heil and Greco with respect to Plaintiff is clear.
Further, as stated above and alleged in the Complaint, merely four days after Plaintiff
complained to Defendants about the workplace misconduct, Plaintiff’s employment was
terminated after Defendants Heil and Greco conducted a bogus investigation into her complaints.
Like the defendants in Blakey who were subject to personal jurisdiction in New Jersey because
they could have expected, or intended, to cause harm in New Jersey, here, Defendants Heil’s and
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Greco’s failure to properly address the unlawful retaliation Plaintiff endured was reasonably
expected to cause harm in New Jersey. Even further, when Plaintiff explicitly complained of the
retaliatory PIPs to Defendant Heil prior to the termination meeting, and to both Defendant Heil
and Greco during the termination meeting, Defendants Heil and Greco fail to address the same,
and instead, Plaintiff was terminated because of those exact falsified performance reviews.
Accordingly, it is eminently obvious that these acts, including Defendants Heil’s and Greco’s
involvement in the bogus investigation into the retaliation Plaintiff endured, coupled with the
subsequent pretextual termination of Plaintiff in furtherance of this retaliatory pattern, would be
expected to cause harm in New Jersey. See Blakey, 164 N.J. at 67-68.
Thus, despite Defendants’ assertion that Defendants Heil and Greco reside and work from
another state, it is exceedingly clear that Defendants Heil’s and Greco’s retaliatory conduct
reached beyond the Commonwealth of Pennsylvania and the State of Maine to the State of New
Jersey and made sufficient minimum contacts with the State of New Jersey. Thus, Plaintiff
respectfully submits that she sufficiently alleged minimum contacts with New Jersey by
Defendants Heil and Greco for purposes of exercising specific personal jurisdiction against them
in this matter.
At a bare minimum, Plaintiff is entitled to limited discovery on the issue of personal
jurisdiction of Defendants Heil and Greco.
“Although the plaintiff bears the burden of demonstrating facts that
support personal jurisdiction, courts are to assist the plaintiff by
allowing jurisdictional discovery unless the plaintiff’s claim is clearly
frivolous.” Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 456 (3d
Cir. 2003) (citations omitted). However, “[i]f a plaintiff presents factual
allegations [suggesting] with reasonable particularity the possible
existence of the requisite contacts between [the party] and the forum
state, [the] plaintiff’s right to conduct jurisdictional discovery should be
sustained.” Ibid. (third alteration in original) (citation omitted).
Generally, the record must support the existence of disputed or
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conflicting facts to warrant jurisdictional discovery. Reliance Nat’l Ins.
Co. In Liquidation v. Dana Transp., 376 N.J. Super. 537, 551 (App. Div.
2005).
[Rippon v. Smigel, 449 N.J. Super. 344, 359 (App. Div. 2017).]
1. The Exercise of Specific Personal Jurisdiction Over
Individual Defendants Heil and Greco Will Not Offend
Traditional Notions of Fair Play and Substantial Justice.
Where there are sufficient minimum contacts, jurisdiction can be exercised “wherever
possible with a liberal and indulgent view if the facts reasonably support the presence of the
flexible concepts of ‘fair play and substantial justice.’” Ketcham v. Charles R. Lister International,
Inc., 167 N.J. Super. 6, 7 (App. Div. 1979). That inquiry places the burden on the defendant to
make a “compelling case” that the exercise of jurisdiction would be unreasonable. Waste
Management v. Admiral Ins. Co., 138 N.J. 106, 124-25 (1994) (quoting Lebel v. Everglades
Marina, Inc., 115 N.J. 317, 328 (1989)). Whether the exercise of jurisdiction is considered fair is
analyzed using factors such as the “burden on [the] defendant [of defending the claim], the interests
of the forum state, the plaintiff’s interest in obtaining relief, the interstate judicial system’s interest
in effective resolution of disputes, and the shared interest of the states in furthering fundamental
substantive social policies.” Waste Management, 138 N.J. at 125 (citing Asahi Metal Indus. Co.
v. Superior Court of Cal., 480 U.S. 102, 113 (1987)).
Exercising jurisdiction over Defendants Heil and Greco here would not offend traditional
notions of fair play and substantial justice. Defendants cannot meet their burden of showing that
jurisdiction would be unreasonable. Further, using the factors laid out by the United States
Supreme Court in Asahi and approved by the New Jersey Supreme Court in Waste Management,
it is clear to see that exercising jurisdiction over Defendants Heil and Greco would be fair.
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Notably, Defendants fail to even attempt to argue that it would be unfair to exercise
jurisdiction over Defendants Heil and Greco. Nor do Defendants argue that requiring Defendants
Heil and Greco to travel to New Jersey to defend this suit is unfair. In other words, Defendants
have failed to establish that the burden of traveling to New Jersey to defend this suit is substantial
enough to deny Plaintiff the opportunity to pursue her employment retaliation and discrimination
claims against Defendants Heil and Greco. Plaintiff clearly deserves the opportunity under
prevailing law to pursue her claims against Defendants Heil and Greco in the State of New Jersey.
Respectfully, Defendants Heil and Greco should not be afforded the ability to hide behind the
cloak of their geographical locations in order to escape liability for the serious allegations made
against them in this matter. Thus, Plaintiff respectfully submits that exerting specific personal
jurisdiction over Defendants Heil and Greco would not offend traditional notions of fair play and
substantial justice.
B. CEPA Generally
CEPA is “remedial legislation entitled to liberal construction, its public policy purpose to
protect whistleblowers from retaliation by having been long recognized by the courts of this State.”
Lippman v. Ethicon, Inc., 222 N.J. 362, 378 (2015) (citing Abbamont v. Piscataway Twp. Bd. of
Educ., 138 N.J. 405, 431 (1994)). “[I]t is beyond dispute that the legislative purpose animating
CEPA is . . . ‘to protect and encourage employees to report illegal or unethical workplace activities
and to discourage . . . employers from engaging in such conduct.’” Id. at 378 (quoting Abbamont,
138 N.J. at 431). “[A]ny fair analysis of CEPA’s scope must ‘begin . . . by looking at the statute’s
plain language, which is generally the best indicator of the Legislature’s intent.’” Id. at 380-81
(quoting Donelson v. DuPont Chambers Works, 206 N.J. 243, 256 (2011)).
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“[A] plaintiff need not ‘allege facts that, if true, actually would violate that statute, rule, or
public policy.’” See Chiofalo v. State, 238 N.J 527, 542 (2014) (quoting Dzwonar v. McDevitt,
177 N.J. 451, 463 (2003)). Rather, a “plaintiff is required only to ‘set forth facts that would
support an objectively reasonable belief that a violation has occurred.’” Ibid. (quoting Dzwonar,
177 N.J. at 464) (emphasis added). CEPA is not meant “‘to make lawyers out of conscientious
employees’; rather, and more accurately, its design is to ‘to prevent retaliation against those
employees who object to employer conduct that they reasonably believe to be unlawful.” Id.
(quoting Dzwonar, 177 N.J. at 464).
CEPA specifically provides that:
An employer shall not take any retaliatory action against an
employee because the employee does any of the following:
a. Discloses, or threatens to disclose to a supervisor or to a public body
an activity, policy or practice of the employer, or another employer,
with whom there is a business relationship, that the employee
reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated
pursuant to law, including any violation involving deception of, or
misrepresentation to, any shareholder, investor, client, patient,
customer, employee, former employee, retiree or pensioner of the
employer or any governmental entity, or, in the case of an employee
who is a licensed or certified health care professional, reasonably
believes constitutes improper quality of patient care; or
(2) is fraudulent or criminal, including any activity, policy or
practice of deception or misrepresentation which the employee
reasonably believes may defraud any shareholder, investor, client,
patient, customer, employee, former employee, retiree or pensioner
of the employer or any governmental entity;
b. Provides information to, or testifies before, any public body
conducting an investigation, hearing or inquiry into any violation of
law, or a rule or regulation promulgated pursuant to law by the
employer, or another employer, with whom there is a business
relationship, including any violation involving deception of, or
misrepresentation to, any shareholder, investor, client, patient,
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customer, employee, former employee, retiree or pensioner of the
employer or any governmental entity, or, in the case of an employee
who is a licensed or certified health care professional, provides
information to, or testifies before, any public body conducting an
investigation, hearing or inquiry into the quality of patient care; or
c. Objects to, or refuses to participate in any activity, policy or practice
which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated
pursuant to law, including any violation involving deception
of, or misrepresentation to, any shareholder, investor, client,
patient, customer, employee, former employee, retiree or
pensioner of the employer or any governmental entity, or, if
the employee is a licensed or certified health care
professional, constitutes improper quality of patient care;
(2) is fraudulent or criminal, including any activity, policy or
practice of deception or misrepresentation which the
employee reasonably believes may defraud any shareholder,
investor, client, patient, customer, employee, former
employee, retiree or pensioner of the employer or any
governmental entity; or
(3) is incompatible with a clear mandate of public policy
concerning the public health, safety or welfare or protection
of the environment.
[N.J.S.A. 34:19-3 (emphasis added).]
Courts must construe CEPA’s language in order to determine whether a plaintiff is entitled
to pursue a claim under CEPA. Lippman, 222 N.J. at 377. “CEPA is entitled to liberal construction,
in part stemming from subsequent legislative commentary indicating that CEPA’s remedies were
meant to be so construed.” Id. at 378 n.4 (citing Abbamont, 138 N.J. at 431, and Judiciary, Law
& Public Safety Committee, Statement on Assembly Bills No. 2872, 2118, 2228 (1990)); see also
Donelson, 206 N.J. at 257-58 (CEPA governs liberal construction in light of its “broad remedial
purpose”).
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To maintain a cause of action under CEPA, Plaintiff must demonstrate: (1) she reasonably
believed that her employer’s conduct was violating either a law, rule, or regulation promulgated
pursuant to law, or a clear mandate of public policy; (2) she engaged in protected activity described
in N.J.S.A. 34:19-3; (3) an adverse employment action was taken against her; and (4) a causal
connection exists between the protected activity and the adverse employment action. Dzwonar,
177 N.J. at 464. “These requirements must be liberally construed to effectuate CEPA’s important
social goals.” Maimone v. City of Atlantic City, 188 N.J. 221, 230 (2006) (citing Green v. Jersey
City Bd. of Educ., 177 N.J. 434, 448 (2003)) (emphasis added).
The Supreme Court has described the subtle but important differences and similarities
between CEPA claims that invoke N.J.S.A. 34:19-3(c)(1) and (c)(3):
While an employee who proceeds under c(1) must show that he or
she reasonably believed that the employer’s activity, policy or
practice “violat[ed]” a law, rule, or regulation, an employee who
proceeds under c(3) is only required to show that the employer’s
activity, policy, or practice is “incompatible” with a clear mandate
of public policy. To “violate” a law, a person must commit “[a]n
infraction or breach of the law,” Black’s Law Dictionary 1564 (7th
ed. 1999), but a person’s conduct may be found “incompatible” with
a law based solely on a showing that the conduct is “irreconcilable”
with that law, id. at 768. Moreover, since the recognized sources of
public policy within the intent of c(3) include state laws, rules and
regulations, Mehlman v. Mobil Oil Corp., 153 N.J. 163, 188 (1998),
a plaintiff who pursues a CEPA claim under this subsection may
rely upon the same laws, rules and regulations that may be the
subject of a claim under c(1). See Abbamont v. Piscataway Twp.
Bd. of Educ., 138 N.J. 405, 424 (1994). Consequently, it is easier
for an employee who proceeds under c(3) to prove that he or she
reasonably believed the employer’s conduct was “incompatible”
with a clear mandate of public policy expressed in a law, rule or
regulation than to show, as required by c(1), a reasonable belief that
the employer’s conduct “violated” a law, rule or regulation.
[Maimone v. City of Atl. City, 188 N.J. 221, 230-31 (2006)
(emphasis added).]
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1. Plaintiff Sufficiently Pled a Prima Facie CEPA Case Against
Individual Defendants Heil and Greco.
Applying the prima facie case set forth in Dzwonar to the instant matter, Plaintiff
sufficiently pled a prima facie case CEPA case against Defendants Heil and Greco. Plaintiff
maintained a reasonable belief that Defendants were engaging in unlawful theft of medication.
Plaintiff submitted numerous complaints to her supervisors, and Corporate Defendants’ Human
Resources representative, Defendant Heil. Defendants Heil’s and Greco’s aforementioned
conduct, including having notice of Plaintiff’s reports of unlawful activities in the workplace,
facilitating the investigation into Plaintiff’s complaints, and the termination of Plaintiff’s
employment at the conclusion of Defendants’ Heil and Greco’s investigation just days later,
constituted clear retaliation. The retaliation against Plaintiff demonstrates that Defendants Heil and
Greco were unwilling to seriously investigate Plaintiff’s claims of serious misconduct, and instead
were determined to cover it all up. It is without question that at a minimum, Plaintiff’s objections
and protests “made a difference[] in th[e] decision” to terminate Plaintiff. Meade v. Twp. of
Livingston, 249 N.J. 310, 332 (2021). Defendants Heil’s and Greco’s conduct is exactly what
CEPA is meant to eradicate.
C. At a Minimum, Leave to Amend Should be Granted to Cure Any
Deficiency.
New Jersey Courts have “continuously stressed the liberality with which [the amendment]
rule is to be applied.” Zacharias v. Whatman PLC, 345 N.J. Super. 218, 226 (App. Div. 2001)
(citing Kernan v. One Washington Park, 154 N.J. 437, 456-57 (1998)). “Liberality is, moreover,
required irrespective of the stage of the proceedings at which the amendment is sought provided
no adverse party is prejudiced thereby.” Ibid. While it is Plaintiff’s position that the Complaint
provides more than sufficient allegations, and that Plaintiff sufficiently demonstrates Defendants
Heil’s and Greco’s contacts with New Jersey, Plaintiff is entitled to cure any deficiencies through
16
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an amended pleading or additional attempts at service of process. See Printing Mart-Morristown,
116 N.J. at 746 (“[A] reviewing court searches the complaint in depth and with liberality to
ascertain whether the fundament of a cause of action may be gleaned even from an obscure
statement of claim, opportunity being given to amend if necessary.”).
V. CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that this Honorable Court deny
Defendants’ Motion to Dismiss in its entirety.
By: /s/ Kelly E. Adler, Esq.
Kelly E. Adler, Esq.
McOMBER McOMBER & LUBER
Attorneys for Plaintiff, Veronica Vondrag
Dated: July 24, 2023
17
OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 1 of 23 Trans ID: LCV20232164992
Kelly E. Adler, Esq. - NJ ID # 019242008
kea@njlegal.com
Jaclyn E. Alston, Esq. - NJ ID # 406252022
jea@njlegal.com
McOMBER McOMBER & LUBER, P.C.
39 East Main Street
Marlton, New Jersey 08053
(856) 985-9800 Phone
(856) 263-2450 Fax
Attorneys for Plaintiff, Veronica Vondrag
VERONICA VONDRAG, SUPERIOR COURT OF NEW JERSEY LAW
DIVISION
Plaintiff, OCEAN COUNTY
vs. DOCKET NO.: OCN-L-651-23
RAREBREED VETERINARY PARTNERS, Civil Action
INC., LORIENT PET SERVICES LLC,
WHITING VETERINARY CLINIC LLC, ATTORNEY CERTIFICATION
COURTNEY STRODEL, DEBORAH ADAMS,
BRITTANY HEIL, KRISTY GRECO, ABC
CORPORATIONS 1-5 (fictitious names
describing presently unidentified business
entities); and JOHN DOES 1-5 (fictitious names
of unidentified individuals),
Defendants.
Kelly E. Adler, Esq., certifies and states as follows:
1. I am an attorney-at-law of the State of New Jersey and a partner of the firm of
McOmber McOmber & Luber, P.C., attorneys for Veronica Vondrag (“Plaintiff”). I am fully
familiar with the matters set forth and am making this Certification in Opposition to Defendants’
Motion to Dismiss.
2. Attached hereto and made a part hereof as Exhibit A is a true and accurate copy
of Plaintiff’s Complaint.
OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 2 of 23 Trans ID: LCV20232164992
3. Attached hereto and made a part hereof as Exhibit B is a true and accurate copy
of Plaintiff’s signed Certification.
I certify that the foregoing statements made by me are true and am aware that any of the
foregoing statements are willfully false, I am subject to punishment.
/s/ Kelly E. Adler, Esq.
KELLY E. ADLER, ESQ.
Dated: July 24, 2023
2
OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 3 of 23 Trans ID: LCV20232164992
Exhibit A
OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 4 of 23 Trans ID: LCV20232164992
Kelly E. Adler, Esq. - NJ ID # 019242008
kea@njlegal.com
Jaclyn E. Alston, Esq. – NJ ID # 406252022
jea@njlegal.com
McOmber McOmber & Luber, P.C.
39 E. Main Street
Marlton, NJ 08053
(856) 985-9800 Phone
(856) 263-2450 Fax
Attorneys for Plaintiff, Veronica Vondrag
VERONICA VONDRAG, SUPERIOR COURT OF NEW JERSEY
LAW DIVISION OCEAN COUNTY
Plaintiff,
vs. DOCKET NO.:
RAREBREED VETERINARY PARTNERS, Civil Action
INC., LORIENT PET SERVICES LLC,
WHITING VETERINARY CLINIC LLC, COMPLAINT &
COURTNEY STRODEL, DEBORAH DEMAND FOR TRIAL BY JURY
ADAMS, BRITTANY HEIL, KRISTY
GRECO, ABC CORPORATIONS 1-5
(fictitious names describing presently
unidentified business entities); and JOHN
DOES 1-5 (fictitious names describing
presently unidentified individuals),
Defendants.
Plaintiff Veronica Vondrag (“Plaintiff”), by way of Complaint against Defendant
Rarebreed Veterinary
Preview
OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 1 of 21 Trans ID: LCV20232164992 Kelly E. Adler, Esq. - NJ ID # 019242008 kea@njlegal.com Jaclyn E. Alston, Esq. - NJ ID # 406252022 jea@njlegal.com McOMBER McOMBER & LUBER, P.C. 39 East Main Street Marlton, New Jersey 08053 (856) 985-9800 Phone (856) 263-2450 Fax Attorneys for Plaintiff, Veronica Vondrag VERONICA VONDRAG, SUPERIOR COURT OF NEW JERSEY LAW DIVISION Plaintiff, OCEAN COUNTY vs. DOCKET NO.: OCN-L-651-23 RAREBREED VETERINARY PARTNERS, Civil Action INC., LORIENT PET SERVICES LLC, WHITING VETERINARY CLINIC LLC, COURTNEY STRODEL, DEBORAH ADAMS, BRITTANY HEIL, KRISTY GRECO, ABC CORPORATIONS 1-5 (fictitious names describing presently unidentified business entities); and JOHN DOES 1-5 (fictitious names of unidentified individuals), Defendants. PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT AS AGAINST INDIVIDUAL DEFENDANTS BRITTANY HEIL AND KRISTY GRECO OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 2 of 21 Trans ID: LCV20232164992 TABLE OF CONTENTS Page I. Introduction………………………………………………………………………. 1 II. Facts……………………………………………………………………………….1 A. The Parties……………………………………………………………………. 1 B. Plaintiff’s Employment with Corporate Defendants…………………………..2 C. Plaintiff’s Objections to Employees of Corporate Defendant Stealing Medicine from the Pharmacy for Personal Use………………………………..2 D. Plaintiff Reports Defendants’ Unlawful Conduct to Corporate Defendants’ Human Resources, Only to Face Further Retaliation at the Hands of Defendants Heil and Greco. ………………………………………………….. 3 III. Legal Standard……………………………………………………………………...5 A. Motion to Dismiss for Lack of Personal Jurisdiction…………………………..5 B. Motion to Dismiss for Failure to State a Claim…………………………………6 IV. Argument……………………………………………………………………………7 A. This Court Can Exercise Personal Jurisdiction Over Individual Defendants Heil and Greco…………………………………………………………………..7 1. The Exercise of Specific Personal Jurisdiction Over Individual Defendants Heil and Greco Will Not Offend Traditional Notions of Fair Play and Substantial Justice……………………………………………..11 B. CEPA Generally…………………………………………………………………12 1. Plaintiff Sufficiently Pled a Prima Facie CEPA Case Against Individual Defendants Heil and Greco…………………………………16 C. At a minimum, Leave to Amend Should be Granted to Cure Any Deficiency…..16 V. Conclusion……………………………………………………………………………17 ii OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 3 of 21 Trans ID: LCV20232164992 TABLE OF AUTHORITIES Page(s) Cases Advel Crop v. Mecure, 58 N.J. 264 (1971) .....................................................................................................................8 Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102 (1987) .................................................................................................................11 Blakey v. Cont'l Airlines, 164 N.J. 38 (2000) ...........................................................................................................8, 9, 10 Burger King v. Rudzewicz, 471 U.S. 462 (1985) ...............................................................................................................8, 9 Calabotta v. Phibro Animal Health Corp., 460 N.J. Super. 38 (2019) ..........................................................................................................7 Carteret Sav Bank v. Shushan, 954 F.2d 141 (3d Cir. 1992).......................................................................................................6 Chiofalo v. State, 238 N.J 527 (2014) ..................................................................................................................13 Citibank, N.A. v. Estate of Simpson, 290 N.J. Super. 519 (App. Div. 1996) .......................................................................................5 D’Agostino v. Johnson & Johnson, Inc., 133 N.J. 516 (1933) ...................................................................................................................7 Donelson v. DuPont Chambers Works, 206 N.J. 243 (2011) .................................................................................................................14 Dzwonar v. McDevitt, 177 N.J. 451 (2003) ...........................................................................................................15, 16 Ketcham v. Charles R. Lister International, Inc., 167 N.J. Super. 6 (App. Div. 1979) .........................................................................................11 Lippman v. Ethicon, Inc., 222 N.J. 362 (2015) ...........................................................................................................12, 14 Maimone v. City of Atlantic City, 188 N.J. 221 (2006) .................................................................................................................15 iii OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 4 of 21 Trans ID: LCV20232164992 Meade v. Twp. of Livingston, 249 N.J. 310 (2021) .................................................................................................................16 Mellon Bank (East) PSFS, Nat. Ass’n v. Farino, 960 F.2d 1217 (3d Cir. 1992).....................................................................................................8 NCP Litig. Trust v. KPMG LLP, 187 N.J. 353 (2006) ...................................................................................................................7 Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739 (1989) .............................................................................................................6, 17 Rippon v. Smigel, 449 N.J. Super. 344 (App. Div. 2017) .................................................................................7, 11 Waste Management v. Admiral Ins. Co., 138 N.J. 106 (1994) .................................................................................................................11 Zacharias v. Whatman PLC, 345 N.J. Super. 218 (App. Div. 2001) .....................................................................................16 Statutes CEPA ..................................................................................................................................... passim Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq. .................................................1 N.J.S.A. 34:19-3.......................................................................................................................14, 15 N.J.S.A. 34:19-3(c)(1) and (c)(3)...................................................................................................15 iv OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 5 of 21 Trans ID: LCV20232164992 I. INTRODUCTION This is a wrongful termination action brought by Plaintiff against Defendants Rarebreed Veterinary Partners, Inc. (“Defendant Rarebreed”), Defendant Lorient Pet Services LLC (“Defendant Lorient”), Defendant Whiting Veterinary Clinic, LLC, (“Defendant Whiting”) (collectively “Corporate Defendants”), and individual defendants Courtney Strodel (“Defendant Strodel”), Defendant Deborah Adams (“Defendant Adams”), Defendant Brittany Heil (“Defendant Heil”) and Defendant Kristy Greco (“Defendant Greco”) (collectively “Defendants”) (collectively “Defendants”), under the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq. (“CEPA”). In their motion to dismiss, Defendants argue that Defendants Heil and Greco are not subject to personal jurisdiction in New Jersey, and further, that Plaintiff’s CEPA claim cannot stand against Defendants Heil and Greco. To the contrary, this Court can exercise specific personal jurisdiction over Individual Defendants Heil and Greco who participated in the termination of Plaintiff’s employment in November 2022. As Defendants Heil and Greco were present at the termination meeting conducted via Zoom from Defendant Rarebreed’s New Jersey office, it is therefore clear that Defendants Heil and Greco were directly involved in the decision to terminate Plaintiff’s employment. As Plaintiff resided and worked in New Jersey at all relevant times, it cannot be disputed that Defendants Heil and Greco made sufficient minimum contacts with New Jersey, and the exercise of jurisdiction over her would not offend traditional notions of fair play and substantial justice. For these reasons, Plaintiff respectfully submits that this Honorable Court should deny Defendants’ Motion. II. FACTS A. The Parties OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 6 of 21 Trans ID: LCV20232164992 Plaintiff is a New Jersey resident residing in Toms River, New Jersey, and at all relevant times was employed by Corporate Defendants. Ex. A to Certification of Kelly E. Adler, Esquire (hereinafter “Adler Cert.”), Compl., ¶ 1. Defendant Rarebreed is a corporation organized and existing under the laws of the State of Maine. Id. at ¶ 2. Defendant Lorient is a limited liability company organized and existing under the laws of the State of Delaware, with a main business address in Maine. Id. at ¶ 3. Defendant Whiting is a limited liability company organized and existing under the laws of the State of Delaware. Id. at. ¶ 4. Soon after Plaintiff commenced employment with Defendant Whiting, Defendant Whiting was acquired by Defendant Lorient, who later merged with Defendant Rarebreed in 2022. Id. at ¶ 16. Defendant Strodel is a citizen of New Jersey and is Corporate Defendants’ Hospital Manager. Id. at ¶ 7. Defendant Adams is a citizen of New Jersey and is Corporate Defendants’ Medical Director. Id. at ¶ 8. Defendant Heil is Corporate Defendants’ People Operations Business Partner. Id. at ¶ 9. Defendant Greco is Corporate Defendants’ Vice President of People Operations. Id. at ¶ 10. B. Plaintiff’s Employment with Corporate Defendants. Plaintiff commenced employment with Defendant Whiting in April 2022 as a pharmacy technician. Id. at ¶ 14. She was a superior employee who dedicated herself to the position. Plaintiff consistently worked hard in the hopes of earning a promotion to veterinary assistant as was promised to her upon her hiring. Id. at ¶ 15. Plaintiff was initially excited to learn and grow within the company; however, Plaintiff soon realized that Corporate Defendants’ workplace was rife with unlawful business practices and retaliation for reporting the same. Id. at ¶ 17. C. Plaintiff’s Objections to Employees of Corporate Defendant Stealing Medicine from the Pharmacy for Personal Use. In August of 2022, Plaintiff observed her coworkers taking medications from the pharmacy for personal use, and without a prescription. Ex. A, Compl., ¶ 19. Plaintiff reasonably believed 2 OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 7 of 21 Trans ID: LCV20232164992 stealing medications from the veterinary pharmacy was a violation of law that could expose those employees to criminal liability, and could implicate Plaintiff if she did not report such misconduct, and thus, Plaintiff reported the act to her immediate supervisor. Id. at ¶ 18-19. However, instead of Corporate Defendants addressing the theft of medications, Plaintiff was told she was “too sensitive” and was placed on a performance improvement plan (“PIP”) for the same. Id. at ¶ 21- 22. On October 17, 2022, Plaintiff’s job responsibilities again increased due to her superior performance over the month, and her PIP was updated to indicate Plaintiff’s exceptional performance. Id. at ¶ 27. Unfortunately, on November 3, 2022, the pattern of unlawful theft of medications continued as Plaintiff observed Corporate Defendants’ Medical Director remove a prescription antibiotic for her own personal use without a prescription. Id. at ¶ 28-29. Plaintiff was intimidated by the authority of the Medical Director, and she feared that she would be subjected to further retaliation if she reported Defendant Adams’ unlawful conduct. However, Plaintiff still reasonably believed this to be a violation of law, and accordingly was compelled to report this to her direct supervisor once more. Id. at ¶ 31-34. However, it became apparent Corporate Defendants’ workplace was only concerned with sweeping such unlawful activity under the rug. Id. at ¶ 35. Indeed, Plaintiff’s supervisor only retaliated further and informed Plaintiff that because Plaintiff was “so worried about it,” Plaintiff would no longer be responsible for handling inventory as her supervisor would handle it from now on. Id. at ¶ 35. D. Plaintiff Reports Defendants’ Unlawful Conduct to Corporate Defendants’ Human Resources, Only to Face Further Retaliation at the Hands of Defendants Heil and Greco. Plaintiff reached out to Corporate Defendants’ Human Resources (HR) department that same 3 OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 8 of 21 Trans ID: LCV20232164992 day to inquire about Defendants’ reporting mechanisms. Ex. A, Compl., ¶ 36. Plaintiff was put in contact with Defendant Heil. Ex. B to Adler Cert., Vondrag Cert., ¶ 11. Notably, as Corporate Defendants did not have HR staff in the New Jersey offices, Plaintiff’s only option was to speak with Corporate Defendants’ HR representatives in a remote capacity. Id. at ¶¶ 9-10. While speaking with Defendant Heil, Plaintiff alluded to the fact that she was witnessing reportable issues in the workplace, but feared retaliation if she reported them. Ex. A at ¶ 37; Ex. B at ¶ 12. Remarkably, Defendant Heil did not inquire further into what Plaintiff witnessed and did not assure Plaintiff she would protect her from retaliation. Ex. A at ¶ 38; Ex. B at ¶ 13. Worse, hours after Plaintiff spoke to Defendant Heil about the unlawful conduct and her fear of retaliation should she report it, Plaintiff was informed by her direct supervisor that there would be an evaluation for her PIP that same day despite the next evaluation being scheduled for several weeks later. Ex. A at ¶ 39; Ex. B at ¶ 14. During this evaluation, Plaintiff was informed that she was no longer performing to standards under her PIP, despite the glowing review she received only two weeks prior. Ex. A at ¶ 40. In the weeks following this review, Plaintiff’s supervisor began lowering the quantities of medications during the pharmacy inventory, Plaintiff’s PIP was extended into January because of her “poor performance” and Plaintiff’s coworkers began threatening her, including a threat to “drop kick her right in the face.” Id. at ¶¶ 41-44. As Plaintiff reasonably believed Defendants were continuing in unlawful conduct, and she knew they were retaliating against her to stage a pretextual termination, Plaintiff reported this conduct to Defendant Heil on November 25, 2022. Id. at ¶¶ 44- 45. Plaintiff then followed up with an additional complaint to Defendant Heil on November 28, 2022, as her initial complaint went unanswered. Id. at ¶ 46. Defendant Heil responded to the subsequent complaint by stating that Plaintiff’s complaints would be investigated. Id. at ¶ 47. 4 OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 9 of 21 Trans ID: LCV20232164992 Merely four days later, on December 2, 2022, Plaintiff was called into her supervisor’s office in New Jersey for a Zoom call with her supervisor, Defendant Strodel, Corporate Defendants’ Director of People Operations, Defendant Greco, and Defendant Heil. Ex. A at ¶ 48; Ex. B at ¶ 18. During this meeting, Defendants Greco and Heil informed Plaintiff that her complaints were investigated and found her allegations of unlawful workplace conduct and retaliation to be unfounded. Ex. A at ¶ 49; Ex. B at ¶ 19. Despite Plaintiff’s reiteration that the PIPs were being used as a mechanism for retaliation, Plaintiff was then terminated. Id. at ¶¶ 50- 51. In sum, Plaintiff, a New Jersey resident and employee, was terminated by Corporate Defendant from their New Jersey location, for reasons that give rise to a cause of action under CEPA. Further, Defendants Heil and Greco not only maintained sufficient contacts with Plaintiff and the State of New Jersey to subject them to the laws of New Jersey, but participated in the retaliatory decision to terminate Plaintiff, which was an act that caused harm to Plaintiff in New Jersey. III. LEGAL STANDARD A. Motion to Dismiss for Lack of Personal Jurisdiction. On a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of proving, through affidavits or other competent evidence, that jurisdiction is proper. R. 4:6-2(b). The plaintiff is not entitled to a presumption that personal jurisdiction exists simply because the plaintiff asserts that to be the case. Citibank, N.A. v. Estate of Simpson, 290 N.J. Super. 519, 534 (App. Div. 1996). Therefore, unlike a motion to dismiss for failure to state a claim under Rule 4:6- 2(E), a motion to dismiss for lack of personal jurisdiction is not confined by the pleadings in 5 OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 10 of 21 Trans ID: LCV20232164992 making a jurisdictional determination. Carteret Sav Bank v. Shushan, 954 F.2d 141, 142 (3d Cir. 1992). B. Motion to Dismiss for Failure to State a Claim. The standard for a motion to dismiss limits the court to examining the facts in the complaint, accepting them as true, and giving Plaintiff every favorable inference and an opportunity to amend prior to dismissing any count of the complaint. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739 (1989). This is a very liberal and generous standard: 1. The test for determining the adequacy of a pleading is whether a cause of action is “suggested” by the facts and examining the legal sufficiency of the facts alleged on the face of the complaint. 2. The court is limited to examining the legal sufficiency of the facts alleged on the face of the complaint. 3. The court must search the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary. 4. At this preliminary stage of the litigation, the Court is not concerned with the ability of plaintiffs to prove the allegation contained in the complaint. 4. Plaintiffs are entitled to every reasonable inference of fact. 5. The examination of a complaint's allegations of fact should be one that is at once painstaking and undertaken with a generous and hospitable approach. [Id. at 747.] Under this liberal standard on a motion to dismiss, a trial court should grant a dismissal “in only the rarest of instances.” [Printing Mart, 116 N.J. at 772]. A court’s review of a complaint is to be “undertaken with a generous and hospitable approach,” id. at 746, and the court should assume that the nonmovant’s allegations are true and give that party the benefit of all reasonable inferences, Smith v. SBC Communications Inc., 178 6 OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 11 of 21 Trans ID: LCV20232164992 N.J. 265, 282 (2004). If “the fundament of a cause of action may be gleaned even from an obscure statement of claim,” then the complaint should survive this preliminary stage. Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 626 (1995) (citation omitted). [NCP Litig. Trust v. KPMG LLP, 187 N.J. 353, 365 (2006); see also Printing Mart, 116 N.J. at 746 (directing trial courts to “approach with great caution applications for dismissal under Rule 4:6-2(e),” as “such motions, almost always brought at the very earliest stage of the litigation, should be granted only in the rarest of instances”).] See also Calabotta v. Phibro Animal Health Corp., 460 N.J. Super. 38, 38 (2019) (citing Printing Mart, 116 N.J. at 772) (deciding a conflict-of-law issue “on a motion to dismiss claim . . . under Rule 4:6-2(e),” where the court “must presume, for present purposes, that [the] plaintiff’s factual allegations pled in the complaint are true.”); D’Agostino v. Johnson & Johnson, Inc., 133 N.J. 516, 519 (1933) (applying conflict-of-law analysis at summary judgment, where “the facts are assumed to be as [the] plaintiff alleges them”). Under these standards, Defendants’ Motion should be denied. IV. ARGUMENT A. This Court Can Exercise Personal Jurisdiction Over Individual Defendants Heil and Greco. Defendants’ Motion to Dismiss Individual Defendants Greco and Heil for lack of personal jurisdiction should be denied, as specific jurisdiction over Individual Defendants Greco and Heil can be exercised because they made sufficient minimum contacts with New Jersey, and the exercise of jurisdiction over them would not offend traditional notions of fair play and substantial justice. “New Jersey’s ‘long-arm rule’ permits personal jurisdiction to be established over nonresidents by service of a summons and complaint in whatever manner ‘due process of law’ permits.” Rippon v. Smigel, 449 N.J. Super. 344, 360 (App. Div. 2017) (citing R. 4:4-4(a)(6) and 7 OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 12 of 21 Trans ID: LCV20232164992 Advel Crop v. Mecure, 58 N.J. 264, 268 (1971). “Our courts []will allow out-of-state service to the uttermost limits permitted by the United States Constitution.[]” Ibid. (quotation omitted). A Court may exercise specific jurisdiction over a non-resident defendant for forum-related activities where the “relationship between the defendant and the forum falls within the ‘minimum contacts’ framework of International Shoe v. Washington and its progeny.” Mellon Bank (East) PSFS, Nat. Ass’n v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992). Defendants who “’reach out beyond one state’ and create continuing relationships and obligations with the citizens of another state are subject to regulation and sanctions in the other state for consequences of their actions.” Burger King v. Rudzewicz, 471 U.S. 462, 475 (1985). The New Jersey Supreme Court has found minimum contacts where the plaintiff alleged that the individual defendants posted alleged discriminatory defamatory comments on an employee message board where they were not posted within the State. Blakey v. Cont'l Airlines, 164 N.J. 38, 69 (2000). In finding minimum contacts there, the Court reasoned that the “question [wa]s whether the act was expected or intended to cause harm in New Jersey. The fact that the actions causing the effects in New Jersey were performed outside the state did not prevent the state from asserting jurisdiction over a cause of action arising out of those effects.” Id. At 67-68 (quoting Calder v. Jones, 465 U.S. 783, 787 (1984)). Here, Plaintiff sufficiently alleges and demonstrates that Defendants Greco and Heil were directly involved in the “investigation” into Plaintiff’s claims and Plaintiff’s ultimate termination from Corporate Defendants’ New Jersey location. Defendants Greco and Heil are subject to personal jurisdiction in New Jersey as both intentionally reached out beyond their respective domiciles to create a continuing relationship, and obligation, to Plaintiff in New Jersey, where she was both employed and a citizen. 8 OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 13 of 21 Trans ID: LCV20232164992 Specifically, after repeatedly witnessing unlawful theft of medications in the workplace, Plaintiff decided to report the conduct to Corporate Defendants’ Human Resources department. As Corporate Defendants did not maintain Human Resources personnel in the New Jersey office where Plaintiff worked, her only option was to contact Corporate Defendants Human Resources department remotely, via phone or email. Corporate Defendants put Plaintiff in touch with Defendant Heil, who remained Plaintiff’s primary contact for internal complaints moving forward. Thereafter, Defendants Heil and Greco informed Plaintiff that they investigated her complaints and immediately after, Plaintiff was terminated. Defendants Heil’s and Greco’s acts were expected to cause harm in New Jersey. Specifically, Plaintiff demonstrates that much like in Burger King, where the defendant created an ongoing contractual relationship with the plaintiff in a different state, here Defendants Heil and Greco clearly created an ongoing employment relationship with Plaintiff through her work. Both Defendant Heil and Greco were on notice of Plaintiff’s whistleblower reports, and both Defendants Heil and Greco were directly involved in the investigation into Plaintiff’s complaints of unlawful conduct and retaliation occurring at Corporate Defendants’ New Jersey location. In fact, both Defendants Greco and Heil admitted during the termination meeting that they had participated in the investigation into Plaintiff’s whistleblower complaints. Therefore, the ongoing relationship and obligation created by Defendants Heil and Greco with respect to Plaintiff is clear. Further, as stated above and alleged in the Complaint, merely four days after Plaintiff complained to Defendants about the workplace misconduct, Plaintiff’s employment was terminated after Defendants Heil and Greco conducted a bogus investigation into her complaints. Like the defendants in Blakey who were subject to personal jurisdiction in New Jersey because they could have expected, or intended, to cause harm in New Jersey, here, Defendants Heil’s and 9 OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 14 of 21 Trans ID: LCV20232164992 Greco’s failure to properly address the unlawful retaliation Plaintiff endured was reasonably expected to cause harm in New Jersey. Even further, when Plaintiff explicitly complained of the retaliatory PIPs to Defendant Heil prior to the termination meeting, and to both Defendant Heil and Greco during the termination meeting, Defendants Heil and Greco fail to address the same, and instead, Plaintiff was terminated because of those exact falsified performance reviews. Accordingly, it is eminently obvious that these acts, including Defendants Heil’s and Greco’s involvement in the bogus investigation into the retaliation Plaintiff endured, coupled with the subsequent pretextual termination of Plaintiff in furtherance of this retaliatory pattern, would be expected to cause harm in New Jersey. See Blakey, 164 N.J. at 67-68. Thus, despite Defendants’ assertion that Defendants Heil and Greco reside and work from another state, it is exceedingly clear that Defendants Heil’s and Greco’s retaliatory conduct reached beyond the Commonwealth of Pennsylvania and the State of Maine to the State of New Jersey and made sufficient minimum contacts with the State of New Jersey. Thus, Plaintiff respectfully submits that she sufficiently alleged minimum contacts with New Jersey by Defendants Heil and Greco for purposes of exercising specific personal jurisdiction against them in this matter. At a bare minimum, Plaintiff is entitled to limited discovery on the issue of personal jurisdiction of Defendants Heil and Greco. “Although the plaintiff bears the burden of demonstrating facts that support personal jurisdiction, courts are to assist the plaintiff by allowing jurisdictional discovery unless the plaintiff’s claim is clearly frivolous.” Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 456 (3d Cir. 2003) (citations omitted). However, “[i]f a plaintiff presents factual allegations [suggesting] with reasonable particularity the possible existence of the requisite contacts between [the party] and the forum state, [the] plaintiff’s right to conduct jurisdictional discovery should be sustained.” Ibid. (third alteration in original) (citation omitted). Generally, the record must support the existence of disputed or 10 OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 15 of 21 Trans ID: LCV20232164992 conflicting facts to warrant jurisdictional discovery. Reliance Nat’l Ins. Co. In Liquidation v. Dana Transp., 376 N.J. Super. 537, 551 (App. Div. 2005). [Rippon v. Smigel, 449 N.J. Super. 344, 359 (App. Div. 2017).] 1. The Exercise of Specific Personal Jurisdiction Over Individual Defendants Heil and Greco Will Not Offend Traditional Notions of Fair Play and Substantial Justice. Where there are sufficient minimum contacts, jurisdiction can be exercised “wherever possible with a liberal and indulgent view if the facts reasonably support the presence of the flexible concepts of ‘fair play and substantial justice.’” Ketcham v. Charles R. Lister International, Inc., 167 N.J. Super. 6, 7 (App. Div. 1979). That inquiry places the burden on the defendant to make a “compelling case” that the exercise of jurisdiction would be unreasonable. Waste Management v. Admiral Ins. Co., 138 N.J. 106, 124-25 (1994) (quoting Lebel v. Everglades Marina, Inc., 115 N.J. 317, 328 (1989)). Whether the exercise of jurisdiction is considered fair is analyzed using factors such as the “burden on [the] defendant [of defending the claim], the interests of the forum state, the plaintiff’s interest in obtaining relief, the interstate judicial system’s interest in effective resolution of disputes, and the shared interest of the states in furthering fundamental substantive social policies.” Waste Management, 138 N.J. at 125 (citing Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 113 (1987)). Exercising jurisdiction over Defendants Heil and Greco here would not offend traditional notions of fair play and substantial justice. Defendants cannot meet their burden of showing that jurisdiction would be unreasonable. Further, using the factors laid out by the United States Supreme Court in Asahi and approved by the New Jersey Supreme Court in Waste Management, it is clear to see that exercising jurisdiction over Defendants Heil and Greco would be fair. 11 OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 16 of 21 Trans ID: LCV20232164992 Notably, Defendants fail to even attempt to argue that it would be unfair to exercise jurisdiction over Defendants Heil and Greco. Nor do Defendants argue that requiring Defendants Heil and Greco to travel to New Jersey to defend this suit is unfair. In other words, Defendants have failed to establish that the burden of traveling to New Jersey to defend this suit is substantial enough to deny Plaintiff the opportunity to pursue her employment retaliation and discrimination claims against Defendants Heil and Greco. Plaintiff clearly deserves the opportunity under prevailing law to pursue her claims against Defendants Heil and Greco in the State of New Jersey. Respectfully, Defendants Heil and Greco should not be afforded the ability to hide behind the cloak of their geographical locations in order to escape liability for the serious allegations made against them in this matter. Thus, Plaintiff respectfully submits that exerting specific personal jurisdiction over Defendants Heil and Greco would not offend traditional notions of fair play and substantial justice. B. CEPA Generally CEPA is “remedial legislation entitled to liberal construction, its public policy purpose to protect whistleblowers from retaliation by having been long recognized by the courts of this State.” Lippman v. Ethicon, Inc., 222 N.J. 362, 378 (2015) (citing Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994)). “[I]t is beyond dispute that the legislative purpose animating CEPA is . . . ‘to protect and encourage employees to report illegal or unethical workplace activities and to discourage . . . employers from engaging in such conduct.’” Id. at 378 (quoting Abbamont, 138 N.J. at 431). “[A]ny fair analysis of CEPA’s scope must ‘begin . . . by looking at the statute’s plain language, which is generally the best indicator of the Legislature’s intent.’” Id. at 380-81 (quoting Donelson v. DuPont Chambers Works, 206 N.J. 243, 256 (2011)). 12 OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 17 of 21 Trans ID: LCV20232164992 “[A] plaintiff need not ‘allege facts that, if true, actually would violate that statute, rule, or public policy.’” See Chiofalo v. State, 238 N.J 527, 542 (2014) (quoting Dzwonar v. McDevitt, 177 N.J. 451, 463 (2003)). Rather, a “plaintiff is required only to ‘set forth facts that would support an objectively reasonable belief that a violation has occurred.’” Ibid. (quoting Dzwonar, 177 N.J. at 464) (emphasis added). CEPA is not meant “‘to make lawyers out of conscientious employees’; rather, and more accurately, its design is to ‘to prevent retaliation against those employees who object to employer conduct that they reasonably believe to be unlawful.” Id. (quoting Dzwonar, 177 N.J. at 464). CEPA specifically provides that: An employer shall not take any retaliatory action against an employee because the employee does any of the following: a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that the employee reasonably believes: (1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care; or (2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity; b. Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer, or another employer, with whom there is a business relationship, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, 13 OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 18 of 21 Trans ID: LCV20232164992 customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, in the case of an employee who is a licensed or certified health care professional, provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into the quality of patient care; or c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes: (1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care; (2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity; or (3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment. [N.J.S.A. 34:19-3 (emphasis added).] Courts must construe CEPA’s language in order to determine whether a plaintiff is entitled to pursue a claim under CEPA. Lippman, 222 N.J. at 377. “CEPA is entitled to liberal construction, in part stemming from subsequent legislative commentary indicating that CEPA’s remedies were meant to be so construed.” Id. at 378 n.4 (citing Abbamont, 138 N.J. at 431, and Judiciary, Law & Public Safety Committee, Statement on Assembly Bills No. 2872, 2118, 2228 (1990)); see also Donelson, 206 N.J. at 257-58 (CEPA governs liberal construction in light of its “broad remedial purpose”). 14 OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 19 of 21 Trans ID: LCV20232164992 To maintain a cause of action under CEPA, Plaintiff must demonstrate: (1) she reasonably believed that her employer’s conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) she engaged in protected activity described in N.J.S.A. 34:19-3; (3) an adverse employment action was taken against her; and (4) a causal connection exists between the protected activity and the adverse employment action. Dzwonar, 177 N.J. at 464. “These requirements must be liberally construed to effectuate CEPA’s important social goals.” Maimone v. City of Atlantic City, 188 N.J. 221, 230 (2006) (citing Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448 (2003)) (emphasis added). The Supreme Court has described the subtle but important differences and similarities between CEPA claims that invoke N.J.S.A. 34:19-3(c)(1) and (c)(3): While an employee who proceeds under c(1) must show that he or she reasonably believed that the employer’s activity, policy or practice “violat[ed]” a law, rule, or regulation, an employee who proceeds under c(3) is only required to show that the employer’s activity, policy, or practice is “incompatible” with a clear mandate of public policy. To “violate” a law, a person must commit “[a]n infraction or breach of the law,” Black’s Law Dictionary 1564 (7th ed. 1999), but a person’s conduct may be found “incompatible” with a law based solely on a showing that the conduct is “irreconcilable” with that law, id. at 768. Moreover, since the recognized sources of public policy within the intent of c(3) include state laws, rules and regulations, Mehlman v. Mobil Oil Corp., 153 N.J. 163, 188 (1998), a plaintiff who pursues a CEPA claim under this subsection may rely upon the same laws, rules and regulations that may be the subject of a claim under c(1). See Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 424 (1994). Consequently, it is easier for an employee who proceeds under c(3) to prove that he or she reasonably believed the employer’s conduct was “incompatible” with a clear mandate of public policy expressed in a law, rule or regulation than to show, as required by c(1), a reasonable belief that the employer’s conduct “violated” a law, rule or regulation. [Maimone v. City of Atl. City, 188 N.J. 221, 230-31 (2006) (emphasis added).] 15 OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 20 of 21 Trans ID: LCV20232164992 1. Plaintiff Sufficiently Pled a Prima Facie CEPA Case Against Individual Defendants Heil and Greco. Applying the prima facie case set forth in Dzwonar to the instant matter, Plaintiff sufficiently pled a prima facie case CEPA case against Defendants Heil and Greco. Plaintiff maintained a reasonable belief that Defendants were engaging in unlawful theft of medication. Plaintiff submitted numerous complaints to her supervisors, and Corporate Defendants’ Human Resources representative, Defendant Heil. Defendants Heil’s and Greco’s aforementioned conduct, including having notice of Plaintiff’s reports of unlawful activities in the workplace, facilitating the investigation into Plaintiff’s complaints, and the termination of Plaintiff’s employment at the conclusion of Defendants’ Heil and Greco’s investigation just days later, constituted clear retaliation. The retaliation against Plaintiff demonstrates that Defendants Heil and Greco were unwilling to seriously investigate Plaintiff’s claims of serious misconduct, and instead were determined to cover it all up. It is without question that at a minimum, Plaintiff’s objections and protests “made a difference[] in th[e] decision” to terminate Plaintiff. Meade v. Twp. of Livingston, 249 N.J. 310, 332 (2021). Defendants Heil’s and Greco’s conduct is exactly what CEPA is meant to eradicate. C. At a Minimum, Leave to Amend Should be Granted to Cure Any Deficiency. New Jersey Courts have “continuously stressed the liberality with which [the amendment] rule is to be applied.” Zacharias v. Whatman PLC, 345 N.J. Super. 218, 226 (App. Div. 2001) (citing Kernan v. One Washington Park, 154 N.J. 437, 456-57 (1998)). “Liberality is, moreover, required irrespective of the stage of the proceedings at which the amendment is sought provided no adverse party is prejudiced thereby.” Ibid. While it is Plaintiff’s position that the Complaint provides more than sufficient allegations, and that Plaintiff sufficiently demonstrates Defendants Heil’s and Greco’s contacts with New Jersey, Plaintiff is entitled to cure any deficiencies through 16 OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 21 of 21 Trans ID: LCV20232164992 an amended pleading or additional attempts at service of process. See Printing Mart-Morristown, 116 N.J. at 746 (“[A] reviewing court searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.”). V. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that this Honorable Court deny Defendants’ Motion to Dismiss in its entirety. By: /s/ Kelly E. Adler, Esq. Kelly E. Adler, Esq. McOMBER McOMBER & LUBER Attorneys for Plaintiff, Veronica Vondrag Dated: July 24, 2023 17 OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 1 of 23 Trans ID: LCV20232164992 Kelly E. Adler, Esq. - NJ ID # 019242008 kea@njlegal.com Jaclyn E. Alston, Esq. - NJ ID # 406252022 jea@njlegal.com McOMBER McOMBER & LUBER, P.C. 39 East Main Street Marlton, New Jersey 08053 (856) 985-9800 Phone (856) 263-2450 Fax Attorneys for Plaintiff, Veronica Vondrag VERONICA VONDRAG, SUPERIOR COURT OF NEW JERSEY LAW DIVISION Plaintiff, OCEAN COUNTY vs. DOCKET NO.: OCN-L-651-23 RAREBREED VETERINARY PARTNERS, Civil Action INC., LORIENT PET SERVICES LLC, WHITING VETERINARY CLINIC LLC, ATTORNEY CERTIFICATION COURTNEY STRODEL, DEBORAH ADAMS, BRITTANY HEIL, KRISTY GRECO, ABC CORPORATIONS 1-5 (fictitious names describing presently unidentified business entities); and JOHN DOES 1-5 (fictitious names of unidentified individuals), Defendants. Kelly E. Adler, Esq., certifies and states as follows: 1. I am an attorney-at-law of the State of New Jersey and a partner of the firm of McOmber McOmber & Luber, P.C., attorneys for Veronica Vondrag (“Plaintiff”). I am fully familiar with the matters set forth and am making this Certification in Opposition to Defendants’ Motion to Dismiss. 2. Attached hereto and made a part hereof as Exhibit A is a true and accurate copy of Plaintiff’s Complaint. OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 2 of 23 Trans ID: LCV20232164992 3. Attached hereto and made a part hereof as Exhibit B is a true and accurate copy of Plaintiff’s signed Certification. I certify that the foregoing statements made by me are true and am aware that any of the foregoing statements are willfully false, I am subject to punishment. /s/ Kelly E. Adler, Esq. KELLY E. ADLER, ESQ. Dated: July 24, 2023 2 OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 3 of 23 Trans ID: LCV20232164992 Exhibit A OCN-L-000651-23 07/24/2023 3:26:23 PM Pg 4 of 23 Trans ID: LCV20232164992 Kelly E. Adler, Esq. - NJ ID # 019242008 kea@njlegal.com Jaclyn E. Alston, Esq. – NJ ID # 406252022 jea@njlegal.com McOmber McOmber & Luber, P.C. 39 E. Main Street Marlton, NJ 08053 (856) 985-9800 Phone (856) 263-2450 Fax Attorneys for Plaintiff, Veronica Vondrag VERONICA VONDRAG, SUPERIOR COURT OF NEW JERSEY LAW DIVISION OCEAN COUNTY Plaintiff, vs. DOCKET NO.: RAREBREED VETERINARY PARTNERS, Civil Action INC., LORIENT PET SERVICES LLC, WHITING VETERINARY CLINIC LLC, COMPLAINT & COURTNEY STRODEL, DEBORAH DEMAND FOR TRIAL BY JURY ADAMS, BRITTANY HEIL, KRISTY GRECO, ABC CORPORATIONS 1-5 (fictitious names describing presently unidentified business entities); and JOHN DOES 1-5 (fictitious names describing presently unidentified individuals), Defendants. Plaintiff Veronica Vondrag (“Plaintiff”), by way of Complaint against Defendant Rarebreed Veterinary