IRINA KEGELES v. SDI TECHNOLOGIES, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IRINA KEGELES,

Plaintiff-Appellant,

v.

SDI TECHNOLOGIES, INC.

Defendant-Respondent.

___________________________________

April 13, 2015

Submitted March 4, 2015 Decided

Before Judges Fuentes and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1389-13.

Irina Kegeles, appellant pro se.

Reed Smith LLP, attorneys for respondent (Sherri A. Affrunti and Valerie M. Eifert, of counsel and on the brief).

PER CURIAM

Plaintiff Irina Kegeles appeals from the order of the Law Division dismissing her pro se complaint against defendant SDI Technologies Inc., pursuant to Rule 4:6-2(e) for failure to state a claim upon which relief can be granted. We affirm.

On March 4, 2013, plaintiff filed a complaint against defendant using the form "Civil Action - Complaint" made available to pro se litigants through the judiciary website.1 She identified the date of the incident that gave rise to her claim against defendant as "July, 2008." The next section of this form complaint directs the pro se litigant to "[s]ummarize what happened that resulted in your claim against the defendant." In response, plaintiff wrote, "I was and continuously am discriminating [sic] by the management of SDI Technologies Inc."

In the next part of the form complaint plaintiff indicated defendant's address. Next, the form complaint has two pre-printed single-sentence paragraphs that state

2. Plaintiff is entitled to relief from defendant under the above facts.

3. The harm that occurred as a result of defendant's acts include

In the blank space provided, plaintiff described the harm as "[e]motional distress and psychological damage." Plaintiff thereafter signed and dated the complaint.

On June 7, 2013, defendant, represented by counsel, filed a motion to dismiss plaintiff's complaint under Rule 4:6-2(e) in lieu of filing an answer, arguing plaintiff's factual allegations were "entirely insufficient" to support a cognizable claim of discrimination. Defendant asserted that it was impossible to determine from reading plaintiff's complaint "the basis of her discrimination claim" because she had "failed to allege that she is a member of any protected class" and that she suffered an adverse employment action as a result of invidious discrimination based on her membership in this unknown protected class.

Alternatively, defendant argued the complaint should have been dismissed and the matter remanded for mandatory arbitration. In support of this argument, defendant submitted the certification of Marcos Zalta, defendant's Vice President of Business and Legal Affairs, and General Counsel. He attested to the authenticity of a document attached to his certification entitled "Acknowledgement of an Agreement with SDI Technologies Inc. and KIDdesigns, Inc. Arbitration Policy." Zalta averred this agreement was signed by plaintiff on May 21, 2008, and compelled her to submit all claims and controversies arising out of her employment with defendant to arbitration, including allegations of workplace discrimination or harassment.

Plaintiff filed a written opposition to defendant's motion. Although plaintiff's submission was neither properly formatted as a certification nor supported by specific exhibits, she did provide a lengthy narrative of her work history with defendant. She worked as a part-time "bookkeeper" compensated on an hourly rate. She believed her level of education and history of above average performance entitled her to a fulltime position with higher pay and more meaningful responsibilities.

She also alleged that "[i]n [the] recent months" leading up to her decision to commence this legal action, defendant performed "improper and seemingly illegal actions toward its employees[.]" She described a "$40,000 accounting discrepancy," which she had allegedly discovered and reported to her managers, as an "intentional accounting maneuver performed by a company engaged in a seemingly illicit activity." It is important to emphasize that plaintiff submitted these statements to the motion judge in the form of a lengthy letter, not as a sworn affidavit or certification subject to perjury.

Judge Frank M. Ciuffani heard oral argument on defendant's motion on July 26, 2013. Plaintiff appeared pro se. The record reflects, however, that plaintiff's husband accompanied her. Judge Ciuffani permitted him to sit by plaintiff's side during oral argument. Judge Ciuffani addressed plaintiff directly and explained the nature of the proceedings. The transcript of the motion hearing reflects plaintiff and her husband both anticipated the motion hearing would be akin to a trial in which a judge and jury would hear her testimony and reach a verdict. Despite repeated attempts by Judge Ciuffani to explain the procedural posture of the case to plaintiff, she seemed unable or unwilling to forego the notion that this was not a trial.

At one point, Judge Ciuffani addressed plaintiff directly as follows

Boiling it all down due process, what does that mean? Notice and an opportunity to be heard. Part of the problem you have is the notice part. Your complaint doesn't say anywhere near what it needs to say, it doesn't. That's what the motion to dismiss is. Judge, this doesn't state a legal claim.

So, you're not happy with the way [you're] treated, okay. Now, the law and in my 30 years prior to being - - becoming a judge I did a lot of things. I . . . did a lot in the employment arena, so I know a lot about employment law. So, employment law has not gone so far to say that employers have to treat employees fairly or they have to be nice to them. They can't discriminate against them, they can't fire them if they are a whistle blower. They can't retaliate against them, if they've lodged a lawful complaint. And there's a whole series of laws and there are all sorts of laws, and you know wage and hour laws, et cetera that protect employees. But it doesn't mean that everything that happens in the workplace that an employee thinks is not fair gives them the ability to file a lawsuit.

So, you tried once and you didn't get it right. I'm going to give you an opportunity to file what's called an amended complaint, and I'm going to tell you how long you're going to have to do that. And when you file it, you're going to have to serve it, and that amended complaint is then going to be scrutinized by the attorney for your employer to see whether or not it complies with the court rules, the notice part. What are we being sued for? What have we done wrong? What law or laws are we alleged to have violated? That's what every defendant in a lawsuit is entitled to know.

Notwithstanding this clear, concise recitation of what she needed to do to compose a legally viable complaint, plaintiff again seemed resistant to embracing these straightforward requirements. Judge Ciuffani gave plaintiff until August 16, 2013 to submit an amended complaint. On August 15, 2013, plaintiff submitted the same pro se complaint form she used in filing her first complaint. This time, however, plaintiff attached a typed statement consisting of seven and one-half, single-spaced pages, restating the lengthy narrative she included in opposition to defendant's motion to dismiss.

By order dated September 27, 2013, Judge Ciuffani granted defendant's motion and dismissed plaintiff's amended complaint with prejudice. Plaintiff thereafter filed a motion for reconsideration which came for oral argument before Judge Ciuffani on November 8, 2013. The record of this motion hearing shows plaintiff remained unwilling to correct her pleading consistent with the requirements of due process Judge Ciuffani had previously explained to her. The record also shows that despite his lack of standing, Judge Ciuffani graciously permitted plaintiff's husband to address the court on behalf of his wife.

On appeal to this court, plaintiff argues Judge Ciuffani dismissed her amended complaint with prejudice "ignoring all the facts presented." She also claims that "because of Judge Ciuffani's decision" she was "subjected to assault on November 20, 2014, and eventually . . . lost [her] job."

We review a trial court's decision to grant a motion to dismiss a complaint under Rule 4:6-2(e) de novo. Gonzalez v. State Appointment Comm'n, 428 N.J. Super. 333, 349 (App. Div. 2012). We must determine "whether a cause of action is 'suggested' by the facts." Nostrame v. Santiago, 213 N.J. 109, 127 (2013) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). Plaintiff's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Ciuffani in oral opinions delivered from the bench on July 26, 2013 and November 8, 2013.

Affirmed.

1 New Jersey Courts, Legal Practice Forms, http://www.judiciary.state.nj.us/civil/forms/11210_civil_action_complaint.pdf (last visited Apr. 1, 2015.)