Case 2:20-cv-00430-CCC-ESK Document 75 Filed 03/18/21 Page 1 of 8 PageID: 1049
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`**NOT FOR PUBLICATION**
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
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` Civil Action No.: 20-430 (CCC)
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`DR. MICHAEL B. MORGAN,
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` Plaintiff,
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`v.
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`QUEST DIAGNOSTIC INCORPORATED,
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` Defendant.
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`CECCHI, District Judge.
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` OPINION
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`I.
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`INTRODUCTION
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`This matter comes before the Court on Defendant Quest Diagnostic Incorporated’s
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`(“Quest” or “Defendant”) motion to dismiss. ECF No. 41. The Court has considered all
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`submissions in support of and in opposition to the motion, and decides this matter without oral
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`argument pursuant to Rule 78(b) of the Federal Rules of Civil Procedure. For the reasons set forth
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`below, the motion to dismiss (ECF No. 41) is granted.
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`II.
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`BACKGROUND
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`1.
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` On January 14, 2020 Plaintiff Dr. Michael B. Morgan (“Plaintiff” or “Morgan”)
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`filed a complaint (the “Complaint”) in the instant matter. ECF No. 1. By Agreement of the parties,
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`Plaintiff filed an amended complaint (the “Amended Complaint”) on July 31, 2020. ECF No. 39.
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`Plaintiff alleges that he was improperly terminated by Quest without good cause on January 27,
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`2015 and that this improper termination constitutes a breach of the employment agreement (the
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`“Employment Agreement”) that existed between Morgan and Quest. Id. at 7. Plaintiff further
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`1
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`alleges that Quest improperly “continued to maintain his likeness and image on their marketing
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`material and website for almost two years” after his termination. Id. at 8. The Amended Complaint
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`contains four counts stemming from the above-mentioned allegations: (1) breach of contract, (2)
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`unauthorized misappropriation of name and likeness under Section 540.08 of the Florida Statutes,1
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`(3) violation of the common law right of publicity, and (4) unjust enrichment. Id. at 11–17.
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`2.
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`Quest filed a motion to dismiss the Amended Complaint on August 14, 2020. ECF
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`No. 41. Quest argues that the Amended Complaint should be dismissed pursuant to Rule 12(b)(6)
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`of the Federal Rules of Civil Procedure. ECF No. 41-2 at 3. Specifically, Quest argues that
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`Plaintiff has failed to state a claim for breach of contract because he voluntarily resigned, Quest
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`terminated him with cause, and because Plaintiff has not alleged facts that plausibly show the
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`alleged breach of contract caused any damages. Id. at 10, 13, 16. Quest next argues that Plaintiff
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`fails to state a claim for misappropriation of likeness under Florida common law because his
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`claims are time-barred and Plaintiff’s likeness was not used to promote a product or service. Id.
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`at 18, 20–21, 23.
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`3.
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`Plaintiff filed a brief in opposition to Quest’s motion to dismiss. ECF No. 51.
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`Plaintiff argues that Quest has failed to demonstrate that the claims for common law right of
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`publicity and unjust enrichment should be dismissed. In this regard, Plaintiff contends that
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`Quest’s reliance on Florida law is improper, and Plaintiff’s claims survive under New Jersey law.
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`Id. at 11. As to the breach of contract claim, which the parties agree is governed by Florida law,
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`Plaintiff asserts that he has adequately alleged a breach of contract claim because he alleges the
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`1 Plaintiff’s brief in opposition to the motion to dismiss states that “Morgan consents to
`dismissal of his Florida statutory misappropriation claim.” ECF No. 51 at 8 n.1.
`2
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`existence of a valid contract, a breach (fired without cause, not given proper written notice of
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`termination), and damages (lost salary and quarterly bonuses). Id. at 14–15, 17. Plaintiff further
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`alleges that he did not resign from Quest until after he was terminated. Id. at 14–15, 17.
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`4.
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`Quest replied in support of its motion to dismiss (ECF No. 58) and Plaintiff, with
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`permission of the Court, submitted a sur-reply addressing choice of law issues that it contends
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`Quest raised for the first time in its reply brief (ECF No. 64).2
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`III. ANALYSIS
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`5.
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` To survive dismissal under Federal Rule of Civil Procedure 12(b)(6), “a complaint
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`must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’”
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). A claim is facially plausible when
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`supported by “factual content that allows the court to draw the reasonable inference that the
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`defendant is liable for the misconduct alleged.” Id. A complaint that contains “a formulaic
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`recitation of the elements of a cause of action” supported by mere conclusory statements or offers
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`“‘naked assertions’ devoid of ‘further factual enhancement’” will not suffice. Id. (citation
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`omitted). In evaluating the sufficiency of a complaint, the court accepts all factual allegations as
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`true, draws all reasonable inferences in favor of the non-moving party, and disregards legal
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`conclusions. Phillips v. Cty. of Allegheny, 515 F.3d 224, 231–34 (3d Cir. 2008).
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`Breach of Contract
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`6. Count One of the Amended Complaint states a claim for breach of contract. ECF
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`No. 39 at 11. The parties agree that this claim is governed by Florida law pursuant to the
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`2 As the Court has afforded the parties ample opportunity to brief the issues involved in this
`matter, the Court rejects the various assertions that arguments have been improperly raised or
`waived in this matter. See ECF No. 51 at 10; ECF No. 58 at 17; ECF No. 64 at 1.
`3
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`Employment Agreement’s choice of law provision. ECF No. 41-2 at 14; ECF No. 51 at 8. The
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`elements of a breach of contract claim under Florida law are a valid contract, a material breach,
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`and damages. Beck v. Lazard Freres & Co. LLC, 175 F.3d 913, 914 (11th Cir. 1999). Here, the
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`Amended Complaint fails to adequately allege a material breach of the Employment Agreement
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`and damages stemming the alleged breach. The Amended Complaint states that Quest breached
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`the terms of the Employment Agreement by terminating Plaintiff without good cause and by
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`terminating Plaintiff before it served him with a written notice as required by paragraph 14(a).
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`ECF No. 39 at 7–8. The Amended Complaint alternatively alleges that Quest breached the
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`Employment Agreement by not serving Plaintiff with a notice of termination in the manner
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`required by paragraph 24. Id. at 8. With respect to damages, the Amended Complaint states that
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`“[a]s a result of Quest’s breach of the Employment Agreement, Morgan has suffered actual and
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`consequential damages exceeding $5,600,000.” Id. at 12.
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`7.
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`The Court notes that the Employment Agreement has provisions that explicitly
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`allowed Quest to terminate Plaintiff with cause (ECF No. 2-1 at 6) and without cause (id. at 9).
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`Accordingly, while the Parties argue at great length over whether Plaintiff was terminated with or
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`without cause, the Court finds that both types of termination were contemplated by the
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`Employment Agreement and cannot qualify as a material breach of said agreement. See Maor v.
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`Dollar Thrifty Auto. Grp., Inc., No. 15-22959, 2018 WL 4698512, at *5 (S.D. Fla. Sept. 30, 2018)
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`(“Defendants’ conduct was strictly compliant with the terms of the contract, and Plaintiff was
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`charged the precise amount he agreed to under the contract. There can be no breach.”).3
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`3 While the Court need not presently reach the issue of whether Plaintiff’s voluntary resignation
`was effective and pre-dated Quest’s termination of Plaintiff, Quest strongly argues that the
`allegations of the Amended Complaint, along with exhibits attached to the initial pleading in this
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`8.
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`Similarly, the Amended Complaint states that “Quest purported to terminate
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`Morgan’s employment by letter dated January 27, 2015.” ECF No. 39 at 8. Paragraph 24 of the
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`Employment Agreement states that “[a]ny required notice under this Agreement and shall be
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`delivered either personally, by reputable overnight courier services or by first class mail, return
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`receipt requested. . . . Delivery of such notice shall be deemed to have occurred . . . in the case of
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`mailing, three (3) days after such notice has been deposited in the United states mails . . . or . . .
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`in any other case, when actually received by the other party.” ECF No. 2-1 at 17 (emphasis
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`added. Accordingly, the Court fails to discern how Quest materially breached the Employment
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`Agreement as the Amended Complaint admits that he was notified of his termination by written
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`letter.
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`9.
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`Turning next to damages, the Court finds that the breach of contract claim in the
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`Amended Complaint is inadequately pled in this respect as well. Under Florida law, “damages
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`for breach of contract must arise naturally from the breach, or have been in contemplation of both
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`parties at the time they made the contract, as a probable result of a breach.” ACG S. Ins. Agency,
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`LLC v. Safeco Ins. Co., No. 19-528, 2019 WL 8273657, at *6 (M.D. Fla. Dec. 16, 2019) (internal
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`citations and quotation marks omitted). Here, the Amended Complaint baldly states, without any
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`factual allegations, that “[a]s a result of Quest’s breach of the Employment Agreement, Morgan
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`has suffered actual and consequential damages exceeding $5,600,000.” The Amended Complaint
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`is silent as to how the alleged breach of contract caused such damages, how Plaintiff arrived at
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`this figure, and what money, if any, Quest paid to Plaintiff after he was terminated. This
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`matter, demonstrate that such resignation was knowing and voluntary. See ECF No. 2-4, ECF
`No. 39 at 8, 11.
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`unsupported assertion is insufficient to allege damages and provides the Court with an additional
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`basis to dismiss Plaintiff’s breach of contract claim. See Mohamad v. Wells Fargo Bank, N.A.,
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`No.181386, 2019 WL 2425194, at *9 (M.D. Fla. May 16, 2019), report and recommendation
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`adopted, No. 18-1386, 2019 WL 2423638 (M.D. Fla. June 10, 2019) (“Here, Plaintiffs have failed
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`to sufficiently allege damages arising naturally from the breach and, as such, Count IV should be
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`dismissed.”).
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`Violation of the Common Law Right of Publicity
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`10.
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`To state a common law claim of misappropriation of name and likeness under
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`Florida law, a plaintiff must allege that “Defendant commercially used the value of Plaintiff’s
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`name for commercial, trade, or advertising purposes.” Fuentes v. Mega Media Holdings, Inc., 721
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`F. Supp. 2d 1255, 1260 (S.D. Fla. 2010). To state a common law claim of misappropriation of
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`name and likeness under New Jersey law, “a plaintiff must establish that (1) the defendant
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`appropriated the plaintiff’s likeness, (2) without the plaintiff’s consent, (3) for the defendant’s use
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`or benefit, and (4) damages.” Leibholz v. Hariri, No. 05-5148, 2011 WL 1466139, at *11 (D.N.J.
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`Apr. 15, 2011). While the parties argue strenuously over whether this claim should be governed
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`by Florida law or New Jersey law, the Court finds that the Amended Complaint fails to state a
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`claim under the law of either state. The Amended Complaint fails to state a claim for
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`misappropriation of name and likeness under the law of either state because it does not plausibly
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`allege facts that show Quest directly used Plaintiff’s name or likeness for a commercial purpose
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`and does not plausibly allege what damages Plaintiff suffered from his signature and photograph
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`remaining on Quest documents for some period of time. These pleading deficiencies are fatal
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`under both Florida and New Jersey law. See, e.g., Almeida v. Amazon.com, Inc., 456 F.3d 1316,
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`1326 (11th Cir. 2006) (affirming denial of statutory and common law misappropriation claims “on
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`the ground that [defendant] did not use [plaintiff]’s image for the purpose of directly promoting a
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`product or service”); Leibholz, 2011 WL 1466139, at *11 (dismissing misappropriation claim
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`because damages allegations were “far too speculative to state a cognizable harm resulting from”
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`name and background being listed on website).
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` Accordingly, Plaintiff’s claim for
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`misappropriation of name and likeness is dismissed.4
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`Unjust Enrichment
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`11.
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`To state a claim for unjust enrichment under Florida law, a plaintiff must allege
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`“that the plaintiff conferred a benefit on the defendant, who has knowledge thereof; (2) that the
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`defendant voluntarily accepted and retained the benefit conferred; and (3) that the circumstances
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`are such that it would be inequitable for the defendant to retain the benefit without paying the
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`value thereof to the plaintiff.” Spears v. SHK Consulting & Dev., Inc., 338 F. Supp. 3d 1272, 1277
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`(M.D. Fla. 2018) (internal citations and quotation marks omitted). To state a claim for unjust
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`enrichment under New Jersey law, “a plaintiff must show both that defendant received a benefit
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`and that retention of that benefit without payment would be unjust.” Aussie Painting Corp.,
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`Plaintiff, v. Allied Painting, Inc. & Fidelity and Deposit Company Of Maryland, Defendants, No.
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`20-02677, 2021 WL 960825, at *7 (D.N.J. Mar. 15, 2021) (internal citations and quotation marks
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`omitted). The Amended Complaint asserts that Quest received a benefit upon its use of Morgan’s
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`image, likeness, and identity, but as discussed above, the Amended Complaint fails to adequately
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`allege that Quest received a benefit from its use of Plaintiff’s name or image. As Plaintiff has not
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`4 The Court need not, and does not, reach the parties’ statute of limitations arguments at this
`time as the Amended Complaint fails to allege sufficient facts to plausibly state a claim. See
`Ianuale v. Borough of Keyport, No. 16-9147, 2018 WL 5005005, at *13 (D.N.J. Oct. 16, 2018).
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`plausibly alleged how Quest directly benefited from any asserted misuse of his name or image, or
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`that Quest unjustly received any alleged value through this use, his claim for unjust enrichment
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`must be dismissed. See, e.g., Sport & Wheat, CPA, PA v. ServisFirst Bank, Inc., No. 20-5425,
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`2020 WL 4882416 (N.D. Fla. Aug. 17, 2020) (“[T]he Court finds that Plaintiff’s indirect conferral
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`of a benefit on Defendants is insufficient to satisfy the first element of a claim for unjust
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`enrichment.”); Trusted Transportation Sols., LLC v. Guarantee Ins. Co., No. 16-7094, 2020 WL
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`2111026, at *2 (D.N.J. May 4, 2020) (“The plaintiff must also show that it expected remuneration
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`from the defendant at the time it performed or conferred a benefit on defendant and that the failure
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`of remuneration enriched defendant beyond its contractual rights.”).
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`IV.
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`CONCLUSION
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`12.
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`For the reasons stated above, the Amended Complaint is DISMISSED
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`WITHOUT PREJUDICE. Plaintiff may file a second amended complaint within thirty (30)
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`days of entry of this Opinion that addresses the deficiencies identified in this Opinion. An
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`appropriate Order accompanies this Opinion.
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`DATED: March 18, 2021
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`CLAIRE C. CECCHI, U.S.D.J.
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