Golub v. Berdon LLP

Background

Dr. J. David Golub, proceeding without a lawyer, sued Berdon LLP. He alleged that Berdon terminated his employment after he reported that a colleague, identified as B.S., had submitted fraudulent filings to the Internal Revenue Service and state agencies. Golub asserted claims under the Age Discrimination in Employment Act (ADEA), the Taxpayer First Act (TFA), and state law.

Berdon moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim, and Rule 12(b)(1), which addresses subject-matter jurisdiction. The court treated the motion as a Rule 12 motion rather than as a request to deny leave to amend under Rule 15.

ADEA claims

The court dismissed Golub’s ADEA age-discrimination claim because the Second Amended Complaint did not plausibly allege that age was the but-for cause of his termination. Although Golub was over 40 and alleged that the colleague he reported was younger and less experienced, the court concluded that the allegations instead attributed the termination to Golub’s reporting of the colleague’s alleged misconduct.

The court also dismissed the ADEA retaliation claim. To state that claim, Golub needed to allege that he engaged in activity protected by the ADEA, such as opposing an unlawful age-discrimination practice. The court found that Golub alleged he reported professional misconduct and tax fraud, not an unlawful employment practice under the ADEA.

The court noted that Golub had previously been given an opportunity to replead these claims but had not corrected the deficiencies. It therefore dismissed the ADEA claims with prejudice.

Taxpayer First Act claim

The court dismissed Golub’s TFA claim with prejudice for several reasons. First, the relevant TFA provisions took effect on July 1, 2019, after Berdon terminated Golub in July 2018, and Golub did not argue that those provisions applied retroactively. Second, the statute required him to file a complaint with the Secretary of Labor within 180 days of the termination before bringing the claim in federal court; Golub did not allege that he had done so, and the filing period had expired. Third, Golub did not respond to Berdon’s arguments against the TFA claim or otherwise defend it in his opposition papers, which the court treated as abandonment.

Because the court found that no amendment or additional factual allegations could cure these legal problems, it dismissed the TFA claim with prejudice.

State-law claims and jurisdiction

After dismissing the federal claims, the court considered whether it had diversity-of-citizenship jurisdiction over the state-law claims. Diversity jurisdiction generally requires more than $75,000 in dispute and complete diversity between the parties. For this purpose, an individual’s citizenship depends on domicile, while a limited-liability partnership has the citizenship of all its partners.

The court found that the record did not establish where Golub was domiciled when he filed the action. The Second Amended Complaint referred to South Carolina domicile and residence in New Jersey, while filings in other lawsuits contained different residence representations. The court also lacked information about the citizenship of Berdon’s partners.

The court ordered Golub to provide, by May 20, 2022, evidence supporting his contention that he was domiciled in South Carolina when he filed this case and an explanation reconciling that contention with his representations in the other lawsuits. Berdon could respond by June 10, 2022, and could provide evidence supporting its contention that complete diversity did not exist.

The court explained that, if diversity jurisdiction was absent, it would not exercise supplemental jurisdiction over the state-law claims because the federal claims had been dismissed and the case was still at the pre-discovery stage. It therefore denied Berdon’s motion to dismiss for lack of subject-matter jurisdiction without prejudice to seeking that relief after the parties’ submissions.

Disposition

The court held that Berdon’s motion to dismiss was granted in part and denied in part. Golub’s federal causes of action were dismissed with prejudice. The jurisdictional motion was denied without prejudice, and the parties were directed to make submissions concerning diversity jurisdiction. The order did not finally dismiss the state-law claims.