                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                       No. 17-1217
                                      _____________

                                     DAVID ZAMOS,
                                                        Appellant

                                             v.

                 MCNEIL-PPC INC., A Division of Johnson & Johnson;
                    JOHNSON & JOHNSON CONSUMER INC.

                                     ______________

                       Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                           (District Court No. 2: 16-cv-05038)
                           District Judge: Hon. Robert F. Kelly
                                     ______________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 September 26, 2017
                                  ______________

        Before: SMITH, Chief Judge, MCKEE, and RESTREPO, Circuit Judges

                            (Opinion filed: October 19, 2017)

                               _______________________

                                       OPINION*
                                ______________________
McKEE, Circuit Judge



*
 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
          David Zamos appeals the District Court’s Order granting McNeil-PPC’s motion

for dismissal pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons that follow, we will

affirm.

                                               I.

          We exercise plenary review over the District Court’s determination of diversity

jurisdiction, but we review factual findings regarding diversity for clear error.1 A clear

error exists when the appellate court finds no plausible reason for the District Court’s

decision in light of the record.2

          We review a District Court’s decision granting a Rule 12(b)(6) motion to dismiss

under a plenary standard.3 A dismissal of a Complaint is properly granted when the

complainant fails to craft a well-pleaded Complaint, including allegations that plausibly

give rise to relief.4

                                              II.

          Zamos argues that the District Court lacked subject matter jurisdiction because of

an absence of complete diversity. However, the District Court correctly concluded that

McNeil-PPC no longer existed as a legal entity because it had merged into Johnson &

Johnson Consumer (“J&J”). On June 24, 2015, the Delaware Division of Corporations

accepted a Certificate of Merger that stated McNeil-PPC was a New Jersey corporation



1
  Johnson v. Smithkline Beecham Corp., 724 F.3d 337, 345 (3d Cir. 2013).
2
  See Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855 (1982).
3
  Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009).
4
  Bell Atl. Corp. v. Twombly, 555–56 U.S. 544, 547 (2007); Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
                                               2
and that it had merged with several other corporations into J&J, effective June 29, 2015.

J&J produced this Certificate to the District Court in support of its motion to remove, and

Zamos did not challenge the Certificate as incorrect or fraudulent. Nevertheless, he now

claims that McNeil-PPC continued to exist.

         Zamos’s claim is based on a variety of documents both included and not included

in the record. We realize that the Proposed Agreement presented to Zamos, printed on

J&J letterhead, identifies McNeil-PPC, Inc. as Zamos’s employer and the signatory as an

employee of McNeil-PPC. Nevertheless, the District Court found that McNeil-PPC

ceased to exist as of June 29, 2015, when it merged with other companies to form J&J,

and the record supports that finding. J&J is therefore an appropriate party to this suit, and

the record establishes that it is a citizen of New Jersey.

                                              III.

         Zamos also argues that the District Court erred in failing to apply the substantive

law of New Jersey and by misapplying Pennsylvania law. His claims under Pennsylvania

law include breach of contract, contractual bad faith, and equitable estoppel.

                                    A. Breach of Contract

         To succeed on his claim that J&J breached its contract with him, Zamos must

prove the following elements: (1) a contract existed between the parties; (2) a breach of a

duty required by the contract; and (3) damages from the breach.5 “[A] reply to an offer




5
    Williams v. Nationwide Mut. Ins., 750 A.2d 881, 884 (Pa. Super. 2000).

                                               3
which purports to accept, but adds qualifications or makes acceptance conditional, is not

an acceptance, but rather a counteroffer.”6

       Zamos was offered the Separation Agreement on February 11, 2016, but he failed

to sign the contract by the 21-day deadline required in the agreement. Rather, his counsel

responded by sending J&J a letter on March 1, 2016, two days before the offer would

lapse, objecting to two provisions in the contract. This response constituted a rejection of

the offer and a counteroffer, which was not accepted by J&J. Because the parties did not

agree to a contract, the District Court correctly held that there could be no breach, and

obviously no damages.

       Zamos also argues that the District Court made an error in dismissing his equitable

estoppel claim despite acknowledging that the doctrine is a defensive tool.7 Zamos

contends that he relied on J&J’s representations that it would engage in negotiations in

order to come to an agreement, notwithstanding the 21-day deadline present in the offer.

His argument ignores the fact that there was no requirement for J&J to negotiate with

Zamos, and the offer itself contained a clear provision stating that the offer would lapse

after 21 days. Moreover, even if Zamos reasonably relied on J&J’s willingness to

negotiate, his counteroffer was submitted two days prior to the deadline, limiting J&J’s

ability to respond even if it desired to negotiate.8


6
  Hatalowich v. Redevelopment Auth. of City of Monessen, 312 A.2d 22, 24 (Pa. 1973).
7
  Carlson v. Arnot-Ogden Memorial Hosp., 918 F.2d 411, 416 (3d Cir. 1990) (there is no
separate cause of action for equitable estoppel under Pennsylvania law).
8
  Further, Zamos’s argument that substantive New Jersey law should be applied to this
matter is only argued on appeal, and was not raised before the District Court. Zamos has

                                               4
                                 B. Contractual Bad Faith

       Zamos argues that J&J acted in bad faith when it allowed the 21-day deadline to

expire prior to responding to Zamos’s letter. Pennsylvania courts “have recognized an

independent cause of action for breach of a duty of good faith and fair dealing only in

very limited circumstances.”9 The District Court obviously thought the fact that J&J did

not “negotiate” with Zamos was attributable to the fact that he did not respond to J&J’s

offer until 48 hours before it lapsed, not to any bad faith on J&J’s part. That conclusion is

consistent with this record.

       Finally, we also reject Zamos’s argument that there has been a shift in the law of

bad faith in Pennsylvania based on the Pennsylvania Supreme Court’s decision in

Hanaway v. Parkesburg Grp., LP.10 There, the Court only discussed whether the

covenant of good faith extended to limited partnership agreements.11 That decision does

not support Zamos’s argument here.

                                            IV.


therefore waived this argument. Williams v. BASF Catalysts LLC, 765 F.3d 306, 316 (3d
Cir. 2014). Additionally, Zamos argues that J&J Consumer violated New Jersey’s
Conscientious Employee Protection Act (“CEPA”) when it terminated his position.
Zamos alleges that his position was terminated when he noticed a defect in the tamper-
evident feature of a J&J product, and brought this to the attention of several senior
employees of the corporation. However, his complaint did not allege a cause of action for
retaliation. Accordingly, the District Court did not consider the CEPA claim in the first
instance and Zamos has waived it on appeal.
9
  Northview Motors, Inc. v. Chrysler Motors Corp., 227 F.3d 78, 91 (3d Cir. 2000).
10
   2017 WL 3600580 at *8–9 (Pa. Aug. 22, 2017) (determining that the Pennsylvania
legislature adopted the covenant of good faith into such agreements, but that the covenant
did not apply retroactively).
11
   Id.

                                              5
      For the aforementioned reasons, we will affirm the Order of the District Court

granting the motion to dismiss.12




12
 To the extent J&J expresses a desire for sanctions, we do not find such action is
warranted in this matter.
                                            6
