White v. Vivier

Filing 13

MEMORANDUM OPINION AND ORDER re 7 MOTION to Dismiss Counts Two, Three and Four of Plaintiff's Complaint filed by Vivier Pharma Corporation ; for the reasons explained within, Defendant's Motion is GRANTED as to the dismissal of cou nt two only, and is otherwise DENIED. Further, Plaintiff is ORDERED to replead her complaint no later than April 30, 2012, consistent with the rulings within. Motions terminated: 7 MOTION to Dismiss Counts Two, Three and Four of Plaintiff's Complaint filed by Vivier Pharma Corporation. Signed by Judge Virginia Emerson Hopkins on 4/19/12. (SAC )

FILED
2012 Apr-19 PM 05:13
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KIMBERLY K. WHITE,
Plaintiff,
v.
VIVIER PHARMA
CORPORATION,
Defendant.

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) Case No.: 2:12-CV-205-VEH
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MEMORANDUM OPINION AND ORDER
I.

Introduction
Plaintiff Kimberly K. White (“Ms. White”) initiated this job discrimination

lawsuit arising under Title VII of the Civil Rights Act of 1964 and state law against
Defendant Vivier Pharma Corporation (“Vivier”) on January 19, 2012. (Doc. 1).
Pending before the court is Vivier’s Motion To Dismiss Counts Two, Three, and Four
of Plaintiff’s Complaint (Doc. 7) (the “Motion”) filed on February 27, 2012.
Ms. White filed her opposition (Doc. 9) to the Motion on March 12, 2012. On
March 19, 2012, Vivier followed with its reply. (Doc. 10). Accordingly, the Motion
is now under submission, and, for the reasons explained below, is GRANTED as to
the dismissal of count two only, and is otherwise DENIED.

II.

Standard
A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See Fed.

R. Civ. P. 12(b)(6). The Federal Rules of Civil Procedure require only that the
complaint provide “‘a short and plain statement of the claim’ that will give the
defendant fair notice of what the plaintiff’s claim is and the grounds upon which it
rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated by Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 545 (2007); see also Fed. R. Civ. P. 8(a).
While a plaintiff must provide the grounds of his entitlement to relief, Rule 8
does not mandate the inclusion of “detailed factual allegations” within a complaint.
Twombly, 550 U.S. at 545 (quoting Conley, 355 U.S. at 47). However at the same
time, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “[O]nce a claim has
been stated adequately, it may be supported by showing any set of facts consistent
with the allegations in the complaint.” Twombly, 550 U.S. at 563.
“[A] court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 129 S. Ct. at 1950. “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”
Iqbal, 129 S. Ct. at 1950. “When there are well-pleaded factual allegations, a court
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should assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Id. (emphasis added). “Under Twombly’s construction of
Rule 8 . . . [a plaintiff’s] complaint [must] ‘nudge[] [any] claims’ . . . ‘across the line
from conceivable to plausible.’ Ibid.” Iqbal, 129 S. Ct. at 1950-51.
A claim is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
III.

Analysis
Ms. White’s complaint contains four counts. (Doc. 1 at 7-12). In its Motion,

Vivier seeks a dismissal of count two for breach of contract, count three for negligent
and wanton hiring, training, supervision and retention, and count four for invasion of
privacy. (Doc. 7 at 1). The court addresses the merits of the Motion with respect to
each challenged count below.
A.

Count Two

Both parties are in agreement that Ms. White’s breach of contract claim arises
under New York law. (Doc. 7-1 at 7 ¶ 13; Doc. 9 at 6; Doc. 10 at 2). Vivier suggests
that Ms. White’s breach of contract claim must fail under New York law because her
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“Employment Agreement” indicates that she is an “at will” employee and lacks a
defined duration or contractual period. (Doc. 7-1 at 3 ¶ 3; Doc. 10 at 2). In making
its point, Vivier relies upon the New York Court of Appeals controlling decision of
Sabetay v. Sterling Drug, Inc., 506 N.E. 2d 919 (N.Y. 1987).
In Sabetay, the court rejected the former employee’s breach of contract claims
because, the plaintiff had “failed to demonstrate a limitation by express agreement on
his employer’s unfettered right to terminate at will . . . .” 506 N.E.2d at 923. Ms.
White does not dispute Sabetay’s holding. Instead, she attempts to maintain that her
contractual claim should survive on the doctrine of “an implied-by-law covenant to
act fairly and in good faith in the course of performing the contract.” (Doc. 9 at 6).
However, Sabetay also reaffirms its prior ruling in Murphy v. American Home
Prods. Corp., 448 N.E.2d 86 (N.Y. 1983), “refus[ing] to adopt the implied covenant
of good-faith analysis recognized in some jurisdictions [in the employment context].”
506 N.E.2d at 922. As the Sabetay court summarized its Murphy holding:
We rejected plaintiff’s invitation to find an implied covenant of
good faith in the employment contract. In so ruling, we distinguished
an employment contract from other types of contract where the
implied-in-law theory has been adopted. Noting that a covenant of good
faith can be implied only where the implied term is consistent with other
mutually agreed upon terms in the contract, we stated: “New York does
recognize that in appropriate circumstances an obligation of good faith
and fair dealing on the part of the party to a contract may be implied
and, if implied, will be enforced. In such instances the implied
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obligation is in aid and furtherance of other terms of the agreement of
the parties. No obligation can be implied, however, which would be
inconsistent with other terms of the contractual relationship in which the
law accords the employer an unfettered right to terminate employment
at any time. In the context of such an employment it would be
incongruous to say that an inference may be drawn that the employer
impliedly agreed to a provision which would be destructive of his right
of termination to imply such a limitation from the existence of an
unrestricted right would be internally inconsistent.” Lastly, we
concluded that Murphy had failed to establish an express limitation on
the employer's right of discharge under the strict guidelines established
in Weiner.
Sabetay, 506 N.E.2d at 922 (citations omitted).
Thus, contrary to Ms. White’s opposition, New York has expressly rejected the
recognition of a cause of action for breach of an implied covenant of good faith in the
area of employment law. Moreover, Ms. White has offered no other theory under
New York law to save her contractual claim from dismissal. Accordingly, Vivier’s
Motion is GRANTED as to count two of her complaint.
B.

Count Four

Vivier argues that Ms. White’s invasion of privacy claim is inadequately pled.
(Doc. 7 at 7 (“Thus, Plaintiff apparently claims that Vivier Pharma committed three
of the four potential wrongs encompassed by the invasion of privacy tort. However,
there are no facts plead in her Complaint to support these assertions.”)). Ms. White
responds that Vivier improperly asks the court to make factual determinations in its

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favor in the context of Rule 12(b)(b) evaluation. (Doc. 9 at 7).
The court has studied both parties’ arguments, as well as Ms. White’s invasion
of privacy allegations set out in her Compliant. The court concludes that Ms. White
has alleged enough to survive a Rule 12(b)(6) challenge. In particular, just because
Ms. White “cites no cases supporting a finding of invasion of privacy under facts
similar to those in this case” (see Doc. 10 at 4), this omission does not establish that
she has failed to state a claim. Indeed, it is Vivier’s burden, as the movant, to
persuade this court that the facts asserted by Ms. White do not plausibly support an
invasion of privacy claim under Alabama law.
Additionally, the court believes that dismissing Ms. White’s invasion of
privacy claim on such an underdeveloped record would be premature and
inappropriate. In particular, none of the Supreme Court of Alabama authorities relied
upon by Vivier appears to have been decided on a Rule 12(b)(6) record. See, e.g.,
Hogin v. Cottingham, 533 So. 2d 525, 526 (Ala. 1988) (reviewing Rule 56 record);
Phillips v. Smalley Maint. Servs., Inc., 435 So. 2d 705, 706-07 (Ala. 1983) (answering
certified questions from the Eleventh Circuit Court of Appeals after jury had returned
verdict in favor of plaintiff on invasion of privacy claim at district court level); Rosen
v. Montgomery Surgical Ctr., 825 So. 2d 735, 736 (Ala. 2001) (reviewing Rule 56
record); McIsaac v. WZEW-FM Corp., 495 So. 2d 649, 649 (Ala. 1986) (reviewing
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Rule 56 record); Stevenson v. Precision Standard, Inc., 762 So. 2d 820, 821 (Ala.
1999) (reviewing jury verdict and trial record); Ex parte Birmingham News, Inc., 778
So. 2d 814, 815 (Ala. 2000) (reviewing jury verdict and trial record); Butler v. Town
of Argo, 871 So. 2d 1, 5 (Ala. 2003) (reviewing jury verdict and trial record);
Schifano v. Greene Cnty. Greyhound Park, Inc., 624 So. 2d 178, 179 (Ala. 1993)
(reviewing Rule 56 record).
Accordingly, Vivier’s Motion is DENIED with respect to count four.
C.

Count Three

Vivier contends that Ms. White’s claim for negligent and wanton hiring,
training, supervision, and retention is due to be dismissed “because she does not
plead, and cannot establish, an underlying Alabama state law tort upon which her
negligence claim is based.” (Doc. 7 at 4). In opposition, Ms. White does not dispute
Vivier’s characterization of a negligent hiring claim under Alabama law and instead
states that she “has pled the separate torts of the invasion of privacy and breach of
contract” in support of count three. (Doc. 9 at 7).
As analyzed above, while the court has dismissed Ms. White’s breach of
contract claim, it has denied the Motion with respect to her invasion of privacy claim.
Therefore, count three will also survive Vivier’s failure to state a claim challenge.
(Cf. Doc. 10 at 6 (“Plaintiff presumably may base her negligence claim on an alleged
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invasion of privacy, but, as set forth in Section B, she has failed to demonstrate that
any Vivier Pharma employee committed the invasion of privacy tort.”)).
However, because the substance of count three only incorporates Ms. White’s
breach of contract allegations (see Doc. 1 at 9 ¶ 39), the court will require Ms. White
to replead her complaint in a manner in which her negligent hiring claim incorporates
her invasion of privacy allegations.
IV.

Conclusion
Accordingly, for the reasons explained above, Vivier’s Motion is GRANTED

as to the dismissal of count two only, and is otherwise DENIED. Further, Ms. White
is HEREBY ORDERED to replead her complaint no later than April 30, 2012,
consistent with the above rulings.
DONE and ORDERED this the 19th day of April, 2012.

VIRGINIA EMERSON HOPKINS
United States District Judge

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