Stewart et al v. Target Corporation et al
ORDER granting in part and denying in part 32 Motion for Judgment on the Pleadings; finding as moot 54 Motion to Withdraw -- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, third-party defendant Coca-Cola Refreshments US A, Inc.'s motion for judgment on the pleadings is granted to the extent that Count One of the Amended Third-Party Complaint is dismissed. The motion is otherwise denied in all respects. The court terminates Coca-Cola's motion to withdraw one of its arguments as moot and as it's withdrawal would not have impacted the court's ruling on the motion in any event. This action shall proceed under the pretrial supervision of the magistrate judge. SO ORDERED by Judge Dora Lizette Irizarry on 3/20/2013. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JERMAINE STEWART and JACQUELINE
TARGET CORPORATION, a/k/a TARGET
STORES and FUJITEC AMERICA, INC.,
COCA-COLA REFRESHMENTS USA, INC. :
f/k/a COCA-COLA-ENTERPRISES, INC.,
MEMORANDUM AND ORDER
DORA L. IRIZARRY, U.S. District Judge:
This action arises from personal injuries allegedly suffered by plaintiff Jermaine Stewart
(“Stewart” or “Plaintiff”) while delivering Coca-Cola products to a Target store located in
Queens, New York. Stewart and his spouse have asserted claims against Target Corporation
(“Target”) and Fujitec America, Inc. (“Fujitec”) for the incident. Target, in turn, has asserted
third-party claims against Coca-Cola Refreshments USA, Inc. (“Coca-Cola”).
Federal Rule of Civil Procedure 12(c), Coca-Cola moves for judgment on the pleadings and
seeks dismissal of Target’s Amended Third-Party Complaint. (Mem. of Law in Supp. of Mot.
for J. on the Pleadings (“Coca-Cola Mem.”), Docket Entry No. 35.) Target opposes the motion.
(Mem. of Law in Opp’n to Mot. for J. on the Pleadings (“Target Mem.”), Docket Entry No. 39.)
For the reasons set forth below, Coca-Cola’s motion is granted in part and denied in part.
The following facts are taken from Plaintiff’s Complaint and Target’s Amended ThirdParty Complaint, which are assumed to be true for the purposes of this motion. On December
21, 2009, Stewart was injured at a Target store located in the Elmhurst neighborhood of Queens,
New York when an overhead gate of a freight elevator struck him. (Compl. ¶¶ 6, 13, Docket
Entry No. 1; Am. Third-Party Compl. ¶¶ 6, 9, Docket Entry No. 17.) Stewart was delivering
Coca-Cola products to the Target store at the time of his injury. (Am. Third-Party Compl. ¶ 9.)
Fujitec maintained and controlled the elevator gate in question. (Compl. ¶ 8.)
On June 2, 2011, Plaintiff filed a complaint in the Supreme Court of the State of New
York, Queens County, asserting claims against Target and Fujitec for personal injuries suffered
from the incident. Target timely removed the action to this Court, and, on November 29, 2011,
Target filed the Amended Third-Party Complaint to assert third-party claims against Coca-Cola.
The January 2009 Agreement
Target asserts claims against Coca-Cola pursuant to a Conditions of Contract agreement
dated January 12, 2009 (the “January 2009 Agreement”) between Target, as “Purchaser,” and
Coca-Cola, as “Vendor.” (Decl. of Mitchell Levine (“Levine Decl.”) Ex. D, Docket Entry No.
36-4.) The January 2009 Agreement states that it “applies to and controls all agreements related
to the purchase of Goods by [Target] from [Coca-Cola]” and is “binding with respect to all
business conducted” between the companies.
(Levin Decl. Ex. D at 2 (emphasis added).)
Among other things, the January 2009 Agreement sets forth requirements with respect to the
issuance, acceptance, and validity of purchase orders, the time and manner for shipment and
inspection of Coca-Cola goods, the procedures for cancelling orders and shipments, and the
protocol for the disposition of rejected Coca-Cola goods. (Levin Decl. Ex. D at 2-10.)
The January 2009 Agreement also contains an indemnification clause, which provides, in
relevant part, as follows:
Vendor shall defend, indemnify and hold harmless Purchaser, its affiliates, and
their respective directors, officers, shareholders, employees, contractors and
agents (collectively, the “Purchaser Parties”) from and against any liabilities,
losses, investigations or inquiries, claims, suits, damages, costs and expenses
(including without limitation, reasonable attorneys’ fees and expenses (each a
“Claim”) arising out of or otherwise relating to the subject matter of the Contract,
including any claim or demand of any kind or nature, which any buyer or user of
Goods, or any other entity or person (including employees or agents of Vendor),
whether in privity to Purchaser or not, may make against any of the Purchaser
Parties, based upon or arising out of the manufacture, delivery, ticketing, labeling,
packaging, placement, promotion, sale, or use of Goods, Vendor’s performance or
failure to perform as required by the Contract, Vendor’s acts or omissions, or any
of Vendor’s representations or warranties contained in the Contract . . . .
(Levin Decl. Ex. D at 8.) In addition to the indemnification clause, the January 2009 Agreement
provides that Coca-Cola must “maintain in full force and effect minimum insurance,” defined to
include workers’ compensation and employer’s liability insurance, as well as commercial general
liability insurance that designates “‘Target Corporation and its subsidiaries’ as additional
insured, including with respect to third party claims or actions brought directly against [Target] .
. . and arising out of the Contract.” (Levin Decl. Ex. D at 9.)
The January 2009 Agreement was signed by Mario E. Garnier, a Coca-Cola account
executive for Coca-Cola’s west business unit. (Levin Decl. Ex. D at 18.) The signature page of
the January 2009 Agreement expressly provides that Garnier, as signatory, agrees that he: (1) is
the “Administrator” for Coca-Cola’s “Partner’s Online” account with Target; (2) has the
authority, as Administrator, to act on behalf of Cola-Cola; (3) is an employee of Coca-Cola and
not a representative of it; and (4) is authorized to sign the document on behalf of Coca-Cola.
The May 2009 Agreement
On May 29, 2009, approximately four months after the signing of the January 2009
Agreement, Coca-Cola sent Target a letter (the “May 2009 Agreement”) to confirm the terms of
a separate agreement between Coca-Cola and Target governing the advertising and marketing of
Coca-Cola products in Target stores. 1 (Answer, Ex. A at 1-6, Docket Entry No. 20-1.) The May
2009 Agreement states, among other things, that Target has agreed to make a core set of CocaCola products available at its stores, run a minimum number of advertisement circulars at its
stores, and place advertising displays and drink coolers in its stores featuring Coca-Cola
products. (Answer, Ex. A at 2-4.) Additionally, in exchange for advertising and placing CocaCola products, the May 2009 Agreement states that Target would receive advertising funding
and cooler placement fees. (Answer, Ex. A at 3-5.) Finally, the May 2009 Agreement further
states that it “constitute[s] the final, complete and exclusive written expression of the intentions
of the parties hereto with respect to the subject matter hereof and shall supersede all previous
communications, representations, agreements, promises or statements, either oral or written, by
or between either party concerning the activities described herein.” (Answer, Ex. A at 5.) The
May 2009 Agreement does not contain language requiring indemnification or procurement of
“After the pleadings are closed—but early enough not to delay trial—a party may move
for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “The same standard applicable to Fed. R.
Civ. P. 12(b)(6) motions to dismiss applies to Fed. R. Civ. P. 12(c) motions for judgment on the
The May 2009 Agreement was sent by Jason Eastman, a national account executive for CocaCola, to Dan Epley, a senior buyer for Target. (Answer, Ex. A.)
pleadings.” Bank of New York v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). To
determine whether dismissal pursuant to Rule 12(b)(6) is appropriate, “a court must accept as
true all [factual] allegations contained in a complaint” but need not accept “legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). For this reason, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice” to
insulate a claim against dismissal. Id. Moreover, “[t]o survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Id. (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,
the complaint . . . has not shown that the pleader is entitled to relief.” Id. at 679 (internal
citations and quotation marks omitted).
The January 2009 Agreement
Coca-Cola seeks dismissal of the third-party action by arguing that the January 2009
Agreement is not binding on the company. 2 Coca-Cola contends that the May 2009 Agreement,
which does not contain indemnification or insurance provisions, supersedes the January 2009
Agreement and the indemnification and insurance requirements contained therein. (Coca-Cola
The parties have cited to New York and Minnesota law throughout their motion papers and
make no objection to the application of the law of either jurisdiction. Thus, the Court deems the
parties to have implicitly consented to apply New York law for purposes of this motion. See,
e.g., Krumme v. WestPoint Stevens Inc., 238 F.3d 133, 138 (2d Cir. 2000) (“The parties’ briefs
assume that New York law controls, and such ‘implied consent . . . is sufficient to establish
choice of law.’”) (quoting Tehran–Berkeley Civil & Envtl. Eng’rs. v. Tippetts–Abbett–
McCarthy–Stratton, 888 F.2d 239, 242 (2d Cir. 1989)); Amusement Indus., Inc. v. Stern, 693 F.
Supp. 2d 327, 341 (S.D.N.Y. 2010) (applying New York law where plaintiff “cited to both New
York and California law,” but “made no objection to the application of New York law and [did]
not brief the choice of law question”).
Mem. at 6.) In the alternative, Coca-Cola argues that the January 2009 Agreement is not binding
because it was not signed by an authorized Coca-Cola representative. (Coca-Cola Mem. at 7.)
Both arguments are unavailing for the reasons detailed below.
As to supersession, “[u]nder New York law, [i]t is well established that a subsequent
contract regarding the same matter will supersede the prior contract.” Applied Energetics, Inc. v.
NewOak Capital Mkts., LLC, 645 F.3d 522, 526 (2d Cir. 2011) (internal quotations and citation
omitted). However, a subsequent contract not pertaining to the same subject matter will not
supersede an earlier contract “unless the subsequent contract has definitive language indicating it
revokes, cancels or supersedes that specific prior contract.” CreditSights, Inc. v. Ciasullo, 2007
WL 943352, at *6-9 (S.D.N.Y. Mar. 29, 2007) (finding earlier agreement was not superseded by
later agreements that did not involve same subject matter and served dissimilar purposes);
(internal quotations and citation omitted); Kreiss v. McCown De Leeuw & Co., 37 F. Supp. 2d
294, 301 (S.D.N.Y. 1999) (holding that later agreement, despite containing merger and
integration clause, “only supersede[d] prior agreements concerning the same subject matter”).
Here, under New York law, and by its express terms, 3 the May 2009 Agreement
supersedes only those prior agreements between Coca-Cola and Target that concern the same
subject matter. However, as Target notes in its opposition brief (and Coca-Cola does not refute
in its reply), the subject matter of the May 2009 Agreement concerns the marketing and
advertising of Coca-Cola products.
It sets forth requirements for advertisement displays,
marketing events, advertising funding, and placement fees. In contrast, the subject matter of the
(See Answer, Ex. A at 5 (“This [May 2009 Agreement] shall constitute the final, complete and
exclusive written expression of the intentions of the parties hereto with respect to the subject
matter hereof and shall supersede all previous communications, representations, agreements,
promises, or statements, either oral or written, by or between either party concerning the
activities described herein.”) (emphasis added).)
January 2009 Agreement concerns the purchase and delivery of Coca-Cola products. It sets
forth requirements for the delivery and acceptance purchase orders, timeliness of shipment,
cancellation of purchases, and disposition of rejected goods. As such, the May 2009 Agreement
is dissimilar to the January 2009 Agreement in subject matter and purpose and does not provide a
basis for dismissal of the third-party action.
As to authority to contract, “[u]nder New York law, an agent has actual authority if the
principal has granted the agent the power to enter into contracts on the principal’s behalf, subject
to whatever limitations the principal places on this power, either explicitly or implicitly.”
Highland Capital Mgmt LP v. Schneider, 607 F.3d 322, 327 (2d Cir. 2010). “Actual authority
‘may be express or implied,’ and in both cases ‘exists only where the agent may reasonably infer
from the words or conduct of the principal that the principal has consented to the agent’s
performance of a particular act.’” Themis Capital, LLC v. Democratic Republic of Congo, 2012
WL 3114732, at *4 (S.D.N.Y. July 26, 2012) (quoting Minskoff v. Am. Express Travel Related
Servs., 98 F.3d 703, 708 (2d Cir.1996)). “The question whether an agency relationship exists is
highly factual . . . and can turn on a number of factors . . . .” Cleveland v. Caplaw Enters., 448
F.3d 518, 522 (2d Cir.2006).
The Court finds that Target has pleaded facts sufficient to raise the reasonable inference
that Garnier, a Coca-Cola account executive and signatory to the January 2009 Agreement, had
authority to bind Coca-Cola. In particular, the signature page of the January 2009 Agreement,
signed by Garnier, states that Garnier agreed and certified that he: (1) has the authority, as an
account executive and administrator of Coca-Cola’s online account with Target, to act on behalf
of Cola-Cola; (2) is an employee of Coca-Cola and not a representative of it; and (3) is
authorized to sign the document on behalf of Coca-Cola. Coca-Cola nonetheless argues that
Garnier does not have actual authority to bind Coca-Cola to the January 2009 Agreement by
relying, in part, on an e-mail dated March 18, 2005, in which a representative of Coca-Cola
informed a representative of Target that “only an officer of [Coca-Cola] is authorized” to consent
to certain contractual obligations between the companies. (Coca-Cola Mem. at 2, 7; Aff. of Joel
Celestin, Ex. 1, Docket Entry No. 34.) However, the March 18, 2005 e-mail, at best, presents a
factual issue that cannot be resolved at the pleading stage in light of the other factual
allegations. 4 See Amusement Indus., Inc., 693 F. Supp. 2d at 345 (“New York courts have stated
broadly that [w]here the circumstances alleged in the pleading raise the possibility of a principalagent relationship, and no written authority for the agency is established, questions as to the
existence and scope of the agency are issues for the jury.”) (citations and internal quotations
Count One of the Amended Third-Party Complaint asserts a breach of contract claim, the
substance of which provides as follows: “[The January 2009 Agreement] was in full force and
effect on the day of Plaintiff’s alleged accident on December 21, 2009. [Coca-Cola] breached
said Contract. As a direct and proximate result of said breach, [Target] has been damaged.”
(Am. Third-Party Compl. ¶¶ 15-17 (paragraph numbers omitted).) Coca-Cola seeks dismissal of
Count One of the Amended Third-Party Complaint because it alleges a breach of contract, but
fails to identify the purported breach with specificity. (Coca-Cola Mem. at 16.) According to
In arguing that Garnier does not have actual authority to bind Coca-Cola to the January 2009
Agreement, Coca-Cola also relies on factual affidavits it prepared and filed in connection with
this motion. The Court declines to consider the affidavits at this juncture, as a motion for
judgment on the pleadings “focuses on the pleadings themselves, and not on matters outside of
the pleadings such as affidavits.” Air China Ltd. v. Nelson Li, 2009 WL 857611, at *6 n.7
(S.D.N.Y. Mar. 31, 2009) (internal quotations and citation omitted).
Coca-Cola, to the extent that Count One asserts a breach of contract claim for failure to procure
insurance, indemnify, or defend, it is duplicative of Counts Two and Three, 5 which already cover
those claims. (Id.)
The Court finds that Count One, as pled, is conclusory, incomplete, and otherwise
duplicative of the remaining counts in the Amended Third-Party Complaint. See Paul v. Bank of
Am. Corp., 2011 WL 684083, at *5 (E.D.N.Y. Feb. 16, 2011) (“In a fatal flaw, [plaintiff’s]
complaint fails to identify the specific contractual provision or provisions in the cardholder
agreement allegedly breached by defendants and, as a result, the claims must be dismissed.”)
Dismissal is also warranted in light of Target’s failure to specifically address this argument in its
opposition papers. See Harborview Value Masterfund, L.P. v. Freeline, 2012 WL 612358, at
*14 (S.D.N.Y. Feb. 23, 2012) (“This Court may, and generally will, deem a claim abandoned
when a plaintiff fails to respond to a defendant’s arguments that the claim should be dismissed.”)
(citation and internal quotations omitted). Accordingly, Count One of the Amended Third-Party
Complaint is dismissed.
Coca-Cola raises two additional arguments, which the Court finds premature and declines
to consider at this stage. First, Coca-Cola argues that it has no duty to indemnify or defend under
the January 2009 Agreement because Stewart’s injuries arise “out of Target’s own negligence in
the ownership, maintenance, control and possession of the subject elevator gate.” (Coca-Cola
Mem. at 7-14.) Second, Coca-Cola claims that Stewart’s accident is “not based upon or arising
out of [his] delivery of goods” to Target’s store, and, therefore, it is outside of the scope of the
Count Two asserts a claim on the basis that Coca-Cola is obligated “to defend, indemnify and
hold harmless [Target].” (Am. Third-Party Compl. ¶ 23.) Count Three asserts a claim on the
basis that Coca-Cola has failed to meet its obligation to “procure liability insurance naming
[Target], among others, as additional insured.” (Am. Third-Party Compl. ¶ 26.)
January 2009 Agreement. (Coca-Cola Mem. at 14-15.) However, the parties are still engaged in
discovery, and there has been no factual showing or finding as to the negligence of the corporate
parties or the circumstances of the accident. Accordingly, the Court declines to address these
remaining arguments because they depend on facts and evidence outside of the pleadings. See
U.S. Underwriters Ins. Co. v. LCRF Enters., LLC, 2012 WL 993502, at *4 (S.D.N.Y. Mar. 26,
2012) (“Because the evidence on this issue is conflicting and discovery has not been completed,
it is premature at this time for this Court to determine whether the exclusions set forth in the
insurance agreement relieve plaintiff of its duty to defend or indemnify defendant.”); Am. Auto.
Ins. Co. v. Sec. Income Planners & Co., 847 F. Supp. 2d 454, 464 (E.D.N.Y. 2012) (“It is
premature for the Court to determine whether or not [the insurer] has a duty to indemnify . . .
because the issue of indemnification necessarily depends on facts that will be decided in the
underlying state action.”).
Finally, the Court notes that Plaintiff has submitted a brief in response to Coca-Cola’s
motion in which Plaintiff requests leave to move to sever the Amended Third-Party Complaint,
or, alternatively, to expedite discovery in the third-party action and bifurcate an expedited trial
on the third-party claims. (Docket Entry No. 43.) Since filing this request, however, Plaintiff,
along with Target, Coca-Cola, and Fujitec, have attended two status conferences with the
magistrate judge and agreed to a joint case management plan. (See October 11, 2012 Minute
Entry; January 9, 2013 Minute Entry; Amended Case Management Order, Docket Entry No. 53.)
For this reason, the Court sees no reason to disturb the Amended Case Management Order at this
time and denies Plaintiff’s request without prejudice.
For the reasons stated above, Coca-Cola’s motion for judgment on the pleadings is
granted to the extent that Count One of the Amended Third-Party Complaint is dismissed. The
motion is otherwise denied in all respects.
Dated: Brooklyn, New York
March 20, 2013
DORA L. IRIZARRY
United States District Judge
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