Litchhult v. Ustrive2, Inc.

Filing 16

ORDER granting 9 Motion to Dismiss. For the reasons stated in the attached Memorandum and Order, defendant's motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), is granted in its entirety. Plaintiff may file an Amended C omplaint within thirty days of receipt of this Memorandum and Order which, in addition to repeating her pending claims for retaliation and breach of contract, re-alleges her fraudulent inducement claim to specify why she believes the alleged statement was fraudulent. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/1/2011. (Nagiel, Svetlana)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
N o 10-CV-3311 (JFB) (ARL)
_____________________

MARY LITCHHULT,
Plaintiff,
VERSUS

USTRIVE2, INC.,
Defendant.

___________________
M EM ORANDUM AND ORDER
September 1, 2011
___________________

JOSEPH F. BIANCO , District Judge:
Plaintiff Mary Litchhult (“Litchhult” or
“plaintiff”) brings this action against
USTRIVE2, Inc. (“defendant” or
“USTRIVE2”) alleging employment
discrimination in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
et seq. (“Title VII”), and the New York State
Human Rights Law, N.Y. Exec. Law §§ 296
et seq. (“NYHRL”), as well as claims for
breach of contract, fraudulent inducement and
misrepresentation, breach of the covenant of
good faith and fair dealing, and intentional
infliction of emotional distress.
Defendant moves to dismiss some of
plaintiff’s claims pursuant to Rule 12(b)(6) of
the Federal Rules of Civil
Procedure—namely, the hostile work
environment claims, the fraudulent

inducement/misrepresentation claims, the
claim for breach of the covenant of good faith
and fair dealing, and the intentional infliction
of emotional distress claim.1
For the reasons set forth herein,
defendant’s motion is granted in its entirety,
but with leave to re-plead the fraudulent
inducement/misrepresentation claim.
Specifically, plaintiff’s hostile work
environment claim under Title VII and the
NYHRL must fail because it is based upon
one incident that, as a matter of law, cannot
(as alleged) state a plausible hostile work
environment claim. Plaintiff’s claim for
fraudulent inducement based on the stock

1

The claims for retaliation and breach of contract
are not the subject of the motion to dismiss and
will proceed.

option plan and her claim for breach of the
covenant of good faith and fair dealing are
dismissed as duplicative of her breach of
contract claim.
Plaintiff’s fraudulent
inducement/misrepresentation claim based on
statements regarding defendant’s financial
well-being was not pled with the requisite
specificity because it did not state why she
believed the statements to be false, but the
Court grants plaintiff leave to amend this
claim. Finally, plaintiff’s claim for intentional
infliction of emotional distress is dismissed as
time-barred.

lengthy process as would signing up retailers”
for defendant’s service. (Id. ¶ 9.)
On or about April 8, 2009, plaintiff
participated in a meeting with defendant’s
technical team. (Id. ¶ 34.) A member of that
team presented a slide defining the term
“Sprint” as “Engineer’s Menstrual Cycle.”
(Id. ¶¶ 35-36.) The same presenter described
an “engineer during a ‘sprint’ cycle to be
analogous to a woman during her menstrual
cycle in that they have three weeks in the
month when they are cranky and have only
five productive days a month.” (Id. ¶ 37.)
Plaintiff expressed her disapproval with the
slide at the meeting and also emailed
defendant’s HR contact about the offensive
slide. (Id. ¶¶ 38-39.) Plaintiff and another
female attendee of the meeting complained on
both April 8 and April 9, 2009. (Id. ¶ 41.)
Not all females attending the meeting
complained, however. (Id. ¶ 42.) Plaintiff
was terminated on April 24, 2009,
approximately two weeks after filing her
complaint with HR. (Id. ¶ 45.) The other
female co-worker who lodged a complaint
was also fired, while the female who attended
the meeting but did not file a complaint was
not let go. (Id. ¶¶ 47-48.)

I. BACKGROUND
A. Facts
The following facts are taken from the
Complaint and are not findings of fact by the
Court, but rather are assumed to be true for the
purpose of deciding this motion and are
construed in a light most favorable to plaintiff,
the non-moving party.
On September 15, 2008, defendant made
an offer of employment to plaintiff to work as
the Vice President of Multimedia Distribution
in New York. (Compl. ¶ 13.) Plaintiff
commenced her employment the same day,
and signed an employment agreement (the
“Agreement”) on September 30, 2008. (Id. ¶
19.)

B. Procedural History
Plaintiff filed the complaint on July 20,
2010. Defendant requested leave to file a
motion to dismiss on September 17, 2010. In
an Order dated September 20, 2010, this Court
waived the pre-motion conference
requirement and set a briefing schedule for
defendant’s motion. Defendant filed its
motion to dismiss on October 18, 2010.
Plaintiff filed her opposition on November 17,
2010. Defendant filed its reply on November

Prior to the offer and acceptance of
employment, defendant “advised plaintiff that
it had secured 54% of the $5,000,000.00 in
funding, with the balance to be obtained by
the end of September 2008.” (Id. ¶ 12.)
Plaintiff was aware prior to accepting and
signing her employment agreement that
obtaining license agreements and establishing
relationships with movie studios “would be a
2

29, 2010. The Court has fully considered the
submissions and arguments of the parties.

the reasonable inference that the defendant is
liable for the misconduct alleged. 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. at 1949 (internal
citations omitted) (quoting and citing
Twombly, 550 U.S. at 556–57).

II. STANDARD OF REVIEW
When the Court reviews a motion to
dismiss for failure to state a claim for which
relief can be granted, it must accept the factual
allegations set forth in the complaint as true
and draw all reasonable inferences in favor of
the plaintiff. See Cleveland v. Caplaw
Enters., 448 F.3d 518, 521 (2d Cir. 2006). “In
order to survive a motion to dismiss under
Rule 12(b)(6), a complaint must allege a
plausible set of facts sufficient ‘to raise a right
to relief above the speculative level.’”
Operating Local 649 Annuity Trust Fund v.
Smith Barney Fund Mgmt. LLC, 595 F.3d 86,
91 (2d Cir. 2010) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). This
standard does not require “heightened fact
pleading of specifics, but only enough facts to
state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570.

Where, as here, the plaintiff is proceeding
pro se, “[c]ourts are obliged to construe the
[plaintiff’s] pleadings . . . liberally.”
McCluskey v. N.Y. State Unified Court Sys.,
No. 10–CV–2144 (JFB)(ETB), 2010 U.S.
Dist. LEXIS 69835, at *8 (E.D.N.Y. June 17,
2010) (citing Sealed Plaintiff v. Sealed
Defendant, 537 F.3d 185, 191 (2d Cir. 2008)
and McEachin v. McGuinnis, 357 F.3d 197,
200 (2d Cir. 2004)). Nonetheless, even
though the Court construes a pro se complaint
liberally, the complaint must still “state a
claim to relief that is plausible on its face” to
survive a motion to dismiss. Mancuso v.
Hynes, 379 F. App’x 60, 61 (2d Cir. 2010)
(quoting Iqbal, 129 S.Ct. at 1949); see also
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)
(applying Twombly and Iqbal to pro se
complaint).

The Supreme Court recently clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth a two-pronged approach
for courts deciding a motion to dismiss. 129
S.Ct. 1937 (2009). The Court instructed
district courts to first “identify[ ] pleadings
that, because they are no more than
conclusions, are not entitled to the assumption
of truth.” Id. at 1950. Although “legal
conclusions can provide the framework of a
complaint, they must besupported by factual
allegations.” Id. Second, if a complaint
contains “well-pleaded factual allegations, a
court should assume their veracity and then
determine whether they plausibly give rise to
an entitlement to relief.” Id. “A claim has
facial plausibility when the plaintiff pleads
factual content that allows the court to draw

The Court notes that in adjudicating this
motion, it is entitled to consider: “(1) facts
alleged in the complaint and documents
attached to it or incorporated in it by
reference, (2) documents ‘integral’ to the
complaint and relied upon in it, even if not
attached or incorporated by reference, (3)
documents or information contained in
defendant's motion papers if plaintiff has
knowledge or possession of the material and
relied on it in framing the complaint, (4)
public disclosure documents required by law
to be, and that have been, filed with the
Securities and Exchange Commission, and (5)
3

facts of which judicial notice may properly be
taken under Rule 201 of the Federal Rules of
Evidence.” In re Merrill Lynch & Co., 273 F.
Supp. 2d 351, 356–57 (S.D.N.Y. 2003)
(internal citations omitted), aff’d in part and
vacated in part on other grounds sub nom.,
Dabit v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 395 F.3d 25 (2d Cir. 2005),
vacated on other grounds, 547 U.S. 71
(2006); see also Cortec Indus., Inc. v. Sum
Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991)
(“[T]he district court . . . could have viewed
[the documents] on the motion to dismiss
because there was undisputed notice to
plaintiffs of their contents and they were
integral to plaintiffs’ claim.”); Brodeur v. City
of New York, No. 04 Civ. 1859(JG), 2005 U.S.
Dist. LEXIS 10865, at *9-10 (E.D.N.Y. May
13, 2005) (court could consider documents
within the public domain on a Rule 12(b)(6)
motion to dismiss).

showing that his workplace was “permeated
with ‘discriminatory intimidation, ridicule,
and insult . . . that is sufficiently severe or
pervasive to alter the conditions of the
victim’s employment and create an abusive
working environment.’” Howley v. Town of
Stratford, 217 F.3d 141, 153 (2d Cir. 2000)
(quoting Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993)); accord Terry v. Ashcroft, 336
F.3d 128, 147-48 (2d Cir. 2003). “Isolated
instances of harassment ordinarily do not rise
to this level.” Cruz v. Coach Stores, Inc., 202
F.3d 560, 570 (2d Cir. 2000); Petrisch v. JP
Morgan Chase, --- F. Supp. 2d ---- , 2011 WL
167629, at *11 (S.D.N.Y. Jan. 11, 2011)
(same).
The conduct in question must be “severe
or pervasive enough to create an objectively
hostile or abusive work environment, and the
victim must also subjectively perceive that
environment to be abusive.” Feingold v. New
York, 366 F.3d 138, 150 (2d Cir. 2004)
(quotation marks omitted). In addition, a
plaintiff seeking to establish a hostile work
environment claim must demonstrate that “a
specific basis exists for imputing the
objectionable conduct to the employer.”
Alfano v. Costello, 294 F.3d 365, 373 (2d Cir.
2002) (quotation marks omitted). Other
factors to consider include “the frequency of
the discriminatory conduct; its severity;
whether it is physically threatening or
humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an
employee’s work performance.” Terry, 336
F.3d at 148. The Second Circuit has noted,
however, that “[w]hile the standard for
establishing a hostile work environment is
high, . . . . [t]he environment need not be
‘unendurable’ or ‘intolerable.’” Id. (quoting
Whidbee v. Garzarelli Food Specialties, Inc.,
223 F.3d 62, 70 (2d Cir. 2000)). Moreover,

III. DISCUSSION
A. The Hostile Work Environment
Claim
Defendants argue that the complaint fails
to state a plausible hostile work environment
claim under Title VII and the NYHRL because
the allegedly hostile conduct, even if true,
cannot support a hostile work environment
claim as a matter of law because it was not
sufficiently severe or pervasive. (Def.’s Mot.
at 6-9.) As set forth below, the Court agrees.
Although plaintiff correctly notes that a single
act can be severe enough under some
circumstances to create a hostile work
environment (Pl.’s Opp. at 8-9), that is not the
case here.
Under Title VII, a hostile work
environment is established by a plaintiff
4

although a hostile work environment generally
consists of “continuous and concerted”
conduct, “a single act can create a hostile
work environment if it in fact works a
transformation of the plaintiff’s workplace.”
Feingold, 366 F.3d at 150 (quotations marks
omitted).

occasion that plaintiff should retire because it
is time for him to go because of his age “by
themselves cannot as a matter of law
constitute a hostile work environment claim
because they cannot plausibly meet the
requisite threshold of severity or
pervasiveness. Nevertheless, in another
portion of his opposition brief, plaintiff's
counsel also points, in the alternative, to other
alleged incidents . . . .”). As a result, the
Court dismisses plaintiff’s claims based on
hostile work environment pursuant to Title
VII and the NYHRL.2

The standard under Title VII is applicable
to hostile work environment claims under the
NYHRL. See, e.g., Cruz, 202 F.3d at 565 n.
1; Collier v. Boymelgreen Developers, No. 06CV-5425 (SJ), 2007 WL 1452915, at *4
(E.D.N.Y. May 17, 2007) (“The Court’s
consideration of claims brought under
[NYHRL] [] parallels the analysis used for
Title VII claims.”).

B. Fraud
Defendant asserts that plaintiff’s fraud
claims are insufficiently pled.
In the
alternative, defendant argues that plaintiff
cannot properly rely on future events that may
or may not occur to plead fraud and that the
fraud claim is duplicative of plaintiff’s breach
of contract claim. In her complaint, plaintiff
alleges that defendant fraudulently induced
her into entering the Agreement by: (1)
causing her to sign the Agreement by
promising her stock options knowing that the
promise was false (Compl. ¶ 75; see also Pl.’s
Opp. at 12); and (2) by making allegedly false
misrepresentations about its “financial wellbeing” that also induced plaintiff into signing
the Agreement (Compl. ¶ 78; see also Pl.’s
Opp. at 12).3

Plaintiff solely alleges a single act, which
cannot be deemed to “transform” her
workplace environment. Plaintiff’s hostile
work environment claim is based entirely on
a slide and comment made at one meeting.
(See Pl.’s Opp. at 8-9.) During that meeting,
a member of defendant’s technical team
allegedly compared the term “sprint” to a
menstrual cycle. The team member allegedly
analogized that an engineer during a “sprint”
cycle is similar to a menstruating female in
that the engineer only has five productive days
out of the month and is cranky for three out of
four weeks. Although the slide and statement
by the team member are offensive, they do not
rise to the level of severity required under
Title VII and the NYHRL, as a matter of law.
See Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 116 (2002) (distinguishing
physically threatening or humiliating conduct
from that which is simply an offensive
utterance); Hemans v. Long Island Jewish
Med. Center, No. 10-CV-1158 (JFB), 2010
WL 4386692, at * 11 (E.D.N.Y. Oct. 28,
2010) (concluding that comments on one

2

There is no indication in plaintiff’s opposition
papers that there are any other alleged incidents to
support a hostile work environment claim, other
than the one referenced in the complaint.
However, if plaintiff wishes to allege additional
conduct, plaintiff can request leave to re-plead
this claim.

3

In her complaint, plaintiff separates these claims
into one for fraudulent misrepresentation, based

5

Fleet Bank, N.A., 459 F.3d 273, 291 (2d Cir.
2006) (quoting Kaufman v. Cohen, 760
N.Y.S.2d 157, 165 (N.Y. App. Div. 2003)).
The Second Circuit has also articulated a
“slightly different formulation” of the
elements of a fraud claim under New York
law which includes a showing of an intent to
defraud. See Lerner, 459 F.3d at 291 n. 8.
Those elements are:
“(1) a material
misrepresentation or omission of fact, (2)
made with knowledge of its falsity, (3) with an
intent to defraud, and (4) reasonable reliance
on the part of the plaintiff, (5) that causes
damages to the plaintiff.” Schlaifer Nance &
Co. v. Estate of Warhol, 119 F.3d 91, 98 (2d
Cir. 1997). Fed. R. Civ. P. 9(b) requires all
averments of fraud and the circumstances
constituting fraud to be stated with
particularity. “[I]n order to comply with Rule
9(b), ‘the complaint must: (1) specify the
statements that the plaintiff contends were
fraudulent, (2) identify the speaker, (3) state
where and when the statements were made,
and (4) explain why the statements were
fraudulent.’” Lerner, 459 F.3d at 290
(quoting Mills v. Polar Molecular Corp., 12
F.3d 1170, 1175 (2d Cir. 1993)). In addition,
“[a]lthough Rule 9(b) allows a plaintiff to
allege fraudulent intent generally, a plaintiff
must ‘allege facts that give rise to a strong
inference of fraudulent intent.’” Sibersky v.
Borah, Goldstein, Altschuler & Schwartz,
P.C., No. 99-CV-3227 (JGK), 2000 U.S. Dist.
LEXIS 14043, at *23 (S.D.N.Y. Sept. 22,
2000) (quoting Shields v. Citytrust Bancorp.,
Inc., 25 F.3d 1124, 1128 (2d Cir. 1994)).
“These requirements ensure that ‘a complaint
alleging fraud’ is filed ‘only after a wrong is
reasonably believed to have occurred,’ and
‘not to find one.’” Abercrombie v. Andrew
College, 438 F. Supp. 2d 243, 272 (S.D.N.Y.
2006) (quoting Segal v. Gordon, 467 F.2d
602, 607-08 (2d Cir. 1972)). “Where multiple

As set forth below, the Court rejects
defendant’s argument that plaintiff has failed
to allege (1) which statements were
fraudulent; (2) the identity of the speaker; and
(3) where and when the statements were
made. Plaintiff has adequately pled those
facts. Similarly, the Court is not persuaded by
defendant’s arguments that all of the alleged
misrepresentations relate to future events, and
that all of the fraud claims are duplicative of
the breach of contract claim. In particular, one
of the alleged misrepresentations relates to
present facts regarding the financial strength
of USTRIVE2 and, as the basis for a
fraudulent inducement claim, would not be
duplicative of the breach of contract claim.
However, the Court does agree with defendant
that the pleading is defective because it does
not allege why these alleged statements were
fraudulent. Thus, the motion to dismiss the
fraud claims is granted, but with leave to replead the fraudulent inducement claim to
correct this defect.
1. Legal Standard
“Under New York law, ‘to state a cause of
action for fraud, a plaintiff must allege a
representation of material fact, the falsity of
the representation, knowledge by the party
making the representation that it was false
when made, justifiable reliance by the
plaintiff and resulting injury.’” Lerner v.

on defendant’s financial well-being, and one for
fraudulent inducement, based on the stock option
plan offered to plaintiff. However, the Court will
consider both of these claims as different theories
for a fraudulent inducement claim because
plaintiff is arguing that the false
misrepresentations made by defendant about the
stock option plan and defendant’s finances
induced her into signing the Agreement.

6

defendants are asked to respond to allegations
of fraud, the complaint should inform each
defendant of the nature of his alleged
participation in the fraud.” DiVittorio v.
Equidyne Extractive Indus., Inc., 822 F.2d
1242, 1247 (2d Cir. 1987).

was made is a statement of present fact that
can be the basis of a fraudulent inducement
claim. See, e.g., Stewart v. Jackson & Nash,
976 F.2d 86, 89 (2d Cir. 1992) (defendant’s
statements “that it had recently secured a large
environmental law client and was in the
process of establishing an environmental law
department were not future promises but
representations of present fact.” (quotation
marks omitted)). Thus, dismissal on this
grounds is warranted.

2. Application
As a threshold matter, defendant argues
that plaintiff fails to adequately allege under
Rule 9(b) what statements were fraudulent,
the identity of the speaker, and where and
when the statements were made. The Court
disagrees. Plaintiff alleges, among other
things, that defendant’s president, Harlan
Lyons (“Lyons”), advised her that defendant
had obtained 54% of the $5,000,000 in
financing it was seeking. (Compl. ¶¶ 12, 19,
Ex. B (email from Harlan Lyons to Aaron
Knoll stating that the defendant was 54%
financed).)4 The statement was made “in or
around August and September 2008” when
plaintiff was participating in meetings with
defendant. (Id. ¶¶ 6-12; see also Pl.’s Opp. at
10.) Thus, the allegations in the complaint,
with the documents attached to the complaint,
are clearly sufficient to satisfy these
requirements of Rule 9(b).

In addition, contrary to defendant’s
contention, the Court concludes that this type
of fraudulent inducement claim is not
duplicative of the breach of contract claim
because this alleged fact regarding the
financial condition of defendant was collateral
to the contract and, therefore, involved an
alleged separate breach of duty from the
contract. See Merrill Lynch & Co., Inc. v.
Allegheny Energy, Inc., 500 F.3d 171, 184 (2d
Cir. 2007) (“‘[A] misrepresentation of present
facts is collateral to the contract (though it
may have induced the plaintiff to sign the
contract) and therefore involves a separate
breach of duty.’” (quoting First Bank of
Americas v. Motor Car Funding, Inc., 690
N.Y.S.2d 17, 21 (N.Y. App. Div. 1999));
accord Bridgestone/Firestone, Inc. v.
Recovery Credit Servs., Inc., 98 F.3d 13, 20
(2d Cir. 1996).
Thus, the fraudulent
inducement claim based upon collateral,
present facts at the time of the signing of the
contract regarding the financial strength of the
defendant is not duplicative of the breach of
contract claim.5

Similarly, the Court concludes that this
statement was not a representation of a future
event as defendant argues. (Def.’s Mot. at 1011.) In other words, an allegedly false
statement by the defendant that it obtained
54% of its financing at the time the statement

4

Defendant argues that plaintiff inappropriately
relies on this statement, which was made to Aaron
Knoll. (Def.’s Mot. at 10.) However, it is
apparent that in fact plaintiff alleges that she was
told the same thing about defendant being 54%
financed. (Compl. ¶ 12.)

5

However, the Court concludes that plaintiff
cannot maintain a fraudulent inducement claim
against defendant based on allegedly false
representations about the stock option plan
offered in the Agreement because those are

7

With respect to defendant’s remaining
argument under Rule 9(b), the Court agrees
that plaintiff has failed to properly allege why
she believed the alleged misrepresentation of
defendant’s finances was fraudulent at the
time of the signing of the contract. As noted
above, plaintiff alleges that defendant’s
president advised her that defendant had
obtained 54% of the $5,000,000 in financing
it was seeking. (Compl. ¶¶ 12, 19, Ex. B.)
However, nowhere in the complaint does
plaintiff explain why she believed that
defendant’s statement was fraudulent. As a
result, plaintiff has failed to plead fraudulent
inducement on this ground with sufficient
particularity. See, e.g., Rombach v. Chang,
355 F.3d 164, 172-75 (2d Cir. 2004) (“We
agree with the district court that the complaint
does not ‘state with particularity the specific
facts in support of [plaintiffs’] belief that
[defendants’] statements were false when

made,’ and therefore fails the tests of Rule
9(b),” further noting that “nothing in the
complaint explains with adequate specificity
how those statements were actually false or
misleading.”); Carvel v. Ross, No. 09 Civ.
0722 (LAK)(JCF), 2011 WL 856283, at *22
(S.D.N.Y. Feb. 16, 2011) (explaining that
plaintiff failed to plead fraud with sufficient
particularity because, among other reasons,
plaintiff “also has not explained why [the]
statement [at issue] was fraudulent”); City of
Omaha v. CBS Corp., No. 08 Civ. 10816
(PKC), 2010 WL 1029290, at *10 (S.D.N.Y.
Mar. 16, 2010) (“[P]laintiffs cannot rest on
their say-so in asserting that statements are
fraudulent; they must explain why.”
(quotation marks omitted) (collecting cases));
Wolf v. Wagner Spray Tech Corp., 715 F.
Supp. 503-04, 508 (S.D.N.Y. 1989)
(“Plaintiffs’ allegations of fraudulent
statements and omissions do not satisfy the
requirements of Rule 9(b) without a recitation
of the particular statements made, the reasons
why those statements were fraudulent and the
basis for this belief.”)

written into the agreement and, therefore, not
collateral to the agreement. Therefore, such a
fraud claim regarding the stock option plan is
duplicative of plaintiff’s breach of contract claim.
See, e.g., Powe v. Cambium Learning Co., No. 08
Civ. 1963 (JGK), 2009 WL 2001440, at *7
(S.D.N.Y. July 9, 2009) (“The gist of the
plaintiffs’ fraud claims is that the defendant never
intended to permit the exercise of the stock
options that it granted in the Employment
Agreements, which explicitly contemplated the
exercise of such options by providing for an
exercise price. . . . That is effectively the same as
the gist of the plaintiffs’ breach of contract
claims.” (citations omitted)); Dealtime.com Ltd. v.
McNulty, 123 F. Supp. 2d 750, 759-60 (S.D.N.Y.
2000) (“Neither the seven-year option period nor
the lack of any vesting requirement for the stock
options was collateral to the contract. In fact, both
went to the root of the agreement as reflected in
the letter agreement . . . which (a) sets forth the
seven-year stock option exercise period, and (b)
makes no mention of any vesting period.”).

However, the Court will grant plaintiff
leave to replead her fraudulent inducement
claim based on defendant’s statement
regarding its financial well-being. The Court
is mindful of plaintiff’s pro se status; the
Second Circuit has emphasized that “[a] pro
se complaint is to be read liberally. Certainly
the court should not dismiss without granting
leave to amend at least once when a liberal
reading of the complaint gives any indication
that a valid claim might be stated.” Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
Under Rule 15(a) of the Federal Rules of Civil
Procedure, a court “should freely give [leave
to amend] when justice so requires.” Fed. R.
Civ. P. 15(a). The Court concludes that leave
to replead is appropriate in this case because
8

this is the type of pleading defect which
plaintiff may be able to correct. See, e.g.,
Wolf, 715 F. Supp. at 508 (dismissing claim
based on fraudulent misrepresentations with
leave to replead).

good faith is duplicative of a cause of action
alleging breach of contract, since every
contract contains an implied covenant of good
faith and fair dealing.”).
D. Intentional Infliction of Emotional
Distress

C. Breach of Covenant of Good Faith &
Fair Dealing

Lastly, plaintiff’s claim for intentional
infliction of emotional distress is time-barred.
A one-year statute of limitations applies to
claims of intentional infliction of emotional
distress brought under New York law. See
N.Y. C.P.L.R. § 215(3); Balkanli v. City of
N.Y., No. 07-CV-2204 (NG), 2009 WL
1346736, at *2 (E.D.N.Y. May 14, 2009)
(“Claims of intentional infliction of emotional
distress, libel, and slander are subject to a
one-year statute of limitations under New
York law.”); Rock v. Mustich, No.
08-CV-4976 (CS)(PED), 2009 WL 2391776,
at *5 (S.D.N.Y. Aug. 3, 2009) (applying
one-year statute of limitations for intentional
infliction of emotional distress (citing
Gallagher v. Directors Guild of Am., Inc., 533
N.Y.S.2d 863 (1988)). The conduct alleged in
the complaint, and upon which this claim is
based, took place between August of 2008 and
April 24, 2009, when plaintiff was terminated.
(Compl. ¶¶ 6-45.) The complaint was filed on
July 20, 2010, clearly more than a year later.
Plaintiff’s claim for intentional infliction of
emotional distress is, therefore, dismissed as
untimely.

Plaintiff also alleges that defendant
breached the covenant of good faith and fair
dealing implied in every contract, including
the instant agreement. The claim rests entirely
on the alleged breaches of the contract at issue
in the breach of contract claim. Thus, the
claim for a breach of the covenant of good
faith and fair dealing is dismissed as
duplicative of plaintiff’s cause of action for a
breach of contract. See, e.g., Harris v.
Provident Life & Accident Ins. Co., 310 F.3d
73, 81 (2d Cir. 2002) (“New York law . . .
does not recognize a separate cause of action
for breach of the implied covenant of good
faith and fair dealing when a breach of
contract claim, based upon the same facts, is
also pled.”); TVT Records v. Island Def Jam
Music Grp., 244 F. Supp. 2d 263, 277
(S.D.N.Y. Feb 13, 2003) (“[A] claim for
breach of the covenant will be dismissed as
redundant where the conduct allegedly
violating the implied covenant is also the
predicate for breach . . . of an express
provision of the underlying contract.”); see
also Alter v. Bogoricin, No. 97 CV 0662
(MBM), 1997 WL 691332, at *7 (S.D.N.Y.
Nov. 06, 1997) (“[E]very court faced with a
complaint brought under New York law and
alleging both breach of contract and breach of
a covenant of good faith and fair dealing has
dismissed the latter claim as duplicative.”);
Apfel v. Prudential-Bache Sec., Inc., 583
N.Y.S.2d 386, 387 (N.Y. App. Div. 1992)
(“The cause of action alleging a breach of
9

IV. CONCLUSION
For the foregoing reasons, defendant’s
motion to dismiss, pursuant to Federal Rule of
Civil Procedure 12(b)(6), is granted in its
entirety. Plaintiff may file an Amended
Complaint within thirty days of receipt of this
Memorandum and Order which, in addition to
repeating her pending claims for retaliation
and breach of contract, re-alleges her
fraudulent inducement claim to specify why
she believes the alleged statement was
fraudulent.

SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: September 1, 2011
Central Islip, New York
***
Plaintiff Mary Litchhult is proceeding pro
se. The attorneys for the defendant are Robert
J. Anderson and James M. Woolsey, III, 120
Broadway, 27th Floor, New York, NY 10271.

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