Cupples v. Valic Financial Advisors, Inc.
Filing
24
MEMORANDUM & ORDER granting 18 Motion to Dismiss; For the following reasons, Defendant's motion to dismiss is GRANTED and Plaintiff's claims are DISMISSED WITHOUT PREJUDICE. The Clerk of the Court is directed to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 9/18/2014. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
ANDREA HANLIN CUPPLES,
Plaintiff,
MEMORANDUM & ORDER
13-CV-4501(JS)(AKT)
-againstVALIC FINANCIAL ADVISORS, INC.,
Defendant.
----------------------------------------X
APPEARANCES
For Plaintiff:
Rick Ostrove, Esq.
Brett R. Cohen, Esq.
Leeds Brown Law, P.C.
One Old Country Road, Suite 347
Carle Place, NY 11514
For Defendant:
Robert D. Lipman, Esq.
David A. Robins, Esq.
Lipman & Plesur, LLP
500 North Broadway, Suite 105
Jericho, NY 11753-2131
SEYBERT, District Judge:
Currently pending before the Court is defendant Valic
Financial
Advisors,
Inc.’s
(“Defendant”)
motion
to
dismiss
plaintiff Andrea Hanlin Cupples’ (“Plaintiff”) Complaint.
For
the following reasons, Defendant’s motion is GRANTED.
BACKGROUND1
Plaintiff worked for Defendant as a Financial Advisor.
(Compl. ¶ 9.)
Prior to her employment with Defendant, Plaintiff
had
charge
filed
a
with
the
Equal
Employment
Opportunity
The following facts are primarily taken from Plaintiff’s
Complaint. Some additional facts have been taken from the
parties’ submissions pursuant to Rule 12(b)(1).
1
Commission
sexual
(“EEOC”)
alleging
harassment,
age
hostile
and
work
gender
discrimination,
environment,
and
wrongful
termination against her former employer--Citistreet--and several
employees, including Don Goldstein (“Goldstein”).
(Compl. ¶ 8.)
Plaintiff apparently left Citistreet and engaged in
discussions to work for Defendant.
June
8,
2005,
Securities
Plaintiff
Industry
According to Defendant, on
signed
Regulation
a
or
Uniform
Application
Transfer
(Lipman Decl., Docket Entry 20, Ex. A.)
(“Form
for
U-4”).
The Form U-4 contains
an arbitration clause, which states in pertinent part:
I agree to arbitrate any dispute, claim or
controversy that may arise between me and my
firm, or a customer or any other person,
that is required to be arbitrated under the
rules, constitutions, or by-laws of the SROs
indicated in Section 4 . . . as may be
amended from time to time and that any
arbitration award rendered against me may be
entered as a judgment in any court of
competent jurisdiction.
(Lipman Decl. Ex. A at 32 (emphases in original).)
Plaintiff
also
Agreement
(“Agreement”)
effective
on
Defendant
did
June
not
13,
sign
signed
with
(Lipman Decl. Ex. B at 13.)
arbitration
provision
Registered
Defendant
2005.
the
a
on
Representative
April
(Lipman
Decl.
Ex.
Agreement
until
July
28,
B
2005,
at
12,
13.)
2005.
The Agreement contains a mandatory
(Paragraph
11(a))
and
an
optional
Page numbers refer to those provided by the Electronic Case
Filing System.
2
2
arbitration provision (Paragraph 11(b)(2)).
Paragraph 11(a),
titled “Disputes between Registered Representative and BrokerDealer,” states:
Disputes arising from or under the terms of
this
Agreement
between
Registered
Representative and Broker-Dealer shall be
resolved in accordance with the NASD’s Code
of Arbitration Procedures. 3 Should the NASD
decline
jurisdiction
over
any
dispute
between
Registered
Representative
and
Broker-Dealer, or should any dispute not be
eligible for submission to the NASD under
its Code of Arbitration Procedures, such
dispute shall be resolved under subparagraph
11.b., below.
(Lipman Decl. Ex. B at 11.)
Disputes.”
Paragraph 11(b) is titled “Other
Subsection (b)(1) states:
All other disputes arising from or under the
terms of this Agreement, including, without
limitation, all disputes with any Affiliated
Company and/or Protected Company that is not
a member of the NASD shall be resolved in a
court of competent jurisdiction.
(Lipman
Decl.
Ex.
B
at
11.)
Subsection
(b)(2)
allows
for
parties to mutually agree to arbitration for certain disputes.
It states in relevant part:
Notwithstanding the provisions of paragraph
b.(1), Registered Representative and Broker
Dealer,
any
Affiliated
Company
or
any
Protected Company (or combination thereof)
may mutually agree that any dispute under
this subparagraph b., whether raised by
Broker-Dealer,
a
Protected
Company,
The Financial Industry Regulatory Authority, Inc. (“FINRA”) has
since succeeded National Association of Securities Dealers
(“NASD”).
3
3
Affiliated
Company
or
Registered
Representative,
shall
be
submitted
to
binding
arbitration,
including,
without
limitation,
claims
of
employment
discrimination pursuant to federal, state,
or local discrimination laws.
(Lipman Decl. Ex. B at 11.)
Plaintiff
and
Defendant
continued
with
their
employment agreement for a period of time, seemingly without
incident.
On January 26, 2006, however, Plaintiff learned that
Defendant had hired Goldstein as her direct supervisor.
¶¶ 10-11.)
the
(Compl.
Eventually, Goldstein and/or Defendant hired all of
individuals
that
Plaintiff
charge regarding Citistreet.
had
named
in
her
prior
(See generally Compl.)
EEOC
Plaintiff
complained on several occasions, and on April 30, 2010, she
filed a charge with the EEOC alleging retaliation in connection
with events surrounding Goldstein and Defendant’s limitation of
Plaintiff’s
Defendant
territory.
interviewed
(Compl. ¶ 33.)
(Compl.
Plaintiff
¶
30.)
regarding
On
May
her
14,
EEOC
2010,
charge.
On June 30, 2010, her employment was terminated.
(Compl. ¶ 34.)
Plaintiff now alleges a single claim for retaliation
pursuant
to
Title
VII
of
the
Civil
Rights
Act
amended, 42 U.S.C. § 2000e et seq. (“Title VII”).
4
of
1964,
as
DISCUSSION
Defendant seeks dismissal of the Complaint pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) as well
as the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”).
The
Court
will
first
address
the
applicable
legal
standards
before turning to Defendant’s motion specifically.
I.
Legal Standards
A. Rule 12(b)(1)
“A
case
is
properly
dismissed
for
lack
of
subject
matter jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
resolving
a
motion
jurisdiction,
materials
to
the
Court
beyond
questions.
the
dismiss
may
for
lack
consider
pleadings
to
of
subject
affidavits
resolve
In
matter
and
other
jurisdictional
See Morrison v. Nat’l Australia Bank, Ltd., 547 F.3d
167, 170 (2d Cir. 2008).
The Court must accept as true the
factual allegations contained in the complaint, but it will not
draw
argumentative
inferences
in
favor
of
Plaintiffs
because
subject matter jurisdiction must be shown affirmatively.
See
id.; Atlanta Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd., 968
F.2d 196, 198 (2d Cir. 1992); Shipping Fin. Servs. Corp. v.
Drakos,
140
F.3d
129,
131
(2d
Cir.
1998).
“A
plaintiff
asserting subject matter jurisdiction has the burden of proving
5
by a preponderance of the evidence that it exists.”
Makarova,
201 F.3d at 113.
B. Arbitration
Insofar as Defendant seeks dismissal pursuant to Rule
12(b)(6),
the
arbitration.
Court
considers
the
motion
one
to
compel
See Wabtec Corp. v. Faiveley Trans. Malmo AB, 525
F.3d 135, 140 (2d Cir. 2008) (holding that a motion to dismiss
may be construed as a motion to compel arbitration); 75-07 Food
Corp. v. Trs. of United Food & Commercial Workers Local 342
Health
Care
(E.D.N.Y.
Fund,
Feb.
24,
No.
13-CV-5861,
2014)
(“‘[F]or
2014
WL
purposes
691653,
of
at
deciding
*4
the
instant motion, the Court will do as a number of other courts
have done and construe the Respondent’s motion to dismiss as a
motion to compel arbitration.’” (quoting Jillian Mech. Corp. v.
United Serv. Workers Union Local 355, 882 F. Supp. 2d 358, 363
(E.D.N.Y. 2012)).
In the context of a motion to compel arbitration under
the
FAA,
applicable
the
for
Court
a
“applies
motion
for
a
standard
summary
Federal Rule of Civil Procedure 56.
similar
judgment”
to
pursuant
that
to
Bensadoun v. Jobe-Riat, 316
F.3d 171, 175 (2d Cir. 2003); see Brown v. St. Paul Travelers
Cos., 559 F. Supp. 2d. 288, 291 (W.D.N.Y. 2008) (“[T]he summary
judgment standard is appropriate in cases where the District
Court is required to determine arbitrability, regardless of how
6
the party that favors arbitration styles its motion.” (internal
quotation marks and citations omitted)), aff’d 331 F. App’x 68
(2d Cir. 2009).
“If there is an issue of fact as to the making
of the agreement for arbitration, then a trial is necessary.”
Bensadoun, 316 F.3d at 175 (citing 9 U.S.C. § 4).
Granting
summary
judgment
is
appropriate
when
“the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a); see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91
L. Ed. 2d 265 (1986).
“In assessing the record to determine
whether there is a genuine issue to be tried as to any material
fact, the court is required to resolve all ambiguities and draw
all permissible factual inferences in favor of the party against
whom summary judgment is sought.”
McLee v. Chrysler Corp., 109
F.3d 130, 134 (2d Cir. 1997).
“The
burden
of
showing
the
absence
of
any
genuine
dispute as to a material fact rests on the party seeking summary
judgment.”
Id.; see also Adickes v. S.H. Kress & Co., 398 U.S.
144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Jillian Mech.
Corp.,
882
F.
Supp.
2d
at
364
(“On
a
motion
to
compel
arbitration, the moving party has the initial burden of showing
that an agreement to arbitrate exists.”).
7
A genuine factual
issue exists if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
U.S. at 248.
Anderson, 477
To defeat summary judgment, “the non-movant must
‘set forth specific facts showing that there is a genuine issue
for trial.’”
Cir.
2000)
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d
(quoting
Anderson,
477
U.S.
at
256).
“[M]ere
speculation or conjecture as to the true nature of the facts”
will not overcome a motion for summary judgment.
Knight v. U.S.
Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986); see also Williams
v. Smith, 781 F.2d 319, 323 (2d Cir. 1986) (“Mere conclusory
allegations or denials will not suffice.” (citation omitted));
Weinstock, 224 F.3d at 41 (“[U]nsupported allegations do not
create a material issue of fact.”).
II. Defendant’s Motion
Defendant asserts that Plaintiff’s Complaint should be
dismissed for three reasons: (1) Plaintiff signed the Form U-4
agreeing to mandatory arbitration of the dispute in question;
(2)
Plaintiff
also
signed
the
Agreement
requiring
mandatory
arbitration; and (3) the arbitration language makes clear that
the
issue
of
arbitrability
is
for
arbitrators to decide and not the Court.
each issue in turn.
8
the
NASD
(now
FINRA)
The Court will address
A. The Form U-4
As
noted,
Defendant
maintains
that
the
Form
U-4
governs, which provides, inter alia, that Plaintiff agrees to
arbitrate any dispute, claim or controversy between herself and
Defendant that is required to be arbitrated.
(See Lipman Decl.
Ex. A at 3; supra p. 2.)
Plaintiff counters that the Agreement
superseded the Form U-4.
The Court finds that both contracts
apply.
New
York
law
governs
the
issue
of
“[w]hether
an
arbitration agreement between a broker-dealer and a registered
representative
between
the
may
supersede
registered
a
prior
representative
Organization (SRO)] . . . .”
arbitration
and
[a
agreement
Self-Regulating
Credit Suisse First Boston Corp. v
Pitofsky, 4 N.Y.3d 149, 154, 824 N.E.2d 929, 791 N.Y.S.2d 489
(2005); see Doctor’s Assocs. v. Casarotto, 517 U.S. 681, 686-87,
116 S. Ct. 1652, 1656 (1996) (“[T]he text of § 2 [of the FAA]
declares that state law may be applied if that law arose to
govern
issues
enforceability
concerning
of
contracts
the
validity,
generally.”
revocability,
and
(internal
quotation
marks and citations omitted) (emphasis in original)).
Under New
York law, it is recognized that a later contract “regarding the
same subject matter supersedes the prior contract.”
Kreiss v.
McCown De Leeus & Co., 37 F. Supp. 2d 294, 301 (S.D.N.Y. 1999)
(internal quotation marks and citation omitted).
9
Specifically,
“an
arbitration
registered
. . . .”
agreement
representative
between
may
a
modify
broker-dealer
a
Form
U-4
and
a
agreement
Credit Suisse First Boston Corp., 4 N.Y.3d at 155, 824
N.E.2d 929, 791 N.Y.S.2d 489.
Here, the Agreement is subsequent to the Form U-4.
However,
there
is
no
need
to
decide
whether
the
Agreement
supersedes the Form U-4 because the contracts do not conflict
with one another.
See Bailey v. Chase Sec., Inc., No. 01-CV-
7222, 2002 WL 826816, at *3 (S.D.N.Y. May 1, 2002) (finding that
the
contracts
contain[ed]
disputes
an
did
not
conflict
agreement
between
to
plaintiff
where
arbitrate
and
Chase,
the
all
“employment
notice
employment-related
whereas
the
U-4
form
contains an agreement to arbitrate only those disputes that are
required to be arbitrated under the amended NASD Code” (emphasis
omitted)); Chanchani v. Salomon/Smith Barney, Inc., No. 99-CV9219, 2001 WL 204214, at *5 (S.D.N.Y. Mar. 1, 2001) (“[T]he
Court can give effect to both agreements because there is no
conflict between the two--the terms of the U-4s and the NYSE
rules in no way prohibit member organizations from entering into
separate,
private
employees.”).
arbitration
agreements
with
their
The Agreement simply narrows slightly the scope
of the arbitration clause in the Form U-4.
See Bailey, 2002 WL
826816, at *3 (“The fact that the U-4 agreement covers a smaller
10
subset
of
disputes
than
the
employment
notice
does
not
necessarily mean that the two agreements are in conflict.”).
In any event, since the Agreement is the later and
more tailored of the two contracts, the Court will center its
focus on the arbitration provisions contained therein.
B. The Agreement
Defendant
maintains
that
this
action
should
be
dismissed because the Agreement contains a mandatory arbitration
provision, Paragraph 11(a), which governs.
argues
that
Paragraph
Paragraph
relevant.
11(b),
11(a)
Plaintiff primarily
does
for
providing
not
apply
optional
and
that
only
arbitration,
is
The Court agrees with Defendant in this regard.
“[A] party cannot be required to submit to arbitration
any dispute which he has not agreed so to submit.”
AT&T Techs.
v. Commc’ns. Workers of Am., 475 U.S. 643, 648, 106 S. Ct. 1415,
1418, 89 L. Ed. 2d 648 (1986) (internal quotation marks and
citation omitted).
“Unless the parties clearly and unmistakably
provide otherwise, the question of whether the parties agreed to
arbitrate is to be decided by the court, not the arbitrator.”
Id. at 649, 106 S. Ct. at 1418, 89 L. Ed. 2d 648; see also BG
Group PLC v. Republic of Arg., 134 S. Ct. 1198, 1206 (2014)
(“[C]ourts
arbitrators,
presume
to
that
decide
‘arbitrability.’”);
the
what
parties
we
PaineWebber
have
Inc.
11
v.
intend
called
Bybyk,
courts,
disputes
81
F.3d
not
about
1193,
1198 (2d Cir. 1996) (“Where the arbitration agreement contains
an
ambiguity
as
to
who
determines
eligibility,
the
[FAA’s]
presumption favoring arbitration is reversed so that the court
will ordinarily decide the question.” (emphasis in original)).
To overcome this presumption it must be shown that the parties
had
a
clear
and
unmistakable
intent
arbitrability to the arbitrators.
to
submit
issues
of
See Contec Corp. v. Remote
Solution, Co., Ltd., 398 F.3d 205, 208 (2d Cir. 2005) (quoting
Bell v. Cendant Corp., 293 F.3d 563, 566 (2d Cir. 2002)).
Here, Paragraph 11(a) provides that relevant disputes
“shall
be
resolved
in
Arbitration Procedures.”
accordance
with
the
NASD’s
(Lipman Decl. Ex. B at 11.)
Code
of
It then
goes on to provide a procedure if the NASD declines jurisdiction
or
the
dispute
“[W]hen,
as
is
here,
not
eligible
parties
for
explicitly
submission
to
incorporate
the
NASD.
rules
that
empower an arbitrator to decide issues of arbitrability, the
incorporation serves as clear and unmistakable evidence of the
parties’
intent
to
delegate
such
Contec, Corp., 398 F.3d at 208.
issues
to
an
arbitrator.”
Thus, the explicit inclusion of
the NASD’s Code of Arbitration Procedures clearly demonstrates
intent to arbitrate.
See Laumann v. Nat’l Hockey League, 989 F.
Supp.
(S.D.N.Y.
2d
329,
337
2013)
(finding
an
intent
to
arbitrate where the arbitration clause incorporated by reference
the rules of the American Arbitration Association).
12
Moreover,
the
parties
dispute
not
only
who
should
decide arbitrability, but whether the issue herein falls within
the
scope
Paragraph
11(a)
and
that
provides
of
Paragraph
11(a)
the
does
Agreement.
not
apply
Plaintiff
because
it
is
limited to “[d]isputes arising from or under the terms” of the
Agreement,
and
the
Agreement
retaliation provision.4
does
not
contain
an
anti-
(Pl.’s Opp. Br., Docket Entry 22, at 3.)
The FAA “expresses a liberal federal policy favoring
arbitration agreements and . . . any doubts concerning the scope
of
arbitrable
issues
should
be
resolved
in
favor
of
arbitration.”
Louis Dreyfus Negoce S.A. v. Blystad Shipping &
Trading
252
Inc.,
F.3d
218,
223
(2d
quotation marks and citation omitted).
Cir.
2001)
(internal
The Second Circuit has
set out a three-part test in determining whether a dispute falls
within the scope of an arbitration clause.
determine
Second,
if
if
the
the
clause
clause
is
is
broad
narrow,
or
“the
First, a court must
narrow.
court
Id.
must
at
224.
determine
whether the dispute is over an issue that is on its face within
the purview of the clause, or over a collateral issue that is
Plaintiff instead argues that Paragraph 11(b), which contains
an optional arbitration clause, applies. Contrary to
Plaintiff’s assertion, however, the Court cannot look to the
provisions of Paragraph 11(b). Paragraph 11(a) makes clear that
subparagraph b applies only if: (1) FINRA were to decline
jurisdiction over the dispute; or (2) if the dispute is
ineligible for submission to FINRA. Thus, until such instances
occur, Paragraph 11(b) does not come into play.
4
13
somehow
connected
to
arbitration clause.”
omitted).
Third,
presumption
of
the
main
if
matter
implicates
issues
that
contains
the
Id. (internal quotation marks and citation
the
clause
arbitrability
collateral
agreement
will
of
be
is
and
rights and obligations under it.”
“there
arbitration
ordered
contract
broad,
if
the
construction
of
arises
a
even
a
of
claim
the
alleged
parties’
Id. (internal quotation marks
and citation omitted).
The
Court
finds
Paragraph 11(a) is broad.
that
the
arbitration
clause
in
It allows for arbitration of all
“[d]isputes arising from or under the terms of this Agreement
between Registered Representative and Broker-Dealer . . . .”
(Lipman Decl. Ex. B at 11.)
This “evidences the parties’ intent
to have arbitration serve as the primary recourse for disputes
connected to the agreement . . . .”
252 F.3d at 225.
Louis Dreyfus Negoce S.A.,
In fact, courts have consistently held that
language such as “arising from” an agreement exemplifies a broad
arbitration clause.
See id. at 225-26; see also Ferrari N. Am.,
Inc. v. Ogner Motor Cars, Inc., No. 02-CV-7720, 2003 WL 102839
*3
(S.D.N.Y.
arbitration
Jan.
9,
provision’
2003)
is
one
(“‘[T]he
that
makes
prototypical
broad
arbitrable
‘[a]ny
dispute, controversy or claim arising under or in connection
with [an agreement].’” (quoting Oldroyd v. Elmira Sav. Bank,
FSB, 134 F.3d 72, 76 (2d Cir. 1998) (alterations in original));
14
In re Winimo Realty Corp., 276 B.R. 334, 338 (Bankr. S.D.N.Y.
2001)
(describing
a
similar
clause
as
“classically
broad”
(internal quotation marks and citation omitted)).
Thus, the arbitration clause here is broad and the
presumption of arbitrability applies.
presumption
party
of
arbitrability,
resisting
arbitration
and
to
the
Accordingly, “there is a
burden
demonstrate
issue is collateral’ to the [Agreement].”
shifts
that
the
to
‘the
disputed
In re Winimo Realty
Corp., 276 B.R. at 338 (quoting Prudential Lines, Inc. v. Exxon
Corp., 704 F.2d 59, 64 (2d Cir. 1983)).
“But even if the
disputed issue is collateral, the matter will be arbitrated if
it ‘implicate[s] issues of contract construction or the parties’
rights and obligations under’ the [Agreement].”
Id. (quoting
Louis Dreyfus Negoce, S.A., 252 F.3d at 228-29 (alterations in
original)).
In other words, “[a]ny legal claims that ‘touch
matters’ covered by an agreement containing a broad clause ‘must
be arbitrated.’”
Etransmedia Tech., Inc. v. Nephrology Assocs.,
P.C., No. 11-CV-1042, 2012 WL 3544805, at *6 (N.D.N.Y. Aug. 16,
2012) (quoting Paramedics Electromedicina Comercial, Ltda. v. GE
Med. Sys. Info. Techs., Inc., 369 F.3d 645, 654 (2d Cir. 2004).
“In
deciding
agreement,
a
whether
court
a
must
claim
touches
‘focus
on
matters
the
covered
allegations
by
in
an
the
complaint rather than the legal causes of action asserted.’”
15
Id. (quoting Collins & Aikman Prods. Co. v. Building Sys., Inc.,
58 F.3d 16, 23 (2d Cir. 1995)).
The allegations in Plaintiff’s Complaint pertain to
alleged retaliatory actions, particularly including limitation
of Plaintiff’s territory.
such
as
Plaintiff’s
The Agreement itself covers issues
employment
status
generally Lipman Decl. Ex. B.)
overcome
the
presumption.
and
territory.
(See
Moreover, Plaintiff has not
Although
the
Agreement
does
not
explicitly cover retaliation or discrimination, Plaintiff has
not pointed to any other separate arrangement on such issues.
Finally, the Court can find no cases suggesting that
Congress intended these claims to be nonarbitrable, nor is there
any
merit
to
Plaintiff’s
argument
that
the
provisions
of
Paragraph 11(a) terminated upon the termination of Plaintiff’s
employment.
(See Pl.’s Opp. Br. at 6.)
Certainly, Plaintiff is
correct that the Agreement states that “[u]pon termination of
the employment relationship between [Defendant] and [Plaintiff],
this Agreement automatically terminates.”
(Lipman Decl. Ex. B
at 10.)
However, the Supreme Court has held that there is “a
presumption in favor of post-expiration arbitration of matters
and
disputes
contract.’”
‘arising
out
of
the
relation
governed
by
the
CPR Inc. v. Spray, 187 F.3d 245, 255 (2d Cir. 1999)
(quoting Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 204,
16
111 S. Ct. 2215, 2224, 115 L. Ed. 2d 177 (1999)).
expiration
dispute
arises
out
of
the
contract
A post-
if:
(1)
it
“‘involves facts and occurrences that arose before expiration;’”
(2) the “post-expiration action ‘infringes a right that accrued
or
vested
under
the
agreement;’”
or
(3)
“‘under
normal
principles of contract interpretation, the disputed contractual
right survives expiration of the remainder of the agreement.”
Id. (quoting Litton Fin. Printing Div., 501 U.S. at 205-06, 111
S. Ct. at 2225, 115 L. Ed. 2d 177); see also Newspaper Guild/CWA
of Albany v. Hearst Corp., 645 F.3d 527, 530 (2d Cir. 2011).
Here, alleged retaliatory acts involved events prior
to Plaintiff’s termination.
Paragraph
11(a)
suggests
that
Moreover, the broad language of
it
survives
expiration,
as
it
pertains to any disputes arising from or under the Agreement
between the parties herein without apparent limitation.
Accordingly, the Court GRANTS Defendant’s motion.
[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]
17
CONCLUSION
For
the
following
reasons,
Defendant’s
motion
to
dismiss is GRANTED and Plaintiff’s claims are DISMISSED WITHOUT
PREJUDICE.
The Clerk of the Court is directed to mark this matter
CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
September
18 , 2014
Central Islip, NY
18
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