Giugliano v. FS2 Capital Partners, LLC et al
Filing
53
MEMORANDUM OF DECISION AND ORDER - Based on the foregoing, the Defendants 18 motion to dismiss is granted in part and denied in part. The Court grants the motion and dismisses the Plaintiffs cause of action under the NYLL based on unpaid wages. The Court also dismisses the Plaintiffs causes of action based on breach of contract, conversion, and unjust enrichment. The Court denies the motion as to the Plaintiffs causes of action under the ADEA, the NYSHRL, and the NYCHRL, based on age discrimination and discriminatory retaliation. In addition, the Court denies without prejudice the Plaintiffs cross-motion to amend his Complaint. So Ordered by Judge Arthur D. Spatt on 9/1/2015. (Coleman, Laurie)
FILED
CLERK
9/1/2015 3:48 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RALPH GIUGLIANO,
Plaintiff,
MEMORANDUM OF
DECISION AND ORDER
14-cv-7240(ADS)(GRB)
-againstFS2 CAPITAL PARTNERS, LLC, along
with LANCE MURPHY, BILL WOLFE,
and JOHN SHAIN in their individual
capacity,
Defendants.
----------------------------------------------------------------x
APPEARANCES:
ZABELL & ASSOCIATES, P.C.
Attorneys for the Plaintiff
1 Corporate Drive, Suite 103
Bohemia, NY 11716
By: Saul D. Zabell, Esq., Of Counsel
KLEHR HARRISON HARVEY BRANZBURG LLP
Attorneys for the Defendants
1835 Market Street, Suite 1400
Philadelphia, PA 19103
By: William A. Harvey, Esq.
Carianne Torrissi, Esq.
Paige Melanie Willan, Esq., Of Counsel
SPATT, District Judge:
On December 12, 2014, the Plaintiff Ralph Giugliano (“Giugliano” or the
“Plaintiff”) commenced this action against the Defendants FS2 Capital Partners,
LLC (“FS2”), Lance Murphy (“Murphy”), Bill Wolfe (“Wolfe”), and John Shain
(“Shain”), alleging violations of federal, state, and city discrimination laws;
1
violations of the New York State Labor Law; and various common law causes of
action, including breach of contract, conversion, and unjust enrichment.
On February 23, 2015, the Defendants moved to dismiss the Complaint
pursuant to Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) 12(b)(1) and
12(b)(6), based on a lack of subject matter jurisdiction and the Plaintiff’s failure to
state claims upon which relief can be granted.
On March 9, 2015, the Plaintiff opposed the motion to dismiss and crossmoved for leave to amend his Complaint.
For the reasons set forth herein, the Defendants’ motion to dismiss is granted
in part and denied in part. The Plaintiff’s motion for leave to amend is denied
without prejudice.
I.
Background
The following facts are drawn from the Complaint and are construed in favor
of the Plaintiff.
Giugliano is a resident of Suffolk County, New York. At the time of his
Complaint, he was fifty-four years old.
FS2 is a Delaware corporation. The Defendant Murphy is the president of
FS2; the Defendant Wolfe is a Senior Manager; and the Defendant Shain is the
Managing Director.
A.
The Plaintiff’s Employment
In or about August 2010, Giugliano was employed by FS2 as a salesperson.
His job title was Regional Sales Director.
2
Giugliano and FS2 entered into an employment agreement, also known as a
Registered Representative Agreement (the “Agreement”), which set forth the terms
and conditions of Giugliano’s employment. The Court notes that the Plaintiff did
not attach a copy of the Agreement to the Complaint. However, the Defendants
attached a copy to a declaration by Carianne Torrissi, Esq. (the “Torrissi Decl.”),
which they submitted in support of the instant motion. Later in this opinion, the
Court will discuss the propriety of considering the Agreement and other
documentary evidence in adjudicating the instant motion. However, at this time,
without expressing an opinion as to that issue, the Court briefly summarizes certain
relevant facts relating to the Agreement.
Giugliano alleges that, pursuant to the Agreement, he was assigned a
designated geographic sales territory within which he was to transact business on
behalf of FS2 (the “Territory”). At the start of his employment, Giugliano’s Territory
allegedly included Eastern Pennsylvania, Northern New Jersey, and New York.
According to Giugliano, at all relevant times his Territory included New York City.
In this regard, the Plaintiff alleges that he regularly performed his job duties within
New York City, including meeting with clients and third parties, effectuating sales
transactions, and attending conferences, all in furtherance of FS2 business.
Giugliano alleges that he was to receive a sales commission based upon transactions
that he executed within his Territory.
Relevant here, the Agreement contains the following provisions:
3
Associate’s [Giugliano] employment may be terminated at any time, for
any reason, with or without Cause, by either Associate, on the one
hand, or the Broker [FS2], on the other hand. Associate’s employment
and the employment relationship between the parties is “at-will”,
voluntarily entered into and will be for no specific period. As a result,
Associate will be free to resign at any time, for any reason or no
reason, as deemed appropriate, and the Broker shall have the same
right to terminate Associate’s employment for any reason or for no
reason, as deemed appropriate.
*
*
*
Associate will provide services set forth on Exhibit A attached hereto
and as may be modified from time to time by the Broker without
resulting in a rescission of this Agreement.
*
*
*
Associate will be provided the remuneration set forth on Exhibit B
attached hereto. Associate agrees that any commissions to be charged
on sales of commissionable products shall be established from time to
time by the Broker and that Associate will abide by and adhere to any
schedules for commissions established from time to time by the
Broker . . .
*
*
*
Associate’s Territory shall be metro New York City, Westchester
County, New York, Southern Connecticut to New Haven, and Northern
New Jersey as currently divided between the Mid-Atlantic and metro
New York Territory. The Territory is subject to change or modification
in the sole discretion of the Broker.
*
*
*
No change or modification of this Agreement shall be valid unless the
same be in writing and signed by all parties hereto.
The Plaintiff alleges that, between 2011 and 2013, the size of his Territory
was reduced by approximately 62 percent. He alleges that portions of his Territory
were reassigned to younger and less experienced salespersons. Allegedly, these
4
younger salespersons received commissions to which Giugliano was entitled based
on transactions that he initiated.
According to the Complaint, between 2011 and 2013, while Giugliano’s
Territory was being decreased, the sales goals established for him by FS2 increased
by 40 percent.
Giugliano alleges that, throughout his employment, he was a top-performing
salesperson and generated substantial revenues for FS2.
B.
The Allegations of Discrimination
The Plaintiff alleges that he was subjected to employment discrimination
based on his age.
For example, on one occasion, during a national sales meeting, the Defendant
Murphy allegedly displayed a photograph of Giugliano’s teeth on a PowerPoint
presentation and told the audience, “when you get old, you must buy new teeth.”
Giugliano does not allege when this incident occurred.
In January 2012, one Brian Boulerice, a non-party member of the Plaintiff’s
sales team, allegedly stated to Giugliano that “management feels that you are not
scalable.” Giugliano does not allege any supporting details relating to this remark,
including what he believes it was intended to mean or how it relates to his age. He
simply alleges that it was derogatory.
In January 2013, in reference to Giugliano’s ability to operate technological
devices, Murphy allegedly stated, “you can’t teach an old dog new tricks.”
5
Also in January 2013, the Defendant Shain allegedly said of Giugliano’s
attire, “you are too old to wear that type of clothing.” Shain allegedly then pointed
to a younger employee and stated, “that is the type of clothing he should be
wearing.”
In December 2013, during a year-end meeting, Murphy allegedly asked the
Plaintiff if he was “too old to keep up with the younger guys” in an exercise class.
Also in December 2013, Shain allegedly said to Giugliano: “Your teeth are
still white, but you are much grayer than the last time I saw you. As a matter of
fact, I think you are one of the oldest Franklin Square employees.”
Further, in December 2013, Boulerice allegedly identified Giugliano as the
“oldest wholesaler.”
Giugliano alleges that many other similar remarks were made, but he fails to
provide any supporting details, including the content, timing, and speaker of the
alleged remarks.
In addition, Giugliano alleges that unidentified members of the senior
management at FS2 caused him to be excluded from at least seven off-site
conferences.
The Plaintiff asserts that such conferences were a fundamental
component of his position and were aimed at building relationships with clients. He
does not provide the dates of these alleged conferences.
Giugliano also alleges that his support staff was reassigned away from him.
Allegedly, he repeatedly requested that his support staff be replaced, but the
6
Defendant Wolfe refused to do so.
According to Giugliano, younger, less
experienced, and less productive salespersons were assigned his support staff.
Of note, Wolfe allegedly told the Plaintiff that the refusal to provide him with
support staff was punishment for “filing an ‘action against the company.’ ”
Giugliano does not provide the date of this alleged comment or any other related
details.
On or about March 27, 2014, the Plaintiff filed a charge of discrimination
with the Equal Employment Opportunity Commission (the “EEOC Charge”).
Although he does not specifically say so, the Court presumes that Wolfe’s remark
about Giugliano “filing an action against the company” relates to the EEOC Charge.
Giugliano did not attach a copy of the EEOC Charge to the Complaint for the
Court’s reference.
Apparently, on or about April 30, 2014, Giugliano filed an amended EEOC
Charge (the “Amended EEOC Charge”).
The Complaint contains no allegations
concerning the Amended EEOC Charge and Giugliano does not attach a copy for the
Court’s reference. However, again, the Defendants attached the Amended EEOC
Charge to the Torrissi Declaration, which was submitted in support of the instant
motion.
In the Amended EEOC Charge, Giugliano identified the alleged cause of his
discrimination as his age. In support of his Amended EEOC Charge, he annexed an
affidavit containing factual assertions that substantially mirror the Complaint in
this action.
7
In or about April 2014, FS2 held an event to celebrate the public listing of one
its funds on the New York Stock Exchange. According to the Plaintiff, he was not
invited to this event, despite having allegedly been responsible for raising ten
percent of the fund’s assets. He alleges that younger, less experienced, and less
productive salespersons were invited.
According to the Plaintiff, on or about June 10, 2014, Giugliano’s employment
with FS2 ended in a “constructive termination” as a result of the Defendants’
actions.
On October 23, 2014, the EEOC issued the Plaintiff a Notice of Right to Sue
(the “Right to Sue Letter”).
C.
The Instant Action
Based on the allegations outlined above, the Plaintiff asserts the following
claims in this action: (i) FS2 intentionally discriminated against him on the basis of
his age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621
et seq. (“ADEA”), the New York State Human Rights Law, N.Y. Exec. L. § 290 et seq.
(“NYSHRL”), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8101 et seq. (“NYCHRL”); (ii) FS2 retaliated against Giugliano for filing the EEOC
Charge, in violation of the ADEA, the NYSHRL, and the NYCHRL; (iii) FS2 and
individual Defendants Murphy, Wolfe, and Shain failed to pay Giugliano
commissions on sales transactions that he initiated and to which he was entitled, in
violation of New York Labor Law (“NYLL”) § 191(1)(c); (iv) FS2 also failed to pay
Giugliano commissions on sales transactions in violation of New York common law;
8
(v) FS2 breached the Agreement by materially modifying its terms without the
Plaintiff’s written consent, in violation of New York common law; and (v) FS 2
unjustly enriched itself at Giugliano’s expense, in violation of New York common
law.
D.
The Motion to Dismiss
On February 23, 2015, FS2, Murphy, Wolfe, and Shain (collectively, the
“Defendants”) moved to dismiss the Complaint in its entirety pursuant to
Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
In particular, the Defendants contend as follows: (i) Giugliano’s claims based
on age discrimination and discriminatory retaliation under the ADEA, the
NYSHRL, and the NYCHRL should be dismissed because Giugliano has not
plausibly alleged that he suffered an adverse employment action; (ii) Giugliano’s
claims based on age discrimination and discriminatory retaliation against the
individual Defendants should be dismissed because the ADEA, the NYSHRL, and
the NYCHRL do not provide for individual liability; (iii) Giugliano’s claim against
the individual Defendants should be dismissed because they were not named as
respondents in the Amended EEOC Charge and thus the Court lacks subject matter
jurisdiction over claims relating to them; (iv) Giugliano’s claim based on common
law breach of contract should be dismissed because his employment was at-will and
thus FS2 was free to unilaterally modify the terms and conditions of the parties’
employment relationship; (v) Giugliano’s claim based on unpaid commissions under
the NYLL should be dismissed because such a claim requires the Plaintiff to possess
9
an enforceable contract right to such wages, which Giugliano lacks; (vi) Giugliano’s
claims for conversion and unjust enrichment should be dismissed because they are
impermissibly duplicative of his breach of contract claim; and (vii) Giugliano’s
claims for conversion and unjust enrichment should also be dismissed because he
failed to plausibly plead the essential elements of these claims.
Giugliano opposed the motion and requested that, in the event the Court
dismisses any of his claims, he be granted leave to amend the Complaint.
The Court will consider each of the parties’ contentions below.
II.
A.
Discussion
The Applicable Legal Standards
1.
The Standard for Dismissal under Fed. R. Civ. P. 12(b)(1)
“A case is properly dismissed for lack of subject matter jurisdiction pursuant
to Fed. R. Civ. P. 12(b)(1) ‘when the district
court lacks the statutory or
constitutional power to adjudicate it.’ ” Alston v. Sebelius, 13-cv-4537, 2014 U.S.
Dist.
LEXIS
123613,
at
*8-*9
(E.D.N.Y.
July
31,
2014)
(Report
and
Recommendation) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
2000)), adopted, 2014 U.S. Dist. LEXIS 122970 (E.D.N.Y. Sept. 2, 2014).
“[A]
‘plaintiff asserting subject matter jurisdiction has the burden of proving by a
preponderance of the evidence that it exists.’ ” Id. at *9 (quoting MacPherson v.
Town of Southampton, 738 F. Supp. 2d 353, 361 (E.D.N.Y. 2010)).
10
2.
The Standard for Dismissal under Fed. R. Civ. P. 12(b)(6)
Under Fed. R. Civ. P. 12(b)(6), a party may move to dismiss a cause of action
that “fail[s] to state a claim upon which relief can be granted.” “To survive a motion
to dismiss, the complaint must plead ‘enough facts to state a claim to relief that is
plausible on its face,’ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
167 L. Ed. 2d 929 (2007), and ‘allow[ ] the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged,’ Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).” Otis-Wisher v. Medtronic, Inc.,
14-cv-3491, 2015 U.S. App. LEXIS 9565, at *2 (2d Cir. June 9, 2015).
3.
The Standard for Dismissal under Fed. R. Civ. P. 15(a)
Generally, a party requires leave of the Court in order to amend his or her
pleading. See Fed. R. Civ. P. 15(a)(2). “The court should freely give leave when
justice so requires.” Id.
However, courts have held that a “bare request to amend a pleading”
contained in a brief, which does not also attach the proposed amended pleading, is
improper under Fed. R. Civ. P. 15. See, e.g., Curry v. Campbell, 06-cv-2841, 2012
U.S. Dist. LEXIS 40341, at *22 (E.D.N.Y. Mar. 23, 2012) (“To satisfy the
requirement of particular[it]y in a motion to amend a pleading, the proposed
amended pleading must accompany the motion so that both the Court and opposing
parties can understand the exact changes sought”) (quoting AT&T Corp. v. Am.
Cash Card Corp., 184 F.R.D. 515, 521 (S.D.N.Y. 1999)); see also Evans v. Pearson
Enters., Inc., 434 F.3d 839, 853 (6th Cir. 2006) (“We agree with several of our sister
11
circuits that a bare request in an opposition to a motion to dismiss—without any
indication of the particular grounds on which amendment is sought . . .—does not
constitute a motion within the contemplation of Rule 15(a)”) (quoting Confederate
Mem’l Ass’n, Inc. v. Hines, 995 F.2d 295, 299 (D.C. Cir. 1993)).
Under these circumstances, courts, in their discretion, may hold the motion
to dismiss in abeyance pending the filing of the proposed pleading or deny the
motion to amend without prejudice. See AT&T Corp., 184 F.R.D. at 521.
The Court notes that the Plaintiff fails to formally cross-move for leave to
amend or to provide a proposed amended pleading. Instead, in his opposition to the
Defendants’ motion to dismiss, the Plaintiff states that “in the unlikely event this
Court should [dismiss any of his claims], [h]e respectfully reserve[s] the right to
amend the Complaint subject to the governing provisions of the federal and local
rules.” Pl. Memo of Law at 2. In addition, the Plaintiff devotes a section of his brief
to asserting that he “stands ready to amend the Complaint” if the Court “holds that
certain allegations are deficient.” Id. at 20-21. In this regard, he contends that
“any shortcomings in the Complaint should be addressed through amendment, not
dismissal.” Id.
The Court finds that this bare request for leave to amend, unaccompanied by
a proposed amended pleading, is procedurally improper under Fed. R. Civ. P. 15
and, in its discretion, denies the request on that basis without prejudice.
12
B.
As to Whether the Court May Consider Evidence Outside the
Pleading
In this case, the Defendants submitted documentary evidence, namely, the
Agreement and the Amended EEOC Charge, in support of their motion to dismiss.
As a threshold issue, the Court must determine whether such evidence may be
considered in adjudicating the instant motion.
“ ‘[W]here a party challenges the court’s subject matter jurisdiction, the court
may resolve disputed jurisdictional fact issues by reference to evidence outside the
pleadings.’ ” Alston, 2014 U.S. Dist. LEXIS 123613, at *9 (quoting Baur v. Comm’r
of Soc. Sec., 10-cv-3781, 2011 U.S. Dist. LEXIS 52128 (E.D.N.Y. May 16, 2011)).
Thus, because the Defendants invoke Rule 12(b)(1) to dismiss certain of the
Plaintiff’s claims, the Court may consider the Agreement and the Amended EEOC
Charge in adjudicating those aspects of the motion.
However, as to those portions of the motion which invoke Rule 12(b)(6), the
analysis is different. In this regard, it is well-settled that “[t]he materials a court
may consider when deciding a motion to dismiss under Rule 12(b)(6) are limited.”
Armand v. Osbourne, 11-cv-4182, 2014 U.S. Dist. LEXIS 23911, at *9 (E.D.N.Y.
Feb. 24, 2014). In fact, “a court considering a . . . motion to dismiss for failure to
state a claim generally may not consult evidence outside the pleadings.” Vailette v.
Lindsay, 11-cv-3610, 2014 U.S. Dist. LEXIS 114701, at *8 (E.D.N.Y. Aug. 18, 2014).
Rather, in adjudicating such a motion, the Court may only consider:
13
(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) facts of which judicial
notice may properly be taken under Rule 201 of the Federal Rules of
Evidence.
Environmental Servs., 7 F. Supp. 2d at 270 (quoting In re Merrill Lynch & Co., 273
F. Supp. 2d 351, 356-57 (S.D.N.Y. 2003)).
“ ‘Federal courts have complete discretion to determine whether or not to
accept the submission of any material beyond the pleadings offered in conjunction
with a Rule 12(b)(6) motion.’ ” Environmental Servs., 7 F. Supp. 2d at 270 (quoting
Carione v. United States, 368 F. Supp. 2d 186, 191 (E.D.N.Y. 2005)).
Here, Giugliano does not contest the Defendants’ submission of the
documentary evidence outlined above. Nor does he contend that the Court should
refrain from considering it. Further, the Court has little difficulty concluding that
the Agreement and the Amended EEOC Charge clearly fall within recognized
categories of documents that are appropriate to consider on a Rule 12(b)(6) motion.
Initially, the Plaintiff explicitly references each of these documents in the
Complaint.
Not only does the Amended EEOC Charge form an essential
precondition to Giugliano’s ability to maintain the federal causes of action he
asserts in this lawsuit, see, e.g., Compl. ¶ 10 (asserting the EEOC Charge as a
jurisdictional prerequisite), but it also forms the basis of his discriminatory
retaliation claim.
Indeed, Giugliano alleges that the act of filing the Amended
14
EEOC Charge constitutes protected activity in response to which FS2 retaliated.
See, e.g., Compl. ¶¶ 83-86 (asserting the EEOC Charge as the factual predicate for a
claim based on discriminatory retaliation).
In addition, the Agreement forms the entire basis of Giugliano’s breach of
contract claim.
See Compl. ¶¶ 115-18 (asserting the Agreement as the factual
predicate for a claim based on breach of contract).
Therefore, it is clear that these documents are integral to, and incorporated
by reference in, the Complaint. See Jean-Louis v. Warfield, 898 F. Supp. 2d 570
(E.D.N.Y. 2012) (Spatt, J.) (finding an Apartment Lease Agreement, which was
submitted by the defendant in support of a motion to dismiss, to be incorporated by
reference in the plaintiff’s complaint, as it formed the basis of the plaintiff’s claims);
see also Global Network Communs., Inc. v. City of New York, 458 F.3d 150, 157 (2d
Cir. 2006) (observing that a common example of the material properly considered on
a 12(b)(6) motion is “a contract or other legal document containing obligations upon
which the plaintiff’s complaint stands or falls”); Arcari v. 46th St. Dev. LLC, 10-cv3619, 2011 U.S. Dist. LEXIS 22899, at *9-12 (S.D.N.Y. Mar. 1, 2011) (holding that
Termination Agreements not attached to the
complaint could nevertheless be
considered on a Rule 12(b)(6) motion because they were referenced in the complaint
and were directly relevant to the plaintiff’s claims).
Accordingly, in the exercise of its discretion, the Court will consider the
Agreement and the Amended EEOC Charge in adjudicating the instant motion.
15
C.
As to Whether Giugliano Has Stated a Plausible Claim for Age
Discrimination Under the ADEA
“The ADEA protects employees over forty against age-based discrimination.”
Hogan v. Metromail, 107 F. Supp. 2d 459, 463-64 (S.D.N.Y. 2009). In order to state
a prima facie claim based on age discrimination, the Plaintiff must plausibly allege
that: (i) he was a member of a protected class; (ii) was qualified for his position; and
(iii) suffered an adverse employment action; (iv) under circumstances giving rise to
an inference of discrimination. See Guerra v. Jones, 08-cv-0028, 2010 U.S. Dist.
LEXIS 25168, at *17 (N.D.N.Y. Mar. 17, 2010), aff’d, 421 F. App’x 15 (2d Cir. 2011).
“The plaintiff must make more than mere conclusory allegations of age
discrimination.” Moultrie v. VIP Health Care Servs., 08-cv-457, 2009 U.S. Dist.
LEXIS 22413, at *14 (E.D.N.Y. Mar. 19, 2009).
Only the third element, namely, whether Giugliano suffered an adverse
employment action, is at issue in this case.
In this regard, Giuliano alleges that
FS2 discriminated against him by taking actions that he contends amount to a
constructive termination. These actions include reducing the size of the Plaintiff’s
sales Territory and redistributing those geographic areas to younger salespeople;
increasing the sales goals established for him; refusing to assign support staff to
him; and excluding him from conferences and company events.
The Defendants contend that these actions, even if proven, do not constitute
adverse employment actions because they were specifically contemplated in the
parties’ Agreement.
In particular, the Agreement provides that FS2 could
unilaterally modify the scope of Giugliano’s sales Territory; could unilaterally
16
modify Giugliano’s job responsibilities; and could terminate Giugliano for any
reason or for no reason at all. Thus, according to the Defendants, Giugliano has not
plausibly alleged a necessary element of his claim, namely, that he suffered an
adverse employment action.
Initially, it is well-settled that, in the context of employment discrimination,
“the fact that employment was at will is simply not dispositive.” Lauture v. IBM,
216 F.3d 258, 262 (2d Cir. 2000). Indeed, “ ‘even though an at-will employee can be
fired for good cause, bad cause, or no cause at all, he or she cannot be fired for an
illicit cause’ ” such as discrimination based on age.
Id. at 263 (citing Fedayi v.
Planned Parenthood Ass’n, 160 F.3d 1048, 1051-52 (5th Cir. 1998)); see Simon v.
Manufacturers Hanover Trust Co., 849 F. Supp. 880, 883 (S.D.N.Y. 1994) (noting
that “the age discrimination statutes prevent employers from firing even at-will
employees with a discriminatory motive”). Consequently, the Court disagrees with
the Defendants’ contention that Giugliano is prevented from maintaining this
action under the ADEA simply because he was an at-will employee.
Similarly, it may be true that the Agreement confers upon FS2 the right to
make certain discretionary decisions regarding Giugliano’s employment, such as
reducing his sales Territory. However, the Court is not persuaded that, by signing
the Agreement, Giugliano waived his right to later assert that such decisions, while
perhaps within the scope of the contract, nevertheless were motivated by
discriminatory animus. See Boscarello v. Audio Video Sys., 784 F. Supp. 2d 577,
17
584 n.8 (E.D. Va. 2011) (noting that “[i]t is well-settled that employers may not
make discretionary decisions . . . in a retaliatory or discriminatory fashion”).
The Defendants’ interpretation of the Agreement would allow FS2 to
circumvent responsibility for allegedly discriminatory acts simply by retaining “sole
discretion” to dictate the terms and conditions of the employment relationship.
Where, as here, such a maneuver would work to preclude an employee from
pleading an essential element of a discrimination claim, the result, in the Court’s
view, would be an unjustifiable limit on the employee’s ability to avail himself of the
protections afforded by the federal anti-discrimination laws.
Other courts have
found that similar efforts may be contrary to public policy.
See, e.g., EEOC v.
Cosmair, Inc., L’Oreal Hair Care Div., 821 F.2d 1085, 1090 (5th Cir. 1987) (holding
that an individual may not contract away his or her right to file an EEOC charge).
In any event, at this time, the Court need not determine whether or not the
Agreement is enforceable. Even if it is, neither Giugliano’s status as an at-will
employee nor the broad discretion to alter the terms of his employment that the
contract grants to FS2 insulates the company from allegations that its actions
violated the federal anti-discrimination laws.
In sum, the Court finds that the
language of the contract, without more, is an insufficient basis upon which to
dismiss the Plaintiff’s claim.
The Defendants do not assert any additional grounds for dismissing the
Plaintiff’s cause of action based on federal age discrimination.
18
Accordingly, the Defendants’ motion, to the extent it seeks to dismiss
Giugliano’s ADEA discrimination claim for failure to plausibly allege an adverse
employment action, is denied.
D.
As to Whether Giugliano Has Stated a Plausible Claim for
Discriminatory Retaliation Under the ADEA
In order to state a prima facie claim for discriminatory retaliation under the
ADEA, the Plaintiff must plausibly allege that: (i) he was engaged in an activity
protected under the ADEA; (ii) FS2 was aware of his participation in the protected
activity; (iii) he was subject to an adverse employment action; and (iv) there is a
nexus between the protected activity and the adverse action taken. See Shub v.
Westchester Cmty. College, 556 F. Supp. 2d 227 (S.D.N.Y. 2008).
Again, only the third element, namely, that the Plaintiff was subjected to an
adverse employment action, is at issue here. In this regard, the Defendants again
assert only that Giugliano failed to plausibly plead an adverse employment action
because he was employed at will and the complained of conduct was contemplated
in the parties’ Agreement. Thus, for the same reasons articulated above, the Court
rejects the Defendants’ contention and finds their singular reliance upon the
contract language insufficient to dismiss the Plaintiff’s retaliation claim under the
ADEA.
Accordingly, to the extent the Defendants seek to dismiss Giugliano’s ADEA
retaliation claim for failure to plausibly allege an adverse employment action, their
motion is denied.
19
E.
As to Whether Giugliano Has Stated Plausible Claims for Age
Discrimination and Discriminatory Retaliation Under the NYSHRL
and NYCHRL
In support of their motion to dismiss the Plaintiff’s age discrimination and
discriminatory retaliation claims under New York state and city law, the
Defendants again rely only on the same argument outlined above, namely, that
Giugliano failed to plausibly plead an adverse employment action because he was
employed at will and the complained of conduct was contemplated in the parties’
Agreement.
Age discrimination and discriminatory retaliation claims under the NYSHRL
and NYCHRL are analytically identical to their federal law counterparts.
See
Bakeer v. Nippon Cargo Airlines, Co., 09–cv-3374, 2011 U.S. Dist. LEXIS 90102, at
*125-*126 (E.D.N.Y. July 25, 2011) (Report and Recommendation) (finding, in the
context of a motion to dismiss pursuant to Rule 12(b)(6), that “ ‘[t]he framework for
analyzing NYSHRL and NYCHRL discrimination claims is essentially the same as
under Title VII and the ADEA’ ”), adopted, 2011 U.S. Dist. LEXIS 89975 (E.D.N.Y.
Aug. 12, 2011) (quoting Butler v. New York Health & Racquet Club, 768 F. Supp. 2d
516. 529-30 (S.D.N.Y. Jan. 26, 2011)); Sicular v. N.Y.C. Dep’t of Homeless Servs.,
09-cv-0981, 2010 U.S. Dist. LEXIS 10089, at *101 (S.D.N.Y. Feb. 4, 2010) (Report
and Recommendation) (dismissing NYSHRL and NYCHRL claims for the same
reasons as related ADEA claims; noting that discrimination and retaliation “claims
brought pursuant to the NYSHRL and NYCHRL are analyzed under the same
rubric as Title VII”), adopted, 2010 U.S. Dist. LEXIS 53064 (S.D.N.Y. May 28,
20
2010), aff’d, 455 F. App’x 129 (2d Cir. 2012).
Therefore, for the same reasons
articulated above, the Court rejects the Defendants’ contention and finds the
relevant contract language insufficient to dismiss the Plaintiff’s state and city law
causes of action.
Accordingly, to the extent the Defendants seek to dismiss Giugliano’s age
discrimination and discriminatory retaliation claims under the NYSHRL and
NYCHRL for failure to plausibly allege an adverse employment action, their motion
is denied.
F.
As to the Defendants’ Contentions Relating to Individual Liability
Giugliano asserts only one cause of action against the Defendants Murphy,
Wolfe, and Shain in their individual capacities, namely, a claim that they are liable
for failing to pay the Plaintiff commissions on certain sales transactions, in violation
of the NYLL.
However, in their motion to dismiss, the Defendants ague that any claims
against these Defendants based on age discrimination and discriminatory
retaliation should be dismissed because the relevant anti-discrimination statutes do
not provide for individual liability.
However, Giugliano asserts no such claims
against the individual Defendants in this case, and the Court will therefore
disregard this aspect of the instant motion.
Similarly, the Defendants contend that Giugliano’s claims against the
individual Defendants should be dismissed because they were not named as
respondents in the Amended EEOC Charge, and, thus, the Court lacks subject
21
matter jurisdiction over such claims. However, as noted above, Giugliano asserts a
claim pursuant to the NYLL only as against the individual Defendants. In this
regard, the Defendants do not contend that there is an exhaustion requirement
under the NYLL which would have required Giugliano to present his wage claims to
the EEOC. The Court is not aware of any such requirement.
Accordingly, to the extent the Defendants seeks to dismiss Giugliano’s NYLL
claim against the individual Defendants Murphy, Wolfe, and Shain based on his
failure to name them in the Amended EEOC Charge, their motion is denied.
G.
As to Whether Giugliano Plausibly Stated a Claim for Breach of
Contract
“To survive a motion to dismiss for a breach of contract claim under New
York law, the complaint must allege facts which show: ‘(1) the existence of an
agreement, (2) adequate performance of the contract by plaintiff, (3) breach of the
contract by defendant, and (4) damages.’ ” Frontline Processing Corp. v. Merrick
Bank Corp., 13-cv-3956, 2014 U.S. Dist. LEXIS 27571, at *5-*6 (S.D.N.Y. Mar. 3,
2014) (quoting Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of
N.Y., 375 F.3d 168, 177 (2d Cir. 2004)); see Cacchillo v. Insmed, Inc., 551 F. App’x
592, 593-94 (2d Cir. Jan. 7, 2014) (same). “Conclusory allegations that a defendant
breached an agreement are insufficient to support a breach of contract claim.” Id.
(citing Berman v. Sugo LLC, 580 F. Supp. 2d 191, 202 (S.D.N.Y. 2008)).
Only the third element, namely, whether FS2 breached the Agreement, is at
issue here. In this regard, Giugliano alleges that FS2 breached Section 11.02 of the
Agreement, which provides that “[n]o change or modification of this Agreement
22
shall be valid unless the same be in writing and signed by all parties hereto.”
Giugliano contends that FS2 breached this provision by making the following
modifications to the Agreement without his written consent: (i) reducing the size of
his sales Territory, which resulted in younger salespersons receiving commissions
allegedly due to him; and (ii) increasing the sales goals established for him. Also, in
his opposition to the instant motion, the Plaintiff asserts for the first time that FS2
breached the Agreement by “fail[ing] to calculate [his] earned commissions as
prescribed under the [ ] Agreement.”
The Court finds these contentions to be
without merit.
Initially, the Court rejects Giugliano’s contention that FS2 failed to calculate
his commissions as prescribed under the Agreement because this claim is not
alleged in the Complaint. See Reyes v. Fairfield Props., 661 F. Supp. 2d 249, 263
(E.D.N.Y. 2009) (declining to consider a claim that was not raised in the complaint
but was argued in the party’s moving papers; noting that a party is not entitled to
amend his pleading through his memoranda; collecting cases in accord). Moreover,
Giugliano fails to allege any supporting details concerning this claim, including
what commissions he claims to have earned and when he earned them; which
provision of the Agreement he contends governs the proper method of calculating
his commissions; and how FS2 allegedly failed to properly calculate his
commissions, if they were calculated at all. The Court finds no plausible basis for a
breach of contract claim arising out of alleged miscalculation of commissions.
23
Similarly, in the Court’s view, there is no plausible basis for Giugliano’s
contention that FS2 modified the terms of the Agreement by increasing his sales
goals.
In this regard, the Plaintiff asserts that the increase in his sales goals
“materially changed the core terms and conditions of [his] employment.” However,
he again fails to identify any term or provision of the contract that was allegedly
modified. In fact, he fails to identify any contract language that even addresses
these alleged sales goals. It is axiomatic that for a breach of contract claim to exist,
the Plaintiff must identify the provisions of the contract that were breached. See
Wolff v. Rare Medium, Inc., 210 F. Supp. 2d 490, 496 (S.D.N.Y. 2002), aff’d, 65
F. App’x 736 (2d Cir. 2003). Here, Giugliano’s bald assertion that FS2 breached the
Agreement by modifying some unspecified “core terms and conditions of his
employment,” is insufficient to pass Rule 12(b)(6) muster. Therefore, in the Court’s
view, Giugliano has not alleged any plausible basis for a breach of contract claim
arising from an increase in his sales goals.
However, Giugliano’s contention that FS2 breached Section 11.02 by reducing
the size of his sales Territory without his written consent requires greater scrutiny.
In this regard, the Court reiterates that the Agreement contains the following two
relevant provisions:
Associate’s Territory shall be metro New York City, Westchester
County, New York, Southern Connecticut to New Haven, and Northern
New Jersey as currently divided between the Mid-Atlantic and metro
New York Territory. The Territory is subject to change or modification
in the sole discretion of the Broker.
*
*
24
*
No change or modification of this Agreement shall be valid unless the
same be in writing and signed by all parties hereto.
(emphasis supplied).
The Defendants contend that, since the Agreement expressly confers upon
FS2 sole discretion to change or modify Giugliano’s Territory, his written consent
was not needed in order for FS2 to do so.
In opposition, Giugliano contends that Section 11.02, which prohibits
modifications to the contract language without the parties’ written consent,
prevents FS2 from unilaterally altering the size of his Territory. He asserts that, at
a minimum, an ambiguity exists between these provisions, which must be construed
against the drafter, FS2.
In the Court’s view, established precepts of contract interpretation favor the
Defendants’ position.
“ ‘Under New York law . . . whether a contract is ambiguous is a matter of
law for the court to decide.’ ” Wyeth v. King Pharms., Inc., 396 F. Supp. 2d 280,
286-87 (E.D.N.Y. 2005) (quoting Readco, Inc. v. Marine Midland Bank, 81 F.3d 295,
299 (2d Cir. 1996)).
This Court has previously noted the following guiding
principles that are relevant to its determination in this case:
Under New York law, “[t]he cardinal principle for the construction and
interpretation of contracts is that the intentions of the parties should
control.”
Roswell Capital Partners, LLC v. Alternative Const.
Technologies, 08-cv-10647, 2009 U.S. Dist. LEXIS 15493, at *6
(S.D.N.Y. Feb. 27, 2009) (quoting SR Inten. Business Ins. Co. v. World
Center Properties, LLC, 467 F.3d 107, 125 (2d Cir. 2006)) (internal
quotations and alterations omitted). In determining what the parties
intended, “a court should look first within the ‘four corners’ of the
document” and should “give effect to the ‘plain and ordinary’ meaning
25
of its language.”
Muze, Inc. v. Digital On-Demand, Inc., 123
F. Supp. 2d 118, 128 n.9 (S.D.N.Y. 2000) (citation omitted); see also
Roswell Capital Partners, LLC, 2009 U.S. Dist. LEXIS 15493, at *6
(“In ascertaining the purpose or intent of the parties, ‘lest form
swallow substance, [the] goal must be to accord the words of the
contract their fair and reasonable meaning.’ ”) (citing Sutton v. East
River Sav. Bank, 55 N.Y.2d 550, 555, 450 N.Y.S.2d 460, 435 N.E.2d
1075 (1982)).
Two Locks, Inc. v. Kellogg Sales Co., 68 F. Supp. 3d 317, 328 (E.D.N.Y. Dec. 19,
2014) (Spatt, J.). “ ‘A contract is ambiguous where reasonable minds could differ on
what a term means, but no ambiguity exists where the alternative construction
would be unreasonable.’ ” Wyeth, 396 F. Supp. 2d at 287 (quoting Readco, 81 F.3d
at 299). “ ‘Language whose meaning is otherwise plain does not become ambiguous
merely because the parties urge different interpretations in the litigation.’ ” Law
Debenture Trust Co. v. Maverick Tube Corp., 595 F.3d 458, 467 (2d Cir. 2010)
(quoting Hunt, Ltd. v. Lifschultz Fast Freight, Inc., 889 F.2d 1274, 1277 (2d Cir.
1989)).
Of importance here, “ ‘[a]n interpretation of a contract that has the effect of
rendering at least one clause superfluous or meaningless is not preferred and will
be avoided if possible.’ ” Two Locks, Inc., 68 F. Supp. 3d at 331 (quoting LaSalle
Bank Nat. Ass’n v. Nomura Asset Capital Corp., 424 F.3d 195, 206 (2d Cir. 2005)).
The Court finds no ambiguity in the contract language as a matter of law.
Rather, the Agreement clearly and explicitly states that “the Territory is subject to
change or modification in the sole discretion of [FS2].” In the Court’s view, this
language is not susceptible of multiple meanings. On the contrary, it appears clear
that the parties intended for FS2 to retain sole decision-making authority over the
26
geographic Territory that was assigned to Giugliano.
The Plaintiff’s proposed
interpretation of this clause would achieve the opposite result, one that is in conflict
with the plain contract language.
In particular, under the Plaintiff’s proposed
construction, the “sole discretion” conferred upon FS2 to dictate the scope of the
Plaintiff’s Territory would, ultimately, be subject to the Plaintiff’s written consent.
Such a result would render this clause to be meaningless. In the Court’s view,
Giugliano’s interpretation is unreasonable in the context of this Agreement and will
not be adopted by the Court.
In reaching this conclusion, the Court rejects the Plaintiff’s contention that
Section 11.02 renders the otherwise clear language of the Agreement to be
ambiguous. The clear import of that provision is to require Giugliano’s written
consent before changes are made to the terms of the Agreement itself. However, it
is clear that the scope of the Plaintiff’s Territory is not a term of the Agreement
subject to the Plaintiff’s written consent.
In this regard, Giugliano improperly
conflates the idea of changes to the Agreement, which require his written consent,
and changes to the scope of his Territory, which do not.
Although the Agreement identifies the geographic regions comprising
Giugliano’s Territory as they existed at the time of the Agreement, the plain
language of the contract contemplates that those regions may change and expressly
affords control over such changes to FS2. Thus, in the Court’s view, the contract
unambiguously provides for FS2’s unilateral right to modify the scope of the
Territory, and to do so outside the parameters of the Agreement. Therefore, no
27
change to the Agreement is needed for FS2 to modify Giugliano’s Territory and
Section 11.02 is not implicated in that process.
Accordingly, the Defendants’ motion, to the extent it seeks to dismiss the
Plaintiff’s cause of action based on breach of contract, is granted.
H.
As to Whether Giugliano Plausibly Stated a Claim for Unpaid Wages
Under the New York Labor Law
The alleged basis for the Plaintiff’s wage claim under the NYLL is as follows:
(i) Giugliano “initiated” sales transactions in certain geographic sales territories;
(ii) he is entitled to commissions in connection with those transactions that he
initiated; (iii) the commissions to which he is allegedly entitled constitute “wages”
that he “earned” within the meaning of the NYLL; (iv) before he received such
commissions, FS2 reassigned the subject geographic sales territories away from
Giugliano to younger salespersons; and (v) thus, therefore, Giugliano was deprived
of the wages that are owing to him.
In this regard, Giugliano brings a claim not only against FS2, but against the
individual Defendants Murphy, Wolfe, and Shain, asserting that they “regularly
exercised control over, and were responsible for, [FS2]’s operations in manner that
related to Plaintiff’s employment.”
The Defendants contend that these allegations do not suffice to state a
plausible claim for relief under the NYLL because the Plaintiff has no enforceable
contract right to the alleged commissions. In particular, the Defendants assert that
the Plaintiff has not “earned” the alleged commissions within the meaning of the
statute. Rather, Giugliano alleges to have only “initiated” the subject sales before
28
his Territory was reassigned, which is insufficient under the Agreement to entitle
the Plaintiff to commissions on those sales.
In this regard, the Defendants contend that, under the Agreement, a
commission is not “earned” until FS2 receives a “dealer manager fee” associated
with the underlying sale, not when the sale is initiated, or even completed.
Moreover, the Defendants contend that, under the Agreement, Giugliano is
not entitled to receive payment on any commission unless, at the time payment is
due, he is registered in good standing or employed by FS2. The Defendants assert
that, because the Plaintiff satisfies neither of these conditions, he may not receive
any commissions.
Under NYLL § 190(1), “wages” are defined as “the earnings of an employee
for labor or services rendered, regardless of whether the amount of earnings is
determined on a time, piece, commission or other basis.” That provision further
defines “commission salesman” as “any employee whose principal activity is the
selling of any goods, wares, merchandise, services, real estate, securities, insurance
or any other thing and whose earnings are based in whole or in part on
commissions.”
In this regard, the Court notes that Giugliano fails to allege any facts
regarding the nature of FS2’s business or his own job responsibilities. Based on the
operative pleading alone, the Court is unable to determine whether Giugliano was a
“commission salesman” within the meaning of the statute, and if he was, what
exactly he was selling. However, the parties do not dispute that Giugliano was
29
principally engaged in selling goods of some sort and that his earnings were based
at least in part on commissions. Accordingly, the Court will assume this to be the
factual basis.
NYLL § 191(1)(c) provides, in relevant part, that “[a] commission salesperson
shall be paid wages . . . , commissions and all other monies earned or payable in
accordance with the agreed terms of employment.” It is beyond dispute that the
phrase “in accordance with the agreed terms of employment” means that the parties
to an employment agreement may define for themselves the circumstances under
which wages are “earned.” See Dreyfuss v. eTelecare Global Solutions-US, Inc., 08cv-1115, 2010 U.S. Dist. LEXIS 107725, at *15 (S.D.N.Y. Sept. 30, 2015) (“The law
is clear that ‘[a]n employer and employee can agree about the point in time when a
commission becomes ‘earned’ and, therefore, a ‘wage’ ”) (quoting Chenensky v. N.Y.
Life Ins. Co., 07-cv-11504, 2009 U.S. Dist. LEXIS 119549, at *18-*19 (S.D.N.Y. Dec.
22, 2009)); see generally Pachter v. Bernard Hodes Grp., Inc., 10 N.Y.3d 609, 861
N.Y.S.2d 246, 891 N.E.2d 279 (2008) (deciding, on a certified question from the
Second Circuit, “that the determination of when a commission is earned is governed
by the parties’ express or implied agreement”).
Here, the Agreement between Giugliano and FS2 clearly defines the
parameters of “earned” wages, as follows:
Associate [Giugliano] specifically waives payment of any and all
commissions due until such time as the Broker [FS2] is in receipt of the
consideration (the dealer manager fee paid to the Broker) in respect of
which the commissions relate.
30
In the Court’s view, this provision explicitly identifies a condition precedent
to Giugliano’s entitlement to commissions: receipt by FS2 of the so-called “dealer
manager fee” associated with the underlying sales transaction.
However, the
Plaintiff does not allege that this condition precedent was satisfied.
In this regard, Giugliano fails to specify any particular sales transaction for
which he is allegedly owed a commission. Rather, without citing any authority, he
claims that he “is not obligated to specify with particularity every transaction for
which his owed commissions arise.” However, even if this were true, Giugliano has
set forth no transactions at all. In addition, he fails to allege even the vaguest
supporting details, including the approximate timing of the transactions; the
approximate amount of commissions allegedly owed; and, most importantly from a
contract standpoint, that FS2 received the dealer manager fee that would legally
entitle him to such commissions.
In the absence of these important facts, there is no plausible basis to conclude
that Giugliano “earned” the commissions that he seeks to recover, as set forth in the
Agreement. As a result, the Court is unable to reasonably infer that FS2 and the
individual Defendants are liable for the alleged failure to pay wages. Accordingly,
the Court finds that the Plaintiff has failed to plausibly allege a cause of action
under the NYLL based on unpaid wages.
Having so held, the Court need not address the Defendants’ alternative
contention that Giugliano is barred from receiving the subject commissions because
he is neither registered in good standing nor employed by FS2.
31
Accordingly, to the extent the Defendants seek to dismiss the Plaintiff’s
causes of action under the NYLL based on unpaid wages against FS2 and the
individual Defendants, their motion is granted.
I.
As to Whether Giugliano Has States Claims Based on Conversion and
Unjust Enrichment
The Defendants assert two alternative bases for dismissing Giugliano’s
causes of action based on conversion and unjust enrichment under New York law.
First, the Defendants contend that those claims are impermissibly duplicative of his
breach of contract claim. Second, they contend that Giugliano failed to plausibly
plead the essential elements of these claims.
The Court notes that Giugliano gives only passing attention to this aspect of
the Defendants’ motion. In a single paragraph, he admits that his conversion and
unjust enrichment claims are “predicated under the same set of facts” as his breach
of contract claim. However, he states, again without reference to authority, that his
“breach of contract claim has no bearing on the viability of [his] common law claims”
and that he is not required “to plead either [his conversion or unjust enrichment]
claim with a higher level of specificity.” The Court disagrees.
Contrary to the Plaintiff’s contention, it is well-settled that claims for
conversion and unjust enrichment “cannot lie [where] they are duplicative of [a]
breach of contract cause of action.” Ainbinder v. Money Ctr. Fin. Grp.. Inc., 10-cv5270, 2013 U.S. Dist. LEXIS 47103, (E.D.N.Y. Feb. 28, 2013) (Report and
Recommendation) (collecting cases), adopted, 2013 U.S. Dist. LEXIS 45501
(E.D.N.Y. Mar. 25, 2013); see Karmilowicz v. Hartford Fin. Servs. Grp., 494 F. App’x
32
153, 158 (2d Cir. 2012) (noting that “a claim to recover damages for conversion
cannot be predicated on a mere breach of contract” (quoting Wolf v. Nat’l Council of
Young Israel, 264 A.D.2d 416, 417, 694 N.Y.S.2d 424 (2d Dep’t 1999))); Rabin v.
MONY Life Ins. Co., 387 F. App’x 36, 42 (2d Cir. 2010) (finding that “the notion of
unjust enrichment applies where there is no contract between the parties” and
holding that, because the subject matter at issue in that case was governed by a
written contract, the plaintiff had “no cognizable claim for unjust enrichment
separate from his breach of contract claim” (internal quotation marks and citations
omitted)); Coyne Int’l Enters. Corp. v. Mylan Pharms., Inc., 13-cv-821, 2014 U.S.
Dist. LEXIS 82576, at *8-*9 (N.D.N.Y. June 18, 2014) (“Under New York law, there
can be no cause of action for unjust enrichment when there is a valid contract
governing the same subject matter between the parties”) (quoting Clark-Fitzpatrck,
Inc. v Long Island R.R. Co., 70 N.Y.2d 382, 521 N.Y.S.2d 653, 516 N.E.2d 190
(1987)); Dervin Corp. v. Banco Bilbao Vizcaya Argentaria, S.A., 03-cv-9141, 2004
U.S. Dist. LEXIS 17406, at *20-*21 (S.D.N.Y. Aug. 30, 2004) (dismissing a
conversion claim that was “[b]ased on essentially the same facts alleged in [a]
breach of contract claim[ ]”).
Here, to the extent Giugliano has based his conversion and unjust
enrichment claims on the same facts as his breach of contract claim, the Court finds
them impermissibly duplicative.
Thus, the Court need not reach the issue of
whether the Plaintiff has sufficiently plead the elements of those claims.
33
Accordingly, to the extent the Defendants seek to dismiss the Plaintiff’s
causes of action based on conversion and unjust enrichment under New York law,
their motion is granted.
III.
Conclusion
Based on the foregoing, the Defendants’ motion to dismiss is granted in part
and denied in part.
The Court grants the motion and dismisses the Plaintiff’s cause of action
under the NYLL based on unpaid wages. The Court also dismisses the Plaintiff’s
causes of action based on breach of contract, conversion, and unjust enrichment.
The Court denies the motion as to the Plaintiff’s causes of action under the
ADEA, the NYSHRL, and the NYCHRL, based on age discrimination and
discriminatory retaliation.
In addition, the Court denies without prejudice the Plaintiff’s cross-motion to
amend his Complaint.
SO ORDERED
Dated: Central Islip, New York
September 1, 2015
/s/ Arthur D. Spatt________________________
ARTHUR D. SPATT
United States District Judge
34
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