Yoder, et al v. Town of Morristown, et al

Filing 105

MOTION to Amend/Correct 13 Answer to Complaint to clarify and supplement an affirmative defense Motion Hearing set for 4/3/2012 11:00 AM in Albany before Senior Judge Neal P. McCurn Response to Motion due by 3/19/2012 filed by Mark Blanchard, Christopher Coffin, Lanetta Kay Davis, Frank L. Putman, David Stout, III, Town of Morristown, Gary Turner, Howard Warren. (Attachments: # 1 Declaration Laws Declaration, # 2 Exhibit(s) A, # 3 Exhibit(s) B, # 4 Exhibit(s) C, # 5 Exhibit(s) D, # 6 Memorandum of Law, # 7 Appendix unreported case, # 8 Appendix unreported case, # 9 Appendix unreported case, # 10 Appendix unreported case, # 11 Appendix unreported case, # 12 Appendix unreported case, # 13 Appendix unreported case, # 14 Appendix unreported case, # 15 Affidavit certificate of service) Motions referred to Therese Wiley Dancks. (Laws, April)

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Caution
As of: Feb 17, 2012
KEVIN MORRIS and OTHER UNNAMED INDIVIDUALS, Plaintiffs, -againstFORDHAM UNIVERSITY, Rev. Joseph A. O'Hare, President, Fordham University,
Defendant.
No. 03 Civ. 0556 (CBM)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK
2004 U.S. Dist. LEXIS 7310; 93 Fair Empl. Prac. Cas. (BNA) 1364

April 27, 2004, Decided
April 28, 2004, Filed
DISPOSITION:
[*1] Defendant's motion to dismiss
plaintiff's complaint granted in part and denied in part.
Plaintiff granted leave to amend complaint.
CASE SUMMARY:

PROCEDURAL POSTURE: Defendant college filed a
motion, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6),
to dismiss plaintiff former college coach's action, which
alleged claims of sex discrimination, pursuant to Title IX
of the Education Amendments of 1972 (Title IX), 20
U.S.C.S. § 1681 et seq., and the Equal Pay Act, 29
U.S.C.S. § 206(d), as well as various state common law
claims. The coach sought leave to file a more definitive
statement as to his state claims.
OVERVIEW: The coach, a male, was the head coach of
the college's women's basketball team. He alleged
disparate treatment and impact in relation to allegedly
inferior resources and opportunities available for the
women's basketball team in comparison to the men's

basketball team. The court held that, although the coach
lacked standing to bring a Title IX claim on behalf of the
women's basketball program, he did have standing to
bring a claim individually. The court held that the
prohibition of discrimination "on the basis of sex" was
broad enough to encompass a prohibition of
discrimination against the coach on the basis of the sex of
the players whom he coached. In dismissing the Equal
Pay Act claim, the court held that the coach failed to
show a disparity between his wage and the wage of a
female coach. The court dismissed a breach of contract
claim because it was based on an unenforceable oral
promise of continued employment and dismissed a fraud
claim because the coach failed to allege facts that gave
rise to a strong inference of fraudulent intent. The court
dismissed a claim of breach of covenant of good faith
because there was such claim independent of a claim for
breach of contract.
OUTCOME: The court granted the college's motion as
to each of the coach's claims except the Title IX claim.

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The court granted the coach leave to amend his complaint
to re-plead his claim of breach of contract.
LexisNexis(R) Headnotes

Civil Procedure > Pleading & Practice > Defenses,
Demurrers & Objections > Failures to State Claims
Civil Procedure > Pleading & Practice > Pleadings >
Complaints > Requirements
[HN1] On a motion to dismiss, a court must read the
complaint generously, and draw all inferences in favor of
the pleader. The court must accept as true the material
facts alleged in the complaint. The court must not dismiss
the action unless it appears beyond doubt that plaintiff
can prove no set of facts in support of his claim which
would entitle him to relief. Thus, a plaintiff need only
plead a short and plain statement of the claim that will
give defendant fair notice of what plaintiff's claim is and
the grounds upon which it rests. This standard is applied
in employment discrimination lawsuits, where the
complaint need not contain specific facts establishing a
prima facie case under the McDonnell Douglas
framework.
Civil Procedure > Pleading & Practice > Defenses,
Demurrers & Objections > Failures to State Claims
[HN2] In deciding a motion to dismiss, the issue is not
whether a plaintiff will ultimately prevail, but whether
the claimant is entitled to offer evidence to support the
claims. The court must limit itself to a consideration of
the facts alleged on the face of the complaint, and to any
documents attached to the complaint as exhibits or
incorporated in it by reference. Even where a document is
not incorporated by reference, the court may nevertheless
consider it where the complaint relies heavily upon its
terms and effect, which renders the document integral to
the complaint. If extraneous material is presented by one
or more of the parties, the court must exclude it from
consideration. Fed. R. Civ. P. 12(b)(6).
Education Law > Discrimination > Gender & Sex
Discrimination > Title IX > Coverage
[HN3] See 20 U.S.C.S. § 1681(a).
Civil Rights Law > Implied Causes of Action
Education Law > Discrimination > Gender & Sex

Discrimination > Title IX > Enforcement
Labor & Employment Law > Discrimination > Gender
& Sex Discrimination > Enforcement
[HN4] There is an implied private right of action for
gender-based discrimination under Title IX of the
Education Amendments of 1972 (Title IX), 20 U.S.C.S. §
1681 et seq. Gender-based employment discrimination by
educational programs receiving federal financial support
comes within the prohibition of Title IX. Additionally,
the remedy of damages is available to an individual in an
action to enforce Title IX.
Civil Procedure > Justiciability > Standing > Injury in
Fact
Constitutional Law > The Judiciary > Case or
Controversy > Standing > General Overview
[HN5] The irreducible constitutional minimum of
standing contains three elements. First, plaintiff must
have suffered an injury in fact, an invasion of a legally
protected interest which is (a) concrete and particularized,
and (b) actual or imminent, not conjectural or
hypothetical. Second, there must be a causal connection
between the injury and the conduct complained of. Third,
it must be likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision. The
party invoking federal jurisdiction bears the burden of
establishing these elements. Particularized means that the
injury must affect plaintiff in a personal and individual
way. At the pleading stage, general factual allegations of
injury resulting from defendant's conduct may suffice, for
on a motion to dismiss a court presumes that general
allegations embrace those specific facts that are necessary
to support the claim. A plaintiff generally must assert his
own legal rights and interests, and cannot rest his claim to
relief on the legal rights or interests of third parties. The
rare exceptions to this rule generally involve situations in
which plaintiff has a close relation with the third party
and there exists some hindrance to the third party's ability
to protect his or her own interests.
Education Law > Discrimination > Gender & Sex
Discrimination > Title IX > Coverage
Education Law > Discrimination > Gender & Sex
Discrimination > Title IX > Remedies
Labor & Employment Law > Discrimination > General
Overview
[HN6] The legislative history of Title IX of the Education
Amendments of 1972 (Title IX), 20 U.S.C.S. § 1681 et
seq., demonstrates an intent on the part of Congress to

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2004 U.S. Dist. LEXIS 7310, *1; 93 Fair Empl. Prac. Cas. (BNA) 1364

have Title IX serve as an additional protection against
gender-based discrimination in educational programs
receiving federal funding regardless of the availability of
a remedy under Title VII, and the U.S. Supreme Court
and U.S. Court of Appeals for the Second Circuit
interpretations of the statute do not permit the contrary
conclusion.
Labor & Employment Law > Equal Pay > Equal Pay
Act > General Overview
[HN7] The Equal Pay Act, 29 U.S.C.S. § 206(d), is
violated if an employer of a covered employee pays
wages to that employee: (1) at a rate less than the rate at
which he pays wages to employees of the opposite sex;
(2) for equal work on jobs the performance of which
requires equal skill, effort, and responsibility; and (3)
which are performed under similar working conditions. A
violation occurs when an employer pays lower wages to
an employee of one gender than to substantially
equivalent employees of the opposite gender in similar
circumstances.
Contracts Law > Formation > Execution
Contracts Law > Statutes of Frauds > Requirements >
Performance
Contracts Law > Statutes of Frauds > Requirements >
Signatures
[HN8] See N.Y. Gen. Oblig. Law § 5-701(1).
Civil Procedure > Pleading & Practice > Pleadings >
Heightened Pleading Requirements > Fraud Claims
Evidence > Inferences & Presumptions > Inferences
Torts > Business Torts > Fraud & Misrepresentation >
General Overview
[HN9] The elements of common law fraud are a material,
false representation, an intent to defraud thereby, and
reasonable reliance on the representation, causing
damage to plaintiff. In order to plead fraud, plaintiff must
comply with Fed. R. Civ. P. 9(b), which states: In all
averments of fraud or mistake, the circumstances
constituting fraud or mistake shall be stated with
particularity. Malice, intent, knowledge, and other
condition of mind of a person may be averred generally.
A complaint containing allegations of fraud must: (1)
specify the statements that 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. In order to satisfy the

requirements of Rule 9(b), plaintiffs must allege facts that
give rise to a strong inference of fraudulent intent. The
requisite strong inference of fraud may be established
either (a) by alleging facts to show that defendants had
both motive and opportunity to commit fraud, or (b) by
alleging facts that constitute strong circumstantial
evidence of conscious misbehavior or recklessness. An
inference that defendants knew their statements to be
false cannot be based on allegations which are themselves
speculative.
Contracts Law > Breach > General Overview
Contracts Law > Contract Interpretation > Good Faith
& Fair Dealing
Contracts Law > Types of Contracts > Express
Contracts
[HN10] Under New York law, parties to an express
contract are bound by an implied duty of good faith, but
breach of that duty is merely a breach of the underlying
contract.
Civil Procedure > Pleading & Practice > Pleadings >
Amended Pleadings > Leave of Court
[HN11] Fed. R. Civ. P. 15(a) provides that leave to
amend a complaint shall be freely given when justice so
requires. It is the usual practice upon granting a motion to
dismiss to allow leave to replead. In the absence of any
apparent or declared reason, such as undue delay, bad
faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of
amendments, etc., the leave sought should, as the rules
require, be freely given.
COUNSEL: For Kevin Morris, Plaintiff: Peter J. Cresci,
LEAD ATTORNEY, Cresci & Black LLC, Bayonne, NJ.
JUDGES: CONSTANCE BAKER MOTLEY, United
States District Judge.
OPINION BY: CONSTANCE BAKER MOTLEY
OPINION

MEMORANDUM OPINION & ORDER
Motley, J.

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2004 U.S. Dist. LEXIS 7310, *1; 93 Fair Empl. Prac. Cas. (BNA) 1364

Plaintiff Kevin Morris brings claims of sex
discrimination, pursuant to Title IX of the Education
Amendments of 1972 ("Title IX"), 20 U.S.C. § 1681 et
seq., and the Equal Pay Act, 29 U.S.C. 206(d), as well as
various common law claims, against defendant Fordham
University ("Fordham").
Plaintiff, a former Head Coach of Women's
Basketball at Fordham University, alleges disparate
treatment and disparate impact in relation to allegedly
inferior resources and opportunities [*2] available for the
women's basketball team in comparison to the men's
basketball team. Plaintiff alleges that defendant subjected
him to "disproportionate funding for the women's
basketball team, both individually (salary and benefits),
as a women's basketball coach, and collectively (assistant
coaches, equipment, uniforms, supplies, recruitment
funds, team travel, post-season opportunities, and
tutoring)." Plaintiff alleges that "in violation of federal
and state law," defendant "base[d] the Plaintiff's salary,
benefits, career development, and the funding of the
women's athletic programs (specifically the women's
basketball team) on the Plaintiff's gender and the gender
of the student athletes Plaintiff coached." Plaintiff also
alleges that defendant breached a contract with plaintiff
by terminating him prior to the end date of his contract,
and that, by failing to provide plaintiff with a promised
long term contract, defendant committed fraud. 1 Finally,
plaintiff alleges in his complaint that, "by virtue of the
existence of a hostile work environment," defendant
breached the implied covenant of good faith and fair
dealing. Plaintiff seeks compensatory and punitive
damages, as [*3] well as injunctive relief, including
"100% compliance with Title IX."
1 Plaintiff's complaint also contains a claim of
negligent misrepresentation, but plaintiff has
subsequently "averred" that this claim is barred by
the New York Worker's Compensation statute.
Consequently, this claim will not be addressed in
the instant opinion.
Plaintiff filed a complaint on January 24, 2003, and
an amended complaint on May 7, 2003. On June 13,
2003, defendant moved to dismiss plaintiff's complaint,
pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the
Federal Rules of Civil Procedure. For the reasons that
follow, defendant's motion is granted in part, and denied
in part.
I. BACKGROUND

Fordham is a Jesuit institution of higher learning
located in New York City. Fordham is a member of the
National Collegiate Athletic Association Division I and
competes in the Atlantic 10 Conference in, among other
sports, women's and men's basketball. Plaintiff held the
position of Head Coach [*4] of Women's Basketball at
Fordham from 1993 until in or about March 2000.
II. Discussion
A. MOTION TO DISMISS STANDARD
[HN1] On a motion to dismiss, a court must read the
complaint generously, and draw all inferences in favor of
the pleader. Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.
1989). The court must accept as true the material facts
alleged in the complaint. Grandon v. Merrill Lynch, 147
F.3d 184, 188 (2d Cir. 1998). The court must not dismiss
the action unless "'it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.'" Cohen v. Koenig, 25
F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d
80 (1957)); Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000).
Thus, a plaintiff need only plead "'a short and plain
statement of the claim' that will give the defendant fair
notice of what the plaintiff's claim is and the grounds
upon which it rests." Conley, 355 U.S. at 47 (quoting
Fed.R.Civ.P. 8(a)(2)). This standard [*5] is applied in
employment discrimination lawsuits, where the
complaint need not contain specific facts establishing a
prima facie case under the McDonnell Douglas
framework. Swierkiewicz v. Sorema N.A., 534 U.S. 506,
512, 122 S. Ct. 992, 998, 152 L. Ed. 2d 1 (2002). [HN2]
In deciding such a motion, the "issue is not whether a
plaintiff will ultimately prevail, but whether the claimant
is entitled to offer evidence to support the claims."
Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996)
(internal quotations omitted). The court must limit itself
to a consideration of the facts alleged on the face of the
complaint, and to any documents attached to the
complaint as exhibits or incorporated in it by reference.
Cosmas, 886 F.2d. at 13. Even where a document is not
incorporated by reference, the court may nevertheless
consider it where the complaint "relies heavily upon its
terms and effect," which renders the document "integral"
to the complaint. Chambers v. Time Warner, Inc., 282
F.3d 147, 153 (2d Cir. 2002). If, as in the present case,
extraneous material is presented by one or more of the
parties, the court must exclude [*6] it from

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2004 U.S. Dist. LEXIS 7310, *6; 93 Fair Empl. Prac. Cas. (BNA) 1364

consideration. See Fed.R.Civ.P. 12(b).
B. PLAINTIFF'S DISCRIMINATION CLAIMS
1. TITLE IX
Title IX provides, in part:
[HN3] No person in the United States
shall, on the basis of sex, be excluded
from participation in, be denied the
benefits of, or be subjected to
discrimination under any education
program or activity receiving federal
financial assistance.

20 U.S.C. § 1681(a). [HN4] There is an implied
private right of action for gender-based discrimination
under Title IX. Cannon v. Univ. of Chicago, 441 U.S.
677, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979).
Gender-based employment discrimination by educational
programs receiving federal financial support comes
within the prohibition of Title IX. North Haven Bd. of
Educ. v. Bell, 456 U.S. 512, 102 S. Ct. 1912, 72 L. Ed. 2d
299 (1982). Additionally, the remedy of damages is
available to an individual in an action to enforce Title IX.
Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 76,
112 S. Ct. 1028, 1038, 117 L. Ed. 2d 208 (1992).
Defendant claims that plaintiff lacks standing for his
Title IX claim, [*7] on the grounds that plaintiff seeks,
in part, to adjudicate the interests of third parties, namely
former members of the Fordham women's basketball
team, and that, in any event, plaintiff's Title IX
employment discrimination claim is preempted by Title
VII. Defendant also claims that plaintiff's Title IX claim
is premised not on plaintiff's gender, but on the gender of
the students he coached.
Plaintiff claims that he has standing to assert a claim
under Title IX "because he seeks to enforce his own
rights and that of the program for which he was an
integral part-Head coach," and that "as a federal taxpayer,
Plaintiff has an implied right to insure that an entity
receiving federal funding properly dispenses such funds
in a non-discriminate [sic] manner." Plaintiff argues that
his Title IX claim is not preempted by Title VII, because
defendant never advised plaintiff of the procedure and
right to file a Title VII claim, and because plaintiff
"wished to rectify the discriminatory animus practiced by

the Defendant in its distribution of federal funding, both
individually and for the Women's Basketball program;
these are remedies Title VII cannot provide." Similarly,
plaintiff claims [*8] that "Title VII could not address the
discriminatory nature in which the Defendant ran its
athletic department or dispensed federal funding." He
"brought claims of enforcement of Title IX provisions,
enforcement that cannot be remedied under Title VII."
"It is by now well settled that [HN5] 'the irreducible
constitutional minimum of standing contains three
elements. First, the plaintiff must have suffered an 'injury
in fact' - an invasion of a legally protected interest which
is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical. Second, there
must be a causal connection between the injury and the
conduct complained of ... Third, it must be likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision." United States v. Hays,
515 U.S. 737, 742-43, 115 S. Ct. 2431, 2435, 132 L. Ed.
2d 635 (1995) (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351
(1992) (citations omitted). The party invoking federal
jurisdiction bears the burden of establishing these
elements. Lujan, 504 U.S. at 561. Particularized "mean[s]
that [*9] the injury must affect the plaintiff in a personal
and individual way." Lujan, 504 U.S. at 560 n.1 (internal
quotation marks omitted). "At the pleading stage, general
factual allegations of injury resulting from the defendant's
conduct may suffice, for on a motion to dismiss we
'presume that general allegations embrace those specific
facts that are necessary to support the claim.'" Lujan, 504
U.S. at 561 (quoting Lujan v. Nat'l Wildlife Fed'n, 497
U.S. 871, 889, 110 S. Ct. 3177, 111 L. Ed. 2d 695
(1990)). A plaintiff '"generally must assert his own legal
rights and interests, and cannot rest his claim to relief on
the legal rights or interests of third parties.'" Valley Forge
Christian Coll. v. Ams. United for Separation of Church
& State, Inc., 454 U.S. 464, 474, 102 S. Ct. 752, 70 L. Ed.
2d 700 (1982) (quoting Warth v. Seldin, 422 U.S. 490,
499, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975)). The rare
exceptions to this rule generally involve situations in
which the plaintiff has a close relation with the third party
and "there exists some hindrance to the third party's
ability to protect his or her own [*10] interests."
Edmonson v. Leesville Concrete Co., 500 U.S. 614, 629,
111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991).
Plaintiff purports to bring his Title IX claim both
individually and on behalf of the program. We note at the

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outset that plaintiff lacks standing to bring a claim on
behalf of the program. Valley Forge Christian Coll., 454
U.S. at 474. We further note that payment of federal taxes
does not give plaintiff an "implied right" to regulate
federal spending. See id. at 477. We disagree, however,
with defendant's argument that because plaintiff lacks
standing for that part of the claim that is made on the
program's behalf his claim must therefore be dismissed in
toto. Neither the Supreme Court nor the Second Circuit
has resolved the question whether Title IX provides a
cause of action to employees of federally funded
educational programs who bring claims of sex
discrimination against their employers. We agree with
our sister court's determination in Henschke that it does.
SeeHenschke v. New York Hospital-Cornell Medical Ctr.,
821 F. Supp. 166, 172 (S.D.N.Y. 1993) (finding that
"[HN6] the legislative history of Title [*11] IX
demonstrates an intent on the part of Congress to have
Title IX serve as an additional protection against
gender-based discrimination in educational programs
receiving federal funding regardless of the availability of
a remedy under Title VII, and the Supreme Court and
Second Circuit interpretations of the statute do not permit
the contrary conclusion."). "Overlapping jurisdiction in
the area of employment discrimination is well
recognized." North Haven Bd. of Education v. Hufstedler,
629 F.2d 773, 784 (2d Cir. 1980), aff'd sub nom. North
Haven Bd. of Educ. v. Bell, 456 U.S. 512, 102 S. Ct.
1912, 72 L. Ed. 2d 299 (1981) (citations omitted).
We are also unpersuaded by defendant's argument
that dismissal of plaintiff's Title IX claim is required
because the claim is premised not on plaintiff's gender,
but on the gender of the students he coached. The
prohibition of discrimination "on the basis of sex" is
broad enough to encompass a prohibition of
discrimination against plaintiff on the basis of the sex of
the players whom he coached. 20 U.S.C. § 1681(a).
Defendant's motion is, therefore, denied as to plaintiff's
Title IX claim.
[*12] 2. EQUAL PAY ACT
[HN7] The Equal Pay Act is violated if an employer
of a covered employee pays wages to that employee:
[(1)] at a rate less than the rate at which
he pays wages to employees of the
opposite sex ...
[(2)] for equal work on jobs the

performance of which requires equal skill,
effort, and responsibility, and
[(3)] which are performed under
similar working conditions...
29 U.S.C. § 206(d).
In other words, "[a] violation occurs when an
employer pays lower wages to an employee of one
gender than to substantially equivalent employees of the
opposite gender in similar circumstances." Pollis v. New
Sch. for Soc. Research, 132 F.3d 115, 118 (2d Cir. 1997).
Plaintiff claims that defendant "subordinated the
Plaintiff's pay wage to his comparative counterpart (Bob
Hill, Head Coach of the men's basketball team) who was
less or equally experienced on the college level and
performed the same duties and functions." Plaintiff states
that he seeks relief under the Equal Pay Act "under the
well established principle that associational rights give
rise to cognizable discrimination claims," and asks that
the court "grant [*13] Plaintiff protective status under the
Equal Pay Act as the holder of a traditionally female
position who associates with female athletes."
Defendant asserts that plaintiff cannot make out a
claim under the Equal Pay Act, because he does not
compare himself to any other similarly situated employee
who is female. Defendant also argues that plaintiff's
associational claim finds no support in the law.
Under the plain language of the statute, and as
interpreted by this Circuit, the identification of a
comparator employed by the same employer and of the
opposite gender is an indispensable requirement for a
plaintiff bringing an Equal Pay Act Claim. Plaintiff's
claim rests upon alleged disparities between his wage and
that of another male coach. As a matter of law, this will
not suffice, and plaintiff's Equal Pay Act claim is
therefore dismissed.
C. PLAINTIFF'S STATE LAW CLAIMS
1. BREACH OF CONTRACT
Plaintiff's complaint alleges that "defendant breached
contract [sic] with Plaintiff by terminating him prior to
the end date of his contract." Plaintiff claims in his
memorandum opposing the instant motion that he had a
three-year contract from July 1, 1997, to June 30, 2000,

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which [*14] was to be rolled over, and that defendant
terminated him on March 27, 2000, "and did not honor
the rest of the terms of the contract."
Defendant claims that plaintiff has failed to plead the
elements necessary to make out his claim, and that
plaintiff does not assert that the contract at issue
abrogated the legal presumption that employees are
employed at will and can be terminated at any time for
any legal reason.
[HN8] Under the Statute of Frauds, "every
agreement, promise or undertaking is void, unless it or
some note or memorandum thereof be in writing, and
subscribed by the party to be charged ... if such
agreement, promise or undertaking by its terms is not to
be performed within one year from the making thereof."
N.Y. Gen. Oblig. Law § 5-701(1). The complaint makes
no allegation that plaintiff's contract with defendant was
memorialized in writing. Regardless of that fact,
plaintiff's claim for breach of contract cannot stand
because plaintiff has not pleaded any facts which suggest
any abrogation of the general employment law that
employees are employed at will. See Yaris v.
Arnot-Ogden Mem'l Hosp., 891 F.2d 51, 52 (2d Cir.
1989). [*15] Therefore, defendant's motion is granted as
to plaintiff's breach of contract claim.
2. FRAUD
Plaintiff lays out his fraud claim in the following
paragraph of his complaint:
Beginning in June of 1997, Athletic
Director Frank McLaughlin on behalf of
Defendant promised Plaintiff that a long
term contract would be given to Plaintiff.
Mr. McLaughlin requested a copy of a
three (3) year contract that had been
offered to Plaintiff by St. Mary's College
in California to use as a draft for the
contract that Defendant would offer
Plaintiff. Defendant and its employees
made a promise of providing Plaintiff with
a new, extended contract that would be
comparable to the one offered by St.
Mary's with the intent that Plaintiff would
rely on such a promise. As long as a year
after this promise was made, the contract
was not provided. As a result, Plaintiff
missed the opportunity to accept St.

Mary's contract as he was relying on
Defendant's promise of a new contract,
which he never received.

Defendant asserts that plaintiff's fraud claim fails
under Rule 9(b) of the Federal Civil Rules of Procedure,
as well as under the Statute of Frauds. Defendant [*16]
also claims that plaintiff's fraud claim arises out of
defendant's alleged intent to breach a contract with
plaintiff, and therefore states no independent cause of
action.
[HN9] The elements of common law fraud are "a
material, false representation, an intent to defraud
thereby, and reasonable reliance on the representation,
causing damage to the plaintiff." Katara v. D.E. Jones
Commodities, Inc., 835 F.2d 966, 970-71 (2d Cir. 1987).
In order to plead fraud, plaintiff must comply with Rule
9(b), which states: "In all averments of fraud or mistake,
the circumstances constituting fraud or mistake shall be
stated with particularity. Malice, intent, knowledge, and
other condition of mind of a person may be averred
generally." Fed.R.Civ.P. 9(b). The Second Circuit has
stated that a complaint containing allegations of fraud
"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." Acito v.
Imcera Group, Inc., 47 F.3d 47, 51 (2d Cir. 1995)
(quoting Mills v. Polar Molecular Corp., 12 F.3d 1170,
1175 (2d Cir. 1993)). [*17] In order to satisfy the
requirements of Rule 9(b), plaintiffs must allege facts that
give rise to a strong inference of fraudulent intent. San
Leandro Emergency Med. Group Profit Sharing Plan v.
Philip Morris Cos., Inc., 75 F.3d 801, 812 (2d Cir. 1996).
"The requisite 'strong inference' of fraud may be
established either (a) by alleging facts to show that
defendants had both motive and opportunity to commit
fraud, or (b) by alleging facts that constitute strong
circumstantial evidence of conscious misbehavior or
recklessness." Shields v. Citytrust Bancorp, Inc., 25 F.3d
1124,1128 (1994). The Second Circuit has noted that
"clearly, an inference that the defendants knew their
statements to be false cannot be based on allegations
which are themselves speculative." Wexner v. First
Manhattan Co., 902 F.2d 169, 173 (2d Cir. 1990).
Plaintiff has failed to allege facts that give rise to a
strong inference of fraudulent intent. See San Leandro

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2004 U.S. Dist. LEXIS 7310, *17; 93 Fair Empl. Prac. Cas. (BNA) 1364

Emergency Med. Group, 75 F.3d at 812 .He neither
alleges facts to show that defendant had both motive and
opportunity to commit fraud nor does he allege facts that
constitute strong [*18] circumstantial evidence of
conscious misbehavior or recklessness. See Shields, 25
F.3d at 1128. Accordingly, defendant's motion is granted
as to plaintiff's claim of fraud.
3. BREACH OF COVENANT OF GOOD FAITH
Plaintiff lays out his claim for breach of the implied
covenant of good faith and fair dealing in the following
paragraph of his complaint:
Defendant breached its implied covenant
of good faith and fair dealing with
Plaintiff as the Head Coach, Women's
Basketball Team. By virtue of the
existence of a hostile work environment
against the Plaintiff caused by the actions
of Defendant's agents and servants, is [sic]
a de facto breach of the Plaintiff's
expectation that there be good faith and
fair dealing in the contractual relationship.

Defendant asserts that New York law does not
recognize a cause of action for breach of an implied
covenant independent of a claim for breach of the
underlying contract. In his memorandum opposing the
instant motion, plaintiff asserts that this claim "is a cause
of action recognized part and parcel to the breach of
contract."

implied covenant of good faith and fair dealing, for leave
to "file a more definitive statement under Fed.R.Civ.P.
12(e) if the current argument under this response is
insufficient." Defendant opposes the granting of such
leave, on the grounds that any amendment would be
futile.
Federal Rule 15(a) [HN11] provides that leave to
amend a complaint shall be"... freely given when justice
so requires." It is the usual practice upon granting a
motion to dismiss to allow leave to replead. [*20]
Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48
(2d Cir. 1991). "In the absence of any apparent or
declared reason - such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure
to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendments, etc.
- the leave sought should, as the rules require, be 'freely
given.'" Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct.
227, 9 L. Ed. 2d 222 (1962).
Given the liberal standard for granting leave to file
an amended complaint, we hereby permit plaintiff to
amend his complaint to the extent of conforming his
claim of breach of contract to the requirements of the
Federal Rules of Civil Procedure, should he find himself
able to do so. Given that, as stated above, a claim of
breach of the implied covenant is, at root, a breach of
contract claim, we deny plaintiff's request to amend the
implied covenant claim. Any allegations of a breach of
the implied covenant should be included within the
breach of contract claim.

[HN10] Under New York law, parties to an express
contract are bound by an implied duty of good [*19]
faith, "but breach of that duty is merely a breach of the
underlying contract." Fasolino Foods Co. v. Banca
Nazionale Del Lavoro, 961 F.2d 1052, 1056 (2d Cir.
1992) (quoting Geler v. Nat'l Westminster Bank USA, 770
F. Supp. 210, 215 (S.D.N.Y. 1991)). Given that a claim of
breach of the covenant of good faith is, at root, a breach
of contract claim, and that plaintiff's complaint includes a
breach of contract claim, defendant's motion as to the
breach of covenant claim is granted.

III. CONCLUSION

D. REQUEST FOR LEAVE TO FILE AMENDED
COMPLAINT

SO ORDERED.

Plaintiff makes a request in the alternative, in regard
to his claims of breach of contract and breach of the

For the foregoing reasons, defendant's motion [*21]
is GRANTED as to each of plaintiff's claims with the
exception of plaintiff's Title IX claim, as to which
defendant's motion is DENIED. Plaintiff is granted leave
to amend his complaint to re-plead his claim of breach of
contract. Any such amended complaint must be served
within thirty days of receipt of this opinion. The pre-trial
conference currently scheduled for May 5, 2004, at 11
am, is adjourned until June 16, 2004, at 11am.

Dated: April 27, 2004
CONSTANCE BAKER MOTLEY

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2004 U.S. Dist. LEXIS 7310, *21; 93 Fair Empl. Prac. Cas. (BNA) 1364

United States District Judge