Grewal v. Cuneo et al
OPINION AND ORDER re: 51 MOTION to Dismiss and Motion for partial summary judgment regarding Second Amended Complaint. filed by Jonathan W. Cuneo, Cuneo Gilbert & LaDuca LLP, Michael J. Flannery, Pamela Gilbert, Matthew E. Miller, Da niel M. Cohen, Robert J. Cynkar, Sandra Cuneo, Charles J. LaDuca, Joel Davidow. For the reasons stated, Defendants' motion to dismiss is granted in part and denied in part, as follows: Plaintiff's RICO claims are dismissed, as are her st ate-law claims for breach of fiduciary duty, unjust enrichment, unfair competition, fraudulent inducement, and discriminatory termination under State and City Human Rights Law. Plaintiff's breach of contract, breach of the implied covenant, and hostile work environment claims under State and City Human Rights Law survive. Because none of these remaining claims are properly asserted against Davidow, however, he is dismissed from this action, as are the Cuneo Defendants, and the remaining F lannery Defendants. The Clerk of Court is requested to close the motion pending at Dkt. 51, and to terminate all parties from the case but for Cuneo Gilbert & LaDuca LLP. The Court will hold a status conference in this matter on Thursday, July 30, 20 15 at 10:00 a.m. No later than July 23, 2015, the parties shall submit to the Court a revised case management plan and a joint letter as to the status of discovery. SO ORDERED. (As further set forth in this Order.) (Signed by Judge Ronnie Abrams on 7/7/2015) (ajs)
UNrTED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ELECTRO NI CALLY FILED
PREETPAL GREW AL,
No. 13-cv-6836 (RA)
OPINION AND ORDER
JONATHAN W. CUNEO, et al.,
RONNIE ABRAMS, United States District Judge:
Plaintiff Preetpal Grewal, a licensed attorney, brings this prose action against her former
employer, Cuneo Gilbert & LaDuca LLP ("CGL"), its three named partners, Jonathan W. Cuneo,
Pamela Gilbert, and Charles J. LaDuca (collectively, the "Cuneo Defendants"), as well as nine
other purported partners of the firm, Michael J. Flannery, Joel Davidow, Robert J. Cynkar, Sandra
Cuneo, Daniel M. Cohen, and Matthew E. Miller (collectively, the "Flannery Defendants"). In her
Second Amended Complaint, Plaintiff alleges she was improperly induced to join CGL,
purportedly as a partner, that Defendants systematically denied her the opportunity to realize the
benefits promised in her employment contract, and that she was improperly and unfairly
terminated from the firm in 2012. She brings claims under Title VII of the Civil Rights Act of
1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., the Racketeer Influenced and Corrupt Organizations
Act ("RICO"), 18 U.S.C. § 1961, et seq., as well as a variety of state-law contract, tort, and antidiscrimination causes of action.
Before the Court is Defendants' motion to dismiss Plaintiff's Second Amended Complaint.
Defendants seek dismissal of the Flannery Defendants for lack of personal jurisdiction pursuant to
Fed. R. Civ. P. 12(b)(2), and dismissal of all but Plaintiff's breach of contract cause of action for
failure to state a claim pursuant to Fed R. Civ. P. 12(b)(6). For the reasons that follow, Defendants'
motion to dismiss is granted in part and denied in part.
Plaintiff, an Indian national, alleges that Jonathan Cuneo, a named partner at CGL,
contacted her on March 20, 2008, to express interest in Plaintiff joining CGL, a law firm based in
the District of Columbia. Second Am. Compl. ("SAC") (Dkt. 44) ,-i 21. At the time, Plaintiff was
considering opening her own law practice. Id. i-J 22. Several weeks later, Cuneo and Plaintiff met
in New York City, where they discussed in more detail the possibility of Plaintiff joining CGL. Id.
Plaintiff alleges that at that meeting Cuneo ''boasted about CGL's law practice, the nature of its
activities, and how successful and profitable the firm was." Id. i-J 23. Cuneo allegedly "touted how
much money he and his partners were making and indicated that if Plaintiff were to join the firm
she, too, would enjoy a lucrative practice." Id.
Cuneo further "informed Plaintiff that if she joined the firm, she would be entitled to a
share in the profits of any case she worked on, with an extra share for cases that she brought into
the office." Id. ir 24. Following this meeting, Plaintiff was invited to CG L's District of Columbia
office to meet a second time with Cuneo as well as several of the firm's partners. Id. ,-iir 25-26. On
the basis of this meeting, CGL extended a formal offer for Plaintiff to join the firm "on a 'trial
basis' for several months, at which time '[CGL's] standard deal kicks in."' Id. ,-i,-i 27-28. After
Plaintiff requested further information, id. i-J 29, Cuneo e-mailed Plaintiff on June 18, 2008 to
explain that under the "standard deal," Plaintiff "would be compensated for [client development
activities] hourly, plus ten percent of work [she] originate[ d], plus twelve percent of [her] lodestar
contribution," id. i-J 30. Any amounts beyond the hourly rate for client development activities were
to be considered an entitlement-and not a bonus-based on the "relative value" of Plaintiff's
contribution to a case. Id.
Plaintiff accepted Cuneo's offer by e-mail that same day,
31, and on June 30, 2008,
Plaintiff began working at COL from its New York City office, as CO L's sole New York presence,
32. Upon starting, Plaintiff was informed "she would not in fact have to complete a trial
period but rather would work full time under the 'standard deal' immediately." Id.
According to Plaintiff, she was treated as a partner at COL "from the beginning of her
affiliation with that firm." Id.
33. She alleges she "regularly attended partnership lunches ...
where issues of strategy were discussed" with the Cuneo Defendants, id.
34, and that COL
''regularly represented to others, including multiple courts, that Plaintiff was a partner at the firm
and Plaintiff believed these representations to be true." Id.
Defendants were similarly represented as partners, id.
35-4 3. Plaintiff asserts the Flannery
11-16, although these Defendants, in
affidavits attached to Plaintiff's Second Amended Complaint, have since disavowed their status as
partners, see id. Ex. 11.
Plaintiff nevertheless alleges that COL-and Jonathan Cuneo in particular-"sought to
nullify the promises made under" Plaintiff's employment contract with COL. Id.
44. In her
Second Amended Complaint, Plaintiff recounts a litany of instances in which Cuneo first
encouraged Plaintiff to develop clients and cases, only to "subvert" Plaintiff's work and
"expropriate" it for himself and other members of COL. See id.
44-98. Plaintiff alleges that
Cuneo repeatedly assured her "that no one at COL would work on another attorney's idea/lead for
a case without consent of the other attorney," id.
59, but that Cuneo frequently gave cases and
clients developed by Plaintiff to other COL attorneys, minimized the credit she received for her
work, offered to pay only a small fraction of the origination and lodestar profits to which she was
entitled, and refused to use clients developed by Plaintiff despite adopting her legal theories. Id.
44-98. As is necessary, the Court will address specific allegations of expropriation and
subversion in the Discussion, infra.
Plaintiff also alleges that Cuneo, in addition to subverting and expropriating her case
origination efforts, "repeatedly threatened and humiliated Plaintiff on the basis of her Indian
ii 99. For instance, she claims that Cuneo repeatedly, and in the presence of others,
"mocked and denigrated Plaintiffs accent, claiming that he 'could not understand' her ... even
though Plaintiff is a native English speaker," and told her that "'we treat you like a foreigner' and
that 'we never take you seriously,"' despite never making such statements to others. Id.
101. At one firm meeting in the summer of 2011, Plaintiff asserts that Cuneo remarked, "'we don't
take this girl seriously' and 'we just treat her as a foreigner,"' admitting openly that '"we should
be ashamed of ourselves' for how the firm treated Plaintiff." Id.
102. Similarly, in September of
2011, after Plaintiff "told Cuneo that she felt she was often treated as a foreigner and not given
proper respect for that reason," Cuneo purportedly "responded, 'I have repeatedly told you that
you are treated as a foreigner and that nobody takes you seriously."' Id.
ii 103. Plaintiff alleges that
another attorney "stopped Cuneo from making any further discriminatory comments" during this
meeting, and then "instructed Plaintiff to leave the room." Id.
By this conduct, Plaintiff claims "Cuneo created a hostile work environment by depriving
Plaintiff of her opportunities and giving her work opportunities/credit of her work to other
attorneys at CGL, and deliberately leaving Plaintiff out of meetings and conferences." Id.
Plaintiff further alleges that Cuneo, "with the intent to demoralize and harass Plaintiff, deliberately
and intentionally ordered repeated investigations and Plaintiff was issued numerous threats," id.
105, including repeated threats to ''Plaintiff's status as a resident of the United States as well as
standing as an attorney qualified to practice in the State of New York," id.
106. These threats
included a conversation with Cuneo in which he "implied to Plaintiff that Cuneo himself [had]
gotten [an] attorney disbarred and implied that anyone who fought with Cuneo could expect a
108, and a purportedly improper demand to see Plaintiff's Green Card, despite
CGL having "no valid reason to have this information and no legal basis to demand it," id.
Plaintiff also alleges that CGL launched a "bogus" investigation into expenses from a client
recruitment trip to India that Plaintiff took at Cuneo's request, id.
107, and that Davidow at one
point "threatened Plaintiff that all of the antitrust clients that Plaintiff had brought into the firm
were 'the firm's clients' and that if she left and took the clients with her, she would be prosecuted
for ethical violations and disbarred," id.
Plaintiff alleges that on May 7, 2012, she received a telephone call from Gilbert, who
instructed Plaintiff "not to come to her office in New York." Id.
112. Plaintiff was informed "her
office had been sealed and office equipment confiscated, and if she came to the office she would
be barred from entering." Id. Plaintiff was then "summoned to attend a meeting" with LaDuca and
Gilbert at the office of a third-party attorney, where she was told she was under investigation for
purportedly ghost-writing a brief for a pro se litigant, Elizabeth Thomas. Id. ~~ 114, 125-26. 1
When Plaintiff asked for further information, she was told she "had better talk with" her lawyer.
At the same meeting, Plaintiff was informed she had been placed on administrative leave,
and was instructed "not to have any contact with anyone at the firm, or any of the firm's clients
other than the administrator," id.
from this point forward," id.
115, and that she could not "claim any affiliation with CGL
116. Plaintiff alleges she was "given no rights to explain herself and
Thomas' attempts to intervene in this action were denied by Magistrate Judge Pitman. Dkt. 93.
no say in the decision to terminate her affiliation with the firm." Id.
was she "given any warning," or represented by counsel. Id.
117. Nor, Plaintiff contends,
118. Later that day, "Plaintiff called
Gilbert to confirm that her position had been terminated. Gilbert confirmed that Plaintiff no longer
had a position at the firm." Id.
According to Plaintiff, upon her dismissal from CGL, the firm launched a "groundless"
investigation of her conduct and then attempted to recoup the costs of this investigation from her.
124-131. Defendants' investigation "uncovered no evidence of misconduct," as, Plaintiff
alleges, even "a cursory review of the case law would have established."
contends the investigation was "simply an opportunity to intimidate and frighten Plaintiff in order
to induce her not to vindicate her rights, and an excuse for dismissing her from the firm on a basis
that would make Plaintiff, rather than CGL, appear to be at fault." Id.
In sum, Plaintiff alleges that Defendants "illegally squeezed [her] out" of CGL after
inducing her to "become a partner in their firm, for the purpose of expropriating the substantial
value of her interest in the firm." Id.
1. She contends that "Defendants illegally threatened and
intimidated [her], engaged in gross acts of discrimination, violated her rights as a partner in the
firm, interfered with her opportunities to obtain other work, deprived her of her means of
livelihood, and unjustly enriched themselves at her expense." Id. Plaintiff seeks $6,000,000 in
compensatory damages, as well as punitive and treble damages, an array of injunctive and
equitable relief, and an accounting to determine the value of her partnership interest in CGL. Id.
After Defendants filed the instant motion to dismiss and for partial summary judgment,
Dkt. 51, Magistrate Judge Pitman issued an order indicating that Plaintiff had withdrawn the cause
of action on which Defendants sought summary judgment and that all remaining claims were to
be assessed under the motion to dismiss standard, Dkt. 89. The Court now addresses these claims.
Motion to Dismiss for Lack of Personal Jurisdiction
Defendants seek dismissal of the Flannery Defendants for lack of personal jurisdiction
pursuant to Fed. R. Civ. P. 12(b)(2). "When responding to a Rule 12(b)(2) motion to dismiss for
lack of personal jurisdiction, the plaintiff bears the burden of establishing that the court has
jurisdiction over the defendant." Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171
F.3d 779, 784 (2d Cir. 1999). Prior to discovery, this burden is met "by pleading in good faith,
legally sufficient allegations of jurisdiction," a showing that "may be established solely by
allegations." Dorchester Fin. Sec., Inc. v. Banco BRJ, SA., 722 F.3d 81, 84-85 (2d Cir. 2013)
(citation omitted). Importantly, however, a "plaintiff must plead personal jurisdiction with respect
to each claim asserted." Hanly v. Powell Goldstein, L.L.P., 290 F. App'x 435, 437 (2d Cir. 2008)
Because this is a federal question case in which those defendants seeking dismissal for lack
of personal jurisdiction reside outside of New York, the Court must look to New York's
jurisdictional rules. Fed. R. Civ. P. 4(k)(l ). 2 See also Daimler AG v. Bauman, 134 S. Ct. 746, 753
(2014) ("Federal courts ordinarily follow state law in determining the bounds of their jurisdiction
over persons."). "First, we determine whether the defendant is subject to jurisdiction under the law
of the forum state-here, New York. Second, we consider whether the exercise of personal
As to subject matter jurisdiction, federal question jurisdiction is proper under 28 U.S.C. § 1331 on the basis
of Plaintiffs Title VII and RICO claims. The parties also do not dispute that diversity jurisdiction exists pursuant to
28 U.S.C. § 1332.
jurisdiction over the defendant comports with the Due Process Clause of the United States
Constitution." Sonera Holding B. V v. Cukurova Holding A.S., 750 F.3d 221, 224 (2d Cir.), cert.
denied, 134 S. Ct. 2888 (2014).
Defendants appear to concede that jurisdiction is proper over CGL and the Cuneo
Defendants, but contend that the exercise of personal jurisdiction is improper as to the Flannery
There are two possible statutory bases for the exercise of personal jurisdiction over the
Flannery Defendants under New York law: N.Y. C.P.L.R. 301, New York's general jurisdiction
statute, and N.Y. C.P.L.R. 302, New York's long-arm statute. Although Defendants address-at
some length-whether jurisdiction is proper under Rule 301, Plaintiff contends only that
jurisdiction is proper under Rule 302. The Court will thus address personal jurisdiction under Rule
Plaintiff argues that the exercise of personal jurisdiction over the Flannery Defendants is
proper under Rule 302(a)(l), which provides, in relevant part:
As to a cause of action arising from any of the acts enumerated in
this section, a court may exercise personal jurisdiction over any nondomiciliary ... who in person or through an agent:
1. transacts any business within the state or contracts anywhere to
supply goods or services in the state ....
Plaintiff contends that personal jurisdiction over the Flannery Defendants is proper pursuant to this
subsection under two distinct theories: an agency theory and an individual-or personal-theory.
Pl.'s Opp. 3-8. Both theories fail as to each of the Flannery Defendants, except for Davidow, over
whom jurisdiction is proper on an individual theory.
First, there is no basis for the Court's exercise of personal jurisdiction over the Flannery
Defendants on an agency theory. Plaintiff argues that the Flannery Defendants are partners ofCGL
by estoppel, and that because CGL and "certain of its partners are concededly subject to this
Court's jurisdiction, and because partners are agents of one another, the Flannery Defendants are
subject to New Yorkjurisdiction also." Id. 3--5.
As an initial matter, it is unclear whether the exercise of jurisdiction over a partnership
establishes jurisdiction over all of its partners under New York law. Compare Somer & Wand,
P.C. v. Rotondi, 642 N.Y.S.2d 937, 939 (N.Y. App. Div. 1996) ("[J]urisdiction over a professional
corporation does not result in personal jurisdiction over the shareholders thereof, any more than
does jurisdiction over a partnership result in personal jurisdiction over its partners.") with Friedson
v. Lesnick, No. 91 Civ. 2133 (JSM), 1992 WL 51543, at *2 (S.D.N.Y. Mar. 9, 1992) ("[C]ourts
have personal jurisdiction over general partners if the court has jurisdiction over the partnership
itself, and the lawsuit arises out of partnership affairs.") and Wichita Fed. Sav. and Loan Ass 'n v.
Comark, 586 F. Supp. 940, 943 (S.D.N.Y. 1984) ("New York case law establishes that nonresident general partners may properly be sued in the courts of this state as a result of forum
activities of a partnership.").
Ultimately, it is unnecessary to reach this question, as Plaintiff has not properly alleged
that the Flannery Defendants are partners of CGL. In affidavits submitted by the Flannery
Defendants and attached to Plaintiffs Second Amended Complaint, they expressly deny that they
are partners. See SAC Ex. 11. In response, Plaintiff does not appear to contest this assertion,
arguing only that the Flannery Defendants are partners by estoppel. Pl.'s Opp. 3. Under District of
Columbia law, partnership by estoppel is a statutory matter. See D.C. Code§ 29-603.08. 3 Section
29-603.08 provides as follows:
If a person, by words or conduct, purports to be a partner, or
consents to being represented by another as a partner, in a
partnership or with one or more persons not partners, the purported
partner shall be liable to a person to whom the representation is
made, if that person, relying on the representation, enters into a
transaction with the actual or purported partnership.
D.C. Code§ 29-603.08(a). See also Geier v. Conway, Homer & Chin-Caplan, P.C., 983 F. Supp.
2d 22, 35 n.7 (D.D.C. 2013). Thus, an injured party asserting partnership by estoppel must, in
addition to showing that the other party was actually represented as a partner, demonstrate that
they relied on such representations.
Plaintiff has alleged that the Flannery Defendants were represented as COL partners. SAC
iii! 11-16. She also argues, in her opposition papers, that "she relied on these representations to her
detriment because she believed ... that she and others like her would be treated with the fair
dealing that partners owe to one another." Pl. 's Opp. 5. This argument is unavailing. In her Second
Amended Complaint, Plaintiff alleges only that she relied on the representations of COL and the
Cuneo Defendants that she was a partner, see, e.g., SAC
35-43, not that she relied on such
representations as to the Flannery Defendants. Because Plaintiff has not alleged that she relied on
representations that they were partners, the Flannery Defendants are not partners by estoppel under
The parties have not briefed choice oflaw as to the preliminary question of whether the Flannery Defendants
and Plaintiff were CGL partners. Ordinarily, this choice of law question is resolved by reference to the partnership
agreement, which typically contains a choice-of-law provision. In the absence of such an agreement, New York law
provides that "the laws of the jurisdiction that govern a foreign limited liability partnership shall determine its internal
affairs and the liability of partners for debts, obligations and liabilities of, or chargeable to, the foreign limited liability
partnership." N.Y. P'ship Law§ 121-1502(1). Because CGL is a partnership organized under District of Columbia law,
the Court will apply District of Columbia law to those questions that concern partnership affairs. The Court will apply
New York law as to Plaintiffs state-law contract and tort claims, however. In their motion papers, the parties have
assumed that New York law applies, which is sufficient to resolve the choice of law question in favor of New York
for these claims. See Krumme v. WestPoint Stevens Inc, 238 F.3d 133, 138 (2d Cir. 2000).
District of Columbia law. This outcome would be no different under New York partnership law,
which contains a nearly identical estoppel provision. See N.Y. P'ship Law§ 27.
The Flannery Defendants, as employees of CGL, were indisputably agents of the firm, and
their litigation work in New York is thus imputed to CGL under the clear language of Rule 302(a).
But because the partnership by estoppel theory does not apply to the Flannery Defendants given
that they were not partners, the jurisdictional status of CGL and the Cuneo Defendants cannot be
imputed to them. Jurisdiction over the Flannery Defendants is thus proper under Rule 302(a) only
if it can be exercised on an individual basis.
The individual theory similarly provides no ground for personal jurisdiction over the
Flannery Defendants-except as to Davidow. Plaintiff sufficiently alleges that each Defendant
transacted business in New York through their work litigating a number of matters in Federal and
State court, SAC
11-16, but she has not alleged-except as to Davidow-that her causes of
action arise from these transactions.
Under Rule 302(a), a "claim 'arises out of' a defendant's transaction of business in New
York when there exists 'a substantial nexus' between the business transacted and the cause of
action sued upon." Agency Rent A Car Sys., Inc. v. Grand Rent A Car Corp., 98 F.3d 25, 31 (2d
Cir. 1996) (quotation omitted). Unlike with the other Flannery Defendants, Plaintiff has alleged
such a substantial nexus between Davidow' s work in New York and her causes of action.
Plaintiff alleges "Cuneo and CGL sought to squeeze Plaintiff out of any involvement in
antitrust cases" after hiring Davidow, an expert in antitrust law, in March of 2011. SAC
According to Plaintiff, Davidow, in his role as one of the firm's lead antitrust lawyers, "deliberately
excluded Plaintiff from the conference calls and meetings" regarding the so-called Auto Parts
case-even though Plaintiff first developed the theory on which CGL sued. Id.
Auto Parts case, moreover, is among those matters litigated by Davidow in New York. Id.
Because Plaintiff has alleged that Davidow was directly involved in excluding Plaintiff from a
case on which she may have been entitled to fees, the exercise of personal jurisdiction over
Davidow is proper.
Otherwise, Plaintiff fails to allege a substantial nexus between the New York work of the
other Flannery Defendants and her causes of action. Her Second Amended Complaint recounts
decisions undertaken by the Cuneo Defendants in the District of Columbia, but she has not alleged
any specific facts from which the Court can impute these decisions to the Flannery Defendants
individually, or establish a New York nexus. Plaintiff claims only that these Defendants worked
on litigation matters and attended meetings in New York. Although some of these New York
litigation matters are the subject of the current litigation, nowhere does Plaintiff allege that these
individual Defendants expropriated her work or otherwise engaged in the tortious conduct on
which she has sued.
Because Plaintiff has not alleged that her causes of action arose out of the individual work
of the Flannery Defendants in New York, excluding Davidow, the Court cannot exercise personal
jurisdiction on this basis. 4 There is thus no statutory basis for the exercise of personal jurisdiction
over these Defendants. Defendants' Fed. R. Civ. P. l 2(b )(2) motion is denied as to Davidow, and
granted as to the remaining Flannery Defendants.
Even if the Court could exercise personal jurisdiction over these Flannery Defendants on an individual
basis, Plaintiffs' claims against them fail for the same reasons they ultimately fail against Davidow. See Discussion,
infra Part II.
Motion to Dismiss for Failure to State a Claim
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a pleading must contain "a
short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ.
P. 8(a)(2), and be "plausible on its face," Bell At!. Corp v. Twombly, 550 U.S. 544, 570 (2007).
"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). In ruling on a motion to dismiss, a Court may look at any
document attached to the complaint as an exhibit, as well as the allegations of the complaint itself.
See Fed. R. Civ. P. 10(c); Dangler v. New York City Off'Track Betting Corp., 193 F.3d 130, 138
(2d Cir. 1999). Plaintiff is prose, but because she is also ''an experienced attorney ... the Court
is not obligated to read [her] pleadings liberally," as would otherwise be required. Chira v.
Columbia Univ. in New York City, 289 F. Supp. 2d 477, 482 (S.D.N.Y. 2003).
In her Second Amended Complaint, Plaintiff brings thirteen separate causes of action,
including federal Title VII and RICO claims, as well as a variety of state-law contract and torts
claims. In her opposition papers, however, Plaintiff has indicated she no longer intends to pursue
her Title VII claim, or those for infliction of emotional distress, unlawful threats, and interference
with contractual relations. Pl.'s Opp. 14 n.7. See also Dkt. 89.
Remaining in this action are Plaintiff's state-law claims for breach of contract (Count One),
breach of the implied covenant of good faith and fair dealing (Count Two), breach of fiduciary
duty (Count Three), unjust enrichment (Count Four), fraudulent inducement (Count Six),
violations of state and city human rights law (Count Eight), and unfair competition (Count Ten),
as well as her RICO claims (Count Thirteen). The Court will first address whether Plaintiffs statelaw claims can properly be maintained against the Cuneo Defendants, before turning to the merits
of these claims. It will then address Plaintiffs RICO claims.
1. Personal Liability of the Cuneo Defendants
Defendants argue that Plaintiff cannot maintain her state-law tort and contract claims
against the Cuneo Defendants, 5 as they are shielded from personal liability for such claims by
District of Columbia ("D.C.") Code§ 29-603.06(c), which provides:
An obligation of a partnership incurred while the partnership is a
limited liability partnership, whether arising in contract, tort, or
otherwise, shall be solely the debt, obligation, or other liability of
the partnership. A partner shall not be personally liable, directly or
indirectly, by way of contribution or otherwise, for such a debt,
obligation, or other liability solely by reason of being or so acting as
Plaintiff correctly notes, however, that D.C. Code § 29-604.08(b) permits actions by a partner
against the partnership or another partner, including actions to enforce any rights arising under the
partnership agreement. Thus, if Plaintiff was a CGL partner, she can maintain her state-law claims
against the Cuneo Defendants, but if she was not, she cannot.
Under District of Columbia law, "[a] partnership is frequently described as a contract of
two or more competent persons to place their money, effects, labor, and skill, or some or all of
them, in lawful commerce or business, and to divide the profit and bear the loss in certain
proportions." Georgia Cas. Co. v. Hoage, 59 F.2d 870, 872 (D.C. Cir. 1932) (emphasis added).
See also D.C. Code § 29-604.01 (b) ("Each partner shall be entitled to an equal share of the
In her Second Amended Complaint, Plaintiff asserts state-law contract claims (Counts One and Two)
against CGL only. SAC 34--35. In her opposition papers, however, she indicates that the Second Amended Complaint
"erroneously limits" those counts to CGL, and that she intended to asse11 these claims against the Cuneo Defendants
as well. Pl. 's Opp. 28. It is ultimately unnecessary for the Court to address this purported error, as District of Columbia
partnership Jaw bars Plaintiff from asserting either claim against the Cuneo Defendants individually, for the reasons
partnership profits and shall be chargeable with a share of the partnership losses in proportion to
the partner's share of the profits.") (emphasis added). Similarly, while a "person that receives a
share of the profits of a business shall be presumed to be a partner in the business," this
presumption does not apply where the profits were received as "wages or other compensation to
an employee." D.C. Code§ 29-602.02(c)(3).
Plaintiff has properly alleged that she shared in the profits of CGL. She asserts that her
initial conversations with Jonathan Cuneo about joining CGL led her to believe she "would be
entitled to a share in the profits of any case she worked on, with an extra share for cases that she
brought into the office." SAC , 24. The purported employment offer Cuneo sent Plaintiff by email on June 18, 2008 reflects this understanding, promising Plaintiff an hourly wage for client
development activities, plus "ten percent of work [she] originate[d], plus twelve percent of [her]
lodestar contribution." Id. , 30.
Plaintiff has not properly alleged, however, that she shared in the losses of the firm, or that
she had any equity at stake such that she could plausibly bear any loss. Georgia Cas. Co., 59 F.2d
at 872. Accord Kidz Cloz, Inc. v. Officially For Kids, Inc., 320 F. Supp. 2d 164, 171 (S.D.N.Y.
2004) ("To demonstrate the existence of a partnership, a plaintiff must prove four elements: (1)
the parties' sharing of profits and losses; (2) the parties' joint control and management of the
business; (3) the contribution by each party of property, financial resources, effort, skill, or
knowledge to the business; and (4) the parties' intention to be partners.") (emphasis added); Zeising
v. Kelly, 152 F. Supp. 2d 335, 348 (S.D.N.Y. 2001) (finding "the requirement that there be a
provision in the agreement for the sharing of profits and losses ... [a]n indispensable essential of
a contract of partnership.") (quotation omitted) (alterations in original) (emphasis added);
Steinbeck v. Gerosa, 151 N.E.2d 170, 178 (N. Y. 1958) ("An indispensable essential of a contract
of partnership or joint venture, both under common law and statutory law, is a mutual promise or
undertaking of the parties to share in the profits of the business and submit to the burden of making
good the losses.") (emphasis added). 6
Indeed, that Plaintiff was paid an hourly wage for aspects of her work suggests just the
opposite: she was at least partially insulated from downside risk, such that the profits promised her
in good times-even if considered an entitlement and not a bonus, id
30-are best classified as
profits received "as wages or other compensation to an employee." D.C. Code§ 29-602.02(c)(3).
Accord N. Y. P'ship Law § 11 ("The receipt by a person of a share of the profits of a business is
prima facie evidence that he is a partner in the business, but no such inference shall be drawn if
such profits were received in payment: ... (b) As wages of an employee."). Plaintiff has thus not
plausibly alleged she was a partner at CGL.
Plaintiff has also not plausibly alleged she was a CGL partner by estoppel. See D.C. Code
§ 29-603.08(a). Although she has asserted both that she was represented as a partner and that she
relied on those representations, see, e.g. SAC
35-43, by its plain language, the District of
Columbia's estoppel provision applies only as between a person represented as a partner and a
person relying on this representation. See D.C. Code § 29-603 .08(a). Here, because Plaintiff is
both the purported partner and the person claiming reliance, the District of Columbia's estoppel
provision cannot apply. Nor can it estop the Cuneo Defendants from claiming that Plaintiff was
not a partner. The District of Columbia's estoppel provision requires that the person to whom the
partnership representation is made rely on that representation when entering "into a transaction
with the ... purported partnership." See D.C. Code § 29-603.08(a). Plaintiff, however, has not
As noted in footnote 3, supra, the Court applies District of Columbia law to the internal affairs of CGL,
although, as the above citations make clear, the result would remain the same under New York law.
alleged that she was led to believe she would become a partner upon joining the firm, instead
claiming only that she was represented as a partner once at CGL.
Because Plaintiff has not properly alleged that she was a CGL partner, she cannot bring
suit against the Cuneo Defendants individually. Her state-law claims are dismissed as to each of
these three Defendants, and remain only as against CGL and, where applicable, Davidow.
2. Plaintiff's Breach of Contract Claim
In Count One of her Second Amended Complaint, Plaintiff alleges that Defendants'
conduct breached her employment agreement with CGL and deprived her of the benefits of that
bargain. SAC ,-riJ 140-145. Defendants concede that Plaintiff has stated a viable claim for breach
of contract as to CGL, Defs.' Mem. 3, the only party Plaintiff names in this cause of action, see
In light of the Court's finding that the Cuneo Defendants are insulated from suit and that it
lacks jurisdiction over all of the Flannery Defendants but for Davidow, Davidow is the only
remaining individual Defendant against whom Plaintiff could possibly assert her breach of contract
claim. Plaintiff has not named Davidow in this cause of action, however, and even if she had,
because her employment contract was with CGL, Id.
ii 31, and because Davidow is not a CGL
partner, he was not a party to the contract and cannot be held personally liable for its breach. See
Blankv. Noumair, 658 N.Y.S.2d 88, 88 (N.Y. App. Div. 1997). Plaintiff's breach of contract claim
is dismissed as to Davidow, and remains only as to CGL.
3. Plaintiff's Breach of the Implied Covenant of Good Faith and Fair Dealing
In Count Two, Plaintiff alleges that Defendants' conduct breached the implied covenant of
good faith and fair dealing. (SAC iii! 146-51.) This count, as with Count One, names only CGL as
"In New York, all contracts imply a covenant of good faith and fair dealing in the course
of performance." 511 W 232nd Owners Corp. v. Jennifer Realty Co., 773 N.E.2d 496, 500 (N.Y.
2002). This covenant "embraces a pledge that neither party shall do anything which will have the
effect of destroying or injuring the right of the other party to receive the fruits of the contract."
Dalton v. Educ. Testing Serv., 663 N.E.2d 289, 291 (N.Y. 1995) (quotation omitted).
The implied covenant "does no more" than this, however; "it works only to ensure that a
party with whom discretion is vested does not act arbitrarily or irrationally." Id. at 296. "For this
to occur, a party's action must directly violate an obligation that may be presumed to have been
intended by the parties." Thyroff'v. Nationwide Mut. Ins. Co., 460 F.3d 400, 407-08 (2d Cir. 2006)
certified question accepted, 857 N.E.2d 528 (N.Y. 2006) and certified question answered, 864
N.E.2d 1272 (N.Y. 2007) (quotation omitted).
The covenant "does not extend so far as to
undermine a party's general right to act on its own interests in a way that may incidentally lessen
the other party's anticipated fruits from the contract." Id. at 408.
Indeed, "New York law is clear that the implied covenant cannot be used to create
independent obligations beyond the contract." ARI & Co. v. Regent Int'! Corp., 273 F. Supp. 2d
518, 523 (S.D.N.Y. 2003). Nor does "New York law ... recognize a separate cause of action for
breach of the implied covenant ... when it is based on the same facts as the breach of contract
claim," or where "the relief sought ... is intrinsically tied to the damages allegedly resulting from
the breach of contract." Goldblatt v. Englander Commc'ns, L.L.C., No. 06 Civ. 3208 (RWS), 2007
WL 148699, at *5 (S.D.N.Y. Jan. 22, 2007). See also Nat'! Gear & Piston, Inc. v. Cummins Power
Sys., LLC, 861 F. Supp. 2d 344, 365 (S.D.N.Y. 2012).
Despite the limited availability of claims for breach of the implied covenant under New
York law, Plaintiff has sufficiently alleged such a claim here. As alleged, Plaintiffs implied
covenant claim depends on facts distinct from those underlying her claim for breach of contract.
To prove the latter, Plaintiff will need to demonstrate that the cases she originated and those to
which she contributed generated actual fees, and that COL failed to pay Plaintiff a percentage of
any such fees as required pursuant to the plain terms of her employment agreement. To prove the
former, Plaintiff will need to demonstrate that Defendants sought to subvert and expropriate her
work, that they did so in bad faith, and that-but for this subversion and expropriation-her work
would have resulted in fees. Thus, the damages stemming from Plaintiff's implied covenant claim
would not be "intrinsically tied to the damages allegedly resulting from the breach of contract,"
Goldblatt, 2007 WL 148699, at *5.
Plaintiff has sufficiently alleged multiple instances of COL partners and other attorneys
acting in less than good faith, whether by taking credit themselves for clients and cases Plaintiff
brought to the firm, interfering with Plaintiff's ability to work on key cases, or assigning other
attorneys to lead litigation initially developed by Plaintiff. SAC
44-98. In short, she portrays
COL as a firm designed to maximize the narrow self-interest of the three named partners, and few
others. Plaintiff is correct, moreover, that in similar circumstances such conduct has amounted to
a viable claim for breach of the implied covenant. See PI.'s Opp. 29; Kapsis v. American Home
Mortg. Servicing Inc., 923 F. Supp. 2d 430, 452 (E.D.N.Y. 2013) ("[The implied] covenant is
violated when a party promises commissions or profits and then does not act in good faith to permit
such commissions or profits to be earned, thereby depriving the other party of the benefit of the
Plaintiff has thus stated a claim for breach of the implied covenant, and Defendants' motion
to dismiss this claim is denied.
4. Plaintiff's Breach of Fiduciary Duty Claim
In Count Three, Plaintiff alleges that, as partners, "Defendants owed fiduciary obligations"
to her, and that they violated these obligations by "depriving her of the opportunity to develop her
career ... while expropriating [the cases she brought to CGL] for themselves." SAC ,-r,-r 152-57.
Under New York law, "[b ]reach of fiduciary duty is a tort that arises from a violation of a
relationship of trust and confidence." Vione v. Tewell, 820 N.Y.S.2d 682, 686 (N.Y. Sup. Ct. 2006).
"In order to succeed on a cause of action to recover damages for breach of fiduciary duty, a plaintiff
must do more than make allegations of unscrupulous acts." Robert l Gluck, MD., LLC v. Kenneth
M Kamler, MD., LLC, 904N.Y.S.2d151, 152 (N.Y. App. Div. 2010). Instead, aplaintiff"must
prove the existence of a fiduciary relationship, misconduct by the defendant, and damages directly
caused by the defendant's misconduct.'' Id.
Here, Plaintiff cannot show that CGL owed her a fiduciary obligation. District of
Columbia partnership law does provide for a limited fiduciary relationship between and among
partners, see D.C. Code§ 29-604.07, but because Plaintiff was not a CGL partner, see Discussion,
supra, 14-17, no such relationship was formed. New York law is no different. See, e.g., Orderline
Wholesale Distribs., Inc. v. Gibbons, Green, van Amerongen, Ltd., 675 F. Supp. 122, 128
(S.D.N.Y. 1987) ("Since ... plaintiffs fail to make a showing sufficient to establish the existence
of an enforceable ... partnership agreement with [defendant], they also fail to make a showing
sufficient to establish the existence of a fiduciary obligation to them by [defendant].").
Instead, Plaintiff was a CGL employee, and under New York law mere "employment
relationships do not create fiduciary relationships." Rather v. CBS Corp., 886 N. Y.S.2d 121, 125
(N.Y. App. Div. 2009). See also Mendelsohn v. Ferber, 887 N.Y.S.2d 494, 498 (N.Y. Sup. Ct.
2009), aff'd, 903 N.Y.S.2d 427 (N.Y. App. Div. 2010) ("Even an employer-employee relationship
providing for the division of profits will not give rise to a fiduciary duty on the part of the employer
without an agreement to also share losses."). 7 For similar reasons, there was also no fiduciary
relationship between Plaintiff and Davidow, another CGL employee, as a matter of law.
Because even taking Plaintiffs allegations as true, no fiduciary obligation was owed to her
by CGL or Davidow, Defendants' motion to dismiss this claim is granted.
5. Plaintifrs Unjust Enrichment Claim
In Count Four, Plaintiff alleges that Defendants unjustly enriched themselves at her
158-162. "The theory of unjust enrichment lies as a quasi-contract claim. It is
an obligation the law creates in the absence of any agreement." Goldman v. Metro.
841 N.E.2d 742, 746 (N.Y. 2005). See also Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 516
N.E.2d 190, 193 (N. Y. 1987) ("The existence of a valid and enforceable written contract governing
a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of
the same subject matter. A 'quasi contract' only applies in the absence of an express agreement.")
Plaintiff contends her unjust enrichment claim is nonetheless viable, arguing that it does not merely
duplicate her contract claims. Pl.'s Opp. 32. This argument is unavailing.
Here, there is a written contract-a contract that expressly concerns the terms of Plaintiffs
employment relationship with CGL. Because there is a contract concerning the terms of her
employment, Plaintiff is not entitled to quasi-contractual relief for injuries that arose as a
consequence of her employment. Plaintiff may not bring a claim for unjust enrichment, and
Defendants' motion to dismiss is granted as to this claim.
Whereas the existence of a fiduciary relationship between CGL partners is a matter of internal affairs and
thus a question of District of Columbia law, the existence ofa fiduciary relationship between employers and employees
is a question of New York law. See Discussion infra n.3.
6. Plaintiff's Fraudulent Inducement Claim
In Count Six, Plaintiff alleges she was fraudulently induced to join CGL-and then to
never intended to provide Plaintiff with the compensation to which she was entitled." SAC iii! 16974.
"[U]nder New York law [i]t is elementary that where a contract or transaction was induced
by false representations, the representations and the contract are distinct and separable .... Thus,
fraud in the inducement of a written contract is not merged therein so as to preclude an action for
fraud." Stewart v. Jackson & Nash, 976 F.2d 86, 88-89 (2d Cir. 1992) (quotation omitted). In
general, promissory statements as to what will be done in the future give rise only to a claim for
breach of contract, whereas false representations of present fact are what give rise to a separate
claim for fraudulent inducement. See id. at 89 (citing Deerfield Commc'ns Corp. v. ChesebroughPonds, Inc., 502 N.E.2d 1003, 1004 (N.Y. 1986)). There is at least one exception to this rule,
however: even where representations relate "to something which was to occur in the future," they
may constitute false representations of present fact if the defendant "has fraudulently and
positively as with personal knowledge stated that something was to be done when he knew all the
time it was not to be done and that his representations were false." Sabo v. Delman, 143 N.E.2d
906, 908 (N.Y. 1957); see also Deerfield, 502 N.E.2d at 1004.
Plaintiffs bear a high burden as to fraudulent inducement claims, as they are subject to the
strict pleading standards of Fed. R. Civ. P. 9(b ). See Eaves v. Designs for Fin., Inc., 785 F. Supp.
2d 229, 246 (S.D.N.Y. 2011). Thus, the complaint "must specify the time, place, speaker, and
content of the alleged misrepresentations, explain how the misrepresentations were fraudulent and
plead those events which give rise to a strong inference that the defendant[ ] had an intent to
defraud, knowledge of the falsity, or a reckless disregard for the truth." Cohen v. SA. C. Trading
Corp., 711 F.3d 353, 359 (2d Cir. 2013) (alteration in original).
Plaintiff asserts that after joining CGL, Jonathan Cuneo and other Defendants induced her
to remain at the firm "for more than four years ... by repeatedly indicating how successful the
firm was, how wealthy the senior partners were, and how much money Plaintiff could expect when
her cases paid off." Id.
171-72. But because Plaintiff entered into only one agreement with
Defendants-her initial employment agreement-these allegations add little, except insofar as
they provide context for statements made prior to her joining CGL. Later actions by Defendants
could not have unlawfully induced her to join the firm.
Regarding her decision to join CGL, Plaintiff alleges that Jonathan "Cuneo boasted about
CG L's law practice, the nature of its activities, and how successful and profitable the firm was.
Cuneo touted how much money he and his partners were making and indicated that if Plaintiff
were to join the firm she, too, would enjoy a lucrative practice." SAC
23. Cuneo, she alleges,
also told her that if she joined the firm, her compensation would "exceed what she could earn at a
conventional firm." Id.
24. In sum, Plaintiff claims that Cuneo and other Defendants induced
her to "forego other potentially lucrative opportunities by promising that she could achieve a
significantly higher income doing interesting, socially valuable work at CGL. Id.
Importantly, Plaintiff also alleges that "Defendants never intended to provide Plaintiff with the
compensation to which she was entitled." Id.
Many of these statements-those relating to CG L's profitability and the lucrativeness of
Cuneo's practice, for instance-are representations of present fact and thus relevant to Plaintiffs
fraudulent inducement claim. Nevertheless, as Defendants contend, they are best characterized as
inactionable puffery. See, e.g., Rombach v. Chang, 355 F.3d 164, 174-75 (2d Cir. 2004)
("'[P]uffery' or 'misguided optimism' is not actionable as fraud."); Cellular S. Inc. v. Merrill,
Lynch, Pierce, Fenner & Smith, Inc., 516 F. App'x 30, 33 (2d Cir. 2013) (citing same and affirming
dismissal) (summary order).
Cuneo's comments regarding how much money Plaintiff would make if she worked at
CGL, though also relevant to Plaintiffs fraudulent inducement claim, may similarly amount to
mere puffery. Sabo, 143 N.E.2d at 908. Even if they do not, Plaintiff's allegations, while more
particularized, nevertheless do not support an inference that Cuneo never intended to deliver on
these promises or that he had a "reckless disregard for the truth" at the time of their making. Cohen,
711 F.3d at 359. Plaintiff thus cannot satisfy Fed. R. Civ. P. 9(b)'s heightened pleading standard.
It is true that Plaintiff alleges a systematic and purposeful effort to subvert and expropriate
her work recruiting clients to CGL and developing novel legal theories on which to sue. She has
alleged that on multiple occasions Defendants promised her work, but then cut deals that would
assign the value of this work to others, unbeknownst to her, SAC
attorneys to manage cases she developed, id.
actionable legal theories, id.
44-57; assigned other
62-65; refused to give her credit for developing
67-90; and filed lawsuits on the basis of theories she developed
shortly after her termination from CGL, id.
95-98. Plaintiff, moreover, has alleged that it was
Defendants-particularly the Cuneo Defendants-who benefitted from this subversion and
44-98. These allegations, taken on their own, might suggest that Defendants
never intended to deliver on those promises made to Plaintiff prior to her joining CGL.
But many of Plaintiff's other allegations evince no such ill intent, particularly those
regarding her initial time at CGL. On her first day of work, for instance, Plaintiff was informed
that she "would not in fact have to complete a trial period but rather would work full time under
the 'standard deal' immediately," id.
32; she was "treated as a partner at CGL from the
beginning," including regularly attending ''partnership lunches," id. iii! 33-34; and she was
represented as a partner, and received at least some compensation as a consequence of these
representations, from the beginning of her time at the firm until her termination on May 7, 2012,
iii! 35--43, 217-226. Plaintiff, moreover, remained at CGL for nearly four years and
departed, not over CGL's failure to fulfill Cuneo's promises to her, but because she was
terminated. These allegations at least undermine Plaintiff's contention that Cuneo never intended
to deliver on his promises to her.
When considered in their totality, Plaintiff's allegations do not sufficiently bolster her
otherwise conclusory contention that "Defendants never intended to provide Plaintiff with the
compensation to which she was entitled," id. ii 173, and thus do not satisfy the strict pleading
standards of Fed. R. Civ. P. 9(b ). Defendants' motion to dismiss this claim is granted as to CGL.
It is also granted as to Davidow, as Plaintiff has not alleged his involvement in inducing her to join
7. Plaintiff's State and City Human Rights Law Claims
Plaintiff alleges in Count Eight that Defendants discriminated against her on the basis of
national origin and race in violation of New York State Human Rights Law, N.Y. Exec. Law§
290, et seq., and New York City Human Rights Law, N.Y.C. Admin. Code§ 8-101, et seq. SAC
iii! 178-81. Plaintiff claims that Defendants violated each of these statutory provisions in two ways:
by discharging her from CGL on the basis of her status as a member of a protected class, and by
creating a hostile work environment. Id.
A plaintiff claiming employment discrimination need not "allege facts establishing each
element of a prima facie case of discrimination to survive a motion to dismiss," and such claims
are subject only to the pleading standards of Fed. R. Civ. P. 8. E.E.O.C. v. Port Auth. o/New York
& New Jersey, 768 F.3d 247, 254 (2d Cir. 2014). Courts, however, look to the elements of a prima
facie case for guidance in evaluating discrimination claims.
To establish a prima facie case of employment discrimination, a plaintiff must allege: "(1)
[she] is a member of a protected class; (2) [she] was qualified for the position [she] held; (3) [she]
suffered an adverse employment action; and (4) the adverse action took place under circumstances
giving rise to [an] inference of discrimination." Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir.
2012) (setting out the framework first established by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973)). 8
Similarly, to establish a hostile work environment claim, a plaintiff "must show that the
workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim's employment and create an abusive
working environment." Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014) (quotation omitted)
(citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Because "[i]solated instances of
harassment ordinarily do not rise to this level," a plaintiff must "demonstrate either that a single
incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and
concerted to have altered the conditions of her working environment." Cruz v. Coach Stores, Inc.,
202 F.3d 560, 570 (2d Cir. 2000). This is a totality of the circumstances inquiry. Raspardo, 770
F.3d at 114.
Defendants first argue that Plaintiffs claims under State and City Human Rights Law are
statutorily precluded, as CGL at no time had more than four employees in New York State or New
"[C]ourts in this Circuit analyze discrimination claims brought under Title VII, [and] the New York Human
Rights Law ... in the same manner." Tappe v. Alliance Capital Mgmt., L.P, 198 F. Supp. 2d 368, 372 (S.D.N.Y.
2001). Since a 2005 statutory revision, however, "courts must analyze [New York City Human Rights Law] claims
separately and independently from any federal and state law claims." Mihalik v. Credit Agricole Cheuvreux N. Am.,
Inc., 715 F.3d 102, 109 (2d Cir. 2013).
York City, as is required for an employer to fall within the ambit of these laws. Defs.' Mem. 25
(citing N.Y. Exec. Law§ 292(5); N.Y.C. Admin. Code §8-102(5)). Neither of the provisions cited
by Defendants indicate that they are limited to employees within New York State or New York
City, however, nor have Defendants identified any cases that stand for this proposition. Because
Plaintiff has clearly alleged that she worked at CGL in New York and that CGL employed more
than four employees in its interstate operations, CGL is subject to State and City Human Rights
Law. Similarly, because Plaintiff has not properly alleged that she was a partner of CGL, the Court
rejects Defendants' contention that Plaintiff cannot avail herself of the protection of these laws.
See Defs.' Mem. 24. Nevertheless, Plaintiff has not met her burden as to her claim of
discriminatory termination under State or City Human Rights Law.
As to her State Human Rights Law claims, Plaintiff has alleged she was a member of a
protected class, that she was qualified for the position she held, and that she suffered an adverse
employment action, namely, her termination from CGL. She has not properly alleged, however,
that her termination took place under circumstances giving rise to an inference of discrimination.
Her allegations, if true, suggest that Jonathan Cuneo made reprehensibly discriminatory comments
related to Plaintiffs national origin, but not that discrimination played a role in her termination.
Rather, as to her termination, her Second Amended Complaint mentions only that she was
terminated for alleged misconduct in connection with her representation of a pro se litigant. SAC
Plaintiffs claim of discriminatory termination is also barred under New York City Human
Rights Law. Although New York City Human Rights Law is to be "construed liberally for the
accomplishment of [its] uniquely broad and remedial purposes," N.Y.C. Admin. Code §8-130, a
plaintiff must still allege that a defendant's "conduct is caused at least in part by discriminatory or
retaliatory motives." Mihalik, 715 F.3d at 113. Because Plaintiff has not in any way linked her
termination to Cuneo's discriminatory comments, she cannot satisfy even this more liberal
Plaintiff has, however, met her burden as to her hostile work environment claim under both
State and City Human Rights Law. She alleges that Cuneo "repeatedly" insulted and harassed her
on the basis of her national origin. SAC
99-104. The frequency with which these comments
were made and the context in which they were delivered-in large, firm-wide meetings-support
an inference that they were calculated to shame and embarrass Plaintiff, and that they altered the
conditions of her work environment. The purported hostility of Plaintiffs work environment is
exacerbated by CGL's alleged efforts to subvert and expropriate her work, as well as the many
threats Plaintiff claims she received-including a June 27, 2012 request for her Green Card that
Plaintiff claims was without "legal basis" or "valid reason." Id.
Defendants' motion is granted as to Plaintiffs discriminatory termination claims, but
denied as to Plaintiffs hostile work environment claims. Both claims are dismissed as to Davidow,
however, as Plaintiff has not alleged that he made any discriminatory comments on the basis of
national origin, or that any of his threats toward Plaintiff were motivated by such bias.
8. Plaintiff's Unfair Competition Claims
In Count Ten, Plaintiff alleges that Defendants unfairly competed with her by routinely
expropriating her "hardwork/ideas/leads" for themselves, or by giving them to other CGL
attorneys; by "deliberately and intentionally" filing cases on the basis of legal theories developed
by Plaintiff after dismissing her from the firm; by doing so despite assurances that "no one [would]
use her ideas/leads without her consent"; and by improperly keeping Plaintiffs e-mail account
open, "with intent to contact potential clients and unfairly compete" after her termination.
"The essence of an unfair competition claim under New York law is that the defendant has
misappropriated the labors and expenditures of another." Saratoga Vichy Spring Co. v. Lehman,
625 F.2d 1037, 1044 (2d Cir. 1980). See also Dior v. Milton, 155 N.Y.S.2d 443, 451 (N.Y. Sup.
Ct.) affd, 156 N.Y.S.2d 996 (N.Y. App. Div. 1956) ("The general principle ... is that commercial
unfairness will be restrained when it appears that there has been a misappropriation, for the
commercial advantage of one person, of a benefit or property right belonging to another.") "Central
to this notion is some element of bad faith." Saratoga Vichy Spring Co., 625 F.2d at 1044. Courts
also require that the commercial advantage or property that is misappropriated belong exclusively
to the plaintiff. See Bongo Apparel, Inc. v. Iconix Brand Grp., Inc., 856 N.Y.S.2d 22 (N.Y. Sup.
Ct. 2008); Miller v. Walters, 997 N.Y.S.2d 237, 246 (N.Y. Sup. Ct. 2014) (dismissing unfair
competition claim where plaintiff sports management firm could not allege that misappropriated
client was its property).
It is not clear, however, that the doctrine of unfair competition applies in the circumstances
alleged here. Although the parties to an unfair competition claim need not be in direct competition
with one another, Dior, 155 N.Y.S.2d at 454, Plaintiff has not cited any cases in which a viable
claim has arisen between two agents of a single partnership, nor has the Court identified any such
cases. Instead, the tort appears to be limited to conflicts between distinct commercial entitiestwo separate businesses in direct or indirect competition with one another. See id. (collecting
cases). Even if it were possible to state a claim for unfair competition between two agents of a
partnership, moreover, Plaintiff has not satisfied her burden here.
Plaintiff's Second Amended Complaint does allege considerable bad faith by CGL in the
pervasive efforts by Jonathan Cuneo and other Defendants to subvert and expropriate Plaintiff's
work. See SAC i1i1 44-98. She has also alleged that it was Defendants-particularly the Cuneo
Defendants-who benefitted from this subversion and expropriation. Id. i1i1 44-98. Nevertheless,
Plaintiff has not plausibly alleged that the clients and theories she brought to the firm were her
property, and certainly not that these clients and theories were her exclusive property. Plaintiff's
employment contract entitled her only to a percentage of those profits generated by the cases she
originated or to which she otherwise contributed. The profits were to accrue to CGL and then be
distributed to Plaintiff according to the precise terms of her employment agreement. In other
words, Plaintiff was entitled-at most-to a contingent property interest in a fixed percentage of
partnership profits. Thus, while CGL may have failed to pay Plaintiff the share of partnership
profits to which she was entitled, it did not misappropriate property that was exclusively hers.
Defendants' motion to dismiss is thus granted as to Plaintiff's claim for unfair competition.
9. The RICO Claims
Lastly, in Count Thirteen, Plaintiff alleges that the Cuneo Defendans violated the RICO
statute, and conspired to do the same. See 18 U.S.C. §§ 1962(a), (b) and (c), and 2. They did so,
she alleges, by "falsely represent[ing] in numerous courts around the country that attorneys
associated with CGL were 'partners' when the RICO Defendants and the involved attorneys knew
that they were not in fact partners or members of CGL." SAC i1216. Plaintiff also claims that the
Cuneo Defendants invested the income they received from this scheme back into CGL, and that
they "acquired and maintained an interest in CGL." Id. i1235.
Plaintiff's RICO allegations fail to state a claim upon which relief can be granted.
Defendants' motion to dismiss is therefore granted as to these claims.
Congress has provided a private right of action to "[a]ny person injured in his business or
property by reason of a violation of section 1962." 18 U.S.C. § 1964. "To establish a RICO claim,
a plaintiff must show: (1) a violation of the RICO statute, 18 U.S.C. § 1962; (2) an injury to
business or property; and (3) that the injury was caused by the violation of Section 1962." DeFalco
v. Bernas, 244 F.3d 286, 305 (2d Cir. 2001) (quotation omitted). At bottom, however, all RICO
claims-whether premised on a violation of Section l 962(a), (b), or (c)-require a showing that
each defendant was engaged in a "pattern of racketeering activity." See Cruz v. FXDirectDealer,
LLC, 720 F.3d 115, 120 (2d Cir. 2013) (reciting elements of a Section 1962(c) claim); Ouaknine
v. MacFarlane, 897 F.2d 75, 83 (2d Cir. 1990) (reciting elements of a Section 1962(a) claim);
Wood v. Inc. Vil!. of Patchogue of New York, 311 F. Supp. 2d 344, 355 (E.D.N.Y. 2004) (reciting
elements of a Section 1962(b) claim).
"Racketeering activity" encompasses a variety of state and federal offenses, enumerated in
18 U .S.C. § 1961 (1 ), while a "pattern" of such activity requires at least two such predicate acts or
offenses, 18 U.S.C. § 1961 (5). Here, Plaintiff alleges that each of the Cuneo Defendants committed
the following predicate acts in connection with the filing of fee applications in seven different
federal court actions: obstruction of justice in violation of 18 U.S.C. § 1503; wire fraud in violation
of 18 U.S.C. § 1341; and mail fraud in violation of 18 U.S.C. § 1333. Specifically, Plaintiff alleges
certain CGL attorneys were represented as partners in fee applications submitted by the Cuneo
Defendants, even though these attorneys were not actually partners. SAC
211-23 8. Plaintiffs
allegations are insufficient.
To make out violations of the mail and wire fraud statutes, a plaintiff must allege: "(1) the
existence of a scheme to defraud, (2) defendants' knowing participation in such a scheme, and (3)
the use of wire or mail communications in interstate commerce in furtherance of that scheme."
MLSMK Inv. Co. v. JP Morgan Chase & Co., 737 F. Supp. 2d 137, 142 (S.D.N.Y. 2010), affd in
part, 431 F. App'x 17 (2d Cir. 2011), and ajfd, 651F.3d268 (2d Cir. 2011). The elements ofa
scheme to defraud, in turn, are: "(1) the existence of a scheme to defraud; (2) fraudulent intent on
the part of the defendant; and (3) the materiality of the representations." Boritzer v. Calloway, No.
10 CIV. 6264 (JPO), 2013 WL 311013, at *6 (S.D.N.Y. Jan. 24, 2013). Similarly, a plaintiff
alleging obstruction of justice must allege, in part, ''that the defendant acted with the wrongful
intent or improper purpose to influence the judicial or grand jury proceeding, whether or not the
defendant is successful in doing so-that is, that the defendant corruptly intended to impede the
administration of that judicial proceeding." United States v. Quattrone, 441F.3d153, 170 (2d Cir.
2006) (quotation omitted).
Allegations of mail and wire fraud are subject to heightened pleading standards. See Fed.
R. Civ. P. 9(b); Cruz, 720 F.3d at 120 n.2. Plaintiff has not met this standard. She has not properly
alleged fraudulent intent on behalf of the Cuneo Defendants, nor has she properly alleged the
"scheme to defraud" prerequisite to violations of the mail and wire fraud statutes, or the wrongful
intent prerequisite to obstruction of justice.
Taken in its entirety, Plaintiffs Second Amended Complaint alleges only that CGL, like
many firms, was comprised of what modern lawyers would refer to as equity partners-partners
as defined under state partnership law-and non-equity partners, who possess the skills and
qualifications necessary to command high billing rates, but who are not "partners" under state
partnership law. See, e.g., In re GSC Grp., Inc., 502 B.R. 673, 735 n. 227 (Bankr. S.D.N.Y. 2013)
("[T]wenty-first century law firms include equity partners, non-equity partners, contract partners,
shareholders, associates, contract associates, counsel, of counsel, senior counsel, and the list goes
on."). The Court simply cannot infer intent to defraud-or corrupt intent to impede judicial
administration-from the disjuncture between the Flannery Defendants' disavowal of their status
as partners, see SAC Ex. 11, and the fee applications filed by the Cuneo Defendants indicating that
Plaintiff and the Flannery Defendants were partners.
In any event, Plaintiff has not properly alleged that she was injured by Defendants'
purported racketeering conduct. See 28 U.S.C. § 1964(c) (requiring personal injury to "business
or property" as a prerequisite to a proper civil RICO action). See also Sedima, S.P.R.L. v. Imrex
Co., 473 U.S. 479, 496 (1985) ("[P]laintiff only has standing if, and can only recover to the extent
that, he has been injured in his business or property by the conduct constituting the violation.").
Thus, Plaintiff's allegation that the courts approving Defendants' fee applications were injured is
insufficient. And although Plaintiff has also asserted that, "[a ]s a result of' these fee applications,
Defendants "expropriated for themselves fees and other economic benefits properly belonging" to
iJ 231, these injuries were not proximately caused by Defendants'
alleged violations of
the RICO statute. See Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 462 (2006). ("[A] claim is
cognizable under § 1964(c) only if the defendant's alleged violation proximately caused the
plaintiff's injury."); Holmes v. Sec. Investor Prat. Corp., 503 U.S. 258, 268 (1992).
Here, the economic benefits to which Plaintiff was entitled under her employment contract
did not tum on her classification in fee applications; Defendants could just as easily have
expropriated those benefits had they classified her as an associate or counsel. Thus, although her
classification as partner may have enabled the Defendants to gamer fees higher than they may
otherwise have been entitled to, Plaintiff has not alleged the direct relationship between
Defendants' fee applications and her conduct that RICO's proximate causation requirement
demands. Anza, 547 U.S. at 461 ("When a court evaluates a RICO claim for proximate causation,
the central question it must ask is whether the alleged violation led directly to the plaintiffs
Because Plaintiff has not plausibly alleged that Defendants engaged in the racketeering
activity prerequisite to any violation of the RICO statute, or that she was harmed within the
meaning of this statute, her RICO claims are dismissed. As Plaintiff's RICO claims were the sole
remaining claims pending against the Cuneo Defendants, these Defendants are now dismissed
from this action.
For the reasons stated, Defendants' motion to dismiss is granted in part and denied in part,
Plaintiff's RICO claims are dismissed, as are her state-law claims for breach of fiduciary
duty, unjust enrichment, unfair competition, fraudulent inducement, and discriminatory
termination under State and City Human Rights Law.
Plaintiff's breach of contract, breach of the implied covenant, and hostile work
environment claims under State and City Human Rights Law survive.
Because none of these remaining claims are properly asserted against Davidow, however,
he is dismissed from this action, as are the Cuneo Defendants, and the remaining Flannery
The Clerk of Court is requested to close the motion pending at Dkt. 51, and to terminate
all parties from the case but for Cuneo Gilbert & LaDuca LLP. The Court will hold a status
conference in this matter on Thursday, July 30, 2015 at 10:00 a.m. No later than July 23, 2015, the
parties shall submit to the Court a revised case management plan and a joint letter as to the status
July 7, 2015
New York, New York
R nie Abrams
United States District Judge
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