Nusbaum v. E-Lo Sportswear LLC

Filing 38

OPINION & ORDER: re: 26 MOTION for Judgment on the Pleadings, filed by Jan Nusbaum. For the foregoing reasons, the Court rules in favor of plaintiff on Count V. The Court notes that it expects that discovery is still ongoing as to C ounts I-IV and VI. The Clerk of Court is directed to terminate the motion at ECF No. 26, and as further set forth in this order. Motions terminated: 26 MOTION for Judgment on the Pleadings, filed by Jan Nusbaum. (Signed by Judge Katherine B. Forrest on 12/1/2017) (ap)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
JAN NUSBAUM,
:
:
Plaintiff,
:
:
-v:
:
E-LO SPORTSWEAR LLC,
:
:
Defendant.
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: December 1, 2017

17-cv-3646 (KBF)
OPINION & ORDER

KATHERINE B. FORREST, District Judge:
Jan Nusbaum (“Nusbaum” or “plaintiff”) began working for E-Lo Sportswear
LLC (“E-Lo” or “defendant”) on March 23, 2015; after 19 months, her employment
was terminated. On May 15, 2017, Nusbaum filed suit alleging gender
discrimination, sexual harassment, a hostile work environment, retaliation, and
breach of contract. (ECF No. 1.) On October 5, 2017, plaintiff filed a motion for
judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) on
Count V, the breach of contract claim. (ECF No. 26.) The Court subsequently
converted that motion to one for summary judgment under Rule 56 and gave the
parties time to file supplemental factual materials. (ECF No. 29.)
The question before the Court is whether plaintiff and defendant entered into
a legally enforceable employment contract for, inter alia, nine months’ severance
pay in the event of plaintiff’s termination. Plaintiff alleges she is owed this
payment; defendant disagrees. For the reasons set forth below, the Court finds a

legally binding agreement. Plaintiff’s motion for summary judgment on Count V is
thus GRANTED.
I.

BACKGROUND
Plaintiff is a “business leader and marketing veteran in the fashion
industry.” (Mem. in Supp., ECF No. 27, at 2.) Defendant is a fashion house that
manufactures, designs, and markets clothing. (Lomita Decl., ECF No. 35, ¶¶ 2.)
David Lomita, defendant’s president and chief executive officer, served as
defendant’s representative during E-Lo’s employment negotiations with plaintiff.
(Lomita Decl. ¶¶ 1, 5.) In or about February 2015, Nusbaum and Lomita began
negotiating her potential employment as president of E-Lo’s Nanette Lepore
division. (Id. ¶ 3.) Both parties submitted a series of emails to the Court as
evidence of a purported employment agreement, or lack thereof; the term of
particular relevance to the instant motion relates to a potential severance package.
All told, the parties dispute whether the emails serve as evidence of mutual
assent—either as a signed writing or through clear intent—to an employment
contract that, inter alia, provides for nine months’ severance pay.
The parties conducted their negotiations on the terms of an agreement
through email and oral communications (typically confirmed by email). The first
email exchange took place from February 24–25, 2015, in advance of an in-person
meeting on the morning of February 27, 2015. (ECF No. 35-1.) The exchange sets
forth six numbered items—including salary, budget, hiring, and start date—and

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establishes back-and-forth on each term between Nusbaum and Lomita. A number
of items were left open to discuss at the in-person meeting. (See id. at 7–9.)
During this exchange, Nusbaum stated that she wanted to “make sure that
[salary, bonus, vacation, sick days, insurance, stock upon start date, and severance
package] are in writing and agreed upon.” (Id. at 8.) When Lomita asked for
Nusbaum’s current contract to use as a “boilerplate,” Nusbaum responded that she
did not want to share it and instead listed out the various items it included. (Id. at
8–9.) One of these items was a severance package; Lomita responded that they
“NEED TO DISCUSS ..LIKE I SAID I WANT TO SEE WHATS BEEN OUT
THERE . W/ THIS I ASSUME COMES NON COMPETES 0+3.” (ECF No. 35-1 At 9
(emphasis in original).) Lomita also noted that while “NO ONE HERE [at E-Lo]
HAS AN EMPLOMENT [sic] AGREEMEN [sic] OR A CONTRACT. I AM OK W/
THE CONCEPT OF IT . . . .” (Id. at 8 (emphasis in original).)
On February 27, 2015, at 4:16 p.m., Lomita emailed Nusbaum to “summarize
what [they] agreed to.” (ECF No. 28-1 at 2.) On severance, Lomita said he would
“get [Nusbaum] the concept tomorrow or Monday.” (Id.) The next email is dated
March 13–19, 2015. Like the February 24–25 emails, it discusses a number of
terms. Nusbaum proposed “1 year severance if let go with in the first 18 months
and 9 months severance thereafter.” (ECF No. 35-2, at 3; ECF No. 28-2 at 3.)
Lomita responded:
ALL OF THE ABOVE IS CONF EXCEPT THE SEVERANCE—
SEVERANCE WE WILL RUN A FLAT 6 MONTH. I FEEL THAT
ONCE YOU ARE HERE FOR, SAY A 3 YEAR PERIOD, WE CAN RE
ADDRESS THIS AND ADD MONTHS. I ALSO WANT TO ADD A
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NON COMPETE / NON DISCLOSURE THAT WILL RUN
COMMENSURATE W/ THE SEVERANCE.
(ECF No. 35-2, at 3 (emphasis in original); ECF No. 28-2 at 3 (emphasis in
original).) Nusbaum countered and suggested “meeting [her] in the middle [at] 9
months,” with “an additional 3 months after three years as [Lomita] suggested. I
appreciate you want a comfort level too, so the non compete is ok, can you give a
sentence or two to define?” (ECF No. 35-2, at 3; ECF No. 28-2 at 3.) The bottom of
this email, which Jan had “put together for [their] agreement,” included blanks for
each of their signatures and dates. (ECF No. 35-2, at 4; ECF No. 28-2 at 4.) It is
undisputed that signatures (ink or electronic) were never appended to the
document.
Nusbaum began work on March 23, 2015. (Lomita Decl. ¶ 7.) The next day,
they exchanged a final series of emails on the terms of an agreement. Nusbaum
wrote Lomita “based on [their] discussion” that, inter alia, she understood the
severance provision to be: “9 months severance if let go with in the first three years
and 12 months severance thereafter. A Non compete/non disclosure will run
commensurate with severance.” (ECF No. 28-3 at 3.) Lomita forwarded this email
to Sam Kaplan, the “senior most financial official at the company,” (Reply Mem.,
ECF No. 37, at 10), copying Nusbaum, with a message:
Sam…I am agreeing to the below and I am ccing Jan [Nusbaum]. . . .
There will also be a non compete / non consult that corresponds to the
severance. Ie if there is a 9 month severance there will be a 9 month
non compete/consult. And we can talk thru it again when I return. I
just wanted to get this done b/4 I leave . I will sign when I get back.
(ECF No. 28-3 at 2.)
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The terms of the employment agreement were never further reduced to a
signed writing. (Lomita Decl. ¶ 11.) Nusbaum asserts that Lomita assured her
that he would sign an agreement and that she “[could] trust him.” (Nusbaum Decl.
¶¶ 2, 6 (alterations omitted).) He does not dispute that he made such statements.
Nusbaum also asserts that she believed that the email Lomita forwarded to
Kaplan—in which he was “agreeing to the below”—served as a “final writing
reflecting the terms and conditions of [her] employment.” (Nusbaum Decl. ¶ 8.)
According to the Complaint, Nusbaum was terminated on October 21, 2016; to date,
she has not received severance pay. (Compl. ¶ 45.)
II.

PROCEDURAL POSTURE
On October 5, 2017, plaintiff moved for judgment on the pleadings under

Federal Rule of Procedure 12(c). (ECF No. 26.) Because plaintiff submitted
exhibits with that motion, the Court converted it to a Rule 56 motion for summary
judgment and provided parties with an opportunity to submit supplemental
materials. (ECF No. 29.) See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule
12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by
the court, the motion must be treated as one for summary judgment under Rule
56.”); see also Sahu v. Union Carbide Corp., 548 F.3d 59, 67 (2d Cir. 2008).
III.

LEGAL PRINCIPLES
A. Standard of Review
“The court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment
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as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the initial
burden of demonstrating “the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party does not bear
the ultimate burden on a particular claim or issue, it need only make a showing
that the non-moving party lacks evidence from which a reasonable jury could find in
the non-moving party's favor at trial. Id. at 322-23.
In making a determination on summary judgment, the court must “construe
all evidence in the light most favorable to the nonmoving party, drawing all
inferences and resolving all ambiguities in its favor.” Dickerson v. Napolitano, 604
F.3d 732, 740 (2d Cir. 2010). Once the moving party has discharged its burden, the
opposing party must set out specific facts showing a genuine issue of material fact
for trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “[A] party may not rely
on mere speculation or conjecture as to the true nature of the facts to overcome a
motion for summary judgment,” as “[m]ere conclusory allegations or denials cannot
by themselves create a genuine issue of material fact where none would otherwise
exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (internal citations
omitted).
B. Breach of Contract
To succeed on a claim for breach of contract, a plaintiff must demonstrate “(1)
the existence of an agreement, (2) adequate performance of the contract by the
plaintiff, (3) breach of contract by the defendant, and (4) damages.” Eternity Glob.
Master Fund Ltd. v. Morgan Guar. Tr. Co., 375 F.3d 168, 177 (2d Cir. 2004)
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(quoting Harsco Corp. v. Segui, 91 F.3d 337, 348 (2d Cir. 1996)). In New York, “the
fundamental basis of a valid, enforceable contract is a meeting of the minds of the
parties. If there is no meeting of the minds on all essential terms, there is no
contract. This is because an enforceable contract requires mutual assent to the
essential terms and conditions thereof.” Opals on Ice Lingerie v. Bodylines Inc., 320
F.3d 362, 372 (2d Cir. 2003) (quoting Schurr v. Austin Galleries of Ill., 719 F.2d 571,
576 (2d Cir. 1983)); see also Meyer v. Uber Techs., Inc., 868 F.3d 66, 74 (2d Cir.
2017) (“To form a contract, there must be ‘[m]utual manifestation of assent,
whether by written or spoken word or by conduct.’” (quoting Specht v. Netscape
Comms. Corp., 306 F.3d 17, 29 (2d Cir. 2002)).
A signed writing can serve as evidence of mutual assent, or a “meeting of the
minds.” “A party who executes a contract is presumed to know its contents and to
assent to them.” Choung v. Allstate Ins. Co., 724 N.Y.S.2d 882, 882 (N.Y. App. Div.
2001). A signed writing is not, however, the only way to manifest mutual assent to
a contract. In the absence of an executed agreement, the Court may consider four
factors when deciding whether a contract was formed:
(1) whether there has been an express reservation of the right not to be
bound in the absence of a writing; (2) whether there has been partial
performance of the contract; (3) whether all of the terms of the alleged
contract have been agreed upon; and (4) whether the agreement at
issue is the type of contract that is usually committed to writing.
CAC Grp. Inc. v. Maxim Grp. LLC, 523 Fed. App’x 802, 803–04 (2d Cir. 2013)
(quoting Winston v. Mediafare Entm’t Corp., 777 F.2d 78, 80 (2d Cir. 1985)); see
also Ciaramella v. Reader’s Digest Ass’n, Inc., 131 F.3d 320, 323 (2d Cir. 1997)
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(citing the same four-factor test); R.G. Grp., Inc. v. Horn & Hardart Co., 751 F.2d
69, 75–76 (2d Cir. 1984) (same).
This same test may apply when the “parties have reached complete
agreement on all of the issues that require negotiation, but they have not yet
completely formalized their agreement.” Arcadian Phosphates, Inc. v. Arcadian
Corp., 884 F.2d 69, 72 (2d Cir. 1989). The Second Circuit has found “in some rare
instances, if a preliminary agreement clearly manifests such intention [to be
bound], it can create binding obligations.” Shann v. Dunk, 84 F.3d 73, 77 (2d Cir.
1996). There are two types of preliminary agreements which may be enforced:
Type I is where all essential terms have been agreed upon in the
preliminary contract, no disputed issues are perceived to remain, and a
further contract is envisioned primarily to satisfy formalities. Type II
is where the parties recognize the existence of open terms, even major
ones, but, having agreed on certain important terms, agree to bind
themselves to negotiate in good faith to work out the terms remaining
open.
Id.; see also Arcadian Phosphates, 884 F.2d 69 at 71–72 (describing the same
categories); Teachers Ins. & Annuity Ass’n of Am. v. Tribune Co., 670 F. Supp. 491,
491 (S.D.N.Y. 1987) (stating this categorization for the first time). In analyzing
Type I agreements, the Second Circuit has looked to the same four Winston factors.
See Brown v. Cara, 420 F.3d 148, 154 (2d Cir. 2005); Adjustrite Sys., Inc. v. GAB
Bus. Servs., Inc., 145 F.3d 543, 549 (2d Cir. 1998). “The hallmark of a Type I
agreement is that the parties have agreed to all necessary elements of the contract
and are, therefore, bound to the ultimate objective despite the fact that a more

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formal or elaborate writing has yet to be produced.” Brown, 420 F.3d at 154 (2d Cir.
2005).
IV.

DISCUSSION
The Court finds that the series of emails between Nusbaum and Lomita is a
binding contract that requires E-Lo to pay Nusbaum nine months’ severance. As
such, E-Lo is liable for breach of contract. While the series of emails does not
qualify as a signed writing, under the Winston factors, they form a binding contract.
The emails demonstrate a “meeting of the minds” on essential terms,
including a nine-month severance payment. A contract does not need to be signed
to be binding on the parties. To determine whether the emails here constitute a
formal contract—or a legally binding, “Type I” preliminary agreement—the Court
turns to the Winston factors.
The first factor—whether there is an express reservation of the right not to
be bound in the absence of a writing—weighs in favor of plaintiff. While plaintiff
did request a written contract, she later “understood Mr. Lomita’s March 24, 2015
email to be a final writing reflecting the terms and conditions of [her] employment.”
(Nusbaum Decl. ¶ 8). Reasonable jurors would interpret Lomita’s note in that
email—“I am agreeing to the below”—as a binding agreement that was in writing.
(ECF No. 35-3 at 2.) See Brown, 420 F.2d at 154 (examining whether the “the
language of the contract discloses an intention by the parties to be bound to the
ultimate objective”). That is to say, earlier that day, Nusbaum and Lomita had
discussed and agreed on the severance term over the phone. (Nusbaum Decl. ¶ 5.)
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Lomita’s subsequent email reduced that oral agreement to writing when he then
sent it to Kaplan. Lomita further referenced wanting to “get this done b/4 [he left].”
(Id.) Both parties believed the negotiations had concluded (i.e., Lomita said it was
“done”) and that the email embodied a binding agreement that was implemented
the day after Nusbaum began her employment.1
The second Winston factor is also in plaintiff’s favor. For nineteen months,
Nusbaum served as Nanette Lepore’s president—the contract was partially
performed. Additionally, while plaintiff bears the burden on this motion, the Court
merely notes that defendant has put forth no evidence that plaintiff failed to comply
with the non-compete clause of the contract’s severance package provision.
The third factor supports plaintiff as well—the material term here was
agreed to. The emails make clear that Lomita had agreed to nine months’
severance; Nusbaum does not seek more than this. The parties do not need to have
agreed to what would happen in three years (i.e., whether an additional three
months would be added) when the period at issue is all that is of relevance here.
The final factor, whether the agreement at issue is the type normally
committed to writing, is also in plaintiff’s favor. This agreement is not so “complex”
as to require a written document; in fact, by defendant’s own admission, E-Lo’s
usual practice is not to commit employment agreements to writing. See Brown, 420

And in any case, whether a party states that it would like an agreement to be in writing is not
dispositive. See Evolution Online Sys., Inc. v. Koninklijke PTT Nederland N.V., 145 F.3d 505, 509
(2d Cir. 1998) (“No single [Winston] factor is dispositive.”); McCray v. Cty. of Orange, No. 12-civ3950, 2015 WL 13373605, at *3 (S.D.N.Y. Dec. 3, 2015) (“While all [of the Winston] factors provide [ ]
significant guidance, no single factor is dispositive.” (internal quotation omitted).)
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F.3d at 155–156 (“New York courts have recognized that the ‘complexity and
duration of [an] alleged agreement’ is particularly significant in determining
whether it must be reduced to formal writing in order to be fully enforceable.”
(citing Warwick Assocs. v. FAI Ins. Ltd., 275 A.D.2d 653 (N.Y. App. Div. 2000))
(alteration in original)).
To conclude, the parties had “agreed to all necessary elements of the contract
and are, therefore, bound to the ultimate objective despite the fact that a more
formal or elaborate writing ha[d] yet to be produced.” Brown, 420 F.3d at 154. In
other words, the Court finds that the emails demonstrate that Nusbaum and
Lomita had both clearly agreed to nine months’ severance in the event of
Nusbaum’s termination.
V.

CONCLUSION
For the foregoing reasons, the Court rules in favor of plaintiff on Count V.
The Court notes that it expects that discovery is still ongoing as to Counts I-IV and
VI. The Clerk of Court is directed to terminate the motion at ECF No. 26.
SO ORDERED.
Dated:

New York, New York
December 1, 2017
______________________________________
KATHERINE B. FORREST
United States District Judge

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