Toro v. Graphic Communications Holdings, Inc
Filing
57
OPINION AND ORDER re: 47 MOTION for Judgment on the pleadings filed by Veritiv Corporation, Graphic Communications Holdings, Inc., Unisource Worldwide, Inc. For the foregoing reasons, Defendants' Rule 12(c) motion for jud gment on the pleadings is GRANTED IN PART and DENIED IN PART. The motion is granted with respect to Plaintiff's claims against Veritiv and Unisource, and with respect to Plaintiff's state-law claims against Graphic, and is denied in all other respects. The Clerk of Court is directed to terminate the motion at docket entry 47. The parties are further ORDERED to submit a proposed case management plan on or before May 22, 2019. SO ORDERED. (Signed by Judge Katherine Polk Failla on 5/1/2019) (rro)
Case 1:18-cv-03906-KPF Document 57 Filed 05/01/19 Page 1 of 15
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANDRES E. TORO,
Plaintiff,
-v.GRAPHIC COMMUNICATIONS
HOLDING, INC., d/b/a GRAPHIC
COMMUNICATIONS, INC.,
UNISOURCE WORLDWIDE, INC.,
UWW HOLDINGS, INC. and VERITIV
CORPORATION,
18 Civ. 3906 (KPF)
OPINION AND ORDER
Defendants.
KATHERINE POLK FAILLA, District Judge:
Plaintiff’s employment was terminated after a tragic (and avoidable) car
accident that resulted in several deaths. The instant lawsuit concerns not the
accident per se, but the resolution of certain loose ends left after the
termination of that employment relationship. Specifically, Plaintiff Andres E.
Toro alleges that Defendants Graphic Communications Holdings, Inc. d/b/a
Graphic Communications, Inc. (“Graphic”), Unisource Worldwide, Inc.
(“Unisource”), UWW Holdings, Inc. (“UWW”), and Veritiv Corporation (“Veritiv”)
(collectively, “Defendants”), failed to pay him outstanding commission
compensation to which he was entitled pursuant to his employment agreement.
Defendants have moved for judgment on the pleadings under Federal Rule of
Civil Procedure 12(c). For the reasons set forth in the remainder of this
Opinion, Defendants’ motion is granted in part and denied in part.
Case 1:18-cv-03906-KPF Document 57 Filed 05/01/19 Page 2 of 15
BACKGROUND 1
Plaintiff commenced this action against Defendants on May 1, 2018 (Dkt.
#1), and filed a First Amended Complaint (the “FAC”) on July 2, 2018 (Dkt.
#24), alleging that Defendants had failed to pay him outstanding commission
compensation. (See FAC ¶¶ 1, 11-34). Defendants filed an Answer on
September 28, 2018. (Dkt. #44). Defendants attached to their Answer, as an
exhibit, a copy of a document entitled “General Release and Confidential
Settlement Agreement” (the “Release”), signed by Plaintiff; the Release resolved
a prior action brought by Plaintiff against ACE American Insurance Company,
in relation to insurance coverage for the car accident. (Dkt. #44, Ex. 1). See
Toro v. ACE American Insurance Company, et al., No. 2015-029637-CA-01 (Fla.
Cir. Ct.) (the “Florida Action”).
The Release states in relevant part:
Toro … does hereby … release, acquit and forever
discharge ACE American Insurance Company, its
successors,
insureds,
administrators,
assigns,
shareholders, officers, managers, owners, partners,
employees, agents, directors, parent or affiliate
companies, subsidiaries, reinsurers and attorneys
(hereinafter collectively referred to as “ACE”) from, and
covenants and agrees not to sue ACE, regarding [all
claims] … known and unknown, or which is in any way
1
This Opinion draws on facts from the First Amended Complaint (the “FAC” (Dkt. #24)),
the well-pleaded allegations of which are taken as true for purposes of this motion. See
Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008); see also Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). The Opinion also draws on two additional sources:
(i) the employment agreement, which is attached as Exhibit 1 to the FAC (the
“Employment Agreement” (Dkt. #24-1)); and (ii) a general release that Plaintiff signed as
part of the settlement in a prior action, which is attached as Exhibit 1 to Defendants’
Answer (the “Release” (Dkt. #44-1)). As discussed more fully below, the Court may
consider these attachments to the pleadings. For convenience, Defendants’ moving
brief is referred to as “Def. Br.” (Dkt. #48); Plaintiff’s opposition brief as “Pl. Opp.” (Dkt.
#50); and Defendants’ reply brief as “Def. Reply” (Dkt. #55).
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related to the events and circumstances giving rise to
the [Florida Action]. Toro’s release of ACE includes any
claim that could have or should have been brought in
the Lawsuit, and any claim that Toro may have for
attorneys’ fees and costs….
It is expressly understood and agreed that this General
Release and Settlement Agreement is intended to
include and does include not only all known losses or
damages, but any further losses and damages which
Toro now has or may have in the future against ACE
arising out of the alleged events, actions and
circumstances resulting in Toro bringing the Lawsuit.
Furthermore, Toro expressly waives and assumes the
risk of all Claims arising out of any other matter
whether known or unknown, or damages which exist as
of this date, but which Toro does not know or suspect
to exist … and which, if known, would materially affect
Toro’s decision to execute this General Release and
Settlement Agreement.
Toro acknowledges … that the terms of this
settlement … are for the expressed purpose of
precluding forever any future or additional past or
present or future claims that Toro has or could have
against ACE arising out of the events and
circumstances that are the subject matter of the
Lawsuit.
(Dkt. #44, Ex. 1 at 1-2). The Release contains a provision stating that it is
governed by Florida law. (Id. at 4).
On November 7, 2018, Defendants moved for judgment on the pleadings
on the basis that the Release precluded Plaintiff’s claims in the present action.
(Dkt. #47; see also Def. Br. 2). Plaintiff filed an opposition on November 9,
2018 (Dkt. #50), and Defendants replied on November 30, 2018 (Dkt. #55).
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DISCUSSION
A.
Applicable Law
1.
Motions Under Federal Rule of Civil Procedure 12(c)
Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings
are closed — but early enough not to delay trial — a party may move for
judgment on the pleadings.” Fed R. Civ. P. 12(c). A court applies the same
standard to a motion for judgment on the pleadings as that used for a motion
to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). See Sheppard v. Beerman, 18
F.3d 147, 150 (2d Cir. 1994); accord Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir.
2018); L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011).
When considering either, a court should “draw all reasonable inferences in
Plaintiff[’s] favor, assume all well-pleaded factual allegations to be true, and
determine whether they plausibly give rise to an entitlement to relief.” Faber v.
Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks
omitted) (quoting Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir.
2009)). A plaintiff is entitled to relief if he alleges “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007); see also In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir.
2007) (“[W]hile Twombly does not require heightened fact pleading of specifics,
it does require enough facts to nudge [Plaintiff’s] claims across the line from
conceivable to plausible.” (internal quotation marks omitted)).
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2.
Documents the Court May Consider
“In considering a motion to dismiss for failure to state a claim pursuant
to Rule 12(b)(6), a district court may consider the facts alleged in the [pleading],
documents attached to the [pleading] as exhibits, and documents incorporated
by reference in the [pleading].” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104,
111 (2d Cir. 2010); see generally Goel v. Bunge, Ltd., 820 F.3d 554, 558-60 (2d
Cir. 2016) (discussing documents that may properly be considered in resolving
a motion to dismiss). “Even where a document is not incorporated by
reference, the court may nevertheless consider it where the [pleading] ‘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)
(quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d
Cir. 1995) (per curiam)). But “even if a document is ‘integral’ to the [pleading],
it must be clear on the record that no dispute exists regarding the
authenticity[, relevance,] or accuracy of the document.” DiFolco, 622 F.3d at
111 (quoting Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006)).
The standard applicable to documents a court may consider in ruling on
a motion for judgment on the pleadings under Rule 12(c) is slightly broader,
allowing consideration not only of the nonmoving party’s pleading, but also
that of the moving party. “On a 12(c) motion, the court considers ‘the
complaint, the answer, any written documents attached to them, and any
matter of which the court can take judicial notice for the factual background of
the case.’” L-7 Designs, Inc., 647 F.3d at 422 (quoting Roberts v. Babkiewicz,
5
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582 F.3d 418, 419 (2d Cir. 2009)). “A [pleading] is [also] deemed to include any
written instrument attached to it as an exhibit, materials incorporated in it by
reference, and documents that, although not incorporated by reference, are
‘integral’ to the complaint.” Id. (quoting Sira v. Morton, 380 F.3d 57, 67 (2d Cir.
2004)).
3.
Interpreting Releases Under Florida Law
“Under Florida law, a general release will ordinarily be regarded as
embracing all claims or demands which had matured at the time of its
execution.” Scheck v. Burger King Corp., 756 F. Supp. 543, 547 (S.D. Fla.
1991) (internal citation and quotation marks omitted). “[T]he construction and
effect to be accorded a release depends on its purpose, the terms in which it is
stated, and the subject matter to which it applies.... In construing a release
and determining the intent of the parties, the entire instrument, and not
detached sections of it, is to be examined.” Cerniglia v. Cerniglia, 679 So. 2d
1160, 1164 (Fla. 1996); see generally Sheen v. Lyon, 485 So. 2d 422, 423-24
(Fla. 1986).
Releases are to be interpreted using “established principles governing the
construction of contracts…. [W]here the terms of the release are disputed and
reasonably susceptible to more than one construction, an issue of fact is
presented as to the parties’ intentions which cannot properly be resolved by
summary judgment.” Hold v. Manzini, 736 So. 2d 138, 141 (Fla. Dist. Ct. App.
1999). Florida law prohibits courts from interpreting contracts in such a
manner as to produce absurd results. See, e.g., Am. Employers’ Ins. Co. v.
6
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Taylor, 476 So. 2d 281, 284 (Fla. 1st Dist. App. 1985). Courts are also
required to interpret contracts so as to avoid treating words or phrases as
redundancies or surplusage. See, e.g., Roberts v. Sarros, 920 So. 2d 193, 196
(Fla. Dist. Ct. App. 2006).
B.
Analysis
1.
Defendants Have Not Demonstrated, As a Matter of Law, That
the Terms of the Release Bar Claims Arising from Events
Unrelated to the Florida Action
The parties dispute whether the Release precludes any and all claims
against ACE’s insureds arising from events that preceded the signing of the
Release, including events unrelated to those at issue in the Florida Action.
(See Def. Br. 12-14; Pl. Opp. 5-9; Def. Reply 2-5). Considering Florida law and
the Release as a whole, the Court finds that, at minimum, the language in the
Release is “reasonably susceptible to more than one construction,” Hold, 736
So. 2d at 141, on the issue of whether the parties to the Release intended it to
preclude claims other than those arising from the events and circumstances at
issue in the Florida Action. On that basis alone, the Court must find that
Defendants have failed to meet their burden, on a motion for judgment on the
pleadings, to show that the Release unambiguously bars the present action.
Florida courts have provided guidance on how to construe broad and
limiting language in releases. In Moxley v. U-Haul Co. of Fla., 148 So. 3d 132
(Fla. Dist. Ct. App. 2014), the Second District Court of Appeal found that a
prior release did not cover claims in a subsequent action against U-Haul for
failing to provide a defense against counterclaims arising out of a car crash,
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despite broad language in the prior release covering “any and all claims against
[U–Haul] for any and all manner of action and actions arising out of the …
collision.” Id. at 136 (internal quotation marks and emphasis omitted). The
court reasoned that it was error to focus “unduly on the admittedly broad
language” of one portion of the release, where that language “is constrained
and limited by the definitions and recitals contained elsewhere in the Release.”
Id. at 137. In that case, “[t]he definitions and the recitals in [the more narrowly
worded portion of the release] do not suggest that the parties also intended to
cause the release of an entirely separate contractual duty [i.e., the duty to
defend].” Id. 2
The Court finds similarly that limiting language in the Release constrains
the admittedly broad language contained elsewhere in the document.
Specifically, limiting language in the Release states that it is “for the expressed
purpose of precluding … claims that Toro has or could have against ACE
arising out of the events and circumstances that are the subject matter of the
[Florida Action],” and for the “complete compromise of disputed claims and
disputed issues of law and fact.” (Release 1-2; see also Pl. Opp. 8). This
limiting language shows, at the least, that the Release is “reasonably
2
The parties also draw the Court’s attention to One S. Ocean Drive 2000, Ltd. v. One
Ocean Boca, LLC, 182 So. 3d 872 (Fla. Dist. Ct. App. 2016), in which Florida’s Fourth
District Court of Appeal distinguished a narrow release that relieved a receiver of
“further liability, duties, and responsibilities as Receiver,” but did not release the
receiver from individual liability, from a more general release stating that certain
persons “are forever released from all liability, including but not limited to all [manner]
of actions … and every other claim of any kind … which any entity or individual ever
had, now has, hereafter can, shall, or may have against … for any action” those persons
undertook in a particular role. Id. at 875-76 (emphasis omitted).
8
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susceptible to more than one construction,” Hold, 736 So. 2d at 141, as to
whether the parties intended to bar claims other than those arising out of the
events at issue in the Florida Action.
The Court is further persuaded of its conclusion by Plaintiff’s argument
that interpreting the Release to bar “all claims against the Defendants from the
beginning of time to the date of the Release … even claims that had nothing to
do with the underlying subject matter of the [Florida Action]” would lead to
absurd results. (Pl. Opp. 5). Plaintiff urges the Court instead to interpret the
Release to bar “all claims either arising out of the subject matter of the [Florida
Action]; or, at most, all claims for which ACE plausibly provided coverage to the
insureds[.]” (Id. at 6). As support, Plaintiff points out that the Release includes
a list of people and entities, such as “affiliates,” “shareholders,” and “agents,”
“that could arguably have incurred liability as a result of a covered claim.”
(Id.). The Court notes that Defendants confirmed that the employment dispute
at issue here did not fall within their ACE policy insurance coverage. (Dkt.
#49, Ex. C at ¶ 4 (stating “that no applicable insurance agreement exists”)).
However, at this stage of the litigation, the Court need not adopt the
interpretation that Plaintiff advances in order to conclude that Defendants have
failed to meet their burden to show that the Release unambiguously precludes
the claims at issue here.
Defendants make three arguments for why the Release purportedly bars
the claims at issue here. None is persuasive. First, Defendants focus on the
language in the Release discharging “[all claims] … known and unknown, or
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which is in any way related to the events and circumstances giving rise to the
[Florida Action].” (Release 1 (emphasis added)). Defendants contend that the
disjunctive “or” in that sentence means that Toro released claims beyond those
“related to the events and circumstances giving rise to the Florida Action.”
(Def. Br. 12). Plaintiff responds that, to preserve the meaning of both clauses
on either side of the disjunctive, and to avoid rendering either clause mere
surplusage, “the Court should read the former [clause] to release all
insurance-related claims against Ace and related entities or claims arising
out of the events related to the [Florida Action].” (Pl. Opp. 7-8 n.5 (emphases in
original)). In particular, Plaintiff contends that Defendants’ interpretation
would render “mere surplusage” the phrase “in any way related to the events
and circumstances giving rise to the [Florida Action].” (Id. at 7). At most,
Defendants have shown that the Release is “reasonably susceptible to more
than one construction,” Hold, 736 So. 2d at 141, which is insufficient to
establish at this stage of the litigation that the Release bars the claims in this
matter.
Second, Defendants turn to the sentence of the Release that states, “Toro
expressly waives and assumes the risk of all Claims arising out of any other
matter whether known or unknown, or damages which exist as of this date,
but which Toro does not know or suspect to exist … and which, if known,
would materially affect Toro’s decision to execute this [Release].” (Release 2).
Defendants argue that, to narrow the scope of the Release from all claims,
Plaintiff should have inserted language either restricting the release “to all
10
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claims regarding the events and circumstances giving rise to the Florida Action
or by specifically carving out” the claims he wishes to retain. (Def. Br. 13
(emphasis omitted)). But, while Defendants’ editorial suggestion might have
been a preferable drafting choice, the existing language in the Release limiting
the waiver to claims “which, if known, would materially affect” the decision to
execute the Release, narrows the scope of the waiver and, at minimum, raises a
factual dispute as to the parties’ intent.
Third, Defendants argue that the title of the release, “General Release
and Confidential Settlement Agreement,” “reflects an intent to settle claims
other than those asserted in the Florida Action.” (Def. Br. 13). Once again,
limiting language elsewhere in the Release supports a reasonable alternate
interpretation that the parties intended the Release to cover claims in some
way related to the events and circumstances at issue in the Florida Action. In
sum, Defendants have failed to meet their burden to show, on a motion for
judgment on the pleadings, that the Release unambiguously precludes the
current action and is not susceptible to alternate reasonable interpretations.
2.
Defendants’ Coverage Under the Release Is Irrelevant
The parties dispute whether Defendants in the present action are
“covered by,” or “third party beneficiaries of” the Release in the Florida Action.
(See Def. Br. 8-12; Pl. Br. 9-13; Reply 6-8). As the Court has determined that
the Release does not, unambiguously and without reasonable alternate
interpretations, preclude the claims raised in this matter, it is irrelevant
whether the Release covers Defendants directly or as “third party beneficiaries.”
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In either case, Defendants would still have failed to show that coverage under
the Release extends so far as to preclude the claims raised in this matter. 3
3.
Plaintiff’s Claims Against Veritiv and Unisource Are Dismissed
The Court grants Defendants’ motion for the dismissal of claims against
both Unisource and Veritiv on the basis that they are not liable for the acts of
their subsidiaries. (See Def. Br. 3 n.4). “It is a basic rule of corporate law that
parent corporations are not held liable for the acts of their subsidiaries.”
Standex Int’l Corp. v. QCP, Inc., No. 16 Civ. 492 (KPF), 2017 WL 481447, at *5
(S.D.N.Y. Feb. 6, 2017) (citing United States v. Bestfoods, 524 U.S. 51, 61
(1998)); see also SUS, Inc. v. St. Paul Travelers Group, 905 N.Y.S.2d 321, 324
(3d Dep’t 2010) (stating that a parent’s liability “for the conduct of their wholly
owned subsidiary … can never be predicated solely upon the fact of a parent
corporation’s ownership of a controlling interest in the shares of its subsidiary”
(citation omitted)).
Here, Plaintiff brings a claim for breach of an employment contract that
he allegedly entered into with “Graphic/Unisource/UWW.” (FAC ¶ 12).
However, the Employment Agreement recites that the contract “is made by and
between Graphic Communications Holdings Inc., … and [Plaintiff].” (Id. at
Ex. 1). Thus, despite wishful allegations to the contrary in the FAC, the
3
Plaintiff also seeks to introduce parol evidence to support his position on how to
interpret the Release, and the parties dispute the propriety of introducing parol
evidence for that purpose. (See Def. Br. 14-15; Pl. Opp. 13-17; Reply 8-9). Because the
Court has found that the Release, on its face, is susceptible to alternate reasonable
interpretations, and because Defendants introduce no parol evidence establishing that
the Release should be interpreted in their favor, the Court may rule in Plaintiff’s favor
without considering the parol evidence that further bolsters Plaintiff’s position.
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Employment Agreement clearly states that it is between Plaintiff and Graphic,
and not between Plaintiff and Graphic/Unisource/UWW. The Agreement
further states that Graphic “is a wholly-owned subsidiary of Unisource
Worldwide, Inc.[,] … which in turn is a wholly-owned subsidiary of UWW
Holdings, Inc.” (Id.). The FAC alleges that, “at some point after May 5, 2014,
UWW Holdings, Inc. merged with Veritiv,” and that, “as a result of the
aforementioned merger, Veritiv assumed the obligations of UWW including its
subsidiaries, Unisource and Graphic.” (Id. at ¶¶ 9, 10). Beyond these
assertions, the FAC includes no allegations against either Unisource or Veritiv.
The bare allegations in the FAC are insufficient to state claim against
either Unisource or Veritiv on a basis other than the mere fact of their status
as parent corporations to Graphic. For this reason, and because Plaintiff fails
to respond to Defendants’ motion for dismissal of claims against Unisource and
Veritiv (see Def. Reply 9), the claims against Unisource and Veritiv are
dismissed. See Jackson v. Fed. Exp., 766 F.3d 189, 198 (2d Cir. 2014) (“[I]n
the case of a counseled party, a court may, when appropriate, infer from a
party’s partial opposition that relevant claims or defenses that are not defended
have been abandoned.”); Simon v. City of New York, No. 14 Civ. 8391 (JMF),
2015 WL 4092389, at *2 (S.D.N.Y. 2015) (“[W]hether or not Defendants’
arguments had merit, it was Plaintiffs’ obligation to address the issue, on pain
of their claim being deemed abandoned.” (collecting cases)); Lipton v. Cty. of
Orange, N.Y., 315 F. Supp. 2d 434, 446 (S.D.N.Y. 2004) (“This Court may, and
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generally will, deem a claim abandoned when a plaintiff fails to respond to a
defendant’s arguments that the claim should be dismissed.” (collecting cases)).
4.
Plaintiff’s Claims for Quantum Meruit and for Violations of
N.Y. Labor Law § 191-C Against Graphic Are Dismissed
As alternatives to Plaintiff’s breach of contract claim, the FAC also brings
claims for quantum meruit, and for violations of New York Labor Law § 191-c.
(FAC ¶¶ 24-49). In two footnotes, Defendants move for dismissal of these
claims. First, they contend that Plaintiff cannot bring a quantum meruit claim
“because an express written contract governs” the commissions that he is
allegedly owed. (Def. Br. 16 n.13). See also Mid-Hudson Catskill Rural Migrant
Ministry, Inc. v. Fine Host Corp., 418 F.3d 168, 175 (2d Cir. 2005) (“New York
law does not permit recovery in quantum meruit ... if the parties have a valid,
enforceable contract that governs the same subject matter as the quantum
meruit claim). Second, Defendants argue that the New York Labor Law does
not apply extraterritorially to Plaintiff as a Florida employee, and further that
Section 191-c of the statute does not apply to Plaintiff because he was an
employee rather than an independent contractor. (Def. Br. 15 n.12). See also
Kasoff v. KVL Audio Visual Servs., Inc., 965 N.Y.S.2d 871, 872 (Mem.) (1st Dep’t
2013) (stating that § 191-c is limited to sales representatives who work as
independent contractors, rather than commission salespersons who work as
employees).
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Plaintiff fails to respond to either of these arguments, and has thus
abandoned these claims as well. See supra. The Court grants Defendants’
unopposed motion to dismiss these claims.
CONCLUSION
For the foregoing reasons, Defendants’ Rule 12(c) motion for judgment on
the pleadings is GRANTED IN PART and DENIED IN PART. The motion is
granted with respect to Plaintiff’s claims against Veritiv and Unisource, and
with respect to Plaintiff’s state-law claims against Graphic, and is denied in all
other respects. The Clerk of Court is directed to terminate the motion at
docket entry 47.
The parties are further ORDERED to submit a proposed case
management plan on or before May 22, 2019.
SO ORDERED.
Dated:
May 1, 2019
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
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