Negro v. AmTrust North America, Inc.

Filing 37

ORDER, The parties are hereby ORDERED to submit supplemental briefs addressing the following issues: 1. Whether and to what extent the Court may consider the Offer Letter which is not referenced in the parties pleadings and is instead raised for t he first time as part of Negro's opposition papers in evaluating the pending motions. 2. The relevant standard for determining as a matter of law whether one agreement is incorporated by reference into another and whether, applying that stand ard, the Court can and should conclude as a matter of law that the Shortened Time & Jury Waiver Agreement is or is not incorporated by reference into the Offer Letter. 3. If the Court cannot resolve the prior question as a matter of law, whether th e question of incorporation by reference is a factual question to be decided by the Court (and, if so, at an evidentiary hearing) or by a jury at trial; whether discovery on the issue would be warranted; and what the relevant standard at a hearing or trial would be. The parties' supplemental briefs may not exceed ten pages each and shall be filed no later than June 18, 2021. No replies will be permitted absent leave of Court. SO ORDERED. ( Brief due by 6/18/2021.) (Signed by Judge Jesse M. Furman on 6/4/21) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X
:
PAULA NEGRO,
:
:
Plaintiff,
:
:
-v:
:
AMTRUST NORTH AMERICA, INC.,
:
:
Defendant.
:
:
---------------------------------------------------------------------- X

20-CV-10407 (JMF)
ORDER

JESSE M. FURMAN, United States District Judge:
Now pending are two motions filed by Defendant AmTrust North America, Inc.
(“AmTrust”): (1) a motion, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, to
dismiss Plaintiff Paula Negro’s state-law claims as time-barred, see ECF No. 17; and (2) a
motion to strike Negro’s jury demand, see ECF No. 18. Both motions depend on a document
titled “Agreement to Bring Claims in Shortened Time Period and Waive Right to Jury Trial,”
ECF No. 16-1 (“Shortened Time & Jury Waiver Agreement”), dated May 9, 2019.
Upon review of the parties’ submissions, the Court is inclined to believe that one critical
— perhaps dispositive — question is whether the Shortened Time & Jury Waiver Agreement
upon which AmTrust’s motions depend was incorporated by reference into a later agreement
between the parties (the “Offer Letter”), dated May 10, 2019. On the one hand, the Offer Letter
states that it “replaces any prior understandings, offers or agreements, whether oral, written or
implied, between [Negro] and [AmTrust], regarding the terms of [Negro’s] employment or the
matters described in [the Offer Letter].” ECF No. 25-3, at 3. On the other hand, the Offer Letter
provides that it “is contingent on . . . [Negro’s] execution of . . . the Waive Right to Jury Trial
Agreement before [Negro] start[ed] employment with [AmTrust].” Id. The question is: Is the

“Waive Right to Jury Trial Agreement” a reference to the Shortened Time & Jury Waiver
Agreement — even though the latter bears a different title and pertains not only to the waiver of
the right to a jury trial, but also the applicable limitations period? The parties’ briefs do not
adequately address this question, if they address it at all.
In light of the foregoing, the parties are hereby ORDERED to submit supplemental briefs
addressing the following issues:
1. Whether and to what extent the Court may consider the Offer Letter — which is not
referenced in the parties’ pleadings and is instead raised for the first time as part of
Negro’s opposition papers — in evaluating the pending motions.
2. The relevant standard for determining as a matter of law whether one agreement is
incorporated by reference into another and whether, applying that standard, the Court can
and should conclude as a matter of law that the Shortened Time & Jury Waiver
Agreement is or is not incorporated by reference into the Offer Letter.
3. If the Court cannot resolve the prior question as a matter of law, whether the question of
incorporation by reference is a factual question to be decided by the Court (and, if so, at
an evidentiary hearing) or by a jury at trial; whether discovery on the issue would be
warranted; and what the relevant standard at a hearing or trial would be.
The parties’ supplemental briefs may not exceed ten pages each and shall be filed no later than
June 18, 2021. No replies will be permitted absent leave of Court.

SO ORDERED.
Dated: June 4, 2021
New York, New York

__________________________________
JESSE M. FURMAN
United States District Judge

2