Seigel v. Structure Tone Organization et al
MEMORANDUM OPINION AND ORDER re: 35 MOTION for Reconsideration filed by Jeffrey S. Seigel, 45 MOTION to Amend/Correct 1 Complaint filed by Jeffrey S. Seigel, 37 MOTION for Reconsideration re; 33 Order, Set Deadlines, Set H earings filed by Jeffrey S. Seigel, 59 MOTION for Protective Order Under FRCP 26(c) filed by Robert Yardis, Michael Melanophy, Structure Tone Organization, Pavarini NE Construction Co., 44 MOTION to Amend/Correct 1 Complai nt filed by Jeffrey S. Seigel. The motion for reconsideration is GRANTED, and plaintiff's breach of implied contract claim is reinstated. The motion for leave to amend is GRANTED. By November 4, 2020, plaintiff shall file an amended complaint, subject to the limitations set forth herein. By November 25, 2020, defendants shall answer, move, or otherwise respond to the amended complaint. The motion for a protective order is GRANTED. The Court will So-Order defendants' proposed prote ctive order. (Doc. #59-5). The Clerk is instructed to terminate the motions. (Docs. ##35, 37, 44, 45, 59). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Chambers will mail a copy of this Memorandum Opinion and Order to plaintiff at the address on the docket. SO ORDERED. (Amended Pleadings due by 11/4/2020.) (Signed by Judge Vincent L. Briccetti on 10/13/2020) Copies Mailed By Chambers. (mml)
Case 7:19-cv-07307-VB Document 66 Filed 10/13/20 DH 1 of 11
Copy mailed to Pla 10-13-20 Page
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JEFFREY S. SEIGEL,
STRUCTURE TONE ORGANIZATION;
PAVARINI NE CONSTRUCTION CO.;
ROBERT YARDIS; and
OPINION AND ORDER
19 CV 7307 (VB)
By bench ruling on May 26, 2020, the Court granted in part and denied in part the motion
to dismiss filed by defendants Structure Tone Organization (“Structure Tone”), Pavarini NE
Construction Co. (“Pavarini”), Robert Yardis, and Michael Melanophy. Among other things, the
Court concluded plaintiff failed plausibly to allege a breach of implied contract claim. Now
before the Court are plaintiff’s motion for reconsideration of the Court’s May 26 bench ruling
(Docs. ##35, 37), plaintiff’s motion for leave to amend his complaint (Docs. ##44, 45), and
defendants’ motion for a protective order. (Doc. #59).
For the reasons set forth below, the motion for reconsideration is GRANTED and
plaintiff’s breach of implied contract claim is reinstated; the motion for leave to amend is
GRANTED subject to the limitations set forth herein; and the motion for a protective order is
The Court assumes the parties’ familiarity with the factual and procedural background of
this case, and recites herein only those facts necessary to adjudicate the pending motions.
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Plaintiff contends the Court erred in dismissing his breach of implied contract claim. He
argues, among other things, that his pleaded allegations plausibly suggest such a claim, much
like the allegations of the plaintiff in Joshi v. Trustees of Columbia University, 2018 WL
2417846 (S.D.N.Y. May 29, 2018), 1 a recent opinion by another judge in this district.
The Court agrees.
“To prevail on a motion for reconsideration, the movant must demonstrate ‘an
intervening change of controlling law, the availability of new evidence, or the need to correct a
clear error or prevent manifest injustice.’” Catskill Dev., L.L.C. v. Park Place Entm’t Corp., 154
F. Supp. 2d 696, 701 (S.D.N.Y. 2001) (quoting Doe v. N.Y.C. Dep’t of Soc. Servs., 709 F.2d
782, 789 (2d Cir. 1983)). 2 Such a motion should be granted only when the Court has overlooked
facts or precedent that might have altered the conclusion reached in the earlier decision. Shrader
v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also Local Civil Rule 6.3. The
movant’s burden is weighty to avoid “wasteful repetition of arguments already briefed,
considered and decided.” Weissman v. Fruchtman, 124 F.R.D. 559, 560 (S.D.N.Y. 1989).
The motion must be “narrowly construed and strictly applied in order to discourage
litigants from making repetitive arguments on issues that have been thoroughly considered by the
court.” Range Rd. Music, Inc., v. Music Sales Corp., 90 F. Supp. 2d 390, 391–92 (S.D.N.Y.
Plaintiff will be provided copies of all unpublished opinions cited in this decision.
See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).
Unless otherwise indicated, case quotations omit all internal citations, quotations,
footnotes, and alterations.
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2000). Further, the motion “may not advance new facts, issues, or arguments not previously
presented to the court.” Randell v. United States, 64 F.3d 101, 109 (2d Cir. 1995) (citing
Morse/Diesel, Inc. v. Fid. & Deposit Co. of Md., 768 F. Supp. 115, 116 (S.D.N.Y. 1991)). This
limitation ensures finality and “prevent[s] the practice of a losing party examining a decision and
then plugging the gaps of a lost motion with additional matters.” Carolco Pictures Inc. v. Sirota,
700 F. Supp. 169, 170 (S.D.N.Y. 1988).
Here, plaintiff argues he plausibly alleged a breach of implied contract claim much like
the plaintiff in Joshi v. Trustees of Columbia University.
In Joshi, a plaintiff university professor reported concerns respecting a colleague’s
research articles after the plaintiff became aware the articles contained inaccurate, falsified or
fabricated data. Joshi v. Trs. of Columbia Univ., 2018 WL 2417846, at *3. The plaintiff alleged
that in doing so, he relied on protections for complainants who report research misconduct, set
forth in the university’s research misconduct and non-retaliation policies. Id. The plaintiff
further alleged the university retaliated against him because of his complaints. He sued the
university for, inter alia, breach of contract premised upon violations of the research misconduct
and non-retaliation policies. Id. at 4–5.
Although “[r]outinely issued employee manuals, handbooks and policy statements should
not lightly be converted into binding employment agreements,” Lobosco v. N.Y. Tel.
Co./NYNEX, 96 N.Y.2d 312, 317 (2001), the court in Joshi explained “New York cases make
clear . . . that workplace policies . . . can create binding contracts.” Joshi v. Trs. of Columbia
Univ., 2018 WL 2417846, at *5. “To assert a breach of contract claim based on policies
contained in employment handbooks, manuals, or codes of conduct, a plaintiff must [plausibly
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allege] that ‘(1) an express written policy limiting the employer’s right of discharge exists, (2)
the employer (or one of its authorized representatives) made the employee aware of this policy,
and (3) the employee detrimentally relied on the policy in accepting or continuing
employment.’” Dutt v. Young Adult Inst., Inc., 2018 WL 3148360, at *5 (S.D.N.Y. June 26,
2018) (quoting Baron v. Port Auth. of N.Y. & N.J., 271 F.3d 81, 85 (2d Cir. 2001)).
In Joshi, the court acknowledged specific provisions of the university’s research
misconduct policy—“the University shall ensure that . . . all reasonable and practical efforts are
made to protect the Complainant from actual or potential retaliation”—and non-retaliation
policy—“[the University] expects members of the University community to inform the
appropriate parties if they have observed unethical, illegal or suspicious activity”—sufficed
plausibly to suggest an express promise that the university would protect employees, including
the plaintiff, from reprisal for reporting suspected misconduct, and that such promise restricted
the university’s right to discharge the plaintiff. Joshi v. Trs. of Columbia Univ., 2018 WL
2417846, at *5.
Similarly, in Dutt v. Young Adult Institute, Inc., 2018 WL 3148360 (S.D.N.Y. June 26,
2018), another judge in this district concluded a plaintiff plausibly alleged a breach of contract
claim based on the defendant employer’s violation of its non-retaliation policy. There, the
plaintiff employee reported suspected misconduct of the company’s board chairman and the
company’s CEO, and alleged he did so in reliance upon the company’s code of conduct, which
required employees to report suspected violations of company policy or law and expressly
prohibited retaliation against individuals who reported suspected violations. Id. at *2–4. The
court noted the code of conduct “set out an express written policy limiting [the company’s]
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right of discharge,” and that the plaintiff “plausibly alleged an implied breach of contract claim
to withstand dismissal at this time.” Id. at *6.
Although Joshi and Dutt are not controlling caselaw, the Court nevertheless is persuaded
plaintiff has plausibly stated a breach of implied contract claim and that such claim should be
reinstated to correct legal error or oversight. Plaintiff alleges he was presented with, and was
required to sign, Structure Tone’s anti-retaliation policy. The policy “articulates the Company’s
unwavering commitment to . . . protecting employees who raise matters in good faith” (Doc. #26
(“Pl. Decl.”) Ex. A at 1), obligates all employees “to speak up and promptly report any suspected
violation of the Company’s policies or applicable laws” (id. at 2), and states “all employees who
raise issues or . . . report potential violations of Company policy or law . . . will not suffer
reprisal, harassment, intimidation, threats, coercion, discrimination or retaliation, or adverse
employment action” (id. at 4). 3 Plaintiff further alleges he relied on this policy when he
complained orally and in writing to Yardis and Melanophy about suspected ADA and FMLA
violations, and that his employment was terminated for doing so. Accordingly, at this stage of
the proceedings, plaintiff plausibly alleges that an express written policy limited defendants’
right to terminate his employment, and that he relied on that written policy to his detriment.
For these reasons, plaintiff’s breach of implied contract claim shall be reinstated. 4
These allegations appear in plaintiff’s complaint and opposition to defendants’ motion to
dismiss. However, in assessing plaintiff’s motion for reconsideration, the Court declines to
entertain any new facts improperly contained therein. See Schoolcraft v. City of New York, 244
F. Supp. 3d 506, 508 (S.D.N.Y. 2017) (noting a party seeking reconsideration may not “advance
new facts . . . not previously presented to the Court”).
The other arguments contained in plaintiff’s motion for reconsideration are not
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Motion to Amend
Plaintiff requests leave to amend his complaint to allege a tortious interference with
contract claim against Yardis and Melanophy.
For the following reasons, the request is granted.
Under New York law, a tortious interference with contract claim requires that a plaintiff
plausibly allege (i) “the existence of a valid contract between the plaintiff and a third party”; (ii)
“defendant’s knowledge of that contract”; (iii) “defendant’s intentional procurement of the thirdparty’s breach of the contract without justification”; (iv) “actual breach of the contract”; and (v)
“damages resulting therefrom.” Rich v. Fox News Network, LLC, 939 F.3d 112, 126–27 (2d
Defendants argue plaintiff should not be granted leave to amend because he declined to
amend his complaint when previously given an opportunity to do so, and because the Court has
already dismissed plaintiff’s breach of implied contract claim.
Although plaintiff previously declined to amend his complaint, in view of plaintiff’s pro
se status, and because his breach of implied contract claim will be reinstated, the Court grants
plaintiff leave to amend his complaint. See Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000)
(noting a liberal application of Rule 15(a) is warranted with respect to pro se litigants, who
“should be afforded every reasonable opportunity to demonstrate that [they have] a valid claim”).
A liberal reading of plaintiff’s proposed amended complaint indicates plaintiff may be able
plausibly to allege a tortious interference with contract claim against Yardis and Melanophy.
Plaintiff alleges Structure Tone’s anti-retaliation policy limited defendants’ ability to discharge
him from his employment, and that Yardis and Melanophy procured Structure Tone and
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Pavarini’s breach of contract by terminating plaintiff’s employment in retaliation for his
complaints respecting alleged ADA and FMLA violations.
However, plaintiff is granted leave to amend his complaint only to add a tortious
interference with contract claim. 5 Plaintiff’s amended complaint will completely replace, not
supplement, the existing complaint. Therefore, plaintiff must include in the amended complaint
all information necessary for his existing claims 6 and his proposed tortious interference with
contract claim. Plaintiff is directed to include in his amended complaint only those facts he
believes plausibly support his claims.
Defendants move for a protective order pursuant to Rule 26(c) of the Federal Rules of
Civil Procedure to govern the disclosure of certain information to be produced in discovery in
For the following reasons, the Court will issue the proposed protective order. (See Doc.
“A party or any person from whom discovery is sought may move for a protective order
in the court where the action is pending.” Fed. R. Civ. P. 26(c)(1). “The court may, for good
cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or
In his motion for reconsideration, which was filed prior to his motion to amend, plaintiff
indicated he was seeking to add a “new claim” for violation of the Age Discrimination in
Employment Act (“ADEA”). (Doc. #37 at 9). However, plaintiff’s motion to amend does not
seek to add an ADEA claim, but only “to add a tortious interference of contract claim against the
two individual defendants, Yardis and Melanophy.” (Doc. #46 at 4).
Plaintiff’s existing claims are ADA discrimination and retaliation claims against
Structure Tone and Pavarini, an FMLA retaliation claim against all defendants, and a breach of
implied contract claim against Structure Tone and Pavarini.
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undue burden or expense, including . . . requiring that a trade secret or other confidential
research, development, or commercial information not be revealed or be revealed only in a
specified way.” Fed. R. Civ. P. 26(c)(1)(G).
Because of its commercial value, commercial information may be subject to certain
discovery protections including “a protective order limiting the purposes for which the
information can be used and the extent to which it can be disseminated.” Cohen v. City of New
York, 255 F.R.D. 110, 118 (S.D.N.Y. 2008). Protective orders are commonly warranted when
“the producing party is able to demonstrate that the dissemination of confidential information
will place it at a competitive disadvantage.” Id. Indeed, “[p]rotective orders limiting access to
highly confidential information to counsel and experts are commonly entered in litigation
involving . . . commercial information.” ABC Rug & Carpet Cleaning Serv. Inc. v. ABC Rug
Cleaners, Inc., 2009 WL 105503, at *3 (S.D.N.Y. Jan. 14, 2009).
“Whether information merits protection . . . depends upon: 1) the extent to which the
information is known outside the business; 2) the extent to which information is known to those
inside the business; 3) the measures taken to guard the secrecy of the information; and 4) the
value of the information to the business and its competitors.” ABC Rug & Carpet Cleaning Serv.
Inc. v. ABC Rug Cleaners, Inc., 2009 WL 105503, at *3.
Here, defendants seek a protective order establishing procedures respecting the
production and dissemination of defendants’ proprietary, trade secret, or other sensitive nonpublic commercial information, such as documentation regarding customer lists, pricing, and
revenue. Defendants’ proposed protective order substantially replicates model protective orders
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of courts in this district. See, e.g., Model Confidentiality Stipulation and Proposed Protective
20Order.pdf (revised Feb. 24, 2020) (last visited Oct. 9, 2020).
Plaintiff has refused to stipulate to the terms of the proposed protective order, arguing the
issuance of such an order would be inordinately burdensome, prejudicial, and, in any event,
unnecessary because plaintiff signed an offer letter with a confidentiality clause when he was
first hired by Structure Tone and Pavarini in 2002. Plaintiff argues he does not want defendants
to disclose any confidential commercial information “or the responsibility for protecting this
information.” (Doc. #60 at 3). He further argues that, if the Court issues a protective order, the
Court should limit defendants’ identification of confidential documents “to a small quantity.”
(Id. at 5).
The Court is not persuaded by plaintiff’s arguments, and concludes certain non-public
commercial information subject to production merits protection. According to defendants,
relevant defenses in this case, as well as plaintiff’s claims, require the production of proprietary,
trade secret, and other sensitive non-public information due to plaintiff’s former employment as
a business development executive. Accordingly, an order establishing protective measures for
the dissemination of confidential commercial information is appropriate. See ABC Rug &
Carpet Cleaning Serv. Inc. v. ABC Rug Cleaners, Inc., 2009 WL 105503, at *3.
Moreover, the Court declines to place a limit on the number of documents defendants
may identify as confidential during the discovery phase, as plaintiff’s request to quantitatively
limit defendants’ identification of confidential documents is arbitrary and unsupported.
Plaintiffs’ concern that the absence of such a restriction would allow defendants “to lazily label
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random documents” confidential (Doc. #60 at 5) is belied by the parties’ obligation to fulfill their
discovery obligations in good faith. See Chevron Corp. v. Donziger, 296 F.R.D. 168, 213
(S.D.N.Y. 2013); see also Fed. R. Civ. P. 37(a)(1).
As an additional matter, the proposed protective order provided by defendants allows
plaintiff to share any documents marked “confidential” with any pro bono counsel he consults, as
well as certain family members, which largely assuages plaintiff’s concerns regarding the
sharing of certain case information with certain people. (See Doc. #59-5).
For the above reasons, the Court will issue defendants’ proposed protective order, which
will govern the production and dissemination of confidential discovery in this case. (See Doc.
The motion for reconsideration is GRANTED, and plaintiff’s breach of implied contract
claim is reinstated.
The motion for leave to amend is GRANTED. By November 4, 2020, plaintiff shall file
an amended complaint, subject to the limitations set forth herein.
By November 25, 2020, defendants shall answer, move, or otherwise respond to the
The motion for a protective order is GRANTED. The Court will So-Order defendants’
proposed protective order. (Doc. #59-5).
The Clerk is instructed to terminate the motions. (Docs. ##35, 37, 44, 45, 59).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith, and therefore in forma pauperis status is denied for the
purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Case 7:19-cv-07307-VB Document 66 Filed 10/13/20 Page 11 of 11
Chambers will mail a copy of this Memorandum Opinion and Order to plaintiff at the
address on the docket.
Dated: October 13, 2020
White Plains, NY
Vincent L. Briccetti
United States District Judge
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