The opinion of the court was delivered by: Edelstein, District Judge:
This order is issued pursuant to defendants' motion to dismiss
two of plaintiffs' seven claims for failure to state a claim upon
which relief may be granted (Fed.R. Civ.P. 12(b)(6)) and
defendants' motion to dismiss the entire action for lack of
subject matter jurisdiction (Fed.R.Civ.P. 12(b)(1)). These
motions were filed prior to any discovery, and for the purposes
of their resolution, the allegations of the complaint are
construed favorably to the pleader. Scheuer v. Rhodes,
416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974), citing
Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101, 2 L.Ed.2d 80
(1957) (A motion to dismiss must be denied "unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.");
Morales v. New York State Dep't of Corrections, 842 F.2d 27, 30
(2d Cir. 1988).
In light of the Supreme Court's decision in Patterson v. McLean
Credit Union, ___ U.S. ___, 109 S.Ct. 2363, 105 L.Ed.2d 132
(1989), and the subsequent decisions in this District, both of
defendant's motions are granted.
Plaintiffs were employed as salespersons at James II, a New
York City antique store selling 19th century English porcelain.
On or about June 16, 1988, defendants, George and Barbara Kogan,
contacted plaintiff Fernandez and informed her that they wished
to open an antique store in New York City that would be modeled
after James II. The defendants informed Fernandez that they
needed someone of Fernandez's experience to open and manage the
store, Kogan and Company.
On the following day, the Kogans and Fernandez had a meeting
during which the terms of an oral employment contract were
discussed and finalized. Fernandez alleges that she was told that
she would not be terminated for the first year except for good
cause. After contracting, the parties discussed various plans
about the new store's inventory, the composition of defendant
Kogan and Company, and the purchasing trip to take place in
August 1988. During this meeting, the parties also discussed the
need for an additional person, one who knew inventory and other
control systems, and Fernandez suggested that plaintiff Leggette
would be perfect for the job.
On June 28, 1988, the defendants, Barbara and George Kogan, and
plaintiffs met to discuss Leggette's employment. Once again,
various terms of employment were discussed and orally agreed
upon. Leggette similarly alleges she was offered a term of
employment during which she would only be fired for good cause.
During the next two months, the parties made numerous
preparations for the opening of the Kogan and Company store.
During September and October 1988, Fernandez hired four
employees, with the approval of the Kogans, to work as support
staff at the store, three black and one Hispanic (hereinafter
referred to as "minority employees").
On Sunday, November 13, 1988, Ms. Kogan told Fernandez not to
go to the store but rather to meet with the Kogans at their
apartment. When Mr. Fernandez called the store on November 15,
1988 to report that his wife was ill, he was informed she no
longer worked there. Later that same day, Leggette was similarly
informed that Fernandez was no longer employed at Kogan and
On the evening of November 23, 1988, Leggette had a
conversation with Ms. Kogan concerning her medical insurance.
After some disagreement, Leggette was told not to bother
returning to the store the following working day as she was
Plaintiffs filed the current action making seven claims for
relief. The first five claims concern the alleged breach of oral
and express contract provisions and allege that the defendants
fraudulently induced the plaintiffs to terminate their positions
at James II. The sixth and seventh claims, providing this court
with jurisdiction, allege that the plaintiffs were discharged ...