The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
This is an action for injunctive and declaratory relief and
damages brought by a former partner in the law firm of LeBoeuf,
Lamb, Leiby & MacRae ("LLL & M"). Plaintiff alleges that the
individual partners of LLL & M have violated the Employee
Retirement Income and Security Act of 1974,
29 U.S.C. § 1132(a)(1)(B), (a)(3) and 1140, as amended, ("ERISA") and the
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961
et seq., as amended, ("RICO"). Plaintiff also alleges
various tort and contract violations under state law.
Defendants now move for summary judgment dismissing both
federal and certain state claims pursuant to Fed.R.Civ.P. 56
and 12(b)(6) for failure to state a cause of action and for
failure to plead claims of fraud with particularity under Rule
9(b). Plaintiff cross-moves for summary judgment pursuant to
Rule 56 and for injunctive relief pursuant to Rule 65. For the
reasons set forth below, defendants' motion is granted and
plaintiff's cross-motion is denied.
Alison Clapp joined the law firm of LLL & M in 1981 as an
associate attorney in the firm's tax department. Her work in
the area of tax problems of regulated industries, especially
those of public utilities, over the following four years earned
her an invitation to join the LLL & M partnership. Clapp signed
a Memorandum of Partnership Agreement dated January 1, 1986,
(the "1986 Agreement") and in 1987 and 1988 signed amendments
to the 1986 Agreement (collectively "the Partnership
Agreement"). The Partnership Agreement provided that the term
of the LLL & M partnership "shall be indefinite". Greene Aff.,
During her years as an associate and continuing after she was
made partner, plaintiff received nearly all of her billable
work assignments from defendant John Richardson, at that time
head of LLL & M's Tax Department. Amended Complaint ¶ 142.
Despite her objections, plaintiff failed to obtain meaningful
assignments from or involving other LLL & M tax partners. Clapp
Aff. ¶ 7-8. In particular, during the years 1982 through 1986,
plaintiff performed legal services under the direction of
Richardson for one individual client, an English Insurer,
10-16% of her billable hours. Id. ¶ 145. Richardson also
directed plaintiff to perform certain apparently non-billable
assignments for the American Bar Association Tax Section,
representing to her that he had the approval of the LLL & M
Administrative Committee. Id. ¶ 10. Finally, plaintiff claims
that Richardson purposely "wrote off," or failed to bill,
$300,000 worth of her services performed between 1983 and 1987.
Clapp Aff. ¶ 13.
At the same time, plaintiff alleges that Richardson induced
her to postpone her efforts to conceive a child until after her
advancement to partnership in 1986. Amended Complaint ¶ 166.
Richardson allegedly made fraudulent representations assuring
plaintiff that the firm would fully accommodate her in her
childbearing efforts thereafter if, in consideration, she were
to devote herself exclusively to her work prior to becoming a
partner. Plaintiff now claims an increased difficulty in
sustaining a pregnancy in detrimental reliance on defendants'
On October 26, 1988, Richardson announced his intention to
withdraw from the LLL & M partnership and thereafter withdrew
on November 15, 1988, taking tax work of the English Insurer
client with him to a competing firm. Amended Complaint ¶ 200.
Plaintiff claims that, following Richardson's departure, other
LLL & M tax partners failed to direct assignments to her and
that she was thus unable to maintain an acceptable level of
billable hours, having been deprived of client development
opportunities over the years. Clapp Aff. ¶ 15.
On February 21, 1989, defendant Greene, a member of the LLL
& M Administrative Committee, met with plaintiff and allegedly
informed her, in substance, that the firm was dissatisfied with
her productivity and that there was no future for her at the
firm. Greene Aff. ¶ 14; Clapp Aff. ¶ 10. Greene claims,
however, to have offered plaintiff the chance to present a plan
for improvement to remedy the situation. Greene Aff. ¶ 14.
In September, 1989, Greene informed plaintiff of the firm's
decision to terminate her as a partner. Plaintiff objected to
this termination and defendants maintain that the LLL & M
partnership was dissolved on December 31, 1989, and a new
partnership agreement signed as of January 1, 1990. Plaintiff
was not included as a partner in the newly-formed partnership.
Plaintiff was offered but declined to accept a lumpsum
distribution of all accrued benefits under the LLL & M
Retirement and Profit Sharing Plans, the 401(k) plan and her
single participant profit sharing plan. Stuken Aff. ¶ 5; Clapp
Aff. ¶ 27. Plaintiff has apparently elected to maintain
self-financed continuing coverage under the LLL & M group
health and medical insurance plan pursuant to the Consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA"). Stuken
Aff. ¶ 6.
Apart from the foregoing actions which apparently are the
basis for her claim under ERISA against the defendants,
plaintiff outlines a separate series of events for the purposes
of establishing a RICO violation. Essentially, the complaint
recites that defendants Irving Moskovitz, Peter Schiller and
John Young were tax partners in the New York law firm of
Graubard, Mollen, Dannett, Horowitz & Pomeranz. These
defendants resigned their firm to join LLL & M as partners in
1988, bringing a large client and several other clients with
them to LLL & M.*fn1 Amended Complaint ¶ 20-22. Plaintiff
complains that LLL & M through its Administrative Committee
secretly guaranteed to Moskovitz, Schiller and Young, while
each of them was still obligated under a partnership agreement
to devote their efforts to the former firm, specific salaries
and other benefits if they were successful in transferring a
large client account to LLL & M from their former firm.
Moskovitz, Schiller and Young agreed and became partners of LLL
& M on June 1, 1988. Plaintiff's RICO claim states that these
acts were commercial bribery and bribe receiving in violation
of New York Penal Law §§ 180.03 and 180.08 as the required two
Amended Complaint ¶¶ 31-41, and deems the continuing receipt of
compensation from LLL & M by Moskovitz, Schiller and Young to
constitute a pattern of racketeering activity. Id. ¶ 60.
A court should dismiss a claim under Federal Rule of Civil
Procedure 12(b)(6) when it appears that plaintiff can prove no
set of facts in support of his claim which would entitle him to
relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99,
101-102, 2 L.Ed.2d 80 (1957); Philips Business Sys., Inc. v.
Executive Communications Sys., Inc., 744 F.2d 287 (2d Cir.
1984). For this purpose, the allegations of the complaint are
taken as true, Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31
L.Ed.2d 263 (1972), and examination is made whether those
allegations constitute a "short and plain" statement of a claim
showing that the pleader is entitled to relief. Fed.R.Civ.P.
8(a). See Wright & Miller, Federal Practice and Procedure:
Civil 2d § 1357. When examining the sufficiency of the
complaint under Rule 8(a), however, conclusory allegations
merely stating the general legal conclusions necessary to
prevail on the merits and which are unsupported by facts are
not taken as true. Packer v. Yampol, 630 F. Supp. 1237, 1241
(S.D.N.Y. 1986); M & M Transportation Co. v. U.S. Industries,
Inc., 416 F. Supp. 865, 869 n. 4 (S.D.N.Y. 1976). Examined in
this light, plaintiff's allegations constitute a claim not
cognizable under ERISA or are not sufficiently alleged to put
defendants on notice so that they can form a responsive
Section 510 of ERISA provides: "It shall be unlawful for any
person to discharge . . . a participant or beneficiary . . .
for the purpose of interfering with the attainment of any right
to which such participant may become entitled under [an
employee benefit plan]. . . ." 29 U.S.C. § 1140 (1982). Section
510 essentially prohibits employers from, inter alia,
"discharging . . . their employees in order to keep them from
obtaining vested pension rights." Dister v. ...