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WOOD v. BROSSE U.S.A.

March 31, 1992

LEON FIRMAN WOOD, JR., Plaintiff, against BROSSE U.S.A., INC., Defendant.

SWEET


The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D.J.

Defendant Brosse U.S.A., Inc ("Brosse") has moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Plaintiff Leon Firman Wood, Jr.'s ("Wood") diversity complaint. For the reasons set forth below, the motion is granted in part and denied in part.

 Background

 Wood is a resident and citizen of the State of New Jersey who alleges that he is "over the age of forty and less than sixty-five years of age". Wood was allegedly employed by Brosse as Vice President of Sales from 1986 until he was fired on August 23, 1991.

 Brosse is a New York corporation with its principal place of business in the City of New York.

 The parties allegedly agreed to extend the terms of the agreement through the end of 1991 in January or February 1991. Complaint P15. Wood also requested in early 1991 that the parties execute a new written contract that included a $ 30,000 raise in Wood's base salary. Brosse's president allegedly agreed to comply with this request in June 1991, telling Wood that his raise would be retroactive to January 1, 1991, that a new contract would be executed in September 1991, and that Wood would also receive a cost of living allowance increase for 1991. Id. P16.

 Brosse's president allegedly hired a younger man at a lower salary to perform Wood's duties in May 1991. Id. PP19, 36. Then, on August 23, 1991, Wood "was fired by a patently false letter". The letter apparently is false "in that plaintiff did not tender his resignation notwithstanding the statement therein contained". Wood further alleges that Brosse's president "requested plaintiff sign one or more document, [sic] the contents of which were and are unknown to plaintiff and a copy (copies) of which was (were) never delivered to or furnished to the plaintiff". Id. P21.

 On the day he was fired, Brosse's president apparently told Wood that he would have to surrender his car immediately and that she had informed his garage not to release the car. After Wood objected, she apparently gave Wood $ 500 to rent a car for a week. Id. P22. Wood also says that he enjoyed only two out of the three weeks of vacation to which he was allegedly entitled in 1991.

 Wood sets forth eight causes of action in his complaint. *fn1" The first, second, third, fifth, and sixth causes of action appear to allege that Brosse breached the agreement by taking back the car and by not paying Wood severance pay, vacation pay, the balance of his bonus for 1990, his bonus and profit sharing entitlement for 1991, and cost of living allowances for 1990 and 1991. The fourth cause of action alleges that Brosse tortiously interfered with the agreement. The seventh seeks compensatory and punitive damages under New York's Human Rights Law, while the eighth seeks damages for emotional distress.

 Brosse filed the present motion on December 5, 1991. Oral argument was heard on January 9, 1992, and the motion considered submitted as of that date.

 Discussion

 A court should dismiss a complaint for failure to state a claim under Rule 12(b)(6) only if it appears beyond doubt that a plaintiff can prove no set of facts supporting its claim. See H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 109 S. Ct. 2893, 2906, 106 L. Ed. 2d 195 (1989); Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984), cert. denied, 470 U.S. 1084, 85 L. Ed. 2d 144, 105 S. Ct. 1845 (1985). A complaint's allegations must be construed in the light most favorable to the plaintiff and accepted as true. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Dacey v. New York County Lawyers' Assoc., 423 F.2d 188, 191 (2d Cir. 1969), cert. denied, 398 U.S. 929, 26 L. Ed. 2d 92, 90 S. Ct. 1819 (1970).

 A court also may only consider the facts alleged on the face of the complaint and any documents attached to the complaint or incorporated by reference. See Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989). The Defendant has attached the agreement at issue here as an exhibit to its Notice of Motion and suggests that the Plaintiff has incorporated the agreement letter into his complaint by generally setting forth its provisions. See complaint P10. Although a strong argument can be made that the Plaintiff indeed has incorporated the agreement, see id. ; Brief in Opposition 10; compare Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 46-48 (2d Cir. 1991) and National Association of Pharmaceutical Manufacturers, Inc. v. Ayerst Laboratories, 850 F.2d 904, 910 n.3 (2d Cir. 1988) with Cosmas, 886 F.2d at 13, the Complaint does state that Wood did not have a copy of the agreement when the Complaint was drafted, see Complaint P11. Wood's complaint therefore will not be construed as incorporating the letter agreement at issue. Although Plaintiff was put on ...


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