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KNUDSEN v. QUEBECOR PRINTING INC.

April 15, 1992

CHRISTOPHER S. KNUDSEN, Plaintiff, against QUEBECOR PRINTING (U.S.A.) INC., Defendant.


The opinion of the court was delivered by: KIMBA M. WOOD

 WOOD D.J.

 Defendant moves, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the second, third, fourth, and fifth counts of Plaintiff's complaint for failure to state a claim upon which relief can be granted under New York law. For the reasons stated below, the Court dismisses the fourth and fifth counts of Plaintiff's complaint but declines to dismiss the second and third counts.

 In March, 1989, Plaintiff was hired by the Maxwell Communications Corporation ("Maxwell") to serve as a sales representative in the New York City office. According to Plaintiff, he was informed by Maxwell that his sales commissions would be based on Schedule C of Maxwell's 1988 Sales Commission Plan (the "Plan") and he received a copy of the Plan. Complaint P7. In early 1990, when Defendant purchased Maxwell, Plaintiff was told that his compensation would continue to be based on the Plan. Complaint P9.

 Plaintiff alleges that his supervisors at Defendant company "created a very difficult and hostile atmosphere within which he had to work." Complaint P10. Plaintiff further alleges that, in spite of this hostile work environment, he succeeded in attracting new accounts and increasing sales for existing accounts. Complaint P11. Plaintiff claims that these increased sales entitled him to at least $ 81,150 in commissions by the end of August, 1990. Complaint P12 & 14.

 On August 27, 1990, "with substantial commissions due and owing," Defendant terminated Plaintiff. Complaint P15. Plaintiff alleges that Defendant "knowingly, willfully and maliciously" misrepresented the basis for Plaintiff's dismissal "in an attempt to avoid paying [Plaintiff] large sales commission bonuses." Complaint P38.

 Plaintiff also alleges that shortly after his dismissal, his former supervisor used threats and intimidation in an attempt to coerce Plaintiff to sign a severance agreement which would have paid about $ 2,500 and thereby released Defendant from all further claims by Plaintiff. Complaint P15. After Plaintiff rejected this proposal, Plaintiff asserts that his former supervisor followed him to the company elevators "in an abusive manner." Complaint P15.

 Shortly after his termination, Plaintiff wrote a letter to the Senior Vice President of Defendant Company, seeking clarification of the sales commissions owed to him by Defendant. Plaintiff alleges that the responding letter contained false and intentionally fraudulent reasons for Plaintiff's termination. Complaint P19. Plaintiff states that this fraudulent letter "shocked," "embarrassed and humiliated him," causing him "severe emotional distress" and "physical injury." Complaint PP44 & 45.

 Plaintiff subsequently sued Defendant for (1) breach of contract, (2) quantum meruit, (3) breach of a covenant of good faith and fair dealing, (4) fraud and misrepresentation, and (5) intentional infliction of emotional distress. On June 7, 1991, before answering the complaint, Defendant moved to dismiss the second, third, fourth, and fifth causes of action for failure to state a claim upon which relief can be granted. For the reasons stated below, the Court dismisses the third, fourth, and fifth causes of action but declines to dismiss the second cause of action.

 DISCUSSION

 On a motion to dismiss, a district court must accept as true the factual allegations made in the complaint. See LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991) (citations omitted). Furthermore, the complaint must be construed in favor of the pleader. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). The function of a district court in considering a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985), citing Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984). A district court will not dismiss a complaint for failure to state a claim "'unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Scheuer, 416 U.S. at 236 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).

 Plaintiff's Second Claim


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