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IBM v. JENNIFER-ASHLEY CO.

January 12, 1995

INTERNATIONAL BUSINESS MACHINES CORPORATION, Plaintiff - Counterclaim Defendant, against JENNIFER-ASHLEY COMPANY, INC., Defendant - Counterclaim Plaintiff.


The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This case arises from a dispute concerning three contracts entered into between the plaintiff, International Business Machines ("IBM"), and defendant, Jennifer-Ashley Company ("JACO"), under which defendant was to distribute surplus parts and materials generated and provided by IBM.

 IBM terminated the contracts and brought this action for breach of contract seeking unpaid revenues allegedly due under the contracts. JACO filed eight counterclaims, the eighth of which alleges:

 
110. A majority of the stock in defendant corporation is owned by a woman, and the defendant corporation is managed and operated by women.
 
111. Plaintiff terminated its business relationship with defendant because the defendant company is owned, managed and operated by women.
 
112. Plaintiff thereby violated the New York Human Rights Law, N.Y. Exec Law ยง 296.

 IBM has moved for judgment on the pleadings under Fed.R.Civ.P. 12(c) as to the above counterclaim.

 IBM's Rule 12(c) motion is treated as embracing a motion to dismiss under Fed.R.Civ.P. 12(b)(6). IBM's motion is granted insofar as it seeks dismissal of the eighth counterclaim. IBM's request for judgment on the pleadings under Fed.R.Civ.P. 12(c) is denied without prejudice since neither party has provided material facts necessary to decide the claim on the merits, as is required for a judgment on the pleadings under Fed.R.Civ.P. 12(c). Sellers v. MC Floor Crafters, Inc, 842 F.2d 639, 642 (2d Cir 1988).

 II

 JACO was an independent contractor of IBM. Under these circumstances a claim can exist only under N.Y. Exec. Law 296(13) which provides:

 
It shall be an unlawful discriminatory practice (i) for any person to discriminate against, boycott or blacklist, or to refuse to buy from, sell to or trade with, any person, because of the race, creed, color, national origin or sex of such person, or of such person's partners, members, stockholders, directors, officers, managers, superintendents, agents, employees, business associates, suppliers or customers, or (ii) for any person wilfully to do any act or ...

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