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TAGARE v. NYNEX NETWORK SYS. CO.

April 10, 1996

NEIL TAGARE, Plaintiff, against NYNEX NETWORK SYSTEMS COMPANY, FLAG LIMITED, NYNEX NETWORK SYSTEMS (BERMUDA) LIMITED, NYNEX CORPORATION, NYNEX WORLDWIDE SERVICES GROUP, JOSEPH TIMPANARO, GABRIEL YACKANICH, JOHN PARRY and NICHOLAS REDA, Defendants.


The opinion of the court was delivered by: CONNER

 Conner, Senior D.J.:

 Plaintiff Neil Tagare ("Tagare") brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and the New York Human Rights Law, N.Y. Exec. Law § 292 et seq. ("HRL"), against (1) NYNEX Corporation, NYNEX Worldwide Services Group and NYNEX Network Systems Company ("NNS") (collectively, "NYNEX"), Delaware corporations having offices in White Plains, New York; (2) Flag Limited and NYNEX Network Systems (Bermuda) Limited, two Bermuda affiliates of NYNEX, and (3) Joseph Timpanaro, Gabriel Yackanich, John Parry and Nicholas Reda (the "Individual Defendants"), four individuals who were officers of the NYNEX entities during times relevant to this case.

 Plaintiff alleges discrimination in the work place premised upon color and national origin, and retaliation for plaintiff's opposition to the alleged discrimination. Plaintiff also asserts a claim for breach of contract against NYNEX. The case presently is before the court on defendants' motion to dismiss pursuant to Fed. R. Civ. P. 9(b), 12(b)(6) and 17(a), or, in the alternative, pursuant to Rule 12(e), to require a more definite statement of the allegations in order to enable defendants to file a responsive pleading. For the reasons discussed below, defendants' motion is granted in part and denied in part.

 BACKGROUND

 Plaintiff alleges the following facts in the Complaint. In or about 1989 plaintiff developed the concept of privatizing undersea fiberoptic cable projects for the purpose of establishing an international telecommunications system premised upon fiberoptic technology. In connection with that concept, plaintiff authored a pre-feasibility study in 1989 for what is now known as a Fiberoptic Link Around the Globe ("FLAG"). In or about 1990 plaintiff entered into a business relationship with defendants, prepared a formal feasibility study, and was promised a one percent equity interest in the project in the event that he was able to secure a commitment to the project from India. In or about July 1991 plaintiff was retained by NYNEX to oversee and manage a business development group for the FLAG project. In that capacity plaintiff successfully obtained the agreement of various other countries to participate in the FLAG project. In or about July 1992 plaintiff determined to sever his relationship with NYNEX, purportedly because of NYNEX's failure to provide him the one percent equity interest in the project. Plaintiff was dissuaded from leaving defendants upon a renewed promise of the equity interest contingent upon continuation of the FLAG project after a then scheduled First Data Gathering Meeting. Approximately thirty-nine countries participated in or about April 1993 in the First Data Gathering Meeting, involving approximately forty international telecommunication carriers with potential capacity sales of approximately $ 300,000,000. In or about August 1993, plaintiff expressly relinquished his claim to the one percent equity interest in the FLAG project in exchange for employment with NYNEX as a Vice President of Marketing and Business Development for Project FLAG. A written agreement provides that plaintiff would be entitled to a bonus or series of bonuses determined by the value of fully executed agreements from telecommunication carriers and so-called "end-users" committing to capacity in connection with Project FLAG.

 On December 9, 1994, plaintiff filed with the EEOC "a Charge of Discrimination alleging disparate treatment by reason of color, national origin and retaliation for his having opposed same in the workplace." Compl. P 2. The EEOC subsequently issued a Right to Sue letter to plaintiff. See id. Plaintiff asserts claims for discrimination and retaliation under Title VII and the New York HRL. In addition, plaintiff alleges that NYNEX breached its contract with him by making it impossible for him to earn his bonuses. *fn1"

 DISCUSSION

 I. Breach of Contract

 A. Rule 17(a)

 Rule 17(a) of the Federal Rules of Civil Procedure provides that "every action shall be prosecuted in the name of the real party in interest." Defendants argue that plaintiff's breach of contract claim must be dismissed under Rule 17(a) because Telematics Business Development Company ("Telematics"), a company through which plaintiff conducts his business, is the real party in interest, or that plaintiff should be required to amend the Complaint to show that the proper party plaintiff is "Neil Tagare d/b/a Telematics Business Development Company."

 Defendants have submitted as an exhibit a copy of a contract between Telematics and NNS, on which plaintiff appears to base his claim for breach of contract. However, we are not permitted to consider factual matters submitted outside of the Complaint unless the parties are given notice that the motion to dismiss is being converted to a motion for summary judgment under Rule 56, and are afforded an opportunity to submit additional affidavits. See Festa v. Local 3 International Brotherhood of Elec. Workers, 905 F.2d 35, 38 (2d Cir. 1990) (parties must be afforded an opportunity to present material made pertinent by Rule 56 when a motion to dismiss is converted to a motion for summary judgment). On a motion to dismiss, we limit our determination to whether the plaintiff has stated a viable claim in the Complaint. Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir. 1993); Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). On this limited issue, we conclude that plaintiff has set forth sufficient allegations in the Complaint to support his claim that there is a direct employment relationship between NYNEX and plaintiff. Whether such an employment relationship exists may be disputed through the submission of evidence, but we deem it inappropriate at this time to consider matters outside the pleadings, as neither party has had "reasonable opportunity to present all material made pertinent . . . by Rule 56." Fed. R. Civ. P. 12(c). On a motion to dismiss under Rule 12(b)(6), a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle ...


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