OPINION AND ORDER
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.
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.
I. Breach of Contract
Plaintiff concedes that, with respect to the breach of contract claim, the only proper defendant is NNS. See Pl.'s Mem. of Law in Opp. to Motion to Dismiss, at 10-11. All other defendants therefore shall not be subject to plaintiff's claim for 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 him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Based on the factual allegations set forth in the Complaint, and drawing all reasonable inferences in favor of plaintiff, Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Ortiz v. Cornetta, 867 F.2d 146, 149 (2d Cir. 1989), we conclude that plaintiff is the real party in interest in this action.
Defendants argue that plaintiff's breach of contract claim must be dismissed because the claim is not ripe and is too speculative. Defendants argue that the claim is not ripe because the contract is not due to expire until July 1996, and defendants may yet perform their obligations under the contract. Plaintiff alleges that
as Vice President of Marketing and Business Development it was agreed in writing that should a so-called Construction and Maintenance Agreement . . . be executed prior to July 31, 1996, Plaintiff would be entitled to a bonus or series of bonus [sic] determined by the value of the fully executed agreements from telecommunication carriers and/or so-called "end-users" committing to capacity in connection with Project FLAG. . . .
Compl. PP 19, 29. Because time remains for the bonuses to be earned and paid, defendants argue, plaintiff cannot assert a claim based on deprivation of the bonus earnings at this time.
To state a claim for breach of contract under New York law, a plaintiff must allege (1) the existence of an agreement between the plaintiff and defendant; (2) due performance of the contract by the plaintiff; (3) breach of the contract by the defendant; and (4) damages resulting from the breach. Reuben H. Donnelley Corp. v. Mark I Marketing Corp., 893 F. Supp. 285, 290 (S.D.N.Y. 1995) (Conner, J.); R.H. Damon & Co. v. Softkey Software Products, Inc., 811 F. Supp. 986, 991 (S.D.N.Y. 1993). Each element need not be separately pleaded; all that is necessary is "a short and plain statement of the claims showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Nevertheless, as this Court previously has held, "'when pleading a claim for breach of an express contract, . . . the complaint must contain some allegation that the plaintiffs actually performed their obligations under the contract.'" Reuben H. Donnelley Corp., 893 F. Supp. at 291 (citing R.H. Damon, 811 F. Supp. at 991; 2A James W. Moore et al., Moore's Federal Practice P 8.17 (2d ed. 1992)). The Complaint here is devoid of any such allegation.
Plaintiff contends, however, that NNS intentionally rendered his performance impossible. Every contract under New York law contains an implied covenant of good faith and fair dealing. Carvel Corp. v. Diversified Management Group, Inc., 930 F.2d 228, 230 (2d Cir. 1991). "This covenant includes 'an implied undertaking on the part of each party that he will not intentionally and purposely do anything to prevent the other party from carrying out the agreement on his part.'" Id. (citing Grad v. Roberts, 14 N.Y.2d 70, 248 N.Y.S.2d 633, 637, 198 N.E.2d 26 (N.Y. 1964)). See also Wieder v. Skala, 80 N.Y.2d 628, 593 N.Y.S.2d 752, 756, 609 N.E.2d 105 (N.Y. 1992) (same); Collard v. Incorporated Village of Flower Hill, 75 A.D.2d 631, 427 N.Y.S.2d 301, 302 (N.Y. App. Div. 1980) (implied covenant of good faith and fair dealing breached where one party to a contract seeks to prevent its performance by the other), aff'd, 52 N.Y.2d 594, 439 N.Y.S.2d 326, 421 N.E.2d 818 (N.Y. 1981). The concept is rooted in notions of common sense and fairness. Wieder, 593 N.Y.S.2d at 756. Plaintiff's allegations, if proven true, support a claim that NNS breached its covenant of good faith and fair dealing by preventing plaintiff from performing and earning the targeted bonuses. See Compl. PP 19-29. Under the liberal pleading requirements of the federal rules, see Fed. R. Civ. P. 8(a), plaintiff has set forth sufficient allegations to support a claim that NNS has breached its implied covenant of good faith and fair dealing.
Defendants' argue that "the existence of any damage whatsoever is entirely speculative, and would have to be a matter of guesswork." Defs.' Motion to Dismiss the Compl., at 8. Plaintiff alleges in the Complaint that he would have received a bonus or series of bonuses determined by the value of fully executed agreements from telecommunication carriers and "end-users" that he was able to procure. See Compl. P 19. He sets forth how much he was to earn depending on revenue he secured. See id. We are aware of decisions which have denied recovery on the ground that damages are too speculative. See, e.g., James Wood General Trading Establishment v. Coe, 297 F.2d 651, 658 (2d Cir. 1961). However, it should be noted that James Wood General Trading was decided on appeal, after the case had been developed fully in the district court below. Furthermore, since it is defendant's alleged wrong which has rendered it impossible for plaintiff to prove his damages with certainty, defendant cannot complain of the alleged uncertainty that will play a part in the calculation of damages. Spitz v. Lesser, 302 N.Y. 490, 494, 99 N.E.2d 540, 542 (N.Y. 1951). As noted by Spitz, the reason for this principle has been well expressed by the Supreme Court of the United States in Bigelow v. RKO Radio Pictures, 327 U.S. 251, 90 L. Ed. 652, 66 S. Ct. 574 (1946):
Even where the defendant by his own wrong has prevented a more precise computation, the jury may not render a verdict based on speculation or guesswork. But the jury may make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly. In such circumstances "juries are allowed to act upon probable and inferential, as well as direct and positive proof." [citations omitted] Any other rule would enable the wrongdoer to profit by his wrongdoing at the expense of his victim. It would be an inducement to make wrongdoing so effective and complete in every case as to preclude any recovery, by rendering the measure of damages uncertain. Failure to apply it would mean that the more grievous the wrong done, the less likelihood there would be of a recovery.
The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.