the pleading. This court will consider defendants' second argument first.
A. Consideration of Exhibits to a Pleading
Plaintiffs offer two arguments to support the consideration of exhibits attached to their proposed amended pleading. First, they rely on Rule 10(c) of the Federal Rules of Civil Procedure, which states, in part, that "[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes."
In applying Rule 10(c), the Second Circuit has held that any written instrument presented as an exhibit to a pleading is a part thereof for the purpose of considering a motion to dismiss. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (holding that it was appropriate to consider stock purchase agreement on motion to dismiss securities fraud action), cert. denied, 503 U.S. 960, 118 L. Ed. 2d 208, 112 S. Ct. 1561 (1992); Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989) (holding that court could not rely on annual report and other corporate documents in securities case unless they were attached to the pleadings or incorporated by reference); Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir. 1985) (annual report that was not attached to amended pleading or incorporated by reference could not be considered). However, to become part of the record, plaintiffs' exhibits must qualify as "written instruments."
A "written instrument" is a document evidencing legal rights or duties or giving formal expression to a legal act or agreement, such as a deed, will, bond, lease, insurance policy or security agreement. See Black's Law Dictionary 801, 1612 (6th ed. 1990); Webster's Third New International Dictionary, 1172 (1986). In this case, plaintiffs' exhibits include affidavits, an attorney's affirmation, a letter of resignation written by plaintiff JM, and an unsigned letter of agreement from defendants to plaintiff KM regarding conditions of her continued employment. None of these exhibits falls within the commonly held definition of a "written instrument."
Other circuits have held specifically that affidavits are not "written instruments" for purposes of Rule 10(c). Rose v. Bartle, 871 F.2d 331, 340 n.3 (3rd Cir. 1989) (citing Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir. 1969). To hold otherwise "would blur the distinction between summary judgment and dismissal for failure to state a claim upon which relief could be granted." Rose, supra, 871 F.2d at 340.
In the Second Circuit cases above, the exhibits incorporated under Rule 10(c) consisted of documentary evidence such as security agreements, corporate reports, or other writings on which the party's action or defense was based. This court can find no decision allowing a plaintiff's own supporting statements to be considered part of the pleadings on a motion to dismiss. Thus plaintiffs' affidavits, the attorney's affirmation, and JM's letter of resignation are not "written instruments" within the meaning of Rule 10(c).
The unsigned letter from defendants proposing conditions for plaintiff KM's continued employment also falls outside of the definition of "written instrument." It is merely a proposal and does not evidence an agreement between the parties. Further, this letter does not form the basis of plaintiff's claims of discrimination and retaliation. Should plaintiffs be allowed to amend their complaint, proposed exhibits A through H will not be considered a part thereof.
Plaintiffs also argue that by attaching an evidentiary exhibit to its motion to dismiss, defendants demonstrated an intent that their motion be one for summary judgment.
"The court's function on a 12(b)(6) motion 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, supra, 754 F.2d at 1067, quoted in Festa v. Local 3 Int'l Bhd. of Elec. Workers, 905 F.2d 35, 37 (2d Cir. 1990). However, when a party submits evidence outside the pleadings in response to a motion to dismiss, the court has discretion to either exclude the additional material and decide the motion on the face of the compliant alone or to convert the motion to one for summary judgment and allow all parties to submit supporting evidence. Kopec v. Coughlin, 922 F.2d 152, 154 (2d Cir. 1991) (quoting Fonte v. Board of Managers, 848 F.2d 24, 25 (2d Cir. 1988).
In Marilyn Miglin, Inc. v. Gottex Industries, Inc., 790 F. Supp. 1245, 1249 (S.D.N.Y. 1992), the court considered the very argument plaintiffs make here. The plaintiff in that case claimed that because the defendant offered some evidence in support of its motion to dismiss, the motion should be considered as one for summary judgment. The court found this argument meritless, emphasizing that the decision whether to consider outside evidence and convert a motion to dismiss is clearly within the court's discretion. Id. (citing Fonte, supra, 848 F.2d at 25).
In response to plaintiffs' argument, defendants restate their intent that the motion be considered as a motion to dismiss. Defendants did not submit any additional outside evidence to contradict plaintiffs' affidavits and maintain merely that plaintiffs fail to state a cause of action with respect to certain claims. The court also notes that three of plaintiffs' affidavits were filed on the same day as their first amended complaint. Any allegations in those affidavits that state a claim for relief could and should have been stated in the amended pleading.
This court declines to convert the motion to one for summary judgment and will decide the motion on the basis of the complaint alone.
B. Substance of the Proposed Amendments.
Defendants contend that plaintiffs' proposed amendments should be denied as they would not withstand a motion to dismiss.
It is well-established that leave to replead may be denied if the proposed amendments would be futile. Foman, supra, 371 U.S. at 182; Leonelli v. Pennwalt Corp., 887 F.2d 1195, 1198-99 (2d Cir. 1989); Albany Ins. Co. v. Esses, 831 F.2d 41, 45 (2d Cir. 1987), overruled on other grounds by United States v. Indelicato, 865 F.2d 1370 (2d Cir. 1989). When considering the futility of such amendments, the court must apply an analysis comparable to that governing a motion to dismiss under Rule 12(b)(6). See S.S. Silberblatt, Inc. v. East Harlem Pilot Block - Building 1 Housing Dev. Fund Co., Inc., 608 F.2d 28, 42 (2d Cir. 1979); Deem v. Lockheed Corp., 749 F. Supp. 1230, 1235 (S.D.N.Y. 1989).
Accordingly, the court must accept the allegations in plaintiffs' proposed amended complaint as true, and construe them in the light most favorable to plaintiffs. Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992) (citing Frazier v. Coughlin, 850 F.2d 129, 129 (2d Cir. 1988)), cert. denied, 507 U.S. 961, 122 L. Ed. 2d 762, 113 S. Ct. 1387 (1993). Leave to amend the complaint can be denied only if it appears beyond doubt that plaintiffs can prove no set of facts supporting their claims that would entitle them to relief. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)); Walker, supra, 974 F.2d at 298. "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer, supra, 416 U.S. at 236.
Excluding all language that refers to plaintiffs' proposed exhibits, plaintiff seeks to amend paragraphs 3, 4, 18, 21, 23, 34, 35, 36, 39, 42, 44, and 68 of their complaint. The amendments refer to plaintiffs' retaliatory discharge, Family and Medical Leave Act, and defamation claims.
II. Motion to Dismiss.
While the court must presume all factual allegations of the complaint to be true, legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness. United States v. Bonanno Organized Crime Family, 879 F.2d 20, 27 (2d Cir. 1989).
In order to survive a motion to dismiss, a complaint asserting a civil rights violation must set forth specific factual allegations establishing a prima facie case. Fonte, supra, 848 F.2d at 25. Naked assertions and conclusory allegations in the complaint are not sufficient to state a claim. Yusuf v. Vassar College, 35 F.3d 709 (2d Cir. 1994).
A. Plaintiff JM's Title VII claim.
1. Motion to Dismiss.
Section 704(a) of the Civil Rights Act of 1964, provides in pertinent part:
It shall be unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.