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November 21, 1996


The opinion of the court was delivered by: HECKMAN



 The parties have consented to have the undersigned conduct any and all further proceedings in this case, including the entry of final judgment, in accordance with 28 U.S.C. § 636(c). Pending for decision are defendants' motions under Rule 12(b)(6) to dismiss all claims asserted in the complaint by plaintiff John Murphy, and to dismiss three of six claims asserted by plaintiff Katrina Murphy (Items 5 and 18). Also pending is plaintiffs' motion to amend their complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure (Item 27). For the reasons set forth below, defendants' motion to dismiss should be granted in part and denied in part, and plaintiffs' motion to amend should be denied.


 Plaintiffs filed their original complaint on May 31, 1995 (Item 1). They allege sexual and marital discrimination and retaliatory discharge under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, et seq., the New York Human Rights Law, N.Y. Exec. Law §§ 290 et seq., and the New York Civil Rights Law § 40(c). In addition, plaintiffs claim violations of the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601 et seq., and loss of services (Id.).

 On July 5, 1995, defendants moved to dismiss all claims asserted by plaintiff John Murphy for failure to state a claim upon which relief could be granted (Item 5). Defendants moved to dismiss the Family and Medical Leave Act and loss of services claims of plaintiff Katrina Murphy on the same ground (Id.).

 On September 11, 1995, plaintiffs filed an amended complaint as a matter of right, adding a claim for defamation on behalf of both plaintiffs (Item 13). On that same date, plaintiffs also filed three affidavits in response to defendants' motion to dismiss (Items 8, 9 & 11). *fn1"

 Defendants filed a supplemental motion to dismiss the amended complaint on September 25, 1995, seeking dismissal of all claims identified in their first motion and the newly alleged defamation claims (Item 18). In addition, defendants argued that the affidavits filed by plaintiffs on September 11, 1995 are factual matters outside of the amended complaint that cannot be considered in ruling on a motion to dismiss under Rule 12(b)(6). They asked that the court exclude the affidavits and consider the motion to dismiss solely on the pleadings (Id.).

 On October 2, 1995, plaintiffs again submitted their own affidavits in response to defendants' supplemental motion to dismiss (Items 21 & 22). Later that month, on October 27, plaintiffs filed a second amended complaint without obtaining defendants' consent or a court order as required by Rule 15(a). After defendants refused to accept the amended pleading, plaintiffs filed a motion to amend on January 8, 1996. Plaintiffs' proposed amendments add statements to the factual allegations and incorporate eight exhibits into the pleadings by reference. The exhibits include: the plaintiffs' affidavits, sworn to on September 11, 1995 and October 2, 1995; James Lavin's affidavit, sworn to on September 11, 1995; plaintiffs' attorney's affirmation, dated September 11, 1995; and two exhibits that were appended to the first amended complaint.


 In making its determinations on plaintiffs' motion to amend under Rule 15(a) and defendants' motions to dismiss under Rule 12(b)(6), this court must accept as true the facts alleged by the plaintiffs. The following summary of facts is adopted from plaintiffs' first amended complaint (Item 13). Any additional facts asserted in the proposed amended complaint will be addressed in the discussion of plaintiffs' motion to amend.

 In February 1994, defendant Gifford became Albion plant manager and one of plaintiffs' supervisors (Id. PP 7, 15). Defendant Johnson was hired as third shift supervisor in or about April 1994 (Id. P 15).

 Beginning in April 1994, defendant Johnson verbally abused and harassed plaintiff KM at work (Id. P 17). For example, on one occasion he asked plaintiff KM if she was "on the rag" and on another he attempted to strike her on the buttocks with a rubber gasket (Id. PP 35, 18). Defendant Johnson also criticized plaintiff KM's job performance to other employees, stated that plaintiff KM was a "bitch" and "on the rag," and suggested that plaintiff KM was gay when she is not (Id. PP 17, 23, 34, 36).

 In April 1994, plaintiff KM, with plaintiff JM's assistance, sought to return to her union press operator job. Defendant Gifford refused her request (Id. PP 20, 21).

 In May 1994 and thereafter, plaintiff KM complained to her supervisor, defendant Ward, about her treatment. In response, defendant Ward told KM she was being a "baby" and was "too young" for her job (Id. P 24). Plaintiff JM assisted and supported plaintiff KM in her complaints of discrimination and alleges that defendants knew of his assistance (Id. PP 21, 44).

 In or about July 1994, plaintiff KM again requested a return to her press operator job and was denied (Id. P 25). Plaintiff KM also made several requests to transfer to first shift that were denied (Id. P 26).

 Plaintiff KM states that there is an unwritten corporate rule that entitled her to four paid sick days in 1994. Despite having used only one sick day, she was placed on attendance probation for sixty days in July 1994 (Id. P 27).

 On August 4, 1994, plaintiff KM experienced severe cramps and pain while at work. She asked defendant Johnson who would take her to the hospital if she got worse, but he did not answer her (Id. P 28).

 Plaintiff KM was hospitalized and suffered a miscarriage on August 5, 1994 (Id. P 29). She continued under the care of her doctor for the miscarriage (Id.). Despite having used only one day of paid sick leave, defendants denied plaintiff KM her remaining sick time because she had been late on some occasions. Plaintiff KM states that she had already made up all lateness (Id. P 32). On August 8, plaintiff requested an additional week of unpaid sick leave and was denied (Id. P 33). Plaintiff KM alleges that she was an eligible employee under the Family and Medical Leave Act of 1993 (FMLA) and that her miscarriage constituted a serious health condition (Id. P 31).

 On November 11, 1994, plaintiff KM took a tape recorder to work to record defendant Johnson's comments (Id. PP 37, 38). Defendant Ward took the recorder from plaintiff's desk. Upon plaintiff KM's request, defendant Ward returned the recorder but kept the tape that was inside (Id. P 37).

 On November 17, 1994, plaintiff KM was given a letter that characterized her behavior and work performance as unsatisfactory (Id. P 39). It stated several conditions that plaintiff was required to meet for her continued employment, including outpatient assessment and providing medical proof of illness for any absence within the following six months (Id. P 39). Plaintiff KM was told she must sign the agreement by 4:00 p.m. of the same day in order to retain her job (Id. P 40). On the advice of an attorney, plaintiff KM did not sign the letter and she was terminated (Id. P 41).

 When plaintiff KM sought unemployment benefits, defendants reported that KM left her job voluntarily and she was denied benefits (Id. P 42). In November 1994, defendant Ward refused to give plaintiff a letter of reference she had promised (Id. P 43).

 In March 1995, plaintiff JM missed a day of work for illness (Id. P 44(g)). Plaintiff JM states that it was company practice to allow press operators to make up time (Id. P 44(h)). Plaintiff was not allowed to make up the sick time and received a one week suspension without pay ((Id. P 44(h1)). Defendants did not allow plaintiff to cancel a planned vacation day that fell during his suspension, though they have allowed other employees to cancel planned vacations (Id.).

 Beginning in November 1994, plaintiff JM was assigned to operate the worst presses (Id. P 44(a)). On June 19, 1995, he was assigned to a press that had a dangerous platform arrangement (Id. P 44(i)). While working on that press, plaintiff burned his arm pit and face and was taken to a hospital emergency room for treatment (Id. P 44(j)). Plaintiff has a permanent facial scar (Id. P 44(m)).

 On June 22, 1995, plaintiff JM informed defendants that his doctor would not let him return to work for at least ten days. Defendants required a doctor's written excuse (Id. P 44(k)). Plaintiff JM's physician gave him a written recommendation that he return to work on July 5, 1995 (Id. P 44(i)).

 On July 3, 1995, plaintiff JM requested an unpaid leave of absence from July to August so he could attend truck driving school (Id. P 44(n)). Defendants denied plaintiff's request though it is alleged that unpaid time off was granted to other employees for various reasons (Id. P 44(n)). Had plaintiff JM received truck driver training and a particular class of license, he would have been the only plant employee qualified for a new position that defendants were creating at the Albion plant (Id. P 44(o)).

 Plaintiff JM claims that he was constructively discharged as a result of the constant harassment and retaliation described above. He submitted a letter to defendants on July 6, 1995, stating that defendants' actions forced him to resign (Id. P 44(p)).



 Rule 15(a) of the Federal Rules of Civil Procedure provides that:

A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served . . . . Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

 Plaintiffs in this case have amended their pleading once as of right. The decision whether to grant leave to amend now lies within the discretion of the court. See Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962). However, as Rule 15(a) indicates, the court should deny such motions sparingly. The Supreme Court has stated the following as reasons for denial: "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Id.

 Defendants contend that leave to amend should be denied for two reasons: first, the proposed amendments add nothing of substance that would affect the court's decision on defendants' motions to dismiss, and second, incorporating the proposed exhibits into the complaint would circumvent Rule 12(b) by allowing consideration of matters outside 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 ...

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