(Wrongful Termination); Count 7 - Breach of Contract of Good Faith and Fair Dealing; Count 8 - New York Franchise Act Violation (Fraud); Count 9 - New York Franchise Act Violation (Wrongful Termination); Count 10 - Discrimination Under N.Y.S. Executive Law Article 15; Count 11 - Tortious Inference with Contract; Count 12 - Tortious Inference with Prospective Business Advantage; Count 13 - Defamation; Count 14 - Defamation (Compelled Self-Publication); Count 15 - Discrimination Under N.Y.S. Civil Rights Law §§ 40-c & 40-d.
A review of the Complaint reveal that it is the classic illustration of the so-called "SHOTGUN" method of pleadings. The defendants now move to dismiss the Complaint for failure to state a claim upon which the Court can grant relief pursuant to Fed.R.Civ.P. 12(b)(6).
The plaintiff William J. Hofmann Agency is a corporation organized and existing under the laws of the State of New York, with its place of business in Massapequa, New York. Hofmann has been in the business of selling property and casualty insurance since 1926. In or about 1966, Francis C. Keeney joined the agency as a producer of property and casualty insurance. Approximately one year later, he purchased the Agency. In 1969, Francis C. Keeney incorporated the business as William J. Hofmann Agency, Inc. In 1978, Francis Keeney's son, the plaintiff, Robert F. Keeney, joined the firm.
On or about October 1, 1981, Hofmann entered into an Agency Agreement with Kemper. Pursuant to the Agreement, Hofmann was authorized to solicit several types of insurance. Under the terms of the agreement, Hofmann was authorized to bind the defendants only to the extent specific authority was granted by the defendants. In the agreement, the defendants retained exclusive and absolute control over the underwriting and acceptance of all policies generated under the agreement. During the fourteen years between 1981 and 1995, Hofmann apparently generated a large volume of business for the defendants and experienced substantial growth and success.
On or about June 1, 1995, the plaintiffs received a letter from Joseph L. Kondratowicz, the Northeast Region Personal Lines Manager for Kemper, advising them that, effective December 1, 1995, Kemper was exercising its termination rights under the Agreement due to an "unacceptable loss ratio." On June 6, 1996, the plaintiffs commenced this lawsuit to recover damages as a result of the defendants alleged illegal termination of the Agreement. The defendants now move to dismiss all of these causes of action for failure to state a claim upon which the Court can grant relief pursuant to Fed.R.Civ.P. 12(b)(6).
As to the standard guiding the Court's determination of the defendants' motion to dismiss for failure to state a claim, "the court should not dismiss the complaint pursuant to Rule 12(b)(6) 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'". Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir. 1985)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)); see also Intern. Audiotext Network, Inc. v. AT&T, 62 F.3d 69, 71 (2d Cir. 1995). The Second Circuit stated that in deciding a Rule 12(b)(6) motion a Court may consider "only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken". Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir. 1993); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied, 503 U.S. 960, 112 S. Ct. 1561, 118 L. Ed. 2d 208 (1992).
It is not the Court's function to weigh the evidence that might be presented at a trial, the Court must merely determine whether the complaint itself is legally sufficient, see Goldman, 754 F.2d at 1067, and in doing so, it is well settled that the court must accept the allegations of the complaint as true, see LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Procter & Gamble Co. v. Big Apple Indus. Bldgs, Inc., 879 F.2d 10, 14 (2d Cir. 1989), cert. denied, 493 U.S. 1022, 107 L. Ed. 2d 743, 110 S. Ct. 723 (1990), and construe all reasonable inferences in favor of the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Doe v. City of New York, 15 F.3d 264, 266 (2d Cir. 1994). "'The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995)(quoting Scheuer v. Rhodes, 416 U.S. 232, 235-36, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974).
The Court is mindful that under the modern rules of pleading, a plaintiff need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief", Fed. R. Civ. P. 8(a)(2), and that "all pleadings shall be so construed as to do substantial justice". Fed. R. Civ. P. 8(f).
It is within this framework that the Court addresses the present motion to dismiss the complaint as to all causes of action.
1. The plaintiffs' causes of action
A. Count I - Fair Housing Act 42 U.S.C. § 3604
Section 3604 of the Fair Housing Act ("FHA") provides in pertinent part as follows:
it shall be unlawful-