The opinion of the court was delivered by: Schwartz, District Judge.
In this action, plaintiff, a former employee of defendant St.
John's University, alleges that defendants forced him to resign
for refusing to wear athletic apparel bearing the Nike logo.
Currently before the Court are defendants' motions to dismiss,
and plaintiff's cross-motion for leave to amend his complaint.
For the reasons set forth below, defendants' motions are granted
and plaintiff's motion is denied.
Plaintiff James Keady is an individual residing in the State of
New York. (Complaint for Declaratory, Injunctive, Compensatory
and Punitive Damages ("Compl.") ¶ 2.) Defendant Nike, Inc.
("Nike") is a corporation organized under the laws of Oregon with
its principal place of business in Oregon and offices in New
York. (Id. ¶ 3.) Defendant St. John's University ("St. John's"
or the "University") is a university located in Jamaica, New
York, receiving state and federal funding that includes tax
exemptions and grants. (Id. ¶ 4.)
During 1997 and 1998, plaintiff was a graduate student in
theology at St. John's, enrolled in a master's program in
pastoral theology with a concentration in social justice. (Id.
¶ 9.) On July 8, 1997, plaintiff and St. John's entered into an
"Administrative Assistantship Agreement" (the "Agreement"),
pursuant to which plaintiff (i) was engaged as an administrative
assistant in the office of men's soccer in the athletics
department, (ii) received $4,000 over the term of the agreement,
and (iii) received a tuition waiver for up to 12 credit hours per
semester for two semesters. (Id. ¶ 7, Ex. 1 ¶¶ 1, 4.) Pursuant
to the Agreement, plaintiff agreed to perform his duties
"diligently and cooperatively for approximately 20 hours a week,"
and render his services in a "scholarly and efficient manner."
(Id., Ex. 1 ¶ 2.) The parties further agreed that the Agreement
could be terminated by certain University officials "at any time"
if, in their judgment, plaintiff "failed to perform any of the
foregoing provisions of this Agreement." (Id., Ex. 1 ¶ 5.) The
term of the agreement was from September 1, 1997 to May 15, 1998.
As part of his graduate work, plaintiff wrote a research paper
in which he considered whether Catholic universities should
receive compensation from Nike because of the company's labor
practices in Third World countries. (Id. ¶ 10.) The paper
questioned Nike's alleged business practices, and the moral
implications of St. John's business association with Nike on
account of those practices. (Id. ¶ 11.) The paper also
questioned an alleged "anti-defamation clause" in Nike's
contracts with universities, which restricts the ability of
coaches and administrators to be publicly critical of Nike.
In February 1998, it became public that St. John's and Nike
were negotiating a contract pursuant to which St. John's would
require coaches and players to exclusively wear athletic apparel
bearing the Nike logo in exchange for the provision of such
apparel and certain funds to the University. (Id. ¶ 12;
Memorandum of Law in Support of Defendant Nike, Inc.'s Motion to
Dismiss at 1.) Plaintiff publicly opposed this contract.
Specifically, he wrote an editorial in which he was critical of
the contract, which, after being refused by a St. John's
publication entitled St. John's Today, was published in the St.
John's student newspaper entitled The Torch in February 1998.
(Compl. ¶¶ 13-14.) On February 10, 1998, prior to an interview
with The Torch concerning plaintiff's editorial, plaintiff was
purportedly told, by a person plaintiff does not identify, that
he could not talk to the newspaper. (Id. ¶ 15.) He also
received a business memo from David Masur ("Masur"), St. John's
men's soccer coach, in which Masur (i) chides plaintiff for
"publicly ridiculing St. John's University Athletic Department,"
(ii) recommends plaintiff assist another employee of the
University "in her research concerning the Nike relationship,"
(iii) states that plaintiff should "support our programs and
not utilize your energy in demonstrative fashions," (iv)
asserts that there are people at the University "willing to work
with you in fostering a unified relationship" with Nike, and (v)
urges plaintiff to enhance St. John's "existing position with the
proper diplomacy and channels of communication." (Id. ¶ 15, Ex.
Between February 1998 and plaintiff's eventual resignation from
his post on June 24, 1998, plaintiff claims that he "was
threatened with retaliation by university officials if he
continued to refuse to wear Nike logo equipment and if he
continued to speak out concerning the contract between [St.
John's] and [Nike]." (Id. ¶ 16.) He also alleges that Nike
"pressured [St. John's] to discredit [plaintiff] and take other
steps to stop him from speaking against Nike and force him to
wear Nike logo clothing or resign." (Id. ¶¶ 17-18.)
In early May 1998, plaintiff agreed to extend the Agreement and
stay on as administrative assistant for another year. (Id. ¶
19.) Nevertheless, plaintiff alleges that on May 12, 1998, Masur
told him to "[w]ear Nike and drop the issue, or resign." (Id. ¶
20.) On June 24, 1998, after the formalization of Nike's contract
with St. John's discussed supra, plaintiff resigned. (Id. ¶¶
21-22.) In his resignation letter, plaintiff stated inter alia
that: (i) the reason for his resignation was "a troubling matter
of conscience"; (ii) he felt that St. John's was "seriously
compromising its mission statement and is in direct violation of
Catholic Social teaching" through its relationship with Nike;
(iii) acknowledged that Nike "has made some strides in addressing
 human rights violations . . . but they have yet to address the
issue of a living wage"; and (iv) stated that the payment of a
"living wage" was his chief concern. (Id. ¶ 22, Ex. 3.) This
Plaintiff commenced this action on November 19, 1999, alleging
that defendants forced him to resign for refusing to wear Nike
athletic apparel. The Complaint asserts causes of action against
both defendants alleging (i) violations of his civil rights under
42 U.S.C. § 1981, 1983, 1985, and 1986; (ii) criminal conspiracy
against those rights under 18 U.S.C. § 241, and (iii) defamation.
Plaintiff asserted separate causes of action against St. John's
for (iv) employment discrimination under the New York State Human
Rights Law and New York City Human Rights Law, and for (v) breach
St. John's subsequently moved to dismiss the Complaint against
it in its entirety under Fed.R.Civ.P. 12(b)(1), 12(b)(6), and
12(c) ("Rules 12(b)(1), 12(b)(6) and 12(c)"), for lack of subject
matter jurisdiction and failure to state a claim on which relief
can be granted. Nike moved to dismiss all claims against it
pursuant to Rule 12(b)(6). Both defendants subsequently filed
answers to the Complaint.
A. Legal Standard Governing Rule 12 Motions to Dismiss
In deciding a motion to dismiss, the Court must view the
Complaint in the light most favorable to the plaintiff and accept
the plaintiff's factual allegations as true. See Branham v.
Meachum, 77 F.3d 626, 628 (2d Cir. 1996). The Court's function
is not to weigh the evidence that might be presented at trial,
but merely to determine whether the Complaint itself is legally
sufficient. See Festa v. Local 3 Int'l Brotherhood of Electrical
Workers, 905 F.2d 35, 37 (2d Cir. 1990). Under Rule 12(b)(6)
specifically, dismissal is inappropriate unless "it appears
beyond doubt that the plaintiff can prove no set of facts in
support of the claim which would entitle him to relief." Staron
v. McDonald's Corp., 51 F.3d 353, 355 (2d Cir. 1995) (quoting
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957)). In deciding a motion under Rule 12(b)(6), the court may
consider "facts stated on the face of the complaint and in
documents appended to the complaint or incorporated in the
complaint, as well as  matters of which judicial
notice may be taken." Automated Salvage Transport, Inc. v.
Wheelabrator Environmental Systems, Inc., 155 F.3d 59, 67 (2d
II. Plaintiff's Civil ...