The opinion of the court was delivered by: Siragusa, District Judge
This case is before the Court on defendant's motion (docket #2) to
dismiss plaintiff's complaint for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). After carefully considering the
papers filed in support of and in opposition to the motion, and oral
argument held on February 14, 2003, the Court determines that defendant's
motion must be granted in part, and denied in part.
Since the motion is brought under Federal Rule of Civil Procedure
12(b)(6), the Court must presume that the allegations in the complaint
are true and resolve all doubts and inferences in favor of the non-moving
party. Wright v. Ernst & Young LLP, 152 F.3d 169,173 (2d Cir. 1998).
The complaint cannot 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
(1957); see also Easton v. Sundram, 947 F.2d 1011, 1015 (2d Cir. 1991).
In his complaint, plaintiff has referenced documents not attached to
his pleading. On this point, the Second Circuit has directed, "[f]or
purposes of a motion to dismiss, we have deemed a complaint to include any
written instrument attached to it as an exhibit or any statements or
documents incorporated in it by reference . . . and documents that the
plaintiffs either possessed or knew about and upon which they relied in
bringing the suit." Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000)
(citation omitted).Thus, the Court will employ the Rothman rule and
consider Exhibits A,B, and C to Thresher's Affidavit in Opposition to
Defendant's Motion to Dismiss Plaintiff's Complaint.
Plaintiff was employed by Fold Pak Corporation from July 22, 1985 until
November, 1999. In 1998, Fold Pak Corporation was acquired by defendant.
Following the acquisition, during oral negotiations pertaining to the
terms and conditions his employment with defendant, plaintiff alleges,
that "it was orally agreed that the period of service between July 22,
1985 and the date of commencement of plaintiff's employment with the
defendant would be included toward determining the years of benefit
service under the defendant's retirement plan." Compl. ¶ 6.
Further, plaintiff alleges that in partial reliance on that
representation, he commenced employment with defendant.
According to plaintiff, on or about June 19, 2001, defendant
transmitted to him calculations of his retirement benefits, based upon a
projected retirement date of
October 1, 2002 and based upon a projected
retirement date of October 1, 2012. Plaintiff alleges that both confirmed
his agreement with defendant that his prior employment with Fold Pak
Corporation would be included in his years of service with defendant.
These communications*fn1 are attached to plaintiff's affidavit under
Exhibit B and both are from, "Plan Administrator," each with a subject
heading of, "Computation of Estimated Retirement Benefit." These
documents indicate that they were prepared by Shan Simon. As is clarified
by Exhibit C to Thresher's affidavit, a December 5, 2001 letter authored
by Shan Simon, she was employed by defendant with the title of
"Secretary, Retirement Programs."
On or about November 15, 2001, plaintiff was notified that his
employment would be terminated on November 30, 2001. The letter from
James P. Merrell, Vice President, Human Resources, Gulf States Paper
Corporation, contained a severance agreement stating in pertinent part,
"4. The Retirement and Savings and Investment Plans describe your rights
at termination. If you are vested under these plans, you will receive
information from the Benefits Department within the next few weeks."
Thresher aff. Ex. A. The agreement also contained a waiver with regard to
any claims against defendant. Plaintiff alleges in his complaint that he
timely accepted the severance plan on December 7, 2001. He further
alleges that his acceptance was in partial reliance on the confirmation
of his retirement benefits from the June 19 communication.
Subsequent to his December 7, 2001, acceptance of the severance
agreement, plaintiff alleges that he was notified by defendant that the
retirement benefits previously promised were to be denied. In the
December 5, 2001 letter from Shan Simon, plaintiff was told that although
he had completed 16.41667 years of vesting service, as of his November
30, 2001, termination date, his benefit service time was only 2.08333
years. Thresher Aff. Ex. C. Although Simon's letter was dated December
5, 2001, in his complaint, plaintiff alleges he did not receive it until
after he had already accepted the severance package. Moreover, plaintiff
alleges that he pursued the appellate route available under his
retirement plan, but that appeal had been denied.
Plaintiff filed his complaint in the Supreme Court of New York, Chemung
County, and defendant removed it to this Court. In the removal papers,
defendant stated that jurisdiction was based on 28 U.S.C. § 1331
(federal question), 1343 (civil rights), and 1367 (supplemental
jurisdiction). The Complaint alleges that plaintiff is a resident of New
York and that defendant is a corporation with its principal place of
business*fn2 in Alabama. Neither party has contested jurisdiction, nor
has plaintiff sought to remand the case to state court. Based on the
papers filed, it appears thus far that the Court has jurisdiction pursuant
to §§ 1331 and 1367.