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February 14, 2003


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.

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