United States District Court, Southern District of New York
June 3, 2003
ELIZABETH REECE, PLAINTIFF,
HEWLETT-PACKARD COMPANY, DEFENDANT.
The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.
On April 8, 2003, the Court dismissed count three of the complaint, which purports to allege a claim for tortious interference with plaintiff's prospective employment by Printak Program Manager, on the grounds that it failed "to allege either that plaintiff had any prospective employment relationship with which defendant allegedly interfered or than any such interference was undertaken solely for the purpose of harming plaintiff or employed dishonest, unfair or improper means." Order, Apr. 8, 2003.
Plaintiff served an amended complaint on April 17, 2003.*fn1 Defendant again moves to dismiss count three.
The only pertinent allegations are found in paragraphs 47 through 54. They assert that Mr. Crotty told someone at Printak "that Printak could not hire" plaintiff and that this interference was "malicious." (Am Cpt ¶¶ 47, 53)
As the Court's April 8 order made clear, a claim for tortious interference with prospective business relations must allege, inter alia, that the defendant acted "with the sole purpose of harming the plaintiff" or used "dishonest, unfair or improper means." Goldhirsh Group, Inc. v. Alpert, 107 F.3d 105, 108 (2d Cir. 1997). This complaint does not allege that defendant acted with 1 the sole purpose of harming the plaintiff. Nor are there any allegations of wrongful means, which refers to "physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure" and does not "include persuasion alone although it is knowingly directed at interference with the [prospective] contract." Scutti Enterprises LLC v. Park Place Entertainment Corp., 322 F.3d 211, 216 (2d Cir. 2003) (internal quotation marks and citation omitted).
Accordingly, defendant's motion to dismiss count three is granted. In view of plaintiff's failure to cure precisely this defect, notwithstanding the Court's having made this point in its April 8, 2003 order, the dismissal of this count is with prejudice and without leave to amend.