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ARROUET v. BROWN BROTHERS HARRIMAN & CO.

September 8, 2003

MARCEL J. ARROUET, PLAINTIFF, AGAINST BROWN BROTHERS HARRIMAN & CO., A PARTNERSHIP, AND ITS PARTNERS, DEFENDANTS


The opinion of the court was delivered by: Thomas Griesa, Senior District Judge

OPINION

Plaintiff Marcel J. Arrouet sues Brown Brothers Harriman & Co., claiming that Brown Brothers breached a contract under which it was to pay him certain sales commissions and fulfill certain conditions of employment. Arrouet also seeks to collect on an account stated. Arrouet further seeks damages for constructive termination of employment in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621-34 ("ADEA").

Brown Brothers has moved to dismiss Arrouet's complaint, or in the alternative, to dismiss Arrouet's breach of contract and account stated claims while staying his age discrimination claim. Brown Brothers' motion to dismiss is brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Its motion to stay is brought pursuant to 29.U.S.C. § 626(d). Page 2

The Court has diversity jurisdiction over Arrouet's breach of contract and account stated claims. His age discrimination claim falls under the Court's federal question jurisdiction.

Arrouet has attempted to convert Brown Brothers' motion to dismiss into a motion for summary judgment under Fed.R.Civ.P. 56, asserting that matters have been submitted outside the complaint. Arrouet has submitted his own affidavit, an affidavit by his counsel, and two documents that are annexed to the latter. However, Arrouet's affidavit contains a basic repetition of the various conclusory allegations found in his complaint. The affidavit of Arrouet's attorney and the letters similarly add nothing of substance to the complaint. The information contained in Arrouet's supplemental submissions does not constitute grounds for converting the present motion into one for summary judgment.

Brown Brothers' motion to dismiss is granted as to Arrouet's account stated and age discrimination claims, but denied as to his breach of contract claim. Page 3

Brown Brothers' request for a stay of Arrouet's age discrimination claim is denied. This has to do with Arrouet's EEOC fling. But there is now no issue in this regard.

The Complaint

The following is a summary of the relevant allegations contained in Arrouet's complaint.

First Cause of Action

Arrouet is a 62 year-old male whom Brown Brothers has employed since 1979 as a salesperson marketing Brown Brothers products to institutional investors.

When Arrouet joined Brown Brothers in 1979, the firm offered to compensate him with a fixed salary plus a commission on his sales. Brown Brothers further specified that the amount of Arrouet's commission would be at its discretion. Arrouet accepted these terms.

In approximately 1989 Brown Brothers offered to compensate Arrouet with a fixed salary along with a commission equaling 20% of the gross sales he ...


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