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POLLOCK v. RIDGE

February 18, 2004.

SHARON B. POLLOCK, Plaintiff
v.
TOM RIDGE, Secretary of the Department of Homeland Security, et al., Defendants



The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District

DECISION AND ORDER

INTRODUCTION

Plaintiff is a former employee of defendant The Barbosa Group, a private employer who, at all relevant times herein, provided administrative and other services at the Buffalo Detention Center ("BDC") pursuant to a government services contract ("the contract") with the Immigration and Naturalization Service ("INS"). Plaintiff commenced this action against defendants*fn1 asserting various federal and state law claims based on her employment at and termination from the BDC. Page 2 Plaintiff alleges that defendants discriminated against her on account of her gender and wrongfully terminated her without cause or due process.

  The defendants moved to dismiss and/or for summary judgment (Dkt. ##32 and 37) and plaintiff cross-moved for relief (Dkt. #50). The Court ruled on several of these motions, from the bench, after oral argument and those decisions were later memorialized in an order (Dkt. #73) filed April 9, 2003. This Decision and Order addresses the remaining portions of defendants' motions and plaintiff's cross-motion. For the reasons that follow, the parties' motions are granted, in part, and denied, in part.

  DISCUSSION

 I. Motion to Dismiss Standards

  Defendants move to dismiss plaintiffs complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim. In the context of a Rule 12(b)(1) motion, plaintiff has the burden of establishing the existence of subject matter jurisdiction by a preponderance of the evidence. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The Court must accept as true all material factual allegations in the complaint, and can consider evidence outside the pleadings. See Makarova, 201 F.3d at 113.

  In deciding a motion to dismiss pursuant to 12(b)(6), the Court likewise must draw all reasonable inferences in favor of plaintiff and accept as true all factual allegations in the complaint. "A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002); Phillip v. Univ. of Rochester, Page 3 316 F.3d 291 (2d Cir. 2003). The issue is not whether plaintiff ultimately will prevail but whether she is entitled to offer evidence to support her claims. Swierkiewicz, 524 U.S. at 512 (reaffirming the simplified notice pleading requirement of Fed.R.Civ.P. 8 that relies on the rules of discovery and motions for summary judgment to define factual issues and dispose of unmeritorious claims). "Thus, a complaint is sufficient if it gives `fair notice of what the plaintiffs claim is and the grounds upon which it rests.'" Phelps v. Kapnolas, 308 F.3d 180, 186 (2d Cir. 2002) (quoting Swierkiewicz, 524 U.S. at 512).

 II. Plaintiff's Cross-Motion to Exclude Matters Outside the Pleadings

  Initially, the Court addresses plaintiff's cross-motion to exclude from consideration on defendants' motions certain documents that are outside the pleadings or, in the alternative, to require that any documents considered be presented in admissible form and fully authenticated by someone with personal knowledge. (Dkt. #50-1).

  The federal defendants attached two documents to their memorandum of law — a complaint letter dated February 29, 2000 from plaintiff to the INS and an alleged copy of the contract (which exceeds 200 pages) between The Barbosa Group and the INS. (See Dkt. #32 "Exhibits" 1 and 2). The Barbosa defendants incorporate these documents by reference and rely on them in support of their motion. (Dkt. #38 at p.3). The documents have not been presented to the Court as true and accurate copies of what they purport to be, and neither is attached to or referred to in an affidavit from someone who attests to its authenticity or accuracy. In fact, the documents are not mentioned at all in the three paragraph affidavits each attorney filed in support of the defendants' motions. (Dkts. ##33 and 39). Nevertheless, defendants argue (in footnotes in their memoranda of law) that Page 4 this Court can rely on and refer to the documents on the motion to dismiss because both are "integral" to the plaintiff's complaint.

  Plaintiff argues that the Court cannot consider these documents in deciding the motions to dismiss because they are matters outside the pleadings which were not quoted in or otherwise integral to the complaint. Further, plaintiff asks that if the Court finds that the documents are integral to the complaint, that it first obtain "fully authenticated" copies. Plaintiff takes issue with the accuracy of the contract filed by the federal defendants and asserts that it is different in some material respect to the contract that defendants produced to her during discovery. (Dkt. #50, at p. 6-8).

  If the parties present materials outside the complaint and the Court does not exclude them, the Court must treat a 12(b)(6) motion as one for summary judgment pursuant to Fed.R.Civ.P. 56 and give all parties a reasonable opportunity to present all material made pertinent to such a motion. See Fed.R.Civ.P. 12(b). For purposes of this rule, the complaint is considered to include any documents incorporated in it by reference, annexed to it as an exhibit, or "integral" to it because it "`relies heavily upon its terms and effect.'" Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quoting Int'l Audiotext Newwork, Inc. v. Am. Tel & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)).

  I agree that I should not consider these documents on a motion to dismiss. Chambers, 282 F.3d at 155 ("Consideration of extraneous material in judging the sufficiency of a complaint is at odds with the liberal pleading standard of Federal Rule of Civil Procedure 8(a)(2). . . . Also, when a district court considers certain extra-pleading materials and excludes others, it risks depriving the parties of a fair adjudication of the claims by examining an incomplete record."). I do not find the Page 5 letter or contract to be "integral" to the complaint, and the cases upon which defendants rely are inapposite. Plaintiffs complaint is not replete with references or quotations to either document. See, e.g., Chambers, 282 F.3d at 153; San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Cos., Inc., 75 F.3d 801, 808-809 (2d Cir. 1996). In addition, that plaintiff may have had possession of a document at the time the complaint is drafted is not enough. Chambers, 282 F.3d at 153. Because the parties are still engaging in discovery, conversion to a motion for summary judgment is inappropriate at this time. In any event, the Court cannot consider the documents in the manner in which they were presented. A memorandum of law is not the appropriate vehicle for putting evidence before the Court. For this additional reason, I do not consider these documents.

  Therefore, plaintiffs motion to exclude matters outside of the pleadings (Dkt. #50-1) is granted. Her motion for alternative ...


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