The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
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.
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.
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,
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
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
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
Therefore, plaintiffs motion to exclude matters outside of the
pleadings (Dkt. #50-1) is granted. Her motion for alternative ...