The opinion of the court was delivered by: GEORGE DANIELS, District Judge
MEMORANDUM DECISION AND ORDER
In his First Amended Complaint ("Amended Complaint"), filed in
the Supreme Court of the State of New York, Plaintiff, an
attorney litigating pro se, alleges causes of action premised
on breach of confidentiality by Defendants Bear, Stearns & Co.
("Bear Stearns"), Weisser Johnson & Co. L.P., Weisser Johnson &
Co., and Frank Weisser (the "Weisser Defendants"). Plaintiff
alleges breach of a settlement agreement's material
confidentiality and best efforts provisions (Count 1); a
continuing conspiracy to coverup and to fraudulently conceal
breach of the settlement agreement (Count 2); and fraud (Count
3). Plaintiff further alleges that Defendants engaged in
continuing misappropriation of trade secrets (Count 4);
continuing breach of business confidences (Count 5); continuing
theft of confidential business plans (Count 6); and continuing
felonious conspiracy with then-Enron executives (Count 7).
Pursuant to 28 U.S.C. § 1441, Defendants removed the state action
to this Court. Plaintiff moves to remand the action back to state
court pursuant to 28 U.S.C. § 1447(c). Defendants oppose the
motion to remand and move for dismissal of the Amended Complaint
pursuant to Fed.R. of Civ. P. 12(b)(6). Plaintiff's motion to
remand is DENIED. Defendants' motion to dismiss the Amended
Complaint is GRANTED. FACTUAL BACKGROUND
On July 1, 1997, Plaintiff, represented by counsel, filed a
previous federal lawsuit against the Defendants. In that prior
action, Plaintiff sued Defendants in the Southern District of New
York ("federal court action") for the theft of his alleged novel
idea on securitization of oil and gas. There, Plaintiff claimed
that Bear Stearns shared his idea with Enron and profited
therefrom. The District Court, Kevin T. Duffy, J., held that
Plaintiff's idea was not novel and lacked a claim for its
unauthorized use by Bear Stearns. The court granted summary
judgment and dismissed the action. See Glatzer v. Bear,
Stearns & Co., Inc., et al., 95-Civ-1154 (KTD) (S.D.N.Y. June
10, 1998), Ex. C.
While Plaintiff's appeal in this prior federal court action was
pending, he and the Defendants entered into settlement
discussions with the assistance of the Staff Counsel of the
United States Court of Appeals for the Second Circuit ("Staff
Counsel"). Under the Local Rules of the Second Circuit, "parties
are prohibited from advising . . . any authorized third parties
of discussions or actions taken at the conference" with the Staff
Counsel. Am Compl. ¶ 8 (citing Local Rules of the Second Circuit,
Appendix Part D, Guidelines for Conduct of Pre-Argument
Conference Under the Civil Appeals Management Program ("CAMP
Rules")). Plaintiff contends that "the parties entered into an
agreement in principle for settlement of their litigation." Id.
at ¶ 9.
On August 25, 1998, Bear Stearns sent a letter to the Staff
Counsel informing them of the basic terms of the settlement
("Settlement Letter"). In addition to payment of a sum of money,
a part of the settlement was an agreement made by Bear Stearns to
use its "best efforts" to obtain a vacatur order of the summary
judgment motion that was granted in its favor in the prior
federal action. In the Settlement Letter, Bear Stearns explicitly
stated that "the settlement is not contingent on achieving
vacatur of the order since we do not and cannot control the
Courts." Id. at ¶ 26. Plaintiff also had a separate lawsuit pending in New York State
Supreme Court against Enron and its affiliate. Plaintiff's
lawsuit against Enron asserted similar claims as that alleged
against the Defendants in the federal court action. According to
Plaintiff, the sole purpose of the settlement was to allow him to
proceed on his claims against Enron. In essence, Plaintiff sought
to preclude Enron from asserting the defense, based on the
decision in Plaintiff's federal court action, that Plaintiff was
collaterally estopped from claiming that his novel idea was
One month after the Settlement Letter was sent to the Staff
Counsel, on September 25, 1998, Enron simultaneously filed a
motion for summary judgment in the state court action, and a
motion to intervene in the federal district court action to
prevent the vacatur of the summary judgment. In both motions,
Enron stated that it "understands that the settlement between
[Plaintiff] and Bear Stearns is not contingent upon the Court
vacating the judgment." Id. at ¶ 15 (emphasis in original).
Further, at oral argument on its motion before the state court,
Enron stated that it knew the exact amount of money Plaintiff
received from Bear Stearns. Plaintiff now alleges that Enron's
verbatim recitation of the language of the Settlement Letter and
knowledge of the settlement sum offered by Bear Stearns,
"indicates unequivocally that Enron illegally received a copy of
the [Settlement Letter] from Bear Stearns (and/or Weisser Inc.
and Weisser both associated with Bear Stearns.)". Id. at ¶ 17.
On October 28, 1998, Plaintiff and Defendants memorialized the
settlement in a written agreement (the "Written Agreement"). This
agreement was confidential and not to be disclosed to any third
parties. Am. Compl. ¶ 12; Written Agreement, Ex. A ¶ 10.
Moreover, the Written Agreement stated that Plaintiff:
[O]n his own behalf . . . hereby releases, acquits,
and forever discharges Bear Stearns, Weisser-Johnson, Weisser*fn1 . . . from
any and all claims, causes of action, suits, debts,
liens, obligations, liabilities, demands, losses,
costs, and expenses . . . known or unknown, fixed or
contingent, which [Plaintiff] may have or claim to
have now against any of the Defendants, or which may
hereafter arise out of, relate to, or be connected
with the claims raised in or that could have been
raised . . . or any act of commission or omission of
any of the Defendants existing or occurring prior to
the date of this Agreement. . . .
Id. at ¶ 3.
The Agreement "sets forth the entire agreement and
understanding of the parties with respect to the subject matter
hereof and supercedes any and all prior agreements and
understandings of the parties hereto with respect to the subject
matter hereof."*fn2 Id. at ¶ 16. The Written Agreement
states that Plaintiff and Bear Stearns would jointly use their
"best efforts" to seek vacatur of the summary judgment order in
the Federal Court Action. Id. at ¶ 5.
Plaintiff asserts here that the intent of the "best efforts"
provision was that Defendants would expend their best efforts to
achieve vacatur before the New York Supreme Court made any
decision on Enron's motion for summary judgment. Am. Compl. ¶ 34.
The New York Supreme Court did in fact grant summary judgment on
collateral estoppel grounds.*fn3 Vacatur was never achieved.
Plaintiff alleges Defendants, therefore, breached the
confidentiality and best efforts clauses of the Written
Agreement. Id. at ¶ 37. Plaintiff contends that Defendants
fraudulently induced him to sign the Written Agreement because
they never intended to comply with the agreement's terms. He argues that had Defendants not
breached the confidentiality of the agreement, Plaintiff would
have recovered the full value of his claim against Enron. Id.
at ¶¶ 40, 46.
Plaintiff maintains that it was not until February 2000 that he
first discovered Enron's use of confidential information in its
motion to intervene in the federal court action. See Pl's Opp'n
Mem. Mot. Dismiss at 11. It was only then that Plaintiff realized
that Enron had received confidential information. At that time,
Plaintiff notified the Defendants that they had breached the
confidentiality and best efforts clauses of the Written
Agreement, and that as a result he was entitled to a rescission
of the Written Agreement. Am. Compl. ¶ 39.
It was not until October 2, 2001, that Plaintiff finally moved
for vacatur of summary judgment in his prior federal court
action. In denying the motion, the District Court rejected
Plaintiff's contention that the Second Circuit issued a mandate
on February 1999 holding that there was no federal jurisdiction
in the case. The District Court stated, "In truth, the mandate
was not, as Plaintiff contends, a court order; rather it was a
mere stipulation of dismissal of the appeal and had no effect on
the [Court's prior grant of summary judgment]." Glatzer v. Bear,
Stearns & Co., Inc., 95-Civ-1154 (KTD) (S.D.N.Y. June 18, 2002)
(internal citation omitted). The District Court further noted
that Plaintiff had "moved in the Second Circuit for clarification
of the mandate to indicate that there was no federal jurisdiction
in this lawsuit, and the Second Circuit denied the motion in June
Removal of a civil action brought in state court to federal
court is proper if the district court has original jurisdiction
over the action. See 28 U.S.C. § 1441(a). District courts have
original jurisdiction in cases that "aris[e] under the
Constitution, laws, or treaties of the United States." Id. at §
1331. According to the well-pleaded complaint rule, where the
Amended Complaint on its face presents a federal question, a
cause of action arises under federal law. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392,
107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987); Franchise Tax Bd. of Cal. v.
Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 13,
103 S.Ct. 2841, 2848, 77 L.Ed.2d 420 (1983). In addressing the matter
of removability, the removal statute is narrowly construed "[o]ut
of respect for the independence of state courts, and in order to
control the federal docket." Winne v. Equitable Life Assurance
Soc'y of the United States, et al., 315 F. Supp. 2d 404, 409
(S.D.N.Y. 2003); Macro v. Indep. Health Ass'n, Inc.,
180 F. Supp. 2d 427, 431 (W.D.N.Y. 2001). Further, the general remand
statute, provides, in relevant part, that "[i]f at any time
before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded."
28 U.S.C. § 1447(c).
"Even though state law creates [the Plaintiff's] causes of
action, its case might still `arise under' the laws of the
United States if a well-pleaded complaint established that its right to
relief under state law requires resolution of a substantial
question of federal law in dispute between the parties."
Franchise Tax Bd. of Cal., 463 U.S. at 13. In the instant
matter, although Plaintiff alleges state law violations, the case
involves the alleged violation of a federal local appellate rule
governing the confidentiality of communications to third ...