The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Defendant Anamah Tan moves to dismiss pro se plaintiff Maria Arias-Zeballos's complaint, which primarily alleges breach of an oral employment contract. In the alternative, defendant moves to strike portions of the complaint, and moves for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). Plaintiff moves to dismiss defendant's counterclaims, and in the alternative for a more definite statement pursuant to Rule 12(e). The motion to strike and both motions to dismiss will be granted in part and denied in part. Both motions for a more definite statement will be denied.
I. Plaintiff's Allegations
Plaintiff, a United States citizen residing in New York, filed a complaint in the Supreme Court of the County of New York on January 11, 2006, alleging primarily that defendant, a citizen of Singapore, had failed to compensate plaintiff in violation of an oral employment contract. According to the complaint, the parties agreed in 2003 that plaintiff would perform "two different and independent" jobs for defendant in exchange for a total annual salary of $60,000. (Complaint ¶¶ 12, 14, 15.) The first job was to assist defendant in her work as President of the International Council of Women (ICW); the second was to assist defendant in her campaign to be elected to a United Nations committee working on issues related to the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW"), and to serve as defendant's assistant after she was elected. (Id. ¶¶ 6, 9, 14, 16, 22, 61, 68.) Plaintiff's responsibilities for both jobs included drafting defendant's speeches and conducting research related to the activities of the ICW and the CEDAW committee. (See, e.g., id. ¶¶ 63, 75.)
In September of 2003, plaintiff claims, defendant informed her that although she remained committed to paying plaintiff at a rate of at least $60,000 per year, she lacked the funds to begin payment at that rate immediately. Defendant explained that she would pay plaintiff at a rate of $2,500 per month, or $30,000 per year, with funds from a Singaporean government entity; the second half of the $60,000 salary promised to plaintiff would not be withheld altogether, but merely deferred until defendant secured additional funding from another source, which was expected to occur in 2004. Plaintiff accepted defendant's offer. (Id. ¶¶ 15, 67-68.)
After meeting with officials of the Singapore government in October 2003 to discuss her employment, plaintiff signed a written employment contract with defendant in November 2003 pursuant to which she agreed to assist with defendant's CEDAW-related work in exchange for a salary of $2,500 per month. (Id. ¶ 69, Ex. A.) The contract, which is annexed to the complaint, contains a description of responsibilities plaintiff would carry out in order to "assist Dr. Tan in her CEDAW campaign through the non-governmental channel." (Id.) Though at least one sentence in the contract requires plaintiff to perform ICW-related tasks, plaintiff claims that that sentence was deleted at her insistence after the contract was signed (id. ¶ 69), and that both parties understood the contract to encompass their agreement only with respect to CEDAWrelated work. The ICW-related work was to be governed separately by the parties' prior oral agreement, pursuant to which defendant had agreed to pay plaintiff an additional $30,000. (Id. ¶¶ 15, 61, 68-69.)
The parties' relationship began to deteriorate in early July 2005, when plaintiff claims she overheard defendant screaming over the phone at one of defendant's domestic employees in Singapore. (Id. ¶ 83.) When plaintiff objected to what she perceived to be defendant's "discriminatory and inhumane" treatment of the employee (id. ¶ 84), defendant allegedly retaliated against plaintiff by threatening to terminate her job and by carrying out, during the following days, "a series of malicious, intentional actions" against plaintiff, "creating a very negative work environment" (id. ¶ 85). The tension between the parties culminated in a confrontation at a CEDAW meeting on July 15, 2005; according to the complaint, defendant became angry and screamed at plaintiff in the middle of the session, causing plaintiff great humiliation. (Id. ¶¶ 88-89.)
After the July 15 confrontation, plaintiff concluded that defendant was purposefully making it impossible for plaintiff to do her job, and that defendant had no intention to pay her the additional compensation she had promised. After consulting with the office of legal counsel at the United Nations ("UN") about the matter, she submitted a letter to the members of the CEDAW committee, detailing defendant's mistreatment of plaintiff and other employees. (Id. ¶ 91.) Plaintiff stopped performing any work for defendant, but attempted, at first with the assistance of counsel, to secure the compensation she was allegedly owed. (Id. ¶¶ 92-93.) When her efforts failed, she filed suit, alleging breach of contract, discrimination, retaliation and defamation.
II. Defendant's Allegations
Defendant disputes plaintiff's characterization of the events, and claims that the written contract signed by the parties in 2003 encompassed the entirety of their agreement.*fn2 From September 2003 to July 2005, defendant contends, plaintiff never asked for more than the $2,500 per month salary. (Id. ¶ 25.)
Defendant also asserts counterclaims against plaintiff, alleging that the letter plaintiff delivered to members of the CEDAW committee in July 2005 contained "false and severely defamatory statements" about defendant and her work. (Partial Answer ¶ 27.) Plaintiff also allegedly made defamatory oral statements to UN personnel, and sent a letter containing defamatory statements to Singapore's UN ambassador. (Id. ¶¶ 35, 37.) In addition to her defamation claims, defendant asserts counterclaims for intentional infliction of emotional distress, prima facie tort, and "breach of contractual fiduciary duty." (Id. ¶ 59 et seq.)
After plaintiff filed her complaint in state court, defendant removed the case to this Court, asserting diversity of citizenship. Defendant then moved to dismiss and to strike, and plaintiff moved to remand.*fn3 While the motions were pending, defendant filed her counterclaims against plaintiff, and plaintiff moved to dismiss those claims.
Finding that plaintiff had failed to effect proper service under New York law, this Court denied all of the pending motions, quashed the improper service, and granted plaintiff additional time to effect proper service. Zeballos v. Tan, 06 Civ. 1268 (GEL), 2006 WL 1975995, at *7 (S.D.N.Y. July 10, 2006). The Court's Opinion and Order advised the parties that the counterclaims and both motions to dismiss, as well as the motion to strike, could be re-submitted to the Court after plaintiff had effected service, or after defendant had waived her service objection. Id. Defendant filed a waiver of her service objection on July 14, 2006, and reasserted her counterclaims. Both parties sent letters re-instating their prior motions. Though the Court's July 10, 2006, Opinion and Order provided that the parties could submit additional briefing if they requested and received permission from the Court, neither party sought permission to do so.
After receiving notice that the parties were willing to attempt to settle at least some of their claims, the Court referred the matter to Magistrate Judge Kevin F. Fox for a settlement conference. The conference, which took place on August 22, 2006, was unsuccessful.
Resolution of the pending motions has been complicated and delayed in part by both parties' inclusion of lengthy, irrelevant and redundant arguments and exhibits in their submissions to the Court. The Court's resolution of the issues pending before it has not been aided by the excessive repetition of factual allegations appearing in the complaint; nor does the inclusion of ad hominem attacks enhance the persuasiveness of the parties' arguments.
Much of the problem has been the parties' failure to understand the standard on a motion to dismiss for failure to state a claim. When considering such a motion, the Court must accept as true all of the non-moving party's factual allegations and draw all reasonable inferences in the non-moving party's favor. Oteze Fowlkes v. Adamec, 432 F.3d 90, 95 (2d Cir. 2005). The claims (or counterclaims) may be dismissed only if it appears beyond doubt that the party asserting them can prove no set of facts in support of her claim which would entitle her to relief. Id. Similarly, in the absence of an evidentiary hearing on a motion to dismiss for lack of personal jurisdiction, the Court accepts as true all of the non-movant's "averments of jurisdictional facts." In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir. 2003).
Thus, a party may not defeat a motion to dismiss merely by repetitious insistence that her factual allegations are true and that her adversary's account is false. Similarly, affidavits from third parties to support or deny facts alleged in the complaint cannot affect the Court's disposition of a motion to dismiss for failure to state a claim. The truth of competing accounts of the facts can only be determined at trial.*fn4 At this stage, the Court must accept the truth of the factual allegations in the pleadings asserting claims, regardless of whether either party proffers affidavits or other evidence.
The Court is aware that plaintiff is proceeding without a lawyer. Even a pro se plaintiff, however, must make some effort to ascertain what is relevant at a given stage of the proceedings. At a minimum, litigants, including pro se litigants, must refrain from excessive repetition and irrelevant, ad hominem attacks on their adversaries. All parties, moreover, must comply with the Court's Individual Rules. These Rules are available at http://www.nysd.uscourts.gov/Individual _Practices/Lynch.pdf. Both parties have violated those rules here by submitting excessively long motion papers.*fn5
II. Defendant's Motion to Dismiss
"In a diversity case a federal court may exercise personal jurisdiction over a party in accordance with the law of the forum state." Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865 (2d Cir. 1996); see Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 124 (2d Cir. 2002). Thus, to determine whether personal jurisdiction over defendant exists here, the court must first determine whether New York law would confer jurisdiction to reach the defendant on the New York state courts. Id. If jurisdiction would exist under New York law, the Court must proceed to consider whether New York's exercise of jurisdiction would be permissible under the Due Process Clause. Id. The plaintiff carries the burden of demonstrating that the court may exercise jurisdiction over the defendant. DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001); CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 364 (2d Cir. 1986). However, where, as here, a "court chooses to rely on pleadings and affidavits" rather than conduct an evidentiary hearing, "the plaintiff need only make a prima facie showing of personal jurisdiction over defendant." Id.; see DiStefano, 286 F.3d at 84. This requires "an averment of facts that, if credited by [the ultimate trier of fact], would suffice to establish jurisdiction over the defendant." Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 ...