The opinion of the court was delivered by: Townes, United States District Judge
This is a diversity action brought by plaintiff Peter Howell to recover unspecified retirement benefits allegedly owed to him by his former employer, defendant American Airlines, Inc. ("American"). Defendant now moves to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(6), alleging that plaintiff's complaint fails to state a cause of action for breach of contract. For the reasons set forth below, plaintiff's complaint is dismissed without prejudice to amending the complaint within thirty (30) days of the date of this Memorandum and Order.
In 2005, plaintiff commenced this action in the Supreme Court of the State of New York, Kings County, by filing a summons and a seven-paragraph, two-page Verified Complaint. The first three paragraphs of this complaint assert that the Supreme Court has jurisdiction over the subject matter, Complaint at ¶ 1, and identify plaintiff as a resident of Kings County and defendant as a "foreign business Corporation doing substantial business" in New York. Id. at 2-3. The following three paragraphs, which contain all of the substantive allegations in the complaint, appear under the heading, "As and for a First Cause of Action," and read as follows:
4. On or about January 26, 2002 the defendant [sic] retired from working with plaintiff [sic] company and was given benefits commensurate with his work seniority.
5. The plaintiff, Peter Howell, continued to receive said benefits until April 2003.
6. That pursuant to the Employees' guidelines and the Company's course of business the plaintiff was treated as am [sic] employee with occupational seniority and continued as such until his benefits were arbitrarily and capriciously stopped in violation of his contract. The plaintiff has been harmed to the in the [sic] amount of $100,000.00 by the defendant.
Id. at ¶¶ 4-6. Neither the contract nor the terms which were allegedly breached are specified anywhere in the pleading.
The complaint sets forth two causes of action. Although the complaint does not explicitly characterize the first cause of action as a breach of contract claim, the second cause of action reads:
The plaintiff [sic] breach of contract has caused him emotional distress in the amount of $100,000.00 dollars [sic].
Id. at ¶ 7. Both defendant and this Court infer from this language that the first cause of action is meant to allege a State law breach of contract claim.
Defendant removed this case to federal court on the ground of diversity of citizenship, and subsequently moved to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. Defendant's motion, however, assumes a number of facts which are not alleged in plaintiff's complaint. Specifically, defendant's motion alleges that plaintiff retired from American with only 17 months' seniority, received retiree travel privileges to which he was not entitled as a result of a clerical error, and was subsequently notified by American that "such privileges would end effective April 30, 2003." Memorandum of Law in Support of American's Motion to Dismiss ("Defendant's Memo") at 1-2.
Based on these assumptions, defendant's motion characterizes the instant action as alleging that American "breached some unspecified contract, and caused [plaintiff] emotional distress, in connection with the withdrawal of his travel privileges in April 2003." Id. at 2. Defendant then analyzes the elements necessary to state a breach of contract claim under New York law and argues that "plaintiff has failed to allege a breach of contract claim as a matter of law." Id. In particular, defendant argues that plaintiff has failed (1) to allege the existence of an agreement in which American granted him travel privileges and (2) to allege that plaintiff adequately performed his duties under that agreement. Id. at 3-5.
In response, plaintiff submits two documents: an affirmation by his counsel, S. Anderson Edwards (the "Edwards Affirmation"), and a document entitled, "Plaintiff's Response to Motion to Dismiss & Request for Extension of Time to Answer" (the "Response"). The Response lends some support to defendant's assumption that plaintiff is complaining about the rescission of travel benefits; it states that defendant made unspecified "written and oral offers" as to the terms and conditions of plaintiff's employment, and that "the primary reason the plaintiff . . . accepted employment with the defendant was to benefit from the defendants' [sic] offer of free travel." In addition, the Edwards Affirmation states that "the American Airlines hand book with an effective date of 8-15-95 and the AMR Service Agreement with an effective date ...