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Pearce v. Manhattan Ensemble Theater

March 6, 2007


The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.


Defendants Manhattan Ensemble Theater, Inc., Golda Tour I, L.P., David Fishelson, and Fishelson Productions, Inc. move to dismiss this action by Plaintiff Anna Pearce, for failure to state a claim on which relief may be granted. Fed. R. Civ. P. 12(b)(6). In this action, Plaintiff alleges (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) promissory estoppel; (4) invasion of privacy, pursuant to Section 51 of the New York Civil Rights Law; (5) unjust enrichment; and (6) employment discrimination, pursuant to the New York City and State Human Rights Laws. For the reasons stated below, Defendants' motion is granted in part and denied in part.


The following facts, drawn from the Complaint except where noted, must be accepted as true for purposes of this motion to dismiss. See Kirch v. Liberty Media Corp., 449 F.3d 388, 392 (2d Cir. 2006).

Plaintiff Anna Pearce, known professionally as Patty Duke, is a citizen of Idaho. (Compl. ¶ 1.) Defendant David Fishelson is a citizen of New York. (Id. ¶ 4.) Defendants Manhattan Ensemble Theater, Inc., Golda Tour I, L.P., and Fishelson Productions, Inc. are, respectively, a nonprofit corporation, a limited partnership, and a business corporation organized under New York law and doing business in New York. (Id. ¶¶ 2-3, 5.)

Plaintiff is a celebrated film, television, and stage actress, best known for her starring roles in The Miracle Worker and The Patty Duke Show. (Id. ¶ 9.) In October 2004, Defendants proposed to Plaintiff's agent, Mitchell K. Stubbs, that Plaintiff consider accepting the role of Israeli prime minister Golda Meir in William Gibson's play Golda's Balcony, on the national tour. (Id. ¶¶ 11-12.) Defendants told Stubbs that Plaintiff's reunion with playwright Gibson, the author of The Miracle Worker, would be a "fun AND meaningful" marketing hook that could prove highly profitable. (Id. ¶¶ 13-14.) Plaintiff later told Stubbs that she approved of the script. (Id. ¶ 16.) Stubbs then began negotiations with Defendants on Plaintiff's behalf. (Id.)

Meanwhile, Plaintiff underwent heart bypass surgery in November 2004. (Id. ¶ 17.)

Plaintiff contends that sometime after December 8, 2004, Stubbs and Defendants reached an agreement that Plaintiff would perform the role of Golda Meir. (Id. ¶¶ 22-23.)*fn1 Specifically, Stubbs and Defendants agreed that (1) Plaintiff would perform as Golda Meir from in or about September 2005 to on or about May 31, 2006; (2) Plaintiff would accept no other entertainment engagements during that time; (3) Defendants would pay Plaintiff $25,000 for each week of performances, and the guaranteed Actors' Equity rate for each week of rehearsals, but no less than fifteen weeks of full salary even if the show closed; (4) Plaintiff would receive 10% of all weekly ticket sales over $150,000 and 15% of all weekly sales over $175,000; and (5) Defendants would compensate Plaintiff for any losses suffered in the event Defendants breached the agreement. (Id. ¶ 23.) Defendants then requested and were given Plaintiff's contact information. (Id. ¶ 25.) Stubbs believed that the exchange of contact information confirmed that the agreement was a binding contract, because of Stubbs's standing policy that "industry people" be allowed to contact Plaintiff directly only after agreeing on the terms and conditions of Plaintiff's engagement. (Id. ¶ 10.) Defendant Fishelson spoke directly to Plaintiff on January 5, 2005, and met with her in New York on January 20, 2005. (Id. ¶ 25.) Thereafter, Defendants distributed press releases and advertising materials announcing Plaintiff's casting and her reunion with Gibson, materials that helped Defendants secure theaters and ticket sales for Golda's Balcony. (Id. ¶¶ 26-28.) Plaintiff began to learn her lines and forgo other career opportunities. (Id. ¶ 29.)

At their January 20 meeting, Plaintiff told Defendant Fishelson that she had been unable to complete the filming of a television program earlier that month. (Id. ¶ 30.) This conversation led Defendants to believe, incorrectly, that Plaintiff's heart surgery had disabled her. (Id. ¶ 32.) On March 7, 2005, Defendants instructed their attorney to "divest" themselves of Plaintiff. (Id. ¶ 31.) Thereafter, Defendants cast another actress, Valerie Harper, as Golda Meir, yet continued to use Plaintiff's name and likeness to advertise the production. (Id. ¶ 33.)


Defendants may move to dismiss a claim under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted. In weighing a motion to dismiss, the Court must "accept[] as true the factual allegations in the complaint and draw[] all inferences in the plaintiff's favor." Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). "A complaint may not be dismissed under the Rule unless it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts" entitling her to relief. Id. at 250 (internal quotation marks omitted).

As a threshold matter, in deciding the motion to dismiss, the Court may not consider an unsigned draft agreement emailed to Stubbs, Plaintiff's agent, during the course of negotiations (see Neier Affirmation, Ex. B), because it is not annexed to or referenced in the Complaint, and because Plaintiff did not rely on it in drafting the Complaint. On a motion to dismiss, a court may consider a document other than an exhibit to a complaint only if it is one on which the plaintiff "solely relies and which is integral to the complaint." Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991). The Second Circuit has emphasized that "a plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (emphasis in original).*fn2 By the Second Circuit's standards, Plaintiff did not rely on the draft agreement in preparing the Complaint: The Complaint makes no reference to the draft agreement, Plaintiff did not sign the draft agreement, and the parties disagree about whether and how the draft agreement relates to their relationship. Accordingly, the Court cannot consider the draft agreement in deciding this motion.*fn3


I. Breach of ...

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