The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Plaintiff asserts two causes of action in this case: 1) a claim for tortious interference with contract against W al-Mart Stores, Inc. ("Wal-Mart"); and 2) a claim for breach of contract against Bimbo Foods Bakeries Distribution, Inc. ("BFBD"), sued here as Bimbo Bakeries USA, Inc. ("Bimbo"). Now before the Court are four motions: 1) a motion [#5] by W al-Mart to dismiss the Complaint pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6); 2) a motion [#7] by Bimbo for judgment on the pleadings pursuant to FRCP 12(c); and 3) two identical cross-motions [#8][#9] by Plaintiff to amend the Complaint. For the reasons that follow, Defendants' motions are granted, Plaintiff's cross-motions are denied, and this action is dismissed.
Unless otherwise noted, the following facts are taken from Plaintiff's Complaint [#1] and the Proposed Amended Complaint. In or about 1998 Plaintiff formed a contract with Bestfoods Baking Distribution Company ("Bestfoods"). The contract grants Plaintiff the right to distribute Bestfoods' baked goods to retail outlets in a certain geographic area. The contract contains a provision limiting damages in the event of a breach, which states: "Notwithstanding anything to the contrary contained in this Agreement, in no event shall either party be liable to the other for any consequential, incidental, indirect or special damages, including lost profits and punitive damages." Agreement § 11.12.
On January 5, 2010, Plaintiff commenced this action in New York State Supreme Court, Chemung County, against W al-Mart and Bimbo. According to the Complaint, Bimbo Bakeries USA, Inc. is the successor to Bestfoods. The Complaint purports to state two causes of action: 1) a claim against W al-Mart for "tortious interference with a contractual relationship;" and 2) a claim against Bimbo for breach of contract. The first claim alleges that W al-Mart made unspecified "false, negligent, defamatory accusations against Plaintiff and published said false, negligent and defamatory accusations to Bimbo," with the intention of impairing or destroying "Plaintiff's business relationship with Bimbo." Complaint ¶ ¶ 6-7. The Complaint contends that W al-Mart acted with "malice" and a "desire to injure Plaintiff economically." Id. at ¶ 8. The second claim alleges that Bimbo "breached [the parties'] contract without justification by forbidding Plaintiff to deliver goods pursuant to said contract to W al-Mart, or otherwise terminating Plaintiff's ability to do business with W al-Mart." Id. at ¶ 16. For this alleged breach, Plaintiff demands five hundred thousand dollars ($500,000.00.). Id. at ¶ 17.
W al-Mart subsequently filed the subject motion [#5] to dismiss pursuant to FRCP 12(b)(6), alleging that the Complaint "does not allege, or even imply, any of the necessary elements or key facts" of a claim for tortious interference. W al-Mart Memo of Law [#5-6] at 1. Bimbo answered the Complaint and then filed the subject motion [#7] for judgment on the pleadings, seeking judgment for essentially three reasons: First, the Complaint incorrectly names Bimbo, instead of the correct party, which is BFBD, a separate corporation; second, the Complaint fails to allege sufficient facts to state a plausible claim for breach of contract; and third, the Complaint seeks lost profits, which cannot be recovered, pursuant to § 11.12 of the agreement set forth above.
In response to these motions, Plaintiff filed motions [#8][#9] to amend the complaint. The Proposed Amended Complaint [#9-4] names BFBD as a defendant instead of Bimbo, and adds a number of factual allegations to support the two causes of action asserted in the original complaint. The Proposed Amended Complaint maintains that the claims in this action essentially arise from an incident which occurred on June 6, 2009, at the W al-Mart store in Big Flats, New York. Plaintiff contends that on that day, a W al-Mart employee, Stacey Nuss ("Nuss"), scanned certain baked goods that Plaintiff was removing from the store, because they were stale, and gave Plaintiff a credit for the fifty-eight items that Plaintiff was removing. Plaintiff states that subsequently, a W al-Mart Manager, Matt Huych ("Huych"), re-checked the items that Plaintiff was removing, using a scanner, and incorrectly concluded that Plaintiff was attempting to cheat W al-Mart. Proposed Amended Complaint at ¶ ¶ 40-50. Specifically, Plaintiff alleges that Huych first miscounted the items, and then, when attempting to re-count the items a second time, he "failed to zero out the first scan, and void the ticket." Id. at ¶ 49. The following day, Huych and Eddy Dewitt, who was W al-Mart's District Manager, told Plaintiff that "there was a problem with [the previous day's] credits." Id. at ¶ 56. Plaintiff contends that W al-Mart also made "another error" concerning his bread products, and blamed that on him as well. Id. at ¶ 58 ("This was another error made by Matt Huych, for which plaintiff was negligently and maliciously blamed."). Subsequently, W al-Mart "banned" Plaintiff from selling products to its stores. Id. at ¶ 62. Plaintiff maintains that he did nothing wrong, and that a review of the documentary evidence and videotape evidence would prove his innocence. He contends that he asked representatives of BFBD to "speak to Matt Huych and review the videotapes," but they "refused, or neglected to do so." Id. at ¶ 60. Additionally, Plaintiff maintains that as a result of the foregoing incidents, BFBD sent him a "Notice of Breach of Distribution Agreement," which is attached to the proposed Amended Complaint. Id. at ¶ 65.*fn1 However, the notice upon which Plaintiff is relying does not pertain to W al-Mart. Instead, the "Notice of Breach of Distribution Agreement" refers to an incident which occurred on May 16, 2009, in which Plaintiff allegedly failed to provide proper service to the W egmans store located in Elmira, New York. In any event, the Proposed Amended Complaint further alleges that Wal-Mart intentionally and maliciously interfered with his contractual relationship with BFBD, and that as a result, he has lost "expectancy of economic gain," consisting of "a minimum of $6,000.00 weekly sales, and $1,200.00 per week net income." Proposed
Amended Complaint ¶ 129. As for BFBD's alleged breach of contract, Plaintiff alleges that, "[d]espite receiving documentary evidence that the allegations made by Wal-Mart were indeed false, [BFBD] maintained their position that the contract that is the subject of this action was breached by Plaintiff." Id. at ¶ ¶ 125-127. Again, however, in alleging that BFBD notified him that he had breached the contract, Plaintiff appears to be relying on the "Notice of Breach of Distribution Agreement" that pertains to a separate and unrelated incident at a Wegmans store in Elmira. Id. at ¶ ¶ 65,128. Plaintiff demands $500,000.00 in damages against BFBD, consisting of a loss of $1,200.00 per week net income." Id. at ¶ 129.
Plaintiff contends that the Court should permit him to file the Proposed Amended Complaint, which will correct the deficiencies alleged by Defendants in their respective motions. Plaintiff further states that § 11.12 of the agreement does not bar his claim for damages against BFBD, since he is not seeking consequential or incidental damages. In reply, however, W al-Mart maintains that the Motion to Amend should be denied as futile, since the Proposed Amended Complaint still fails to state a claim against W al-Mart. For example, W al-Mart states that the Proposed Amended Complaint makes clear that W al-Mart had a "good faith and justifiable reason" for its decision to ban Plaintiff from its stores. W al-Mart Reply Memo [#12] at 2 ("Plaintiff's Proposed Amended Complaint says nothing more [than] that W al-Mart made a business decision to terminate its relationship with Plaintiff and advised the vendor [BFBD] of its decision."); id. at 3 ("W al-Mart believed that the discrepancy in numbers was due to Plaintiff's removal of products from W al-Mart and his re-sale of those same products to other stores.").
On March 10, 2011, counsel for the parties appeared before the undersigned for oral argument of the motions.
Courts must freely give leave to amend pleadings "when justice so
requires." FRCP 15(a)(2). Nevertheless, a "district court has
discretion to deny leave for good reason, including futility, bad
faith, undue delay, or undue prejudice to the opposing party."
Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir.2009) (internal quotation marks
omitted). "A proposed amendment to a pleading would be futile if
it could not withstand a motion to dismiss pursuant to Rule 12(b)(6)."
Martin v. Dickson , No. 03-7917, 100 Fed.Appx. 14,
16, 2004 WL 1205185 at *2 (2d Cir. Jun. 2, 2004) (unpublished).
In ruling upon a motion to dismiss made pursuant to FRCP 12(b)(6), the Court must construe the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor. Although the pleading standard is a liberal one, bald assertions and conclusions of law will not suffice. To survive dismissal, the plaintiff must provide the grounds upon which her ...