The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.
Inez Cain a/k/a Eve Halliburton brings discrimination and breach of contract claims against the publisher Simon & Schuster, Inc. ("S&S") and its alleged agent, Karen Hunter. S&S and Hunter now move to dismiss the complaint. For the reasons set forth below, defendants' motions are granted in part and denied in part.
Cain is an African-American author who produced her first novel in 2006 under the name Eve Halliburton.*fn2 In early 2008, Cain's friend submitted the book to an individual at S&S for publication consideration. In March 2008, Hunter emailed Cain expressing interest on behalf of S&S. Around April 2008, Hunter and Cain met in person. At this meeting, Hunter offered Cain a fifty thousand dollar book advance and discussed the tentative release date of the book. Cain alleges that there was an agreement between herself and S&S as to the publication of the book and the fifty thousand dollar advance.*fn3
Cain and Hunter exchanged further emails. Hunter suggested some changes to the book, which Cain accepted. Around the end of April or early May, Hunter - allegedly as an agent of S&S - indicated to Cain that S&S was having financial difficulties, would be unable "to meet its promise," and would have to reduce the advance to ten thousand dollars. However, on or about May 6, 2008, Hunter informed Cain that S&S could pay the fifty thousand dollars and would "keep its original promise." Hunter also informed Cain that the Business Affairs Department of S&S was preparing the contract for execution. Cain never received the fifty thousand dollars.*fn4
On or about June 16, 2008, Cain called Hunter about the contract. Hunter informed Cain that the book was to be "geared to a network of African-American writers only."*fn5 Cain disagreed with this approach.*fn6 Hunter further informed Cain that "S&S 'did not create a publishing company for people that looked like her.'"*fn7 When Cain inquired as to what Hunter meant, Hunter stated, "'S&S did not create their publishing company for black people.'"*fn8 Cain then contacted Louise Burke of S&S to inform her of Cain's interaction with Hunter. Burke stated that "she was responsible for Hunter and that Hunter had the authority from S&S to deny [Cain's] book publication consideration."*fn9
Cain alleges that Hunter, as an agent or employee of S&S, violated her civil rights in failing to consider targeting Cain's book to a general audience. She further alleges that Hunter altered the original agreement because of S&S's discriminatory practices after discovering that Cain was African-American.*fn10 As a result of Hunter's alleged discriminatory conduct as an agent or employee of S&S, Hunter pleads that she has been damaged and has suffered extreme mental anguish, emotional distress, humiliation, and embarrassment.*fn11
On a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must assume "all well-pleaded, nonconclusory factual allegations in the complaint to be true"*fn12 and "draw all reasonable inferences in the plaintiff's favor."*fn13 On the other hand, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."*fn14 To survive a motion to dismiss, therefore, the allegations in the complaint must meet a standard of "plausibility."*fn15
A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."*fn16 Plausibility "is not akin to a probability requirement," rather, plausibility requires "more than a sheer possibility that a defendant has acted unlawfully."*fn17
The plaintiff in support of her claim may allege "upon information and belief" facts that are "peculiarly within the possession and control of the defendant."*fn18 Conversely, the plaintiff should not allege upon information and belief matters that are presumptively within her personal knowledge, unless she rebuts the presumption.*fn19 Such matters include "'matters of public record or matters ...