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Cain v. Simon & Schuster


July 3, 2012


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


A. Motion to Dismiss

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 generally known in the community . . . inasmuch as everyone is held to be conversant with them.'"*fn20

B. Leave to Amend

Federal Rule of Civil Procedure 15(a)(2) provides that, other than amendments as a matter of course, "a party may amend [its pleading] only by leave of court or by written consent of the adverse party."*fn21 Although "[t]he Court should freely give leave when justice so requires,"*fn22 it is "within the sound discretion of the district court to grant or deny leave to amend."*fn23 When a motion to dismiss is granted, "[i]t is the usual practice . . . to allow leave to replead."*fn24 Where plaintiff inadequately pleads a claim and cannot offer additional substantive information to cure the deficient pleading, granting leave to replead is futile.*fn25


A. Section 1981 of the Civil Rights Act

Section 1981 prohibits intentional race discrimination affecting "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship."*fn26 "Such a contractual relationship need not already exist, because § 1981 protects the would-be contractor along with those who already have made contracts."*fn27 "To establish a claim under 42 U.S.C. § 1981(a), a plaintiff must show '(1) that [she] is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) that the discrimination concerned one or more of the activities enumerated in § 1981.'"*fn28 To survive a motion to dismiss, a complaint must "must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent."*fn29

B. Breach of Contract

To make out a breach of contract claim under New York law, a plaintiff must show "'(1) the existence of an agreement, (2) adequate performance of the contract by the plaintiff, (3) breach of contract by the defendant, and (4) damages.'"*fn30 A plaintiff alleging a breach of contract claim is required only to provide a defendant with a "short, plain notice" of the claims against it pursuant to Rule 8.*fn31 However, a breach of contract claim "that fails to allege facts sufficient to show that an enforceable contract existed between the parties is subject to dismissal."*fn32

Under New York law, "'before the power of law can be invoked to enforce a promise, it must be sufficiently certain and specific so that what was promised can be ascertained.'"*fn33

The doctrine of definiteness or certainty is well established in contract law. In short, it means that a court cannot enforce a contract unless it is able to determine what in fact the parties have agreed to . . . . [I]f an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract.*fn34

However, "'[b]efore rejecting an agreement as indefinite, a court must be satisfied that the agreement cannot be rendered reasonably certain by reference to an extrinsic standard that makes its meaning clear.'"*fn35

C. Agency

Under common law principles, the establishment of an agency relationship requires facts sufficient to demonstrate two factors: "(1) the principal's manifestation of intent to grant authority to the agent, and (2) agreement by the agent."*fn36 In addition, "the principal must maintain control over key aspects of the undertaking."*fn37 The control issue is not critical where a case concerns contractual liability - in that case, "if the agent had the authority to enter into the contract, the principal will be bound."*fn38 Additionally, "an agent who enters a contract on behalf of a disclosed principal does not become a party to the contract, and thus incurs no liability if the contract is breached."*fn39


A. Cain Has Properly Alleged that Hunter Is an Agent of S&S

Cain has alleged sufficient facts to demonstrate that Hunter is an agent of S&S. As this case concerns contractual liability, the control element is not significant. Cain pleads that Louise Burke of S&S stated that "she was responsible for Hunter" and that "Hunter had the authority from S&S to deny" consideration of Cain's book.*fn40 As such, Cain has adequately pled that S&S manifested intent to grant authority to Hunter to contract with Cain.*fn41 Cain has also pled that Hunter "decided on behalf of S&S" to market Cain's book to a smaller audience.*fn42 She also pleads that Hunter accepted the undertaking to contract with Hunter - Hunter offered Cain the advance "on behalf of S&S,"*fn43 and informed her later that S&S was having financial difficulties.*fn44 These facts demonstrate agreement by the agent, Hunter.*fn45 However, although Cain has sufficiently pled an agency relationship, she has not sufficiently pled any liability for breach of contract against Hunter, because Hunter functioned solely as a representative of S&S.*fn46

B. Cain Has Failed to Plead a Definite Promise

Cain has not pled sufficient facts to demonstrate a definite promise was made. The only well-pled facts in the Complaint describing a mutual agreement state the amount of the advance - fifty thousand dollars - and that the book would be published by S&S.*fn47 Hunter and Cain only discussed a tentative release date during their negotiations.*fn48 Defendants correctly argue that these facts fail to allege material contractual terms.*fn49 Cain counters only by restating the allegations.*fn50 This oral agreement is most notably missing a settled publication date.*fn51 As a result, Cain has failed to allege the existence of a contract, and has thus failed to sufficiently allege a breach of contract claim against the principal S&S.*fn52

C. Cain Has Sufficiently Pled a Section 1981 Claim

Cain has properly alleged a Section 1981 claim against Hunter and therefore, against S&S.*fn53 Cain pleads that she is the member of a minority*fn54 and that the alleged discrimination concerns the making of a contract.*fn55 Cain also properly pleads the second element of a section 1981 claim, discriminatory intent. At the outset, Cain's pleading is undermined by the allegation that Hunter was aware of Cain's race when she offered the fifty thousand dollar advance.*fn56

However, the decision to market the book to a network of African-American authors only is a circumstance that gives rise to an inference of discriminatory intent.*fn57 This circumstance combined with Hunter's statement, "S&S did not create their publishing company for black people,"*fn58 - the event alleged to constitute the discrimination - is sufficient to plead an inference of discriminatory intent.*fn59 As a result, Cain has stated a claim under Section 1981.

D. Attorney's Fees Are Denied Pursuant to Section 1927 of Title 28 of the United States Code Defendants asked the Court to grant them attorney's fees because they requested that Cain voluntarily dismiss her New York City Human Rights Law claim in a pre-motion letter and the claim was not voluntarily dismissed until the opposition was filed.*fn60 The remedy available under Section 1927 is extreme and reserved for counsel who multiply proceedings "unreasonably and vexatiously."*fn61

Defendants give no indication that Cain delayed in bad faith, and Cain ultimately did not continue to defend a frivolous claim. As such, defendants' request for attorney's fees is denied.*fn62

E. Leave to Amend

Leave to amend is granted with regard to the breach of contract claim as it is not insufficient as a matter of law. Plaintiff may be able to plead additional facts to support the claim.*fn63 However, if plaintiff is unable to do so, then she will be unable to file an amended complaint in compliance with her obligations under Rule 11.


For the foregoing reasons, the defendants' motions to dismiss are granted in part and denied in part. Any amended complaint must be filed within thirty (30) days of the date of this order. The Clerk of the Court is directed to close these motions (Docket Nos. 27 and 28 ). A conference is scheduled for August 13, 2012, at 4:30 p.m. in Courtroom 15C.


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