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finding that the "deductions included in the pleadings are insufficient to state a claim" as are "pleadings which require deductions in order to state all the elements."
Summary of this case from Cruz v. MarchettoOpinion
No. 99 Civ. 6098 (RWS).
January 11, 2001.
Di RIENZO WALLERSTEIN Attorney for Plaintiff By: JOSEPH Di RIENZO, ESQ. Of Counsel Fanwood, NJ.
JACKSON, LEWIS, SCHNITZLER KRUPMAN Attorney for Defendant Access Temporaries, Inc. By: PENNY ANN LIEBERMAN, ESQ. Of Counsel New York, NY.
JACKSON, LEWIS, SCHNITZLER KRUPMAN Attorney for Defendant Access Temporaries, Inc. By: TERRI L. FREEMAN, ESQ. Of Counsel Morristown, NJ.
BERGER STERN WEBB Attorney for Defendant Karen P. Druziako By: STEVEN A. BERGER, ESQ. JOHN R. CAHILL, ESQ. KENNETH J. APPLEBAUM, ESQ. Of Counsel New York, NY.
OPINION
Defendant Karen P. Druzakio ("Druzakio") has moved for judgment on the pleadings in this sexual harassment action pursuant to Rule 12(c), Fed.R.Civ.P. Plaintiff Matthew B. DelleFave ("DelleFave") opposes the motion and has moved for leave to amend the complaint if pleading deficiencies are found. The defendants oppose any amendments. Also pending are Druzakio's motion for sanctions, attorneys' fees and costs pursuant to Rule 11, Fed.R.Civ.P., and DelleFave's motion to compel depositions. For the reasons stated below, Druzakio's motion for judgment on the pleadings is granted, DelleFave is denied leave to replead, the motion to compel depositions is denied, and DelleFave is ordered to pay Druzakio's fees and costs.
The Parties
DelleFave, a resident of New Jersey. was an at-will employee of defendant Access Temporaries ("Access") until his termination, which gave rise to this suit.
Access is a New York corporation.
Steven Weinstein is a New York resident and an owner and employee of Access.
Michael Weinstein is a New York resident and the brother of Steven Weinstein. He is an owner and employee of Access.
Druzakio, a New Jersey resident, was Dellefave's immediate supervisor at Access.
Ronald Axelrod ("Axelrod") is a New York resident and an owner or employee of Access.
Prior Proceedings
The prior proceedings in this case are set forth in an opinion of this Court, familiarity with which is assumed. See DelleFave v. Access Temporaries. et al., No. 99 Civ. 6098, 2000 WL 45720 (S.D.N.Y. Jan. 19, 2000)
Background
The complaint alleges the following facts, which are deemed true for the purpose of this motion. DelleFave was hired by Access on or about May 12, 1997. On or about March 1, 1998, Druzakio made false statements about Dellefave including allegations that he was involved in a romantic and/or sexual relationship with a co-employee. DelleFave alleges that these statements injured his reputation. When DelleFave learned that these statements had been made, he complained to Druzakio's supervisor, defendant Ronald Axelrod ("Axelrod"). Axelrod and other defendants failed to investigate the complaint adequately, and republished the statements to other Access employees. DelleFave was terminated from his position at Access sometime thereafter, allegedly as a result of his complaint about Druzakio's false statements. Access' contractual relationship with its employees, including DelleFave, included a provision that Access would not permit employees to suffer any retaliation for reporting instances of unwelcome sexual harassment to management. DelleFave also alleges that both Druzakio's statements, and her superiors' failure to investigate them created a "hostile work environment." Pltf. Mem. at 6.
Since the dismissal of Count Ten in the prior opinion, and DelleFave's withdrawal of the state law invasion of privacy and federal Title VII and 28 U.S.C. § 1983 claims, the remaining counts in the complaint include state law defamation (Count 1), retaliatory discharge (Counts 4, 5), and sexual harassment claims (Count 6). See Pltf. Mem. at 3.
On September 20, 2000, Druzakio filed a motion for judgment on the pleadings pursuant to Rule 12(c), Fed.R.Civ.P. DelleFave filed a brief in opposition on October 4, 2000. Druzakio filed a reply memorandum on October 10, 2000, and the motion was deemed fully submitted upon oral argument on October 11, 2000.
On October 11, 2000, Druzakio moved for the imposition of sanctions, attorneys' fees and costs against DelleFave pursuant to Rule 11, Fed.R.Civ.P. By letter-motion of October 16, 2000, DelleFave moved to compel the production of witnesses for deposition. DelleFave filed a motion to amend the complaint on October 23, 2000. Each of these motions was briefed by Druzakio and by plaintiff, and the motions were deemed fully submitted after oral argument on November 8, 2000.
Discussion I. Legal Standard for Motion for Judgment on the Pleadings Pursuant to Rule 12(c)
Rule 12(c) provides for judgment on the pleadings "where material facts are undisputed and where a judgment on the merits is possible merely by considering the contents of the pleadings." Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988). The pleadings include the complaint, the answer and any written instruments attached as exhibits. See Fed.R.Civ.P. 10(c) ("A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.").
The Rule 12(c) standard is the same as that applied under Rule 12(b)(6). See Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). "Therefore, in reviewing a motion for a judgment on the pleadings, a court must assume the facts alleged by the plaintiff to be true and must liberally construe them in the light most favorable to the plaintiff."AD/SAT a Div. of Skylight, Inc. v. Associated Press, 885 F. Supp. 511, 514 (S.D.N.Y. 1995). A court should not dismiss the complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief." Sheppard, 18 F.3d at 150. In sum, "[t]he Court's task is simply to determine whether the plaintiff has a legal right to seek relief based on the allegations in the complaint." Henschke v. New York Hospital Cornell Medical Center, 821 F. Supp. 166, 168 (S.D.N.Y. 1993).
II. The Motion for Judgment on the Pleadings is Granted A. The Defamation Claim is Dismissed
Count One alleges that Druzakio "made false statements about [DelleFave] which would be offensive to a reasonable person and. which were damaging to [DelleFave's] reputation. These statements include allegations that plaintiff was involved in a romantic and/or sexual relationship with a co-employee." Compl. ¶ 17. Count One seeks damages against all named defendants for injuries sustained as a result of these allegedly defamatory statements.
The parties concur that New York law is applicable. The New York Court of Appeals has defined a defamatory statement as one that exposes an individual "to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or . . . induce[s] an evil opinion of one in the minds of right-thinking persons, and . . . deprives one of confidence and friendly intercourse in society." Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163, 177 (2d Cir. 2000) (quoting Kimmerle v. New York Evening Journal, 262 N.Y. 99, 186 N.E. 217, 218 (1933); citing Golub v. Enquirer/Star Group. Inc., 89 N.Y.2d 1074, 659 N.Y.S.2d 836, 681 N.E.2d 1282, 1283 (1997)).
Under New York law, the plaintiff must establish four elements in order to prevail on a defamation claim: (1) a false and defamatory statement of fact; (2) regarding the plaintiff; (3) published to a third party by the defendant; and (4) resulting in injury to the plaintiff. Weldy v. Piedmont Airlines Inc., 985 F.2d 57, 61 (2d Cir. 1993). In addition, the plaintiff must plead special damages unless the defamation falls into one of the categories of defamation per se. Druzakio contends that the complaint fails to allege either publication or special damages. DelleFave counters that he did plead publication, and that the statement was defamatory per se because it disparaged his office, profession or trade. See Celle, 209 F.3d at 179.
1. Publication
In support of his claim that he has met the publication requirement, DelleFave notes that the complaint alleges that the statements "were damaging to plaintiff's reputation" and that they were "republished by other employees of Access Temporaries." See Compl. ¶¶ 17, 20. However, the fact that an allegation may be deduced through logic based upon the premises alleged does not suffice as a "pleading" pursuant to the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 8(a)(2) (requiring a "short and plain statement of the claims showing that the pleader is entitled to relief."); Robinson v. N.Y.P.D. Personnel Employment Div., No. 99 Civ. 1654 (DLC), 1999 WL 1044361, *1 (S.D.N.Y. Nov. 18, 1999) (dismissing federal sexual harassment claim because plaintiff claiming discrimination failed to allege required element that he was a member of a protected class). Just as deductions included in the pleadings are insufficient to state a claim, see Miller v. HLT Check Exchange, 215 B.R. 970, 972 (E.D. Ky. 1997) ("Legal conclusions, deductions or opinions couched as factual allegations in a complaint are not given a presumption of truthfulness."); Bonton v. Archer Chrysler Plymouth, Inc., 889 F. Supp. 995, 1003 (S.D. Tex. 1995) (stating that "conclusory allegations and unwarranted deductions of fact are not admitted as true by a motion to dismiss"), pleadings which require deductions in order to state all the elements are also insufficient as a matter of law. See Curti v. Girocredit Bank, No. 93 Civ. 1782, 1994 WL 48835 (S.D.N Y Feb. 14, 1994) (dismissing complaint for failure to plead that defendant published statement to a third party, despite allegation that defendant's agents published statement)
Requiring a plaintiff to allege publication as such, rather than republication by a third party or damage to reputation, merely holds plaintiff to the standard pleading rules, rather than requiring him to "set out in detail the facts upon which he bases his claim," Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L. Ed.2d 80 (1957), as DelleFave alleges. Although DelleFave did allege that the other defendants published the allegedly defamatory statement, DelleFave has failed to allege publication by Druzakio.
2. Plaintiff's Defamation Claim Requires the Pleading of Special Damages
Special damages consist of "the loss of something having economic or pecuniary value which must flow directly from the injury to reputation caused by the defamation," as distinguished from actual damages, which include additional harms such as impairment of reputation and personal humiliation. Celle, 209 F.3d at 179 (citations omitted). Lost income does not qualify as special damages. See Aronson v. Wiersma, 65 1'T.Y.2d 592, 595, 493 N.Y.S.2d 1006, 483 N.E.2d 1138 (1985). Injury is assumed for statements that are slanderous per se, so a plaintiff could recover at least nominal damages even without pleading actual damages. Id. In order to satisfy the special damages requirement, "a plaintiff must set forth an itemized account of her losses; round figures or a general allegation of a dollar amount as special damages will not suffice." Nunez v. A-T Fin. Info. Inc., 957 F. Supp. 438, 441 (S.D.N.Y. 1997). Absent this pleading, a complaint will be dismissed. DelleFave has not pleaded special damages.
In Celle v. Filipino Reporter Enterprises, Inc., the Second Circuit recently addressed the question of which statements qualify as defamation per se and therefore do not require a complaint to plead special damages. 209 F.3d at 179-80. As stated above, one general rule is that a statement "which tends to disparage a person in the way of his office, profession or trade is defamatory per se and does not require proof of special damages." Id., 209 F.3d at 179. However, simply because a statement is made at a workplace by a supervisor or co-worker regarding an employee does not place it within the realm of statements that disparage the employee's work and therefore qualify as defamatory per se. The defamation per se rule requires that the statement relate to the quality of the employee's work or his competence or fitness for the job. A leading treatise describes the quintessential examples of employment-related defamation per se as follows:
[I]t is actionable without proof of damage to say of a physician that he is a butcher . . ., of an attorney that he is a shyster, or a school teacher that he has been guilty of improper conduct as to his pupils, of a clergyman that he is the subject of scandalous rumors, of a chauffeur that he is habitually drinking, of a merchant that his credit is bad or that he sells adulterated goods, of a public officer that he has accepted a bribe or has used his office for corrupt purposes . . . — since these things discredit [one] in his chosen calling.
W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 112, at 791 (5th ed. 1984); see also Liberman v. Gelstein, 80 N.Y.2d 429, 436, 590 N.Y.S.2d 857, 861 (1992) (stating that this exception is "limited to defamation of a kind incompatible with the proper conduct of the business, trade or profession or office itself. The statement must be made with a reference to a matter of significance and importance for that purpose, rather than a more general reflection upon the plaintiff's character or qualities."). A statement alleging that a person is in a consensual relationship with a co-worker at a temporary employee placement company — unlike such a statement regarding a priest or a schoolteacher in the example cited above — has no bearing on the employee's fitness to accomplish his function. The statement alleged in the complaint is not defamation per se.
An alternate ground for slander per se is the implication that the plaintiff committed a crime. Under New York law, the inference that a married person has had a sexual relationship with a person other than his spouse implies adultery, which, although typically unenforced, is still an indictable offense. See N.Y.P.L. § 255.17 (McKinney 1999); Meyer v. Somlo, 105 A.D.2d 1007, 1008, 482 N.Y.S.2d 156, 157 (N.Y. A.D. 198 4). However, statements alleging that an unmarried person was in a sexual affair do not qualify as slander per se under this rule. As the complaint does not allege that DelleFave is married, he has failed to allege a claim for defamation per se under this theory.
One other potentially relevant common law ground for slander per Se, which in twenty-first century Manhattan amounts to little more than an historical oddity, is imputation of homosexuality. This exception to the requirement of pleading special damages, along with those of employment, crime, loathsome disease, and imputation of chastity to a woman, "were established apparently for no other reason than a recognition that by their nature the accusations encompassed therein would be likely to cause material damage." Matherson v. Marcello, 100 A.D.2d 233, 236, 473 N.Y.S.2d 998, 1001 (N.Y. A.D. 1984). Social acceptance of personal sexual choices has expanded significantly since the origination of these common law rules, and the viability of this exception is now in question. See, e.g., Haves v. Smith, 832 P.2d 1022, 1025 (Col. App. 1992), cert. denied, (1992). In fact, the Restatement of Torts reports a trend toward limiting the exceptions to statements that are defamatory on their face without resort to extrinsic evidence, and expressly leaves open whether homosexuality falls into this category. Restatement (Second) of Torts § 571-574 (1977); see Gertz v. Robert Welch. Inc., 418 U.S. 323, 94 S.Ct. 2997 (1974) (disfavoring presumed damages and per se defamation, n). However, as DelleFave has failed to allege the gender of the coworker he was reputed to have been involved with, he has failed to raise this exception and it need not be addressed further here.
The pleadings do not establish a claim for defamation under New York law. See Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 763 (2d Cir. 1990) (upholding dismissal of slander claim for failure to plead publication, special damages, and failing to plead the actual words spoken). Druzakio's motion for judgment on the pleadings of Count One is granted, and Count One is dismissed pursuant to Rule 12(c).
B. The Retaliatory Discharge and Sexual Harassment Claims Are Dismissed
Druzakio, construing Counts 4 and 5 as alleging that she violated the company's sexual harassment policy both intentional and negligently, contends that these counts must be dismissed (1) for failing to allege wrongful conduct on the part of Druzakio; (2) failing to state a claim; and (3) because they are conclusory and do not set forth their factual basis. DelleFave argues that these Counts adequately state claims against Druzakio for retaliatory discharge, aiding and abetting discrimination, and tortious interference with contract. Pltf. Mem. at 10-13.
As an initial matter, the vast differences between the parties' interpretations of Counts 4 and 5 are clear proof that DelleFave has failed to give fair notice through a "short and plain statement of the claim," as required by Rule 8(a)(2), Fed.R.Civ.P. See also Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L. Ed.2d 80 (1957).
Reference to the substance of Counts 4 and 5 enforces this finding. Count Four provides in relevant part:
2. Defendants Access Temporaries, Inc., Steven Weinstein, Michael Weinstein, Druzakio, Axelrod, John Does 1-100, Jane Roes 1-100, and Peter Poes 1-100 intentionally and maliciously violated Access Temporaries [sic] policy against sexual harassment by retaliating in various manners against plaintiff for reporting sexual harassment. This retaliatory conduct included, but was not limited to, terminating plaintiff.
3. As a result of this intentional and malicious conduct, plaintiff has suffered injuries, including, but not limited to, lost wages and emotional distress.
Compl. Count IV at ¶¶ 2-3. Count Five duplicates Count Four except that it alleges negligence rather than malicious retaliation. Compl. Count V at ¶ 3. The complaint does not allege which legal provisions were violated by this alleged conduct.
1. Discrimination-Related Claims
A claim for retaliatory discharge under New York's Human Rights Law, N.Y. Exec. Law § 296 (McKinney 1999), requires the same standard of proof as a claim brought under federal law, 42 U.S.C. § 2000e et seq. (Title VII of the Civil Rights Act of 1964 ("Title VII")). See Ouinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998). In order to state a claim for retaliatory discharge, a plaintiff must show: (1) participation in a protected activity known to the defendant; (2) an adverse employment action; and (3) a causal connection between the protected activity and the adverse employment action. See Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995). New York law also provides a cause of action against those who aid or abet discrimination that is prohibited by the Human Rights Law. N.Y. Exec. Law § 296(6) (McKinney 1999)
This law provides:
(1) It shall be an unlawful discriminatory practice:
(a) For an employer or licensing agency, because of the . . . sex . . . of any individual, to . . . discharge from employment such individual. . . . (e) For any employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article.
(6) It shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so. (7) It shall be an unlawful discriminatory practice for any person engaged in any activity to which this section applies to retaliate or discriminate against any person because . . . he or she has filed a complaint, testified or assisted in any proceeding under this article. N.Y. Exec. Law § 296 (McKinney 1999).
By referring to Access Temporaries' policy against sexual harassment, DelleFave apparently seeks to show that his complaint regarding Druzakio's statement was "protected activity," which satisfies the first element of retaliatory discharge. See Pltf. Mem. at 11-12. However, the policy is simply a codification of the New York Human Rights law, which renders it unlawful for an employer to discriminate against or discharge an employee due to the employee's sex. N.Y. Exec. Law § 296(1), (2) (McKinney 1999); see Access Policy Against Sexual Harassment, Applebaum Decl. Ex. I at Ex. B ("It is Access' policy to prohibit, harassment of any employee . . . on the basis of sex or gender. . . [H]arassment also can include unwelcome joking, teasing or other conduct directed toward a person because of his or her gender which is sufficiently or pervasive to create an unprofessional and hostile working environment.")
Therefore, in order to decide whether DelleFave may bring a claim for retaliatory discharge for reporting sexual harassment and aiding and abetting discrimination in Counts 4 and 5, the sexual harassment/hostile work environment claim in Count 6 must first be addressed. Courts "have never held that workplace harassment . . is automatically discrimination because of sex merely because the words used have sexual content or connotations." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Rather, a plaintiff must show a distinct adverse impact on him as a result of his sex. Id., 523 U.S. at 81. Therefore, if the statement was not on the basis of DelleFave's sex, it does not state a prima facie case for sexual harassment, and necessarily cannot support any of the remaining discrimination-based claims as a matter of law.
Count 6 of the complaint states that Druzakio "engaged in discriminatory conduct based on plaintiff's gender" that created "an intimidating, hostile, or offensive working environment. . ." Compl. Count ¶ at 2. Under both Title VII and New York's Human Rights Law, a hostile work environment claim is stated if a plaintiff shows: (i) that the harassment was "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," Perry v. Ethan Allan, Inc., 115 F.3d 143, 149 (2d Cir. 1997) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)); and (ii) "that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Perry, 115 F.3d at 149. Again, in order to make out a hostile work environment claim, a plaintiff must allege unlawful discrimination on the basis of sex. See Oncale, 523 U.S. at 80-81 (noting that plaintiff must always prove that the conduct at issue actually constituted discrimination "because of . . . sex"). Moreover, even discriminatory conduct may not rise to the level of hostile work environment sexual harassment if limited to one or two instances and not particularly offensive. Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000).
As discussed above, mere conclusory allegations summarizing the elements of a claim do not meet the pleading requirements of the Federal Rules. See, e.g., Invamed v. Barr Labs, Inc., 22 F. Supp.2d 210, 216 (S.D.N.Y. 1998) ("the Federal Rules do not permit conclusory statements to substitute for minimally sufficient factual allegations.") (internal quotation marks and citation omitted). The only factual allegation relevant to this inquiry is the March 1, 1998 statement by Druzakio cited above, claiming that DelleFave was having a "romantic and/or sexual relationship with a co-employee," Compl. ¶ 17, and that other defendants subsequently republished that statement, Compl. ¶ 20. On their face, these allegations do not state the presence of a pervasively hostile work environment. See Whidbee, 223 F.3d at 69. However, as noted above, infrequent incidents may create a hostile work environment if they are sufficiently severe and offensive. See Carrero v. New York City Housing Auth., 890 F.2d 569, 578 (2d Cir. 1989)
The Honorable Leonard B. Sand recently noted that "certain sexual references will not sustain a charge of sexual harassment because they are not peculiar to one gender." Nash v. New York State Executive Dep., Div. of Parole, 96 Civ. 8634 (LBS), 1999 WL 959366, *9 (S.D.N.Y. Oct. 20, 1999). In Nash the court made an exception to that evolving rule in the Title VII case of a parole officer whose co-workers spread rumors that she had been a prostitute and was currently working as a madam, on the grounds that the gossip in that case was particular to the plaintiff's female gender. Id.
Here, in contrast, nothing about the alleged statement relates to DelleFave's gender. Even if embarrassing or even humiliating, a statement that an employee is having a consensual relationship with a co-worker cannot be construed as discrimination or harassment on the basis of sex absent some additional showing, such as that the plaintiff was singled out for such comments because of his or her gender, McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282 n. 10, 96 S.Ct. 2574, 2580 n. 10, 49 L.Ed.2d 493 (1976). See Pasqua v. Metro. Life Ins. Co., 101 F.3d 514 (7th Cir. 1996) ("There is not even a hint in the record that any rumors or vulgar statements concerning an illicit relationship between [the plaintiff] and [another employee] were made because [plaintiff] was a male."); Snoke v. Staff Leasing, Inc., 43 F. Supp.2d 1317, 1327 (M.D. Fla. 1998) (holding that "rumors" of affair between co-workers "do not show harassment 'because of' sex"); Huffman v. City of Prairie Village, 980 F. Supp. 1192, 1197-98 (D. Kan. 1997) (female police dispatcher's claim that false allegations of rumors of a sexual relationship with a male sergeant had resulted in a hostile work environment, were not based on her sex since the offensive comments and rumors were directed at both the female plaintiff and male sergeant).
Rumors have been found to be on the basis of sex where there was proof that the rumor involved implications that the plaintiff's involvement with a superior who was of a different gender resulted in the plaintiff's advancement at work. See Spain v. Gallegos, 26 F.3d 439, 448 (3d Cir. 1994) (noting that rumors of sexual relationship between superior and subordinate could state prima facie case for sexual harassment where one subject of rumor was male and the other female); Jew v. University of Iowa, 749 F. Supp. 946, 958 (S.D. Iowa 1990) (same analysis regarding rumors of relationship between male superior and female subordinate) However, DelleFave has alleged that the statement in this case pertained to a "co-employee" rather than a person of superior or subordinate rank, so he cannot support his claim on this theory as a matter of law.
On the pleadings, DelleFave has failed to allege facts which could lead to relief under a theory of sexual harassment, aiding and abetting sexual harassment, or discrimination under New York's Human Rights Law. Judgment on Count 6 will therefore be entered against DelleFave pursuant to Rule 12(c).
2. Tortious Interference with Contract
The remaining theory on which DelleFave relies in support of Counts 4 and 5 is tortious interference with contract. In order to prevail on his claim that Druzakia tortiously interfered with his employment contract with Access, DelleFave must show "(1) the existence of a valid contract between himself and a third party, (2) defendant's knowledge of that contract, (3) defendant's intentional inducement of the third party to breach that contract, and (4) damages." Murray v. Sysco Corp., 710 N.Y.S.2d 179, 181 (N.Y. A.D. 2000). Where, as here, the employment contract between a plaintiff and a third party is terminable at will, plaintiff must also show that defendant employed "wrongful means, such as fraud, misrepresentation or threats to effect the termination of employment." Id. (citing Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 194, 428 N.Y.S.2d 628, 406 N.E.2d 445 (1980).
Because tortious interference with contract is an intent crime, it cannot form the basis for the negligence claim asserted in Count 5. As none of the legal theories advanced in support of Count 5 is sufficient in light of the facts alleged, Count 5 is dismissed.
Count 4 must be dismissed to the extent that it purports to bring a claim against defendants other than Druzakio who were parties to the contract with DelleFave, rather than outside third parties who could have induced a breach of it as a matter of law.
In support of the third element of tortious interference with contract, DelleFave argues that the complaint alleges that he "had an employment contract in accordance with the terms of his employee handbook, and that defendant violated that policy, then induced his employer to deviate from that policy, . . . [which] was a breach of contract wrongfully induced by [Druzakio]." Pltf. Mem. at 12. However, Count Four alleges that Druzakio herself "intentionally and maliciously violated Access Temporaries (sic] policy by . . . terminating plaintiff," and fails to allege that she induced a third party to do so. Count Four ¶ 2. Moreover, such a claim is inconsistent with a tortious interference with contract claim and with Counts One and Two, which allege that every defendant except Druzakio was responsible for terminating DelleFave. See Compl. Count Two ¶ 3 ("Plaintiff's wrongful termination from Access Temporaries, Inc. was conducted by, through, or at the direction of defendants, Steven Weinstein, Michael Weinstein, Axelrod, John Does 1-100, Jane Roes 1-100, and/or Peter Poes 1-100.").
To the extent that the complaint alleges that the only contract with Access was the Policy, the Policy itself states that "[n]one of the information contained within this handbook should be considered contractual in nature." Applebaum Decl., Ex. F.
It is appropriate to dismiss a claim that is both unsupported and contradicted by other claims in the complaint. See Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir.) (affirming dismissal of claim where plaintiff "made wholly conclusory and inconsistent allegations"), cert. denied, 510 U.S. 902, 114 S.Ct. 278 (1993). As the facts alleged in the Count Five do not entitle DelleFave to relief as a matter of law, the motion for judgment on the pleadings of Count Five is granted pursuant to Rule 12(c).
III. The Motion to Amend is Denied
DelleFave seeks leave to amend the complaint to cure the deficiencies cited above. Druzakio opposes the motion on the grounds that it is unduly delayed, prejudicial, futile, and fails to provide the foundation for the exercise federal jurisdiction.
Rule 15(a) provides that a party may amend a pleading only by leave of the court if more than 20 days have passed after the pleading is served, and that leave shall be "freely given if justice so requires." Fed.R.Civ.P. 15(a). The Supreme Court has, however, interpreted Rule 15 to permit such amendments only when (1) the party seeking the amendment has not unduly delayed, (2) when the party is not acting in bad faith or with a dilatory motive, (3) when the opposing party will not be unduly prejudiced by the amendment, and (4) when the amendment is not futile. See Chan v. Reno, 916 F. Supp. 1289, 1302 (S.D.N.Y. 1996) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962)).
Leave to amend is not appropriate where, as here, the motion is filed solely in anticipation of an adverse ruling. See Berns v. EMI Music Publishing. Inc., No. 95 Civ. 8130 (KTD), 1999 WL 1029711, *5 (S.D.N Y Nov. 12, 1999); Schnepf v. Siegel, No. 98 Civ. 1255 (SHS) (AJP), 1998 WL 474132, *1 (S.D.N.Y. July 11, 1998); PI. Inc. v. Quality Products. Inc., 907 F. Supp. 752, 764 (S.D.N Y 1995); Bymoen v. Herzog, Heine, Geduld. Inc., No. 88 Civ. 1796, 199 WL 95387, *1 (S.D.N.Y. May 28, 1991); Reisner v. General Motors Corp., 511A F. Supp. 1167, 1172 (S.D.N.Y. 1981),aff'd, 671 F.2d 91 (2d Cir.), cert. denied, 459 U.S. 858 (1982).
The complaint was originally filed in the New Jersey Superior Court on December 31, 1998. DelleFave blames the delay in filing the motion to amend on the fact that Druzakio only recently moved for judgment on the pleadings. Rather than excusing DelleFave's delay, however, this argument merely confirms the dilatory motive for his motion to amend, as DelleFave has advanced no other reason for the delay. See Berns, 1999 WL 1029711, at *5 (characterizing motion to amend filed in anticipation of adverse ruling to have dilatory motive); Dais v. Lane Bryant. Inc., No. 97 Civ. 2011, 2000 WL 145755, *2 (S.D.N.Y. Feb. 8, 2000) ("if, as here, the plaintiff offers no excuse for the delay, denial of leave to amend is appropriate). In addition, Rule 15 is not the appropriate mechanism by which to add previously known facts to a poorly drafted complaint, see Priestly v. American Airlines. Inc., No. 89 Civ. 8265, 1991 WL 64459, *1 (S.D.N.Y. Apr. 12, 1991).
Finally, it would be futile to amend the complaint as proposed, most importantly because the proposed first amended complaint fails to include any jurisdictional statement or raise any, grounds for subject matter jurisdiction, and would be subject to a successful motion to dismiss on jurisdictional grounds. See Chan, 916 F. Supp. at 1308. Although this Court exercised supplemental jurisdiction over the state law claims remaining in the complaint after the federal claims were withdrawn for the purpose of the Rule 12(c) motion, see 28 U.S.C. § 1367(c)(3), it has no original subject matter jurisdiction over the exclusively state law claims in the proposed amended complaint because neither of the components of diversity jurisdiction has been met or pled. See 28 U.S.C. § 1332 (requiring complete diversity of citizenship and that the complaint allege that at least $75,000 is at issue). IV. The Motion to Compel1 Production of Witnesses for Depositions is Denied
The proposed amended complaint alleges that both DelleFave and defendant Druzakio reside in New Jersey, Compl. ¶¶ 1, 5, and fails to allege an amount in controversy. Count One alleges, only that DelleFave lost wages in the amount of $2,000 plus unspecified commissions. Compl. Count One ¶ 20.
In light of the above rulings, DelleFave's motion to compel production of witnesses for depositions is denied as moot.
V. Sanctions
Druzakio has moved for sanctions on the grounds that the complaint was baseless as to her, and that DelleFave persisted in pursuing the claims despite their lack of merit, at substantial time and expense to Druzakio. The decision of whether to award sanctions pursuant to Rule 11 is subject to the Court's discretion. See Margo v. Weiss, 213 F.3d 55, 64 (2d Cir. 2000); Schlaifer Nance Co. v. Estate of Warhol, 194 F.3d 323, 333 (2d Cir. 1999) "[S]anctions imposed for violations of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated." Fed.R.Civ.P. 11(c)(2). In essence, all of the claims against Druzakio derive from her statement regarding DelleFave's alleged affair with a co-worker. Viewed charitably, DelleFave made a barely non-frivolous argument that Druzakio had defamed him. Yet a review of relevant case law would have revealed that such a claim is not on the basis of sex, and therefore cannot support a discrimination claim premised upon sexual harassment, or any derivative retaliation or tortious interference with contract claim. These claims — to the extent that they were raised in the complaint — had no basis in law or fact. See Securities Indus. Ass'n v. Clarke, 898 F.2d 318, 321 (2d Cir. 1990) ("A distinction must be drawn between a position which is merely losing, and one which is both losing and sanctionable.") (internal quotations omitted).
In the exercise of this Court's discretion pursuant to Rule 11, Druzakio shall be awarded attorneys' fees and costs for having to respond to claims that were unsupported by law or fact. See Shafii v. British Airways. PLC, 83 F.3d 566, 570 (2d Cir. 1996) (stating that sanctions are appropriate where "there is no chance for, success" under existing precedent); Global Liasons, Inc. v. Black Diaspora Communications, Ltd., No. 97 Civ. 8247 (JSR), 1999 WL 595647, *2 (S.D.N.Y. Aug. 9, 1999) (finding award of attorneys' fees and costs appropriate to satisfy purpose of Rule 11 to deter future frivolous filings).
Conclusion
For the foregoing reasons, the motion for judgment on the pleadings is granted, and DelleFave's motions for leave to replead and to compel the production of witnesses for deposition are denied. The complaint is dismissed with prejudice. Druzakio is awarded attorneys' fees, costs, and expenses pursuant to Rule 11.
Submit accounting of actual attorney's fees and costs, as well as judgment, on notice.
It is so ordered.