Golden v Monster Worldwide

[*1] Golden v Monster Worldwide 2009 NY Slip Op 52622(U) [26 Misc 3d 1202(A)] Decided on April 29, 2009 Supreme Court, New York County Tolub, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 29, 2009
Supreme Court, New York County

Beth Golden, Plaintiff,

against

Monster Worldwide, Defendant.



106133/08

Walter B. Tolub, J.

This action arises out of an alleged employment agreement which plaintiff claims was created, but not honored. By this motion, defendant moves to dismiss the instant complaint pursuant to CPLR 3211(a)(1). Alternatively, defendant seeks an order dismissing plaintiff's complaint pursuant to CPLR 3013 based on a failure to plead her claim of breach of contract with the requisite particularity.

Background

Plaintiff is an attorney. In October of 2006, plaintiff was contacted by a recruiter from the firm of Heidrick & Struggles who notified her that defendant Monster Worldwide, Inc. ("defendant") was searching for a candidate to serve as its General Counsel. Defendant's prior General Counsel, Myron F. Olesnyckyj, had been released from his duties following federal charges of participation in securities fraud.[FN1]

Plaintiff and defendant ultimately began discussions which resulted in the exchange of multiple drafts of an employment agreement (Notice of Motion, Kornrich Affidavit, Exhibits B-D). No final agreement however, was ever reached or signed, and on January 24, 2007, defendant decided not to employ plaintiff. Plaintiff commenced the instant action for breach of contract shortly thereafter, claiming that the parties had reached a "meeting of the minds" on all of the material terms of the employment contract on January 9, 2007 (Complaint ¶ 5). The brief two-page complaint, in relevant part, reads as follows:

5. On or about January 9, 2007, there was a meeting of the minds of all of the material terms of an employment contract for Ms. Golden to become the General Counsel of Monster, and Monster [*2]confirmed that it had hired Ms. Golden.

6. Pursuant to the employment contract between Ms. Golden and Monster, if Monster terminated the contract without cause, then it would pay her, among other things, one year's base salary as severance.

7. Ms. Golden's start date was February 8, 2007.

8. On or about January 24, 2007, Monster unilaterally decided not to employ Ms. Golden and terminated the contract without cause.

9. Despite a demand by Ms. Golden, Monster has refused to pay among, other things, the severance payments pursuant to the contract. [***]

11. As a result of the facts set forth above, Monster has breached its contract with Ms. Golden, causing her damages.

12. As a result of Monster's breach of contract, Monster is liable to Ms. Golden for damages in an amount to be determined at trial, but in no event less than $450,000.

(Complaint). This pre-answer motion to dismiss followed.

Discussion

As a general rule, the only inquiry required of the court on a motion to dismiss is whether plaintiffs' facts, as alleged,

"fit within any cognizable legal theory" upon which they may succeed (Leon v. Martinez, 84 NY2d 83, 87-88 [1994]; Campaign For Fiscal Equity, Inc. v. State of New York, 86 NY2d 307, 318 [1995]. See generally, Barr, Altman, Lipshie, and Gerstman; New York Civil Practice Before Trial [James Publishing 2008] §36.01 et seq.). The caveat, however, is that when a motion to dismiss is predicated upon the claimed existence of documentary evidence, the court must look to the submitted documentation, and determine if the evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (Leon, 84 NY2d 83, 88; Goshen v. Mutual Life Insurance Co. of New York, 98 NY2d 314 [2002]).

Documentary evidence, contrary to plaintiff's assertions, is not solely limited to "legal documents" (see, David A. Siegel, New York Practice Commentary 2004 Update C:3211:10 [Westlaw 2009]). Correspondence generated between the parties may be relied upon (id.), and, it has been further suggested that "[a]s long as the documents definitively dispose of the claim, without extrapolation or additional facts, there is no limit on the types of documents that may be submitted" (Barr, Altman, Lipshie, and Gerstman; New York Civil Practice Before Trial [James Publishing [*3]2008] §36.482 (emphasis added).

In support of the instant motion, defendant has submitted three emails and two draft versions of an employment agreement that was never executed by either of the parties. The first of the documents submitted by defendant, a December 1, 2006 e-mail from Lori Erickson, defendant's Vice President of Human Resources,[FN2] supports the claim that prior to December of 2006 plaintiff met and interviewed with one or more of defendant's representatives for the position of General Counsel at Monster. (Notice of Motion, Kornrich Affidavit, Exhibit B). The December 2006 email, which contains a draft of an employment agreement and contemplated a December 2006 start date, further states that the draft employment agreement required final review by the compensation committee before it was made final (id.).

It is apparent from the documentation provided by defendant that by January 2007, the parties were still negotiating terms of the prospective employment agreement. A second draft of an agreement was sent by Ms. Erickson to plaintiff on January 2, 2007 (id. Exhibit C). The second draft includes a provision pertaining to the granting of restricted stock units and contains changes in language pertaining to what was to constitute "Cause" with respect to the defendant's ability to terminate the agreement (id.). Neither the e-mail nor the second draft of the employment contain any indication of a proposed starting date for the position.

Defendants additionally submit an e-mail from Ms. Erickson dated January 11, 2007[FN3] which indicates that the parties were [*4]still negotiating language pertaining to the definition of "Cause" within the employment agreement (id. Exhibit D).[FN4] This [*5]email, which clearly required plaintiff's response, was sent two days after plaintiff claims the parties attained a "meeting of the minds" on all of the material terms of the contract (id., Exhibit D).

Case law dictates that in order to demonstrate the existence of an enforceable agreement, a plaintiff must first establish the necessary elements of a valid contract: an offer, acceptance of the offer, consideration, mutual assent and an intent to be bound. Establishment of the "meeting of the minds requirement" requires agreement on all of the essential terms of the contract (Kowalchuck v. Stroup, 873 NYS2d 43, 46 {61 AD3d 118} [1st Dept 2009]). What is not required however, is a formal signature. If objective evidence demonstrates that the parties intended to be bound by the agreement, the agreement may be enforced - even if unsigned (Flores v. Lower East Side Serv. Center, Inc., 4 NY3d 363, 369 [2005]).

It is undisputed that a "formal" final contract was never executed between the parties. However, the evidence and facts as set forth by the parties require inquiry into the issue of whether or not the parties ever attained a "meeting of the minds" on all of the essential terms of the contract. More particularly, it requires consideration of the question as to whether or not the provisions concerning what constituted termination "for cause" would have been deemed material terms of the contract. This court believes that the answer to this question, is yes.

When plaintiff was first approached by her recruiter with the prospect of the position with Monster, defendant was looking to hire new General Counsel not because prior counsel had left for a new job, but because he had been charged with, and plead guilty to, securities fraud. Under these circumstances, it is highly unlikely that defendant would have considered provisions of the contract which concerned and ultimately defined grounds for "for cause" job termination, as immaterial. In fact, the documentary evidence supplied by defendant, which contains not one, but three varied contractual provisions on this issue, contradicts plaintiff's claims that the language was an "immaterial" component of the agreement. The same evidence contradicts plaintiff's claim that there had been a meeting of the minds on all material terms of the employment agreement. The result, is that this court is no longer required to consider plaintiff's assertions to the contrary as true (Biondi v. Beekman Hill House Apartment Corp, 257 AD2d 76, 81 [1st Dept 1999]).

Even if the documentary evidence failed to contradict plaintiff's claims with respect to whether the parties had [*6]attained a "meeting of the minds" on all of the material terms of the agreement, there is the question as to whether a contract which includes a restricted stock provision may be enforced in the absence of formal signature and approval. This question must be answered in the negative. The securities laws governing the issuance of restricted stock require the approval of a compensation committee (17 C.F.R. 240.16b-3(d)). Defendant asserts that the provision was never approved by the compensation committee. Plaintiff's vague affirmation in opposition offers nothing to contradict this claim.

In fact, plaintiff's affirmation in opposition holds little value at all. Not only does plaintiff fail to include or reference a letter or e-mail communication in which she states she accepted the position with defendant, her affidavit, mirroring the instant complaint, contains only vague assertions about any of her communications with defendant. For example, plaintiff claims that she spoke with an unnamed representative of Monster in the second week of December 2006 who told her that the Board of Directors wanted to change her start date from December until February (Affidavit of Beth Golden ¶ 1). Plaintiff further claims that as a result of this conversation with the unidentified representative, she understood that defendant's Compensation Committee had met and approved the terms of her employment (id. ¶ 2). None of these communications however, appear to have been reduced to writing, and as such, amount to nothing more than conclusuory allegations which fail to refute defendant's submitted evidence.

This brings us to the issue of plaintiff's complaint, which as previously noted, is sparsely drafted.

The provisions of the CPLR governing pleadings dictate some modicum of specificity so that the court and parties are afforded notice of the events giving rise to the cause of action and the cause of action itself (CPLR 3013). "When a claim is founded upon a contract, the relevant portions of the contract should be set forth in the complaint" (Bomser v. Moyle, 89 AD2d 202, 203 [1st Dept 1982]).

Plaintiff's complaint is neither as specific as it should be nor does it reference the relevant portions of the contract claimed to have been breached. Under many circumstances, this lack of specificity is not fatal, and may often be cured by a simple direction to amend the complaint. However, since the documentary evidence presented supports defendant's claim that the employment agreement required the pre-approval of the compensation committee prior to its execution, and further suggests that the ultimate contract required formal execution, and not merely a "meeting of the minds" on all essential terms, success on an amended claim for breach of contract would be unlikely. Accordingly, it is [*7]

ORDERED that defendant's motion to dismiss is granted and the within complaint is dismissed.

This memorandum opinion constitutes the decision and order of the Court.

Dated:

____________________________

HON. WALTER B. TOLUB, J.S.C. Footnotes

Footnote 1: In fact, Mr. Olesnyckyj pled guilty to the charges (Notice of Motion, Exhibit A).

Footnote 2: The text of the December 1, 2006 e-mail reads as follows:

Subject: Employment contract and other information

Beth,

We are very excited about the prospect of your joining the Monster Team. I have attached a draft of your employment contract for you review. As discussed, please be aware that this will need final review by the compensation committee before it is final. We anticipate that you will start the final week of December.

(Notice of Motion, Kornrich Affidavit, Exhibit B).

Footnote 3: The text of the January 11, 2007 email reads as follows:

Beth,

Evan has confirmed we can change the language in the contract to (changes in caps and blue). Please give me a call to confirm if this works for you.

thanks,

Lori

(id., Exhibit D).

Footnote 4: The evolution of language used may be seen when comparing the provisions of the three drafted sections, which in relevant part read as follows (differences are underlined):

December 2006 draft agreement:

3. [***] "Cause shall mean the occurrence of any one or more of the following events: (i) your willful failure or gross negligence in performance of your duties or compliance with the reasonable directions of your supervisor(s) that remains unremedied for a period of twenty (20) days after your supervisor has given written notice specifying in reasonable detail your failure to perform such duties or comply with such directions; (ii) your failure to comply with a material employment policy of the Company that remains unremedied for a period of twenty [20] days after your supervisor has given written notice to you specifying in reasonable detail your failure to comply; or (iii) your commission of (a) a felony, (b) criminal dishonesty, or (c) fraud. (Notice of Motion, Kornrich Affidavit, Exhibit B).

January 2, 2007 draft agreement

3. [***] "Cause shall mean the occurrence of any one or more of the following events: (i) your willful failure or gross negligence in performance of your duties or compliance with the reasonable directions of the CEO or the Board that remains not remedied for a period of twenty (20) days after the CEO or the Board has given written notice specifying in reasonable detail your failure to perform such duties or comply with such directions; (ii) your failure to comply with a material employment policy of the Company that remains unremedied for a period of twenty [20] days after the CEO or the Board has given written notice to you specifying in reasonable detail your failure to comply; or (iii) your commission of (a) a felony, (b) criminal dishonesty, or (c) fraud. (Id. Exhibit C).

January 11, 2007 e-mail proposed changes:

your failure to comply with a material employment policy of the Company that remains not remedied for a period of twenty (20) days after the CEO or the Board has given written notice to you specifying in reasonable detail your failure to comply; or (iii) your conviction of a felony or your commission of a fraud that results in material detriment to the Company or its reputation. (Id. Exhibit D).