Klein v. J.P.Morgan Chase, No. 6:2009cv06594 - Document 8 (W.D.N.Y. 2010)
Court Description: DECISION AND ORDER granting 3 Motion to Dismiss. Oral argument of this motion, which had been scheduled for 7/22/10,is cancelled as moot.Signed by Hon. Charles J. Siragusa on 6/1/10. (KAP)
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UNITED STATES DISTRICT COURT W ESTERN DISTRICT OF NEW YORK DEAN A. KLEIN, Plaintiff, DECISION AND ORDER 09-CV-6594 CJS -vJ.P. MORGAN CHASE, Defendant. INTRODUCTION This is an action in which Plaintiff alleges that Defendant wrongfully terminated his employment and deprived him of certain property and benefits. Now before the Court is Defendants motion to dismiss the complaint (Docket No. [#3]). For the reasons that follow, the application is granted and this action is dismissed. BACKGROUND On October 16, 2009, Plaintiff commenced this action in New York State Supreme Court, Monroe County. Plaintiff s verified complaint ( Complaint ) indicates that Defendant terminated his employment on September 21, 2005, more than four years prior to the commencement of the action. The Complaint states that Plaintiff was 48 years of age when Defendant terminated his employment, though there is no allegation that Plaintiff was fired because of his age. The Complaint indicates that Plaintiff was an at will employee (Complaint ¶ 23), and does not identify any contractual right to continued employment. The Complaint indicates that Defendant terminated Plaintiff s employment because Defendant believed that Plaintiff and others were taking Defendant s ink cartridges and recycling them for their own benefit. (Complaint ¶ 10). The Complaint indicates that such accusation was false. (Id. at ¶ 12). The Complaint indicates that it is asserting claims for breach of contract, . . . conversion, fraud, and unjust enrichment. (Id. at ¶ 1). The Complaint purports to state five separate causes of action, but the third numbered cause of action really just provides additional information concerning the first and second causes of action.1 The Court reads the Complaint as stating the following causes of action: 1) termination without just cause/breach of contract; 2) conversion of Plaintiff s property; 3) unjust enrichment; and 4) fraud. The fraud claim alleges that Defendant terminated Plaintiff for the purpose of denying him employee benefits. (Id. ¶ 23) ( Defendant produced allegations for the sole purpose of denying the Plaintiff his rightfully-entitled severance package, stock options and retirement that applies. ). On November 23, 2009, Defendant removed the action to this court. On December 1, 2009, Defendant moved [#3] to dismiss the entire Complaint, pursuant to Federal Rule of Civil Procedure ( FRCP ) 12(b)(6). Defendant maintains that the first and second causes of action are barred by New York s at-will employee doctrine. Defendant states that under such doctrine, Defendant was entitled to terminate Plaintiff s employment for any lawful reason or for no reason. Defendant further states that to the extent that Plaintiff was attempting to allege discrimination, any such claim would be barred by the applicable statutes of limitation. As for Plaintiff s claim that Defendant fired him to avoid having to pay him severance or other benefits, Defendant maintains that such claim is preempted by ERISA, and that such claim would be time-barred under the two-year statute of limitations for claims brought under ERISA § 510. On January 29, 2010, the Court issued a Motion Scheduling Order [#6], which directed Plaintiff to file and serve any responsive papers on or before March 5, 2010. Plaintiff did not file opposition papers. On April 16, 2010, Defendant filed a request [#7] for dismissal, indicating 1 The third num bered cause of action alleges that in term inating Plaintiff s em ploym ent and in withholding his property, Defendant relied on false inform ation provided by one of Plaintiff s co-workers who was attem pting to advance her own career. (Com plaint ¶ ¶ 18-19). 2 that the Motion to Dismiss [#3] was unopposed. To date, Plaintiff has filed nothing with the Court. DISCUSSION 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 claim rests through factual allegations sufficient to raise a right to relief above the speculative level. Reddington v. Staten Island Univ. Hosp., 511 F.3d 126, 131 (2d Cir. 2007) (citations and internal quotation marks omitted). In that regard, a complaint must contain a short and plain statement of the grounds for the court s jurisdiction, as well as a short and plain statement of the claim, showing that the pleader is entitled to relief. FRCP 8(a). The Complaint fails to plausibly allege the existence of any employment contract, and to the contrary, it indicates that Plaintiff was an at-will employee. Consequently Plaintiff has not stated a claim for breach of contract.23 Nor does the Complaint allege that Plaintiff was terminated 2 See, De Petris v. Union Settlement Ass'n, Inc., 86 N.Y.2d 406, 410, 657 N.E.2d 269 (1995) ( Absent an agreem ent establishing a fixed duration, an em ploym ent relationship is presum ed to be a hiring at will, term inable at any tim e by either party (Sabetay v. Sterling Drug, 69 N.Y.2d 329, 333, 514 N.Y.S.2d 209, 506 N.E.2d 919). This State neither recognizes a tort of wrongful discharge nor requires good faith in an at-will em ploym ent relationship ( Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 297, 461 N.Y.S.2d 232, 448 N.E.2d 86; Ingle v. Glamore Motor Sales, 73 N.Y.2d 183, 188, 538 N.Y.S.2d 771, 535 N.E.2d 1311). An em ployee m ay recover, however, by establishing that the em ployer m ade the em ployee aware of its express written policy lim iting its right of discharge and that the em ployee detrim entally relied on that policy in accepting the em ploym ent (see, W einer v. McGraw-Hill, Inc., 57 N.Y.2d 458, 465-466, 457 N.Y.S.2d 193, 443 N.E.2d 441). W here these elem ents are proved, the em ployee in effect has a contract claim against the em ployer. Mere existence of a written policy, without the additional elem ents identified in W einer, does not lim it an em ployer's right to discharge an at-will em ployee or give rise to a legally enforceable claim by the em ployee against the em ployer. ) 3 Plaintiff alleges that Defendant has refused to provide him with a copy of any em ploym ent m anual and any existing code of conduct m anual that m ay exist. (Com plaint ¶ 13). However, there is no allegation that Plaintiff was aware of any particular policy and relied on such policy to his detrim ent, as would be required (continued...) 3 because of his membership in a protected class. Any claim for conversion or unjust enrichment would be time-barred under New York s applicable statute of limitations, which is three years for both claims. See, Daisley v. FedEx Ground Package System, Inc., No. 09-0011-cv, 2010 W L 1838667 at *1 (2d Cir. May 10, 2010) ( The New York statute of limitations is . . . three years for conversion claims, see [N.Y. C.P.L.R.] § 214(3). ) (unpublished); Ingrami v. Rovner, 45 A.D.3d 806, 808, 847 N.Y.S.2d 132, 134 (2d Dept. 2007) (Holding that for unjust enrichment claim, the three-year statute of limitations of CPLR 214(3) governs here, since the plaintiff is seeking monetary, as opposed to equitable, relief. ) (citations omitted). Moreover, Plaintiff s claim that he was fraudulently fired in order to deprive him of employment benefits is barred by the two-year statute of limitations for claims under ERISA § 510.4 CONCLUSION Defendants motion to dismiss [#3] is granted and this action is dismissed with prejudice. Oral argument of the motion, which had been scheduled for July 22, 2010, is cancelled as moot. SO ORDERED. Dated: June 1, 2010 Rochester, New York /s/ Charles J. Siragusa CHARLES J. SIRAGUSA United States District Judge 3 (...continued) to establish a breach of contract claim . See, Bernhardt v. Tradition North America, 676 F.Supp.2d 301, 305 (S.D.N.Y. 2009) ( To establish that such policies are a part of the em ploym ent contract, an em ployee alleging a breach of im plied contract m ust prove that (1) an express written policy lim iting the em ployer's right of discharge exists, (2) the em ployer (or one of its authorized representatives) m ade the em ployee aware of this policy, and (3) the em ployee detrim entally relied on the policy in accepting or continuing em ploym ent. ) (citations and internal quotation m arks om itted). 4 Downes v. JP Morgan Chase & Co., No. 03 Civ.8991(GEL), 2004 W L 1277991 at *5 (S.D.N.Y. Jun. 8, 2004)( The parties agree that the statute of lim itations for ERISA § 510 claim s is two years. )(citing Sandberg v. KPMG Peat Marwick, L.L.P., 111 F.3d 331, 336 (2d Cir.1997)). 4
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