Solimine v. United Airlines CV-97-148-M 03/03/98 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Edward Solimine
v. Civil No. 97-148-M
United Airlines, Inc.
O R D E R
Defendant, United Airlines, filed a motion to dismiss
plaintiff's claims on grounds that each is insufficient as a
matter of law. Plaintiff filed an objection in which he also
indicated that he would amend his complaint to include additional
factual allegations in support of his claims. Although
plaintiff's subseguent motion to amend was granted almost five
months ago, he has not filed an amended complaint. For the
reasons that follow. United's motion to dismiss is granted.
Standard of Review
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) is one of limited inguiry, focusing not on "whether a
plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims." Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974). In considering a motion to
dismiss, the court accepts all well-pleaded facts as true and
resolves all reasonable inferences in favor of the nonmoving
party. Washington Legal Found, v. Massachusetts Bar Found. , 993
F.2d 962, 971 (1st Cir. 1993). "[Ilff under any theory, the allegations are sufficient to state a cause of action in
accordance with the law, we must deny the motion to dismiss."
Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st Cir. 1994).
Background
Plaintiff alleges that he is a gualified pilot with three
years of experience flying for commercial airlines and over
twenty years experience as an air transport pilot. He applied to
United for a pilot position, and was granted an interview in
December 1992. After the interview, he passed a flight skills
test on a flight simulator and passed a pre-employment physical
in February 1993. Plaintiff received a letter on March 31, 1993,
that he alleges offered him a position as a pilot with United.
Plaintiff wrote back accepting United's offer.1 Another letter
from United congratulated plaintiff on his selection as a United
pilot. Between March 31 and August 1994, United repeatedly told
plaintiff that his actual employment was delayed due to a limited
number of spaces available in United's flight training program.
In September 1994, United notified plaintiff that he would not be
hired as a pilot after all.
1 Apparently the letters that are discussed in the complaint were attached as exhibits to the complaint, perhaps when it was served on United in the state court action, prior to removal to this court. The letters are not attached to the complaint that was filed in this court, and neither party has submitted copies of the letters with their pleadings.
2 Discussion
Plaintiff brings claims against United for breach of
contract, promissory estoppel, and fraudulent misrepresentation
arising from his unsuccessful effort to become a United pilot.
United moves to dismiss plaintiff's claims.
A. Breach of Contract and Promissory Estoppel
United contends that the March 31 letter from United, that
is referenced in plaintiff's complaint, did not offer plaintiff a
position as a pilot, as he alleges, but instead only informed him
that he had been accepted into United's flight training school.
In addition. United argues, the letters do not contain
sufficiently definite terms to create an employment promise or
contract. Plaintiff guotes, in his objection, part of the March
31 letter that he alleges offered him a position as a United
pilot: "We are pleased to advise you that our Pilot Selection
Board has accepted you for our Flight Officer training program."
He also guotes language from a second letter: "Congratulations on
your acceptance as a Flight Officer with United Airlines. . . .
Again welcome to United Airlines."
Plaintiff apparently agreed with United's argument that the
letters were insufficient to demonstrate an enforceable
employment contract, and sought to amend his complaint to remedy
those deficiencies. Plaintiff's objection suggests that he
intended to add that the specific terms of employment were
provided by an applicable collective bargaining agreement.
3 "A complaint must contain factual allegations, either direct
or inferential, respecting each material element necessary to
sustain recovery under some actionable legal theory." Glassman
v. Computervision Corp., 90 F.3d 617, 628 (1st Cir. 1996)
(guotation omitted). Given the lack of necessary factual detail
about the material terms of the alleged employment agreement in
the filed complaint, the court agrees that plaintiff's
allegations are insufficient to show that an enforceable
employment agreement arose from the correspondence between United
and plaintiff. See, e.g.. Panto v. Moore Business Forms, Inc.,
130 N.H. 730, 735 (1988); Soderlun v. Public Serv. Co. of Co.,
944 P.2d 616, 620 (Colo. Ap p .), cert, denied (Oct. 20, 1997).2
Similar principles apply to plaintiff's claim for promissory
estoppel. Plaintiff must show "a promise reasonably understood
as intended to induce action [that] is enforceable by one who
relies upon it to his detriment or to the benefit of the
promisor." Panto, 130 N.H. at 738. To be enforceable under a
theory of promissory estoppel, an alleged promise must "be
sufficiently specific so that the judiciary can understand the
2 Plaintiff contends that Colorado law governs his contract claim. United has not addressed the choice-of-law guestion, and relies on New Hampshire law. Because jurisdiction in this action is based on the parties' diverse citizenship, the court is guided by New Hampshire's choice-of-law principles. Crellin Technologies v. Equipmentlease Corp., 18 F.3d 1, 4 (1st Cir. 1994). In general. New Hampshire will apply the law of the state "with the most significant relationship to the contract." Glowski v. Allstate Ins. Co., 134 N.H. 196, 198 (1991). Here, however, the law of Colorado and New Hampshire do not seem to actually conflict, so a choice-of-law analysis is not necessary. See Brill v. Sinclair, 815 F. Supp. 44, 46 (D.N.H. 1993).
4 obligation assumed and enforce the promise according to its
terms." Sunderlun, 944 P.2d at 620. "The application of
estoppel rests largely on the facts and circumstances of the
particular case." Great Lakes Aircraft Co. v. City of Claremont,
135 N.H. 270 289 (1992) (guotation omitted). Thus, reliance on a
vague, undefined statement as a promise of employment would be
both unreasonable and unenforceable. See, e.g., Kiely v.
Raytheon, 105 F.3d 734, 736 (1st Cir. 1997).
Plaintiff's conclusory allegation, that he relied to his
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Solimine v. United Airlines CV-97-148-M 03/03/98 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Edward Solimine
v. Civil No. 97-148-M
United Airlines, Inc.
O R D E R
Defendant, United Airlines, filed a motion to dismiss
plaintiff's claims on grounds that each is insufficient as a
matter of law. Plaintiff filed an objection in which he also
indicated that he would amend his complaint to include additional
factual allegations in support of his claims. Although
plaintiff's subseguent motion to amend was granted almost five
months ago, he has not filed an amended complaint. For the
reasons that follow. United's motion to dismiss is granted.
Standard of Review
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) is one of limited inguiry, focusing not on "whether a
plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims." Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974). In considering a motion to
dismiss, the court accepts all well-pleaded facts as true and
resolves all reasonable inferences in favor of the nonmoving
party. Washington Legal Found, v. Massachusetts Bar Found. , 993
F.2d 962, 971 (1st Cir. 1993). "[Ilff under any theory, the allegations are sufficient to state a cause of action in
accordance with the law, we must deny the motion to dismiss."
Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st Cir. 1994).
Background
Plaintiff alleges that he is a gualified pilot with three
years of experience flying for commercial airlines and over
twenty years experience as an air transport pilot. He applied to
United for a pilot position, and was granted an interview in
December 1992. After the interview, he passed a flight skills
test on a flight simulator and passed a pre-employment physical
in February 1993. Plaintiff received a letter on March 31, 1993,
that he alleges offered him a position as a pilot with United.
Plaintiff wrote back accepting United's offer.1 Another letter
from United congratulated plaintiff on his selection as a United
pilot. Between March 31 and August 1994, United repeatedly told
plaintiff that his actual employment was delayed due to a limited
number of spaces available in United's flight training program.
In September 1994, United notified plaintiff that he would not be
hired as a pilot after all.
1 Apparently the letters that are discussed in the complaint were attached as exhibits to the complaint, perhaps when it was served on United in the state court action, prior to removal to this court. The letters are not attached to the complaint that was filed in this court, and neither party has submitted copies of the letters with their pleadings.
2 Discussion
Plaintiff brings claims against United for breach of
contract, promissory estoppel, and fraudulent misrepresentation
arising from his unsuccessful effort to become a United pilot.
United moves to dismiss plaintiff's claims.
A. Breach of Contract and Promissory Estoppel
United contends that the March 31 letter from United, that
is referenced in plaintiff's complaint, did not offer plaintiff a
position as a pilot, as he alleges, but instead only informed him
that he had been accepted into United's flight training school.
In addition. United argues, the letters do not contain
sufficiently definite terms to create an employment promise or
contract. Plaintiff guotes, in his objection, part of the March
31 letter that he alleges offered him a position as a United
pilot: "We are pleased to advise you that our Pilot Selection
Board has accepted you for our Flight Officer training program."
He also guotes language from a second letter: "Congratulations on
your acceptance as a Flight Officer with United Airlines. . . .
Again welcome to United Airlines."
Plaintiff apparently agreed with United's argument that the
letters were insufficient to demonstrate an enforceable
employment contract, and sought to amend his complaint to remedy
those deficiencies. Plaintiff's objection suggests that he
intended to add that the specific terms of employment were
provided by an applicable collective bargaining agreement.
3 "A complaint must contain factual allegations, either direct
or inferential, respecting each material element necessary to
sustain recovery under some actionable legal theory." Glassman
v. Computervision Corp., 90 F.3d 617, 628 (1st Cir. 1996)
(guotation omitted). Given the lack of necessary factual detail
about the material terms of the alleged employment agreement in
the filed complaint, the court agrees that plaintiff's
allegations are insufficient to show that an enforceable
employment agreement arose from the correspondence between United
and plaintiff. See, e.g.. Panto v. Moore Business Forms, Inc.,
130 N.H. 730, 735 (1988); Soderlun v. Public Serv. Co. of Co.,
944 P.2d 616, 620 (Colo. Ap p .), cert, denied (Oct. 20, 1997).2
Similar principles apply to plaintiff's claim for promissory
estoppel. Plaintiff must show "a promise reasonably understood
as intended to induce action [that] is enforceable by one who
relies upon it to his detriment or to the benefit of the
promisor." Panto, 130 N.H. at 738. To be enforceable under a
theory of promissory estoppel, an alleged promise must "be
sufficiently specific so that the judiciary can understand the
2 Plaintiff contends that Colorado law governs his contract claim. United has not addressed the choice-of-law guestion, and relies on New Hampshire law. Because jurisdiction in this action is based on the parties' diverse citizenship, the court is guided by New Hampshire's choice-of-law principles. Crellin Technologies v. Equipmentlease Corp., 18 F.3d 1, 4 (1st Cir. 1994). In general. New Hampshire will apply the law of the state "with the most significant relationship to the contract." Glowski v. Allstate Ins. Co., 134 N.H. 196, 198 (1991). Here, however, the law of Colorado and New Hampshire do not seem to actually conflict, so a choice-of-law analysis is not necessary. See Brill v. Sinclair, 815 F. Supp. 44, 46 (D.N.H. 1993).
4 obligation assumed and enforce the promise according to its
terms." Sunderlun, 944 P.2d at 620. "The application of
estoppel rests largely on the facts and circumstances of the
particular case." Great Lakes Aircraft Co. v. City of Claremont,
135 N.H. 270 289 (1992) (guotation omitted). Thus, reliance on a
vague, undefined statement as a promise of employment would be
both unreasonable and unenforceable. See, e.g., Kiely v.
Raytheon, 105 F.3d 734, 736 (1st Cir. 1997).
Plaintiff's conclusory allegation, that he relied to his
detriment on United's promise to hire him, does not provide
sufficient factual information to assess whether a promise was
made or what the nature of the promise or reliance might have
been. Since the complaint does not allege an enforceable
promise, plaintiff has not stated a claim for promissory
estoppel.
B. Fraudulent Misrepresentation
United asserts that plaintiff's fraud claim must be
dismissed because he has not alleged fraud with sufficient
particularity to meet the reguirements of Federal Rule of Civil
Procedure 9(b). Rule 9(b) reguires: "In all averments of fraud
or mistake, the circumstances constituting fraud or mistake shall
be stated with particularity. Malice, intent, knowledge, and
other conditions of mind of a person may be averred generally."
The purpose of Rule 9 (b)'s particularity reguirement is to
provide defendants with notice of the acts forming the bases of
5 claims against them so that defendants may prepare meaningful
responses. New England Data Servs. Inc. v. Becher, 829 F.2d 286,
292 (1st Cir. 1987). To fulfill Rule 9 (b)'s purposes, plaintiff
must specify "particular times, dates, places or other details of
the alleged fraudulent involvement of the actors." Serabian v.
Amoskeag Bank Shares, Inc., 24 F.3d 357, 361 (1st Cir. 1994).
Conclusory allegations of fraud are insufficient to meet the Rule
9(b) pleading reguirements. Havduk v. Lanna, 775 F.2d 441, 443
(1st Cir. 1985) .
"The tort of intentional misrepresentation, or fraud, must
be proved by showing that the representation was made with
knowledge of its falsity or with conscious indifference to its
truth and with the intention of causing another person to rely on
the representation." Patch v. Arsenault, 139 N.H. 313, 319
(1995). Plaintiff alleges that United falsely represented that
it would hire him as a pilot when it had no intention of doing
so.3
The representations plaintiff alleges United made to him
were contained in the March 1993 letter, a subseguent
congratulatory letter, and notification between March 1993 and
August 1994 that his employment was delayed.4 Even assuming that
3 In his objection, plaintiff indicates that he intended to amend his complaint to add allegations that he was gualified to be a United pilot in 1993 and 1994 and that United told him in 1994 that he was not gualified. These additional allegations would not save his fraud claim.
4 Plaintiff says in his objection that United "made it clear" to him during interviews and meetings that if he were accepted into the flight training program, that would mean that
6 those representations are alleged with sufficient particularity
to put United on notice of its allegedly fraudulent conduct, they
do not state a claim for fraud. Plaintiff acknowledges in his
objection that the March 31 letter offered him only an
opportunity to attend United's flight training school, which he
interpreted as an offer of employment. Plaintiff also alleges
that between March 31, when he received the flight training
letter from United, and August 1994, United informed him
repeatedly that his employment was being delayed because of a
limited number of spaces in the flight training program. Then,
in September 1994, United informed plaintiff that he would not be
hired as a pilot.
Plaintiff's sparse factual allegations show that United
truthfully kept him informed of his status in the employment
process. No facts are alleged that would suggest that United
knew when it sent the March 31 letter that its content was false.
Thus, plaintiff has not alleged a misrepresentation that United
knew to be false and that United intended him to act on.
Plaintiff's conclusory allegations of fraud, which are not
consistent with his factual allegations, are also insufficient to
meet Rule 9 (b)'s pleading reguirements. Conseguently,
plaintiff's fraud claim must be dismissed.
he had been hired as a pilot. Plaintiff did not include this allegation in his complaint, so it cannot be considered here as an alleged representation to him about employment.
7 Conclusion
For the foregoing reasons, defendant's motion to dismiss
(document no. 5) is granted. The clerk of court is instructed to
enter judgment in favor of the defendant on all claims, and close
the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
March 3, 1998
cc: James W. Donchess, Esg. Mark D. Wiseman, Esg.