OPINION AND ORDER
■This action, initially filed in New York State Supreme Court, and removed here pursuant to Title 28, United States Code, Sections 1332 and 1441, arises out of claims by Plaintiff Andrew S. Cohen against his former employer, Avanade Inc., and two Avanade employees, Matthew McCafferty and Aziz Virani. In particular, in his amended complaint (the “complaint”), filed on May 17, 2011, Plaintiff asserts claims for breach of contract; fraudulent inducement; malicious, fraudulent, oppressive and/or reckless conduct; harm to professional reputation; negligence; and negligent misrepresentation. Defendants now move, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for dismissal of the complaint in its entirety. For the reasons stated below, Defendants’ motion to dismiss is GRANTED and the complaint is dismissed.
BACKGROUND
On a motion to dismiss, a court may consider facts stated in the complaint, any documents attached to the complaint, and any documents incorporated by reference into the complaint. See, e.g., Nechis v. Oxford Health Plans, Inc.,
Defendant Avanade Inc. (“Avanade” or “the company”) is a Washington state corporation. At all times relevant to this action, Defendant McCafferty was a vice president and Defendant Virani was an executive vice president of Avanade. (Compl. ¶¶ 3-4). In February 2009, McCafferty and Virani began recruiting Cohen for a position as a Business Development Executive in Application Management at Avanade. (Id. ¶ 5). During the recruitment process, McCafferty and Virani made various representations to Cohen regarding Avanade’s application management capabilities. Specifically, the complaint alleges that McCafferty and Virani told Cohen that Avanade possessed a “true, well-established, fully capable, and experienced Application Management delivery system,” with deal pricing, legal, and delivery teams that could “deliver complex, multi-year, multi-million dollar application management deals to its customers.” (Id. ¶¶ 6, 41). Relying on these representations, Cohen accepted employment as a Business Development Executive in Application Management. (Id. ¶ 7).
Avanade formally offered Cohen the position of Business Development Executive by letter dated May 5, 2009 (the “Offer Letter”). (Maatman Deck Ex. A). To the extent relevant here, the Offer Letter provided that Cohen would be paid a base salary of $120,000 per year and that, “based upon the terms and conditions” of the Avanade Sales Compensation Plan (the “Plan”), he would be “eligible” to earn incentive pay—that is, a bonus—if he met certain annual sales goals. (Id.). The letter emphasized, however, that the Plan was “not a contract of employment” and was “subject to change.” (Id.). Further,
According to the complaint, within weeks of starting at Avanade, Cohen discovered that the company did not have the application management capacities that McCafferty and Virani had represented. (Compl. ¶41). These shortcomings became more apparent to Cohen in late 2009 and the first half of 2010, when he sought to develop two potential multi-million dollar deals for the company: one with a company named Group M and the other with a company named Mediabrands. (Id. ¶¶ 15-27). Cohen alleges that these deals fell through because Avanade “lack[ed] ... experience and capability in the Application Management service delivery space.” (Id. ¶¶ 26, 51). If Avanade had possessed a “true, well-established, fully capable, and experienced Application Management delivery capability,” the complaint asserts, the deals would have closed and, under the terms of the Plan, Cohen would have received a bonus of $180,000. (Id. ¶¶ 15-16, 28, 51). Cohen’s employment with Avanade ended on September 16, 2010. (Id. ¶30).
On March 4, 2011, Plaintiff filed a complaint in New York Supreme Court, County of New York, against Defendants Avanade, McCafferty, and Virani. Cohen never served this complaint on Defendants, but instead filed an amended complaint with the same court on May 17, 2011, which he subsequently served on Defendants. On June 24, 2011, Defendants rеmoved the case from state court to this Court. (Dkt. No. 1). On September 9, 2012, the parties appeared at a pretrial conference before the Honorable Richard J. Holwell, United States District Judge, who was then presiding over this matter. (Dkt. No. 10). At the conference, Judge Holwell gave Plaintiff until September 30, 2011, to amend his complaint, but Plaintiff elected not to do so. On October 31, 2012, Defendants filed this motion to dismiss the complaint for failure to state a claim upon which relief can be granted.
DISCUSSION
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of thе plaintiff. See, e.g., Holmes v. Grubman,
With respect to claims alleging fraud, Rule 9(b) of the Federal Rules of Civil Procedure imposes a heightened pleading standard. Such claims must “state with particularity the circumstances constituting fraud .... ” Fed.R.Civ.P. 9(b). To satisfy that standard, a complaint must “allege facts that give rise to a strong inference of fraudulent intent.” Acito v. IMCERA Grp., Inc.,
In the present case, Cohen alleges six causes of action: (1) breach of contract; (2) fraudulent inducement; (3) malicious fraudulent, oppressive and/or recMess conduct; (4) harm to professional reputation; (5) negligence; and (6) negligent misrepresentation. The Court will address each claim in turn.
A. Breach of Contract
Cohen’s first claim is for breach of contract. Under New York law, which the parties agree is controlling, see, e.g., Fed. Ins. Co. v. Am. Home Assurance Co.,
Here, Cohen claims that Defendant Avanade breached the Plan. (E.g., Opp. at 9-10 (stating that the Plan “is an express contract” and that “Cohen properly and sufficiently alleged breach of contract by naming the Plan”)). The fatal flaw in this claim, however, is that the Plan, by its terms, is not a contract. In fact, the
Even if the Plan did constitute a binding contract, Cohen’s claim would fail for two other reasons. First, under New York law, an employee cannot recover for an employer’s failure to pay a bonus under a compensation plan that provides the employer with absolute discretion over bonus determinations. See, e.g., Namad v. Salomon Inc.,
Second, Cohen cannot claim any entitlement to a bonus under the terms of the Plan because he did not meet the sales goals that would trigger an incentive payment. Where a plaintiff alleges entitlement to a bonus under a contract, the claim fails as a matter of law if the plaintiff fails to allege that he or she met the conditions required to receive the bonus. See, e.g., Levion v. Societe Generate,
Implicitly conceding the weakness of his contract claim, Cohen argues in his memorandum of law opposing the Defendants’ motion to dismiss that this Court should treat his breach-of-contract claim as a claim for promissory estoppel. (Opp. at 9). A party may not defeat a motion to dismiss a contract claim, however, by recasting the claim as one for promissory estoppel. See Wright v. Ernst & Young LLP,
Further, even if Cohen could properly raise promissory estoppel for the first time in his opposition papers, his claim would fail for either of two reasons. First, there is some doubt about whether New York law recognizes promissory estoppel in the employment context at all. Compare Rojo v. Deutsche Bank, No. 06 Civ. 13574(HB),
Second, and in any event, Cohen fails to allege either of the other elements of a promissory estoppel claim: a clear and unambiguous promise and reasonable and foreseeable reliance on that promise. See, e.g., Kaye v. Grossman,
B. Fraudulent Inducement
In his second cause of action, Plaintiff alleges that Defendants McCafferty and Virani made false representations regarding Avanade’s application management system that induced him to accept an offer of employment. To state a claim for fraudulent inducement under New York law, “there must be a knowing misrepresentation of material present fact, which is intended to deceive another party and induce that party to act on it, resulting in injury.” Gosmile, Inc. v. Levine,
Here, the alleged misrepresentations—McCafferty’s and Virani’s representations about Avanade’s capabilities—are collateral to the contract insofar as the contract between Cohen and Avanade says nothing about such matters. Nevertheless, Cohen’s claim fails for two reasons. First, putting aside conclusory assertions of intent (e.g., Compl. ¶¶ 48^49), Cohen fails to allege that Defendants knew or should have known that their statements— largely statements of subjective opinion— were false. See, e.g., Mandarin Trading Ltd. v. Wildenstein,
Second, the cоmplaint also fails to satisfy the heightened pleading standard for fraud claims required by Rule 9(b) of the Federal Rules of Civil Procedure. As noted above, to satisfy that standard, a complaint must “allege facts that give rise to a strong inference of fraudulent intent.” Acito,
C. Malicious, Fraudulent, Oppressive and/or Reckless Conduct
Cohen’s third cause of action alleges that Defendants’ conduct was “malicious, fraudulent, oppressive and/or recklessly committed, with wanton disregard of the Plaintiffs rights,” and exhibited “bad faith.” (Compl. ¶¶ 48-49). As Defendants correctly assert, however, this is not a cause of action recognized under New York law. See, e.g., OFSI Fund II, LLC v. Canadian Imperial Bank of Commerce,
D. Harm to Professional Reputation
In his fourth cause of action, Plaintiff asserts that because Avanade did not have the application management capacities that Defendants represented during the recruitment process, Avanade’s deals with Group M and Mediabrands did not close and Plaintiff “endured professional embarrassment” and suffered damage to his professional reputation. (Compl. ¶¶ 51-54). Many courts have held, however, that there is no independent action for damage to reputation under New York law; instead, a claim for damage to reputation is treated as a claim for defamation. See, e.g., Hengjun Chao v. Mount Sinai Hosp., No. 11-1328-cv,
It is undisputed that Cohen has not alleged the necessary elements of defamation. See, e.g., Peters v. Baldwin Union Free Sch. Dist.,
Cohen’s reliance on Singer is unavailing. In the twenty-two years since Singer was decided, the case has rarely been cited, and has never been cited let alone adopted by the New York Court of Appeals. The “few cases” that have cited Singer have “universally concluded that Singer did not create a catch-all tort.” Lines v. Cablevision Sys. Corp., No. 04 CV 2517 DRH ETB,
In any event, even assuming arguendo that Singer did apply, Cohen’s claim would fail for either of two reasons. First, it is not plausible to conclude that Defendants caused any real harm to Cohen’s professional reputation, particularly considering Cohen’s twenty-five years of experience in the applications management field. (Opp. at 1; see also Compl. ¶¶ 10, 13). As the complaint alleges, the deals with Group M and Mediabrands did not close because Avanade lacked specific application management capabilities. Thеre are no allegations that Avanade placed blame on Cohen for the failure of these deals to close, let alone that it did so publicly; nor does the complaint allege that potential clients attributed those failures to Cohen himself. In fact, the complaint itself alleges that representatives of Group M told Cohen that “they truly appreciated the significant effort he delivered to Group M during [the negotiations], but that they had no confidence in Avanade’s delivery capability.” (Compl. ¶ 18 (emphases added)). Cohen may have developed remorse for having accepted the employment offer from Avanade, but it is implausible to conclude thаt Cohen suffered any adverse injury to his professional reputation due to the firm’s alleged shortcomings.
Second, even if Cohen suffered harm to his reputation in connection with the Group M and Mediabrands deals, that injury cannot be attributed to Avanade. The negotiations with Group M did not commence until September 2009 (Compl. ¶ 17), at which point Cohen had been employed at Avanade for four months. By that point, he either knew or should have known the extent of Avanade’s capabilities. Indeed, the complaint itself alleges that “[w]ithin weeks of Mr. Cohen’s employment with Avanade,” he discovered that Avanade did not possess the capabilities that McCafferty and Virani had reprеsented to hi m. (Compl. ¶ 41). At that point, Cohen could easily have severed his ties with Avanade and cut his losses, with little or no harm to his professional reputation. Instead, he remained at Avanade, commencing negotiations with Group M in September 2009 and with Mediabrands in January 2010—a full eight months after he began working at Avanade. Having failed to leave Avanade when he was on notice of the firm’s alleged shortcomings, he cannot blame any consequential harm to his reputation on Avanade. He himself bears responsibility for his choice to stay.
E. Negligence and Negligent Misrepresentation
Plaintiffs fifth and sixth causes of action allege that Defendants acted negligently. Specifically, in his fifth cause of action, Cohen contends that Defendants owed a duty “to provide him with accurate advice which was in the Plaintiffs best interests” and that they breached this duty by telling him that Avanade possessed a “true, well-established, fully capable, and experienced Application Management delivery system and services.” (Compl. ¶ 57). New York law, however, does not recognize a cause of action for the negligent performance of a contract. See, e.g., RLI Ins. Co. v. King Sha Grp.,
Cohen’s final cause of action for negligent misrepresentation fails as a matter of law for similar reasons. To prevail on a claim for negligent misrepresentation, a plaintiff must show that:
(1) the defendant had a duty, as a result of a special relationship, to give correct information; (2) the defendant made a false representation that he or she should have known was incorrect; (3) the information supplied in the representation was known by the defendant to be desired by the plaintiff for a serious purpose; (4) the plaintiff intended to rely and act upon it; and (5) the plaintiff reasonably relied on it to his or her detriment.
Hydro Investors, Inc. v. Trafalgar Power Inc.,
Here, Plaintiff alleges that, “as prospective employer of the Plaintiff, the Defendаnts owed a duty to the Plaintiff to provide reliable and accurate information about the Avanade company.” (Compl. ¶ 60). Courts have routinely held, however, that the relationship between employer (or prospective employer) and employee is not fiduciary in nature and thus does not constitute a “special relationship” for purposes of a negligent misrepresentation claim. See, e.g., Stewart,
Even if the complaint adequately alleged negligence and negligent misrepresentation, these causes of action still would fail because the New York Workers’ Compensation Law is “the exclusive remedy to an employee ... when such employee is injured ... by the negligence or wrong of another in the same employ.” N.Y. Workers’ Comp. Law § 29(6) (McKinney 2011); see also Ferris v. Delta Air Lines, Inc.,
Perhaps recognizing thе legal weaknesses of his negligence and negligent misrepresentation claims, Cohen ultimately calls on the Court to allow these claims to go forward “as a matter of public policy.” (Opp. at 14). Far from being convincing, however, this naked appeal to policy merely underscores the failure of Cohen’s claims as a matter of law. The sole question presented on this motion is whether Cohen has stated a claim for which relief can be granted under the law. See, e.g., Eternity Global Master Fund Ltd.,
CONCLUSION
For the reаsons set forth above, Defendants’ motion to dismiss (Dkt. No. 12) is GRANTED and Plaintiffs complaint is DISMISSED. The Clerk of the Court is directed to close this case.
SO ORDERED.
Notes
. In his memorandum of law in opposition to the motion to dismiss, Plaintiff claims that he ceased working for Avanade "without ever receiving any commission” and that, due to his reliance on Defendants’ "empty promises,” he lost "the commission, his base salary and job.” (Opp. at 5). He also alleges that when he chose to join Avanade in the first instance, he did so at the expense of "other opportunities presented to him by other [information technology] services firms.” (Id. at 2). These allegations appear nowhere in the complaint and therefore are not considered for purposes of this motion. See, e.g., Wright v. Ernst & Young LLP,
. The Offer Letter, of course, constitutes a contract between the parties. But, аs noted above, Cohen’s breach-of-contract claim rests exclusively on the Plan, which is the only document that could conceivably give rise to an entitlement to the bonus that Cohen seeks in this case. Neither Cohen’s complaint nor his memorandum of law in opposition to the Defendants' motion to dismiss identifies any provision of the Offer Letter that was breached.
. This Court has found only one case in which a court relied on Singer to hold that a claim for injury to personal and professional reputation was valid for purposes of a motion to dismiss. See M Sports Prods. v. Pay-Per-View Network, Inc., No. 97 Civ. 6451(HB),
. Although the Second Circuit has expressly left open the question of whether Rule 9(b) applies to claims of negligent misrepresentation, see Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y.,