Bob Cordell v. The McGraw-Hill Companies, Inc.

12-4481-cv
Bob Cordell v. The McGraw-Hill Companies, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 16th day of May, two thousand thirteen.
5
6 PRESENT: ROBERT D. SACK,
7 RICHARD C. WESLEY,
8 SUSAN L. CARNEY,
9 Circuit Judges.
10
11
12
13 BOB CORDELL, on behalf of himself and
14 all others similarly situated,
15
16 Plaintiff-Appellant,
17
18 -v.- No. 12-4481-cv
19
20 THE MCGRAW-HILL COMPANIES, INC.,
21
22 Defendant-Appellee,
23
24
25
26 FOR APPELLANT: GARY S. SNITOW, Milberg LLP (Sanford P.
27 Dumain, Benjamin Y. Kaufman, Milberg LLP;
28 Robert I. Lax, Lax LLP, on the brief),
29 New York, NY.
30
31 FOR APPELLEES: DAVID J. SHEEHAN, Baker & Hostetler LLP,
32 New York, NY (Lan Hoang, Baker &
33 Hostetler LLP, New York, NY; Mark I.
1 Bailen, Baker & Hostetler LLP,
2 Washington, D.C., on the brief).
3
4 Appeal from the United States District Court for the
5 Southern District of New York (Carter, J.).
6
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
8 AND DECREED that the order is AFFIRMED.
9 Plaintiff-Appellant Bob Cordell appeals from the
10 district court’s October 23, 2012 dismissal of his case
11 pursuant to Federal Rule of Civil Procedure 12(b)(6).
12 Cordell v. McGraw-Hill Cos., No. 12 Civ. 0637, 2012 WL
13 5264844 (S.D.N.Y. Oct. 23, 2012). “We review this dismissal
14 de novo, accepting all factual allegations in the complaint
15 as true and drawing inferences from those allegations in the
16 light most favorable to the plaintiff.” Fulton v. Goord,
17 591 F.3d 37, 43 (2d Cir. 2009) (quotation marks and
18 alterations omitted). We assume the parties’ familiarity
19 with the facts and procedural history of the case.
20 We affirm for substantially the reasons stated by the
21 district court in its well-reasoned order. We agree with
22 the district court that “a straightforward reading of the
23 foreign royalties provision” – which Cordell admits is
24 unambiguous – “demonstrates that foreign royalty payments
25 can be calculated in one of two ways: either based on sales
2
1 to the McGraw-Hill international book division or to third
2 parties for use outside the United States.” Cordell, 2012
3 WL 5264844, at *3 (emphasis in original) (quotation marks
4 omitted). “[T]he disjunctive clause [] gives McGraw-Hill
5 the option of remitting royalties [solely] from sales to its
6 international division.” Id. Similarly, the agreement
7 expressly allows McGraw-Hill to sell works to one of its own
8 divisions and to set prices “as it shall deem suitable.”
9 Joint App’x 19. Cordell’s arguments that McGraw-Hill has
10 breached the agreement by engaging in these actions are
11 unavailing.
12 The district court was also correct to dismiss
13 Cordell's claim for breach of the implied duty of good faith
14 and fair dealing because "New York law . . . does not
15 recognize a separate cause of action for breach of the
16 implied covenant of good faith and fair dealing when a
17 breach of contract claim, based on the same facts, is also
18 pled." Harris v. Provident Life & Accident Ins. Co., 310
19 F.3d 73, 81 (2d Cir. 2002). Had Cordell pleaded any facts
20 showing bad faith, or otherwise supporting his assertion
21 that McGraw-Hill set the prices for his works at improperly
22 low levels, the case might be different, but he did not do
23 so.
3
1 We have considered all of Cordell’s arguments and find
2 them to be without merit. For the reasons stated above, the
3 judgment of the district court is AFFIRMED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
7
4