Norman v. Tradewinds Airlines, Inc., 1:02CV918 (M.D.N.C. 3/24/2003), 1:02CV918.

CourtUnited States District Courts. 4th Circuit. Middle District of North Carolina
Writing for the CourtWallace Dixon
Docket Number1:02CV918.
PartiesJOSEPH S. NORMAN, II Plaintiff, v. TRADEWINDS AIRLINES, INC. Defendant.
Decision Date24 March 2003

Page 1

United States District Court, M.D. North Carolina.
March 24, 2003.

WALLACE DIXON, Magistrate Judge.

This matter comes before the court on the Motion to Dismiss [Doc. #10] of Defendant TradeWinds Airlines, Inc. ("TradeWinds"). Plaintiff Joseph S. Norman, II, filed suit in this case against TradeWinds alleging breach of contract and fraudulent inducement following the termination of his employment with TradeWinds. For the reasons that follow, TradeWinds' motion should be granted.

Factual and Legal Allegations

Before outlining the factual allegations in Norman's case, it is necessary to address the various sources of factual material presented to this court at this stage of the case. Norman has attached several documents to his response to the motion to dismiss, some of which are referenced in, but not attached to, his complaint, (e.g., a memorandum dated April 25, 2000, the TradeWinds Airlines Flight Deck Crew Policy Handbook, and a letter of termination dated August 15, 2002), and some of which are not directly referenced in his complaint (e.g., a memorandum dated April 10, 2001, and a memorandum dated August 15, 2002). See Am. Compl. [Doc. #3, hereinafter "complaint" or "Compl."]. Norman has also made several additional substantial factual allegations in his response to the motion to dismiss which are not in the complaint. (E.g., Resp., pp. 3-4 (concerning travel and training requirements of job)).

Generally, on a motion to dismiss, courts are limited to consideration of the facts stated in the complaint or in documents attached to the complaint, and consideration of facts outside the complaint converts the motion to dismiss into a motion for summary judgment. See FED.R.CIV.P. 12(b) & 10(c). The underlying concern in cases applying this rule is to protect a plaintiff who might not have notice of (and an opportunity to fully respond to) facts newly introduced by the defendant in conjunction with motion to dismissal. See McNair v. Lend Lease Trucks. Inc., 62 F.3d 651, 656 (4th Cir. 1995), vacated on other grounds by 95 F.3d 325 (4th Cir. 1996); Cortec Industries. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2nd Cir. 1991). Accordingly, an exception to the rule exists in two situations where this concern is not at issue. First, courts have considered the contents of documents not attached to the complaint, but brought forth on a motion to dismiss, where the documents are referred to in the complaint and are central to the plaintiffs claim. See, e.g., Lapidus v. Hecht, 232 F.3d 679, 682 (9th Cir. 2000) (considering document whose contents were alleged in the complaint); Greenberg v. Life Ins. Co. of Virginia. 177 F.3d 507, 514 (6th Cir. 1999) (considering insurance document attached to motion to dismiss); City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 259 (3rd Cir. 1998) (considering documents produced upon motion to dismiss). Second, courts have also considered facts not alleged in the complaint where the plaintiff has himself raised the fact outside of the complaint. See McNair v. Lend Lease Trucks. Inc., 62 F.3d 651, 656 (4th Cir. 1995) (allowing consideration of a crucial fact not alleged in the complaint, without converting motion to one for summary judgment, where plaintiff recognized fact in argument on motion to dismiss), vacated on other grounds by 95 F.3d 325, 328 n. 3 (4th Cir. 1996) (expressly adopting reasoning of panel as to this point); Early v. Bankers Life & Casualty Co., 959 F.2d 75, 79 (7th Cir. 1992) ("[A] plaintiff is free, in defending against a motion to dismiss, to allege without evidentiary support any facts he pleases that are consistent with the complaint, in order to show that there is a state of facts within the scope of the complaint that if proved . . . would entitle him to judgment.").

In this case, given that it is Norman who has introduced additional documents and facts beyond those in the complaint into the record, and given that TradeWinds does not take issue with the court's consideration of these additional documents and facts, the court will consider all of the documents and accept as true the facts included with Norman's response, whether directly referenced in the complaint or not. With the documentary exhibits present, though, the court need not accept as true any allegations in the complaint (or the response) that are directly contradicted by the exhibits. See Fayetteville Investors v. Commercial Builders. Inc., 936 F.2d 1462, 1465 (4th Cir. 1991) ("[I]n the event of conflict between the bare allegations of the complaint and any [attached] exhibit . . . the exhibit prevails."); see also Sprewell v. Golden State Warriors. 231 F.3d 520, 528 (9th Cir. 2000) (holding that, by attaching arbitration agreement to complaint, the plaintiff "pled himself out of a claim by including unnecessary details contrary to his claims"). Guided by these principles, the facts of Norman's case and the allegations supporting Norman's claims may be summarized as follows.

Norman is a citizen of Florida, and TradeWinds is a corporation with its headquarters in Greensboro, North Carolina. (Compl., ¶ 1). Norman was recruited by TradeWinds in Florida, and was employed with TradeWinds as a pilot on or before March 26, 2001. (Resp., ¶ 26; Ex.1). Norman's employment was not pursuant to a contract which provided for a definite period of employment. (Resp., ¶ 5). Norman signed an "Acknowledgement of Conditional Offer of Employment" which stated that Norman agreed that "his employment may be terminated `with or without cause or notification, at any time.'" (Compl., ¶ 16).1

At the time of Norman's interview and employment, TradeWinds made Norman aware of company guidelines, policies, and "the details of the employment opportunity offered," which were embodied in an April 25, 2000, Memorandum, the TradeWinds "Flight Deck Crew Policy Handbook" ["Handbook"], and an April 10, 2001, Memorandum. (Compl., ¶ 3; Resp., ¶ 3; ¶ 1's Resp. to Reply, p. 2). At the start of his employment, Norman signed a statement indicating that he acknowledged that he had received a copy of the Handbook and that it was his "responsibility to read . . . and be responsible to company policies there-in." (Ex. 1; Resp., ¶ 9). The April 25, 2000, Memorandum (from TradeWinds' President to "All Cockpit Crewmembers") was attached to the Handbook, and it stated, in part:

This handbook will be the basis on which a flight deck crewmember's day-to-day interaction with the company will be managed, . . .

The company . . . appreciates the dynamic nature of its current situation. Especially in light of the negative effects its prior financial performance has had on its overall financial strength, [sic] The policies in this initial copy of the handbook may be revised from time to time as dictated by the operational needs of the company.

(Ex. 1).

The Handbook itself outlined, inter alia, an "Off-Day" pay policy (Ex. 1, Handbook, p.4); a "Hot Reserve" pay credit policy for each full day of "Hot Reserve Duty" (Ex.1, Handbook, p.5); a priority policy for awarding "Open Time" (Ex.1, Handbook, p.5); and a seniority policy for assigning captain positions (Compl., 1J6). The Handbook also outlined "Standby Pay" and other upgrading and seniority policies or procedures. (Resp., ¶ 24; see also Ex. 1, Handbook, p. 10 ("Seniority will be used for awarding lines of flying, upgrading, downgrading, training, furloughing, and giving preference for assigning open Time, extra sections and other flying, [sic] . . . Normally, the seniority of a pilot shall be assigned by the company upon successful completion of Basic Indoctrination training[.]")).

In addition, the Handbook included a "Progressive Discipline Policy" which provided guidelines under which a Chief Pilot or Director will take disciplinary action "if a crewmember commits an offense warranting disciplinary action." (Ex.1, Handbook, p. 14). These guidelines provided for a three-step warning process for most offenses, followed by suspension or termination. (Id.). "In cases of major offenses," however, "disciplinary action may start at any level of this progressive discipline program." (Id.). Finally, the April 10, 2001, Memorandum, contained a policy statement on the part of TradeWinds outlining the "enumerated procedure in terminating employees." (Pi's Resp. to Reply, p. 2). Specifically, the Memorandum indicates that when the TradeWinds scheduling department is "Unable to Contact (UTC)" a crewmember, sanctions will occur. (Ex. 2). One UTC results, inter alia, in a write up; a second UTC results in a meeting with the Chief Pilot in Greensboro, North Carolina; and, a third UTC results in a further meeting with the Chief Pilot in Greensboro and possible discontinuation of employment. (Ex. 2, p. 2).

While employed with TradeWinds, "Norman was required to move from Florida to Dayton, Ohio, each time he began a work shift." (Resp., ¶ 6). This travel time to reach the point of origination for the flights assigned was uncompensated. (Id.). "As a condition of employment," Norman was required to complete "Basic Indoctrination training." (Resp., ¶ 7; see Ex.1, Handbook, p.10). During the training program, which lasted several months, Norman was "required. . . to start at a much reduced level of pay and progress through a seniority system." (Resp., ¶ 7). Also, "Norman was required to agree to an `Equipment Lock' to work for TradeWinds," in which he was "required to stay in an aircraft type" for about 36 months before seniority allowed greater choice. (Resp., ¶ 8; Ex. 1, Handbook, p.11).

During the course of Norman's employment, TradeWinds did not apply the "Off-Day," "Hot Reserve," "Open Time," "Standby Pay" and other upgrading and seniority procedures outlined in the Memoranda and Handbook. (Compl., ¶¶ 4-7; Resp., ¶ 24). Norman's employment was...

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