Van Bortel v. Ford Motor Co.
| Docket Number | 21-CV-6739L |
| Decision Date | 10 August 2022 |
| Parties | Mary Catherine VAN BORTEL, also known as Kitty Van Bortel, and Howard G. Van Bortel, Plaintiffs, v. FORD MOTOR COMPANY, Defendant. |
| Court | U.S. District Court — Western District of New York |
Leonard A. Bellavia, Steven H. Blatt, Bellavia Blatt, P.C., Mineola, NY, for Plaintiffs.
Peter Joseph Fazio, Aaronson Rappaport Feinstein & Deutsch, LLP, New York, NY, for Defendant.
DECISION AND ORDER
"A verbal contract isn't worth the paper it's written on."
That quote, often ascribed to movie mogul Samuel Goldwyn, is often closer to the truth than its lack of literal sense might suggest. Although oral contracts can and do exist, this case demonstrates that oral conversations containing vague promises that are never committed to writing are ill-suited means of forming enforceable contracts.
This action was filed in Monroe County Supreme Court on November 15, 2021, by Mary Catherine Van Bortel ("Van Bortel") and her brother, Howard Van Bortel, against Ford Motor Co. ("Ford"). Plaintiffs filed an amended complaint in December. Ford removed the case to this Court on December 13, 2021, based on diversity jurisdiction under 28 U.S.C. § 1332.
The amended complaint alleges that plaintiffs own a car dealership, Van Bortel Ford, in East Rochester, New York.1 In the fall of 2021, Van Bortel allegedly entered into an oral agreement with Ford concerning the upcoming sale of another Ford dealership, Henderson Ford, in Webster, New York. Ford allegedly promised Van Bortel that Ford would exercise its contractual right to purchase Henderson Ford and assign the Purchase and Sale Agreement ("PSA") to plaintiffs.
In a nutshell, that never occurred. The Henderson dealership ended up being sold to another Ford dealer, West Herr Auto Group.
Based on those events, plaintiffs assert two claims against Ford. The first is for breach of contract, based on Ford's alleged breach of its oral contract concerning the assignment of the PSA to plaintiffs. The second claim is brought by Van Bortel under the New York State Human Rights Law ("HRL"), N.Y. Exec. L. § 296, alleging that Ford discriminated against her on the basis of her sex by reneging on its promise and approving the sale of Henderson Ford to West Herr, which is owned by a man.2
Ford has moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiffs have filed a response in opposition to the motion. The Court heard oral argument on Ford's motion on June 8, 2022.
The complaint alleges the following facts, which for purposes of the pending motion are accepted as true, unless otherwise noted.
Plaintiffs own several car dealerships in New York, including Van Bortel Ford. On September 8, 2021, Ford area representative Paul Bucek contacted Van Bortel and told her that Henderson Ford was going to be sold, subject to certain contingencies.
Under the terms of Ford's Sales & Service Agreement between Ford and its dealers, in the event that a Ford dealer proposes a sale of the dealership to a buyer, Ford has the right to approve or disapprove the sale. Ford also has a right of first refusal ("ROFR"), which gives Ford the right to purchase the dealership under the same terms offered to the prospective buyer. Ford may also assign the ROFR to a third party. (Dkt. #15-1.)3
Apparently, at the time of the conversation between Bucek and Van Bortel, there was a prospective buyer for Henderson Ford, and a PSA had either been drafted or was near completion. Bucek said that if plaintiffs were interested in purchasing Henderson Ford, Ford would exercise its ROFR and assign the PSA to them. Van Bortel claims that she "accepted" and agreed. Plaintiffs refer to this as the "First Ford Agreement." (Dkt. #1-3 ¶ 10.)
In connection with the First Ford Agreement, plaintiffs entered into a written nondisclosure agreement with Ford. (Dkt. #1-3 ¶ 14.) The agreement (a copy of which has been submitted by Ford), is in the form of a letter from Bucek to Van Bortel, stating that Ford is "prepared to consider you, as the Potential Assignee of Ford Motor Company's Right of First Refusal in regards to the proposed transaction involving . . . Henderson Ford . . . ." (Dkt. #8-5.)
The letter also set forth certain "requirements with regards to confidentiality and non-disclosure of information," including "all related data pertaining to Henderson Ford, which includes the terms of any existing purchase or buy/sell agreement . . . ." Id. (emphasis in original omitted). The letter further stated that Van Bortel must "agree not to duplicate or share the information with others" and to "keep this information strictly confidential."
Significantly, the final sentence of the letter stated, "Neither this letter nor any efforts you may or may not make to pursue such a transaction shall not, [sic] in any way, obligate either party to the above-mentioned transaction." Van Bortel signed the letter, under the heading, "AGREED AND ACCEPTED." Id.
On September 17, 2021, Bucek and Ford representative Brennen Murray called Van Bortel and told her that Ford had decided not to approve the Henderson Ford PSA, and that Ford therefore could not assign the PSA to plaintiffs. There was thus no contract of sale to assign.
During that phone call, Van Bortel reiterated her interest in purchasing the Henderson dealership. She proposed that "if another approvable Ford dealer were to enter into a PSA with Henderson Ford, Ford would exercise its right of first refusal and assign the PSA to Plaintiffs." Am. Comp. ¶¶ 16, 17. Bucek, on behalf of Ford, allegedly agreed. Plaintiffs refer to this as the "Second Ford Agreement."4
On October 25, 2021, Bucek informed Van Bortel that Henderson Ford had entered into a PSA with another dealer, West Herr. Bucek told her that Ford would not be exercising its ROFR and, therefore, would not assign the PSA to plaintiffs.
A few days later, on October 27, Van Bortel spoke with Ford's Retail Network U.S. Franchise Manager, Edie Lukas, regarding these events. In the course of their conversation, Van Bortel told Lukas how she had fought to establish herself as a successful female Ford dealer, and Lukas responded that "minority dealers are not a priority right now" for Ford. Am. Comp. ¶ 22.
Based on these factual allegations, plaintiffs allege in the first cause of action that Ford has breached both the first and second Ford Agreements by failing to exercise its ROFR and assign the PSA to plaintiffs. (Dkt. #1-3 ¶¶ 27-32.)
The second cause of action is brought only by Van Bortel, alleging that Ford violated the HRL, Exec. L. § 296(5)(b), which makes it unlawful for anyone "[t]o refuse to sell, rent, lease or otherwise deny to or withhold from any person or group of persons land or commercial space because of the . . . sex . . . of such person," or to "discriminate against any person because of . . . sex . . . in the terms, conditions or privileges of the sale, rental or lease of any such land or commercial space; or in the furnishing of facilities or services in connection therewith."
Plaintiffs allege that Ford violated this statute by refusing, on two separate occasions, to exercise its ROFR and assign the PSA to Van Bortel, and instead approving the sale of Henderson Ford to a dealership owned by a man. Plaintiffs allege that in furtherance of its efforts to discriminate against Van Bortel, Ford "rushed" the approval of the sale to West Herr. (Dkt. #1-3 ¶ 50.)
In deciding a motion to dismiss a complaint for failure to state a claim upon which relief can be granted, the court must accept all well-pleaded factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. GE Investors v. General Elec. Co., 447 F.App'x 229, 230 (2d Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The court need not accept conclusory allegations or draw unreasonable inferences, however. Guilfoile v. Shields, 913 F.3d 178, 186 (1st Cir. 2019); Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1008 (9th Cir. 2018); Schorr v. Dopico, 205 F.Supp.3d 359, 363 (S.D.N.Y. 2016).
To survive a motion to dismiss brought pursuant to Rule 12(b)(6), the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955; see also Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ().
Although the plaintiff is not required to plead "specific evidence," Arista Records, LLC v. Doe 3, 604 F.3d 110, 119 (2d Cir. 2010), the pleader must present more than " 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action' . . ." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.' " Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). "A claim has 'facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' " Excevarria v. Dr Pepper Snapple Group, Inc., 764 F.App'x 108, 109 (2d Cir. 2019) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937).
The first cause of action asserts a claim for breach of contract. Plaintiffs allege that the parties entered into two contracts, the First and Second Ford Agreements, in both of which Ford promised to exercise its ROFR and assign the PSA for Henderson Ford to plaintiffs, and that Ford breached both agreements.
To state a claim for breach of contract under New York law, a plaintiff must allege four...
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