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finding that a civil conspiracy claim must "fail as well because . . . there is no independent tort upon which to base a conspiracy"
Summary of this case from Cortes v. Twenty-First Century Fox Am., Inc.Opinion
No. 03 Civ. 3002 (PKL).
February 22, 2005
GIBBONS, DEL DEO, DOLAN, GRIFFINGER VECCHIONE, P.C., New York, NY, R. Scott Garley, Esq., Mark S. Sidoti, Esq., Patrick V. DiDomenico, Esq., Attorneys for Plaintiff.
SWIDLER BERLIN SHEREFF FRIEDMAN, LLP, New York, NY, Andrew J. Levander, Esq., Benjamin E. Rosenberg, Esq., Neil A. Steiner, Esq., Robert W. Topp, Esq., Attorneys for Defendants Biovail Corporation, Eugene N. Melnyk and Kenneth C. Cancellara.
PROSKAUER ROSE LLP, New York, NY, Ronald Rauchberg, Esq., Frank P. Scibilia, Esq., Attorneys for Defendants Michael Sitrick and Sitrick and Company.
OPINION AND ORDER
Plaintiff, Jerry I. Treppel, brings this action for alleged defamation, defamation per se, tortious interference with prospective economic advantage, prima facie tort, and civil conspiracy, claiming defendants' engaged in a public smear campaign that destroyed his career as a prominent securities research analyst covering the healthcare and pharmaceutical industry. Defendants moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). On October 15, 2004, the Court denied in part and granted in part defendants' motion (the "Order"). Specifically, the Court (1) sustained plaintiff's claims of defamation and defamation per se with respect to three of the eleven statements alleged; (2) sustained plaintiff's claim of tortious interference with prospective economic advantage; (3) dismissed plaintiff's claim of prima facie tort; and (4) sustained plaintiff's claim of civil conspiracy.
Three of the five defendants named in this action, specifically Kenneth C. Cancellara ("Cancellara"), Michael Sitrick and Sitrick and Company (the "Sitrick Defendants") (collectively the "Three Defendants") now move the Court, pursuant to Rule 6.3 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York ("Local Rule 6.3"), to reconsider the Order to the extent it denied defendants' motion to dismiss plaintiff's claims for tortious interference with prospective economic advantage and civil conspiracy against the Three Defendants, and to dismiss the Amended Complaint in its entirety against the Three Defendants. The Three Defendants contend that this Court did not have the opportunity to consider the decision of the New York Court of Appeals in Carvel Corp. v. Noonan, 3 N.Y.3d 182 (2004) (the "Carvel Decision"), which was issued the day before the Order. In that opinion, the Three Defendants argue, the New York Court of Appeals clarified the standard for tortious interference with prospective economic advantage by limiting the types of conduct that could support such a claim to (a) criminal acts, (b) independent torts, or (c) acts solely intended to inflict intentional harm on the plaintiff. (See Memorandum of Law In Support of Defendants' Motion For Reconsideration ("Defs.' Mem.") at 1.) According to the Three Defendants, plaintiff's allegations against them with respect to this tort fail to satisfy this new standard, and therefore, this claim should be dismissed. (Id.) Further, the civil conspiracy claim against the Three Defendants should then be dismissed because it must be predicated upon an independent tort and, if the tortious interference claim were dismissed, that predicate would be lacking for the Three Defendants. (Id. at 2.) For the reasons set forth below, the motion to reconsider the judgment is granted and plaintiff's claims for tortious interference and civil conspiracy against the Three Defendants are dismissed without prejudice.
BACKGROUND
The facts giving rise to this litigation are set forth in the Court's October 15, 2004 Order, with which the Court assumes familiarity. At all times relevant to this action, plaintiff was a securities research analyst who covered the healthcare and pharmaceutical industry for Banc of America Securities ("BAS"). One of the companies that plaintiff covered was defendant Biovail Corporation ("Biovail"), a Canadian corporation that manufactures pharmaceutical drugs and sells those drugs in the United States. Cancellara served as the General Counsel of Biovail while the Sitrick Defendants were hired by Biovail to serve as its media contact. Over the period of years that plaintiff covered Biovail, he downgraded his recommendation concerning the value of Biovail's stock on three occasions, resulting each time in a significant decline in Biovail's stock price and market capitalization. On one of those occasions, he also publicly criticized Biovail and its management. Plaintiff avers that Biovail, its Chairman and Chief Executive Officer Eugene Melnyk ("Melnyk"), also a defendant in this action, and the Three Defendants responded to his negative coverage by launching a public smear campaign designed to ruin his personal and professional reputation. The alleged campaign included eleven statements that were published by print and wire media in the United States and Canada, as well as conduct intended to harm plaintiff.
In the Order, the Court concluded, inter alia, that eight of the eleven statements were not defamatory as a matter of law. Of the three surviving statements, plaintiff attributed two of the statements to Biovail and the third to Melnyk. The Court also found that the conduct alleged by plaintiff supported the claim of tortious interference with prospective economic advantage against all five defendants. Those allegations, which are central to the instant motion, are as follows:
• "Biovail . . . obtained a copy of Treppel's personal account statements and documents through improper discovery of nonparty BAS in February 2002 . . ." (Amended Complaint ("Compl.") ¶ 19);
• "[D]efendants secretly provided Treppel's personal account records to The Wall Street Journal and falsely advised the newspaper that he was trading Andrx [a competitor of Biovail] options to coincide with the issuance of his research reports and recommendations concerning Biovail and Andrx, and thereby illegally profiting from his own reports" (Compl. ¶ 26); and,
• "[I]n early May 2002, defendants also pressured BAS into placing Treppel on leave and ultimately forced his resignation from the firm by, among other things, threatening to sue BAS unless the firm acceded to Biovail's demands to retract Treppel's April 29, 2002 research report and sell recommendation, investigate Treppel's alleged trading activities and other purportedly improper conduct, and terminate Treppel's employment." (Compl. ¶ 34.)
DISCUSSION
I. The Motion for Reconsideration StandardLocal Rule 6.3 provides that a notice of motion for reconsideration must be served within ten days of the entry of judgment and must set forth the matters that counsel believes the court did not properly consider. See Local Rule 6.3. A motion to reconsider will generally be denied "unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court."Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). The decision to grant or deny a motion for reconsideration is in the "sound discretion of a district court judge and will not be overturned on appeal absent an abuse of discretion." Wechsler v. Hunt Health Systems, Ltd., No. 2004 WL 2210261, at *6 (S.D.N.Y. Sept. 30, 2004) (Leisure, J.) (citations omitted). Moreover, the motion to reconsider should not raise "new facts, issues or arguments not previously presented to the court."Id. (citation omitted). Indeed, a party seeking reconsideration "is not supposed to treat the court's initial decision as the opening of a dialogue in which that party may then use such a motion to advance new theories or adduce new evidence in response to the court's rulings."Polsby v. St. Martin's Press, Inc., No. 97 Civ. 690, 2000 U.S. Dist. LEXIS 596, at *3 (S.D.N.Y. Jan. 18, 2000) (citations omitted). Thus, Local Rule 6.3 should "be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court." Dellefave v. Access Temps., Inc., No. 99 Civ. 6098, 2001 U.S. Dist. LEXIS 3165, at *1 (S.D.N.Y. Mar. 22, 2001). However, reconsideration may be justified by "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice."Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (citation omitted); see also Seippel v. Jenkins Gilchrist, P.C., No. 03 Civ. 6942, 2004 WL 2403911, at *1 (S.D.N.Y. Oct. 26, 2004).
II. The Carvel Cases
The instant motion is based upon what the Three Defendants contend is an intervening change in the law governing the tort of tortious interference with prospective economic advantage. The change allegedly stems from the decision of the New York Court of Appeals in Carvel Corp. v. Noonan, 3 N.Y.3d 182 (2004). Therefore, a review of that case and the companion case before the Second Circuit is necessary to fully understand the substance of the arguments before the Court.
In Carvel Corp. v. Noonan, 350 F.3d 6 (2d Cir. 2003), the Second Circuit considered the appeal from a judgment entered on jury verdicts in three separate trials in favor of appellees on their claims for breach of contract, breach of implied covenant of good faith and fair dealing, and intentional interference with prospective economic advantage. The three appellees were once franchisees of appellant Carvel Corporation ("Carvel"), the owner of various brand names, trademarks, and recipes for the production of ice cream products. Historically, Carvel ice cream was sold exclusively through its franchised stores. Id. at 9. However, in the early 1990s, due to financial difficulties, Carvel instituted a "supermarket program," whereby Carvel itself as well as franchisees that chose to participate would sell ice cream to supermarkets. Id. Few franchisees chose to participate in the program, however, because those who joined were required to pay substantial license fees and upgrade their stores. Id. at 10. Throughout the 1990s, the supermarket program grew rapidly, while many franchise stores went out of business. Id. The franchisees alleged, inter alia, that the program itself was harmful to their business because Carvel sold to supermarkets at bargain prices, issued coupons to customers that Carvel would redeem from supermarkets but not from franchisees, and required franchisees to use bags on which the coupons were printed. Id. The franchisees claimed that Carvel unlawfully interfered with their customer relationships by implementing the supermarket program and inducing customers not to buy Carvel products from the franchise stores. Id. at 11. Each franchisee proceeded before a separate jury and all three juries rendered verdicts against Carvel, with compensatory damages totaling $439,599 and punitive damages totaling $600,000. Id. at 13.
Carvel raised six arguments on appeal but only one is relevant to the instant motion. Carvel argued that the district court erred in denying its renewed motion for judgment as a matter of law on appellees' claims that Carvel tortiously interfered with their prospective business advantage with their retail customers. To prevail on such a claim, a plaintiff in New York must prove that: (1) there was a business relationship with a third party; (2) defendant knew of that relationship and intentionally interfered with it; (3) defendant either acted "solely out of malice" or used "wrongful means;" and (4) defendant's interference caused injury to the relationship with the third party. Id. at 17 (citingGoldhirsh Group, Inc. v. Alpert, 107 F.3d 105, 108-09 (2d Cir. 1997);Purgess v. Sharrock, 33 F.3d 134, 141 (2d Cir. 1994)).
In a thorough analysis, Circuit Judge Richard C. Wesley discussed several issues relevant to this type of claim, including when one party to a contract may sue the other in tort, why the tort of tortious interference with prospective economic advantage is difficult to apply, and whether the standard for the third element, "wrongful means," should vary depending upon whether the parties are competitors or non-competitors, as the Restatement of Torts provides. Id. at 15-22. However, the Court was unable to determine whether appellees had established the third element of the tort because, "although it is clear that `wrongful means' . . . can ground liability for a competitor's interference with prospective economic relations, it is unclear just what sort of conduct constitutes those means." Id. at 23. Thus, the Court certified the following question to the New York Court of Appeals:
Under applicable standards for a claim of tortious interference with prospective economic relations, did the evidence of the franchisor's conduct in each of the three trials on review in these consolidated appeals permit a jury finding in favor of the franchisee? In answering this question, the Court of Appeals might wish to inform us whether, in the context of a tortious interference claim, New York would view the franchisor in this case as a competitor of the franchisees for purposes of determining the applicable standard, and, if so, whether a plaintiff must show that a competitor-defendant acted "wrongfully" but show that a non-competitor defendant acted only "improperly."Id.
"Tortious interference with prospective economic relations" is used synonymously with "tortious interference with prospective economic advantage." The Court will continue to use "tortious interference with prospective economic advantage" to be consistent with its October 15, 2004 Order.
The Second Circuit certified a second question to the New York Court of Appeals concerning the necessity of establishing public harm when seeking punitive damages for tortious interference with prospective economic advantage. Id. at 26. That question is not relevant to the instant motion.
Approximately one year later, the New York Court of Appeals answered the certified question in the negative, concluding that "Carvel's conduct, which did not constitute a crime or an independent tort and was not aimed solely at harming franchisees, was also not the sort of egregious wrongdoing that might support a tortious interference claim in the absence of such an independently unlawful act or evil motive." See Carvel Decision at 189. The court based this conclusion upon the language from its two prior cases that address this tort, Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183 (1980), and NBT Bancorp Inc. v. Fleet/Norstar Fin Group, Inc., 87 N.Y.2d 614 (1996). In its discussion of the element of "wrongful means" in Guard-Life, the court approvingly made reference to the open-ended definition provided by the Restatement of Torts: "`Wrongful Means' include physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure; they do not, however, include persuasion alone although it is knowingly directed at interference with the contract." Guard-Life, 50 N.Y.2d at 191 (quotingRestatement (Second) of Torts § 768 cmt. e; § 767 cmt. c (1979)). Sixteen years later in NBT, the court attempted to further define the concept of "wrongful means" by requiring plaintiff to demonstrate that defendant's conduct was not "lawful" but "more culpable." NBT, 87 N.Y.2d at 621 (citing Guard-Life, 50 N.Y.2d at 193-94). The Carvel court reasoned that the evolution of this standard implies that "as a general rule, the defendant's conduct must amount to a crime or an independent tort" because "[c]onduct that is not criminal or tortious will generally be `lawful' and thus insufficiently `culpable' to create liability for interference with prospective contracts or other non-binding economic relations." Carvel Decision at 190. Therefore, "[s]ince the franchisees have not shown that Carvel's conduct was criminal or independently tortious, they cannot recover unless an exception to the general rule is applicable." Id.
The only recognized exception to the rule applies where a defendant engages in conduct "for the sole purpose of inflicting intentional harm on plaintiffs." Id. (quoting NBT, 628 N.Y.S.2d 408, 410 (App.Div. 1995),aff'd, 87 N.Y.2d 614 (1996)); see also Carvel Corp., 350 F.3d at 17 (providing that plaintiff may establish third element of the tort by showing either that defendant used "wrongful means" or acted "solely out of malice"). However, the court held that the malice exception does not apply to Carvel because its interference was clearly motivated by economic self-interest. Id. Moreover, the court declined to decide whether any other exception to the general rule exists because such an exception would require a level of "egregious conduct" that the franchisees had not established.Id. at 191.
Finally, the court addressed two additional issues raised by the Second Circuit. First, with respect to the question of whether two different standards for "wrongful means" should be applied, one when the parties are competitors and one when they are not competitors, the court was clear: "The logic of Guard-Life and NBT does not . . . depend on the parties' status as competitors." Id. (emphasis added). While the fact that the parties compete in some manner may be relevant because it provides defendant with a motive to interfere that does not stem from a desire to injure plaintiff, "competition, by definition, interferes with someone else's economic relations." Id. Thus, it is irrelevant whether the parties are characterized as competitors or non-competitors. Id. "The question, under Guard-Life and NBT, is whether the `means' employed . . . were `wrongful' or `culpable' as we used those terms in those cases."Id. at 191-92.
Second, the court rejected the franchisees' argument that Carvel used wrongful "economic pressure" as that term is used in Guard-Life and NBT. After reiterating the fact that a plaintiff (franchisees) must show that economic pressure was exerted by the defendant (Carvel) upon the third party (franchisees' customers), and not plaintiff itself, the court opined that economic pressure is "wrongful" as contemplated by Guard-Life andNBT only when it is "extreme and unfair." Id. at 192-93. Though the court did not offer further guidance on the meaning of "extreme and unfair," it found that Carvel's supermarket program and coupon policy did not constitute wrongful economic pressure. Id.
The Second Circuit has yet to decide Carvel's appeal in light of the guidance offered by the New York Court of Appeals. Moreover, this Court's research reveals only two other decisions in this Circuit to date to have discussed the implications of the Court of Appeals' ruling. See Rome Ambulatory Surgical Ctr., LLC v. Rome Mem'l Hosp., Inc., 349 F. Supp. 2d 389 (N.D.N.Y. 2004) (noting that the general rule following Carvel is that defendant's conduct must amount to a crime or an independent tort); Catskill Dev., LLC v. Park Place Entm't Corp., 345 F. Supp. 2d 360 (S.D.N.Y. 2004) (concluding that the Carvel Decision, while "interesting" and "informative," did not definitively resolve what constitutes wrongful economic pressure).
III. The Three Defendants' Motion to Reconsider the Judgment
The Three Defendants' argument for reconsideration is straightforward: the Carvel Decision, which this Court did not have the benefit of considering prior to issuing its Order, "tightened" the definition of wrongful means to the extent that plaintiff's allegations no longer sustain a claim against them for tortious interference with prospective economic advantage. (Defs.' Mem. at 3.) Moreover, the Three Defendants contend that, without the tortious interference claim, the civil conspiracy claim against them fails as well because none of the three allegedly defamatory statements that survived the motion to dismiss were attributed to them and thus, there is no independent tort upon which to base a conspiracy. (Defs.' Mem. at 5-6.) Based upon the present record and the clear language of the Carvel Decision, the Court agrees.
A. Only Allegations Attributed to the Three Defendants Considered as Wrongful Means
As a preliminary matter, the Court rejects plaintiff's contention that, even if the Court were to accept the Three Defendants' interpretation of the Carvel Decision, the tortious interference claim against Cancellara and the Sitrick Defendants should stand because the three surviving defamatory statements would satisfy the purported "independent tort" standard. (Plaintiff's Memorandum of Law In Opposition to Certain Defendants' Motion for Reconsideration ("Pl.'s Mem.") at 2, 7.) Plaintiff's position ignores the fact that not one of the three surviving statements is attributed to Cancellara or the Sitrick Defendants; indeed, two are attributed to Biovail and one is attributed to Melnyk. Without an allegation of a false and defamatory statement, it is axiomatic that a plaintiff cannot establish a cause of action for defamation. Because plaintiff's remaining defamation claims are limited to Melnyk and Biovail, the Court will not consider the three surviving statements as wrongful means employed by Cancellara and the Sitrick Defendants for purposes of the tortious interference claim. Thus, plaintiff's tortious interference claim against the Three Defendants rests solely upon the allegations of non-defamatory conduct.
With respect to the three allegations of non-defamatory conduct, two allege acts committed by all five defendants, which includes Cancellara and the Sitrick Defendants (see Compl. ¶¶ 26, 34), while the third claims that Biovail improperly obtained plaintiff's personal account records (see Compl. ¶ 19). As discussed above, statements attributed to others cannot be considered as wrongful means utilized by Cancellara and the Sitrick Defendants to interfere tortiously. Similarly, an act allegedly committed by another party must be excluded as well. Accordingly, in its analysis of the wrongful means element of the tortious interference claim against Cancellara and the Sitrick Defendants, the Court will only consider the allegations that, (1) defendants "secretly provided" plaintiff's personal account statements and documents to the The Wall Street Journal (Compl. ¶ 26); and, (2) defendants "pressured BAS into placing [plaintiff] on leave and ultimately forced his resignation from the firm (Compl. ¶ 34). B. Two Allegations Attributed to the Three Defendants Do Not Constitute Wrongful Means Following Carvel
The Court notes that, even if the third allegation implicated the Three Defendants, it would not satisfy the wrongful means standard underCarvel for the reasons discussed in Part III(B), infra.
Plaintiff argues that the Carvel Decision did not modify New York law on tortious interference with prospective economic advantage but only discussed existing law. (Pl.'s Mem. at 4.) It is plaintiff's position that the question certified by the Second Circuit focused specifically on the standard of conduct to be applied to tortious interference claims by franchisees against their franchisor (Pl.'s Mem. at 4), and that the New York Court of Appeals did not alter in any way the nature of the conduct required to satisfy the standard set forth in Guard-Life and NBT (Pl.'s Mem. at 6). In short, plaintiff asserts that the Carvel Decision is limited to its facts and simply re-affirms that "wrongful means" includes more than just crimes and independent torts. (Id.)
Simply put, plaintiff's view is not supported by the definitive language of the Carvel Decision. While the Second Circuit framed its question in the franchisor-franchisee context, it does not necessarily follow that the answer provided by the Court of Appeals must be limited to that context. In fact, it was not. Relying upon NBT, a case that involved two financial institutions that were not linked by a franchise agreement or any other agreement, the Court announced the "general rule" that defendant's conduct must be criminal or tortious to constitute wrongful means sufficient for the tort of tortious interference with prospective economic advantage. See Carvel Decision at 190. Nowhere did the Court state or imply that that this general rule applies only to claims between franchisors and franchisees. Rather, the Court actually minimized the significance of the parties' relationship and emphasized that the wrongful means inquiry should focus primarily on the nature of the alleged conduct. See Carvel Decision at 191-92 ("The logic ofGuard-Life and NBT does not, however, depend on the parties' status as competitors. . . . The question, under Guard-Life and NBT, is whether the `means' employed by [defendant] were `wrongful' or `culpable' as we used those terms in those cases."). Moreover, the use of this broad and decisive language in response to a certified question from the Second Circuit demonstrates to this Court that the Court of Appeals intended to do more than merely "discuss" existing law, as plaintiff maintains, and instead sought to clarify this element of the tort.
Thus, the question before this Court following the Carvel Decision is whether the alleged acts supporting plaintiff's claim for tortious interference against the Three Defendants, if accepted as true at this preliminary stage, constitute a crime, a tort, or were motivated solely by malice. Though the Carvel Decision acknowledged that the malice exception may not be the only exception to the general rule requiring a crime or independent tort, it expressly declined to recognize any other exception because only "egregious conduct" would justify an additional exception, and plaintiffs there established no such conduct. See Carvel Decision at 190-91. Similarly, here, plaintiff has not directed the Court to any conduct that is sufficiently egregious to justify a second exception to the rule and therefore, the allegations against the Three Defendants must fall within the purview of the general rule or the malice exception.
First, the Court will examine plaintiff's allegation that defendants "secretly provided Treppel's personal account statements to The Wall Street Journal and falsely advised the newspaper that he was trading Andrx options to coincide with the issuance of his research reports and recommendations concerning Biovail and Andrx, and thereby illegally profiting from his own reports." (Compl. ¶ 26.) With respect to the charge that defendants "secretly provided" records to The Wall Street Journal, plaintiff does not explain how such an act could be construed as tortious or criminal. Putting aside the question of whether these records were obtained improperly, as we must because that allegation names only Biovail, without further elucidation, the Court cannot see how the provision, even the secret provision, of an individual's account statements to a media outlet amounts to a crime or a tort. Further, this alleged conduct, along with all other acts claimed by plaintiff, was not fueled solely by the desire to injure plaintiff because all five defendants, like Carvel, were acting, at least in part, in their own economic self-interest. (See Compl. ¶ 28 ("defendants' smear campaign and course of unlawful conduct against Treppel were also calculated to divert attention from, and chill any further scrutiny and criticism of, Biovail's business and accounting problems and practices, and thereby bolster or sustain Biovail's stock price"); Order at 38 (dismissing prima facie tort claim for failure to show disinterested malevolence).)
Plaintiff's assertion that defendants "falsely advised" The Wall Street Journal concerning his options trading practices also falls short of the mark. Plaintiff does not point to any statements or actions attributable to any of the Three Defendants with respect to this charge that could sustain a claim for defamation or any other tort. Thus, the Court finds that this allegation as a whole does not rise to the level of "wrongful means" as defined by the Carvel Decision, and cannot support a claim of tortious interference with prospective economic advantage.
Plaintiff's second allegation suffers from deficiencies similar to the first. Plaintiff avers that defendants,
pressured BAS into placing Treppel on leave and ultimately forced his resignation from the firm by, among other things, threatening to sue BAS unless the firm acceded to Biovail's demands to retract Treppel's April 29, 2002 research report and sell recommendation, investigate Treppel's alleged trading activities and other purportedly improper conduct, and terminate Treppel's employment.
(Compl. ¶ 34.)
Based on this allegation alone, the Court again is unwilling to assign a criminal or tortious label to defendants' alleged conduct. Defendants' purported threat to bring suit against plaintiff's employer unless plaintiff's employer took certain significant steps with respect to plaintiff would certainly not be a favorable development for plaintiff. But without more detail, this allegation appears to reflect mere posturing by defendants, which is neither criminal nor tortious.
The Court should note that the Restatement definition, which the Court of Appeals has endorsed, lists "some degrees of economic pressure" as one type of "wrongful means." Restatement (Second) of Torts § 768, cmt. e; § 767 cmt. c (1979). The Carvel Decision, as discussed above, established, without discussion, that, in order for economic pressure to be "wrongful" under Guard-Life and NBT, it must be "extreme and unfair." Carvel Decision at 192-93. It is not clear following the Carvel Decision what "extreme and unfair" means and whether economic pressure can be "extreme and unfair," and thus "wrongful," without being tortious or criminal. However, even if economic pressure can be "wrongful" without being tortious or criminal, the type of pressure described here still would not be wrongful because it is not extreme and unfair. In our litigious society, threatening to sue a large bank, whose employee may have contributed to your loss of millions, and possibly billions, of dollars, would rarely, if ever, be considered extreme behavior. Moreover, conditioning that threat upon certain demands for action that are within the bank's control would not be viewed as unusual or severe. As a result, plaintiff's allegation regarding the pressure placed upon his employer by defendants, even if assumed true as the Court must when deciding a motion to dismiss, see Order at 19, does not amount to conduct that would be criminal, tortious or extreme and unfair and, therefore, cannot support a claim for tortious interference.
C. The Civil Conspiracy Claim Must Be Dismissed
As the Court noted in its Order, a civil conspiracy claim in New York is a derivative cause of action requiring an independent underlying tort to serve as the basis of the conspiracy. See Order at 38-39 (citingAlexander Alexander Inc. v. Fritzen, 68 N.Y.2d 968, 969 (1986)). Because the Court dismissed plaintiff's claims for defamation, defamation per se, and prima facie tort as to the Three Defendants in the Order, and the Court now dismisses the claim of tortious interference with prospective economic advantage as to them, there remains no cognizable independent tort to support a civil conspiracy claim against the Three Defendants. Accordingly, the civil conspiracy claim against Cancellara and the Sitrick Defendants must be dismissed.
Since the Court dismisses the civil conspiracy claim for lack of an underlying independent tort, it need not consider the Three Defendants' jurisdictional argument.