         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




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