Kosher Ski Tours Inc. v. Okemo Limited Liability Company

Background

Kosher Ski Tours Inc. brought a breach-of-contract action against Okemo Limited Liability Company. Kosher Ski Tours alleged that it had offered customers ski packages at Okemo’s resort since 2014, including lodging, ski lift tickets, and kosher food. It alleged that the parties entered a December 27, 2019 agreement under which Okemo would reserve 492 room nights from December 10 through December 14, 2020, and sell lift tickets at a group rate. Kosher Ski Tours paid a $300 nonrefundable deposit, but alleged that Okemo terminated the agreement on September 18, 2020, because of the ongoing COVID-19 pandemic.

Kosher Ski Tours moved under Federal Rule of Civil Procedure 15 to amend and supplement its complaint. The proposed pleading added claims concerning a separate “Standing Agreement,” under which Kosher Ski Tours alleged Okemo agreed to provide group discounts for three years but later refused to accept reservations. It also added discrimination claims based on allegations that Okemo’s stated COVID-19 reason was a pretext for hostility toward Jews.

Legal standard

Rule 15 generally allows amendment when justice requires and permits supplemental pleadings concerning events that occurred after the original pleading. Because the motion to amend was filed after the scheduling-order deadline, the court also considered whether there was good cause to modify that deadline under Rule 16. The court found Kosher Ski Tours diligent because it said it learned the basis for the discrimination claims in June 2021 and sought leave approximately one month later.

The court also considered whether the proposed claims were futile. A proposed claim is futile if it would not survive a motion to dismiss, including a motion based on failure to state a claim or lack of subject-matter jurisdiction.

Standing Agreement claims

The court rejected Okemo’s argument that the Standing Agreement was unenforceable for lack of consideration or definiteness. Applying New York law, the court held that Kosher Ski Tours plausibly alleged an exchange of promises: Okemo would provide discounted lodging and lift-ticket rates, while Kosher Ski Tours would make group reservations during specified periods. The court also found the agreement sufficiently definite because it stated that the parties intended to be bound and included terms concerning reservation deadlines and payment.

The court nevertheless denied leave to add the proposed breach-of-contract claim, identified as the Second Cause of Action. Kosher Ski Tours alleged that Okemo breached the Standing Agreement by denying requests to reserve rooms and purchase lift tickets in January, February, and March 2021. But the court found that Kosher Ski Tours identified no specific contract provision requiring Okemo to honor all reservation requests without qualification.

The court granted leave to add the proposed claim for breach of the implied covenant of good faith and fair dealing, identified as the Third Cause of Action. Kosher Ski Tours alleged that Okemo gave it “the runaround” and responded in bad faith after it attempted to make reservations, depriving it of the benefits of the agreement. The court found those allegations sufficient at this stage.

Discrimination claims

The court denied leave to add the proposed Title II claim under the Civil Rights Act of 1964, identified as the Fourth Cause of Action. Title II provides only injunctive relief, and a plaintiff seeking an injunction must show a likelihood of future injury rather than only past harm. The court found that Kosher Ski Tours alleged past incidents but did not adequately allege that the discrimination was continuing or likely to occur again.

The court granted leave to add the proposed claims under Sections 1981 and 1982, identified as the Fifth and Sixth Causes of Action. The court concluded that a corporation may have an imputed racial identity and therefore may have standing to bring these discrimination claims. It found that Kosher Ski Tours plausibly alleged such an identity because its principal was Jewish, its customers were Orthodox Jews, and it alleged that Okemo terminated or breached the agreements because it mistrusted the principal and customers because they were Jewish. The court also held that Sections 1981 and 1982 protect against discrimination against Jews.

The court granted leave to add the proposed claim under the Vermont Fair Housing and Public Accommodations Act, identified as the Seventh Cause of Action. The court concluded that Kosher Ski Tours qualified as a “person aggrieved” under the statute because it arranged visits to public establishments for its customers, had an interest in equal access to those establishments, and would be harmed by denial of that access.

Disposition

Judge Vincent L. Briccetti ordered that the motion to amend and supplement be GRANTED IN PART and DENIED IN PART. Kosher Ski Tours was granted leave to add only the Third, Fifth, Sixth, and Seventh Causes of Action. Leave to amend or supplement was otherwise denied. The court directed Kosher Ski Tours to file the amended and supplemented complaint by November 30, 2021, and stated that Okemo’s answer was due December 14, 2021.