Full opinion text
MEMORANDUM AND ORDER P. KEVIN CASTEL, District Judge. In a 175-page, 862-paragraph complaint, plaintiff In Touch Concepts, Inc. (“Zcom”) brings this action against defendants. The complaint is neither “short” nor “plain” as required by Rule 8(a)(2), Fed.R.Civ.P. Counsel for plaintiff is cautioned to be mindful of the mandates of Rule 8(a) in any pleading filed in a federal forum. But for the procedural history of this case, the Court would exercise its authority to dismiss this prolix pleading. See Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir.1995); Doe v. Washington Post Co., 12 Civ. 5054, 2012 WL 3641294, at *2 (S.D.N.Y. Aug. 24, 2012); In re Merrill Lynch & Co., Inc. Research Reports Sec. Litig., 218 F.R.D. 76, 78 (S.D.N.Y.2003). The defendants are Célico Partnership (“Verizon Wireless” or “Verizon”), Jorge Velez, Tom Varghese, Ryan Broomes, Anthony Fiocco, Bruno Pavlicek, Shelly Bhumitra, Poonam Sawnhey, Ajay Bhumitra, and John/Jane Doe Célico Partnership Personnel ## 1-10. Zcom, a former Verizon agent, and its subagents sold Verizon services and merchandise pursuant to an Agency Agreement. The complaint alleges a scheme purportedly created by Verizon and certain of its employees in order to increase account activations, which is an important marker of success in the wireless industry. Verizon, it is alleged, encouraged Zcom and its subagents to activate prepaid cellular devices in exchange for commissions it never intended to pay. According to Zcom, Verizon also coerced Zcom’s subagents to increase the prepaid activations through fraudulent business practices. Zcom asserts that it took measures to report and eradicate such fraud. In an effort to cover up its own wrongdoing and punish Zcom, Verizon allegedly blamed Zcom for its own fraudulent scheme, terminated the Agency Agreement, and thwarted Zcom’s attempts to sell its business operations. The Amended Complaint contains eleven causes of action based on such conduct, including claims for breach of contract asserted solely against Verizon as well as claims alleging various tortious conduct. Defendants now move to dismiss the Amended Complaint for failure to state a claim, pursuant to Rule 12(b)(6), Fed.R.Civ.P. As a threshold matter, the Court first addresses its subject matter jurisdiction over the action and the claims asserted herein. This action, which asserted claims on behalf of a class, was removed from New York State Supreme Court pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. §§ 1332(d), 1453. After removal, Zcom amended the complaint and removed all class allegations. As discussed herein, the Court concludes that, under the time-of-filing rule, it has subject matter jurisdiction over the action, but declines to exercise supplemental jurisdiction over claims against certain defendants. The Court then proceeds to discuss (1) Zcom’s breach of contract claims against Verizon and (2) Zcom’s tort and quasi-contract claims against all remaining defendants. Finally, the Court addresses Varghese’s motion to strike allegations in the Amended Complaint. BACKGROUND For purposes of the motions to dismiss under Rule 12(b)(6), the Court accepts all nonconclusory allegations in the Amended Complaint as true, and draws all reasonable inferences in favor of plaintiff, as nonmovant. 1. The Parties Zcom, a New York corporation, was a Verizon “Master Agent” authorized to sell Verizon’s wireless services and merchandise. (Am. Compl. ¶¶ 33-35.) Until 2010, Zcom was jointly owned by its current president and CEO Vikas Dhall (a/k/a Victor Singh) and Alexandra Bershtein. In 2010, Dhall purchased Bershtein’s interest in the company. (Id. ¶¶ 9, 225.) Verizon is a general partnership with business presence throughout the United States and principal offices located in New Jersey. (Id. ¶ 36.) At all times relevant to this action, Verizon employed several of the individually named defendants. Ryan Broomes and Jorge Velez served as account managers. (Id. ¶¶ 69, 77.) Anthony Fiocco and Bruno Pavlicek were “ostensibly” internal investigators. (Id. ¶¶ 85, 94.) Verizon and these individually-named defendants are jointly represented and together submit a motion to dismiss the Amended Complaint. (Docket No. 42.) Tom Varghese served as Verizon’s Director of Indirect Distribution for the New York Metro Market until he was terminated from this position on July 11, 2011. (Am. Compl. ¶¶ 6, 56.) Varghese’s responsibilities included approving new store locations in the New York metro area. Varghese submits a separate motion to dismiss as well as a motion to strike portions of the Amended Complaint, pursuant to Rule 12(f), Fed.R.Civ.P. (Docket No. 46.) Varghese joins in the arguments advanced by his co-defendants. (E.g., Varghese Mem. at 10,12,14-15.) This opinion frequently refers to Verizon, Broomes, Velez, Fiocco, Pavlicek, and Varghese collectively as “the Verizon defendants.” Zcom also brings suit against several individuals not employed by Verizon (collectively the “non-Verizon defendants”). Ajay Bhumitra (“Ajay”) owns a portfolio of Sprint Nextel and AT & T-branded agency locations, which are competitors of Zcom and Verizon. (Am. Compl. ¶ 104.) Ajay submits his own motion to dismiss the Amended Complaint. (Docket No. 48.) Shelly Bhumitra (“Shelly”), Ajay’s brother, is a principal of Zoom’s former subagent Reachout Wireless, Inc. (“Reach-out”). (Am. Compl. ¶ 110.) Poonam Sawnhey is a principal of Zcom’s former subagent American Candy, Inc. (Id. ¶ 120.) Shelly Bhumitra and Poonam Sawnhey are jointly represented and together submit a motion to dismiss the Amended Complaint. (Docket No. 47.) According to Zcom, Shelly Bhumitra and Poonam Sawnhey intended to destroy Zcom from within, in order to allow Ajay to take over Zcom’s business or otherwise benefit. (Am. Compl. ¶¶ 8,123.) 2. The 2008 Agency Agreement For many years Zcom was a successful seller of Verizon products and services. (Id. ¶¶ 34, 228.) Its business comprised approximately twenty-five percent of Verizon’s New York metro-area market share. (Id. ¶ 34.) Zcom acted as a “Master Agent” of Verizon and not as a franchisee. (Id. ¶ 236.) Verizon also authorized Zcom to engage subagents to sell Verizon services, subject to Verizon’s approval of the subagents and store locations. (Id. ¶¶ 35, 228-29; see also id. Ex. 4 ¶¶ 2.4.2, 2.7.) Zcom eventually went from operating three to approximately 150 store locations, including about 30 “corporate owned” stores and 120 authorized subagents. (Id. ¶¶ 228, 230.) Zcom and Verizon renewed their Agency Agreement in 2008 for a five-year term. (Id. ¶ 237.) The terms of the Agreement covered a range of matters including Verizon’s approval of new stores and sub-agents, Zcom’s ability to transfer or assign the Agreement, as well as grounds for the Agreement’s termination. (Id. Ex. 4 ¶¶ 2.4.2, 2.7, 10.8, 8.) The Agreement also contains an express waiver of the implied covenant of good faith and fair dealing. (Id. Ex. 4 ¶ 10.2 (“It is understood and agreed that this Agreement is not subject to any implied duties of good faith or fair dealing.”).) 3. The Prepaid Activation Scheme New phone number activations are an important measure of success in the cellular carrier industry. (Id. ¶ 9(a).) Generally, Verizon paid Zcom a commission for each postpaid subscription Zcom activated, so long as the phone number remained active for a minimum period of time. (Id. ¶239.) If a customer did not keep his account active long enough, Verizon automatically charged back the associated commission from Zcom by deducting “such monies from future payments due.” (Id. ¶ 244.) In the event a commission was charged back, Zcom charged back an equal amount from the responsible subagent. (Id. ¶ 245.) Plaintiff alleges that beginning in 2009, the Verizon defendants devised a scheme to increase new phone activations by using prepaid cellular devices. (Id. ¶¶ 20-24, 251-56.) Verizon instructed Zcom to sell “Customer Provided Equipment” (“CPE”) — discarded cellular telephones provided to customers after an “upgrade” — as “emergency” use phones. (Id. ¶¶ 261-265.) Under the plan, Zcom would “credit” the customer’s activation fee, activate the phone as a “pre-pay” account, and provide the customer with $45.00 worth of prepaid minutes. (Id. ¶ 265.) While Zcom or a subagent was to bear the cost of the prepaid minutes, Verizon informed Zcom and its subagents that they would receive a $40.00 commission for each prepaid activation as well as an incentive (or “spiff’) of $20.00. (Id. ¶¶ 268-70.) Thus, it appeared that Zcom and the subagents would recognize a profit for each prepaid activation after the commission and “spiff’ were paid out. In order for an agent to retain the commission payment, the prepaid phone had to remain active for at least 180 days. (Id. ¶ 273.) Otherwise, Verizon would “charge back” the commission from Zcom. (Id. ¶¶ 244, 273.) Verizon told Zcom that following the above instructions “was all that was required in order to ensure that the prepaid phone remained active for at least 180 days, thus avoiding ‘chargebacks’ of commissions.” (Id. ¶ 273.) But such representations are now alleged to have been false, and the Verizon defendants knew as much. (Id. ¶¶274, 276.) Verizon never intended for agents to keep the $40.00 commission payments. Verizon did not inform Zcom that in actuality a “test call” had to be made from the device in order to prevent deactivation within 150 days, “30 days shy of the minimum activation period for commissions.” (Id. ¶¶ 277-79.) Accordingly, Verizon was able to (1) report new phone activations and (2) recognize a profit by selling the prepaid minutes while avoiding commission payments. (Id. ¶ 280.) Beginning in April 2010, Verizon began to “charg[e] back” commissions paid to Master Agents based on the December 2009 prepaid activations. (Id. ¶ 310.) According to Zcom, approximately 40% of commissions paid for prepaid activations were charged back. (Id. ¶ 600.) Verizon’s “heavy ‘push’ of prepaid began in or about November 2009....” (Id. ¶ 264.) Verizon instructed Zcom to heavily promote the prepaid services (id. ¶ 304), though notably, Zcom received no credit toward its minimum performance requirements based on prepaid activations. (Id. ¶467.) The Amended Complaint asserts that Zcom “as an entity did not willfully or voluntarily participate in the [Verizon] [defendants’ scheme, as Zcom did not understand or comprehend [Verizon’s] prepaid fraudulent scheme until much later, after-the-fact.” (Id. ¶ 312.) Because Zcom did not participate in the scheme, Verizon, via Varghese, Broomes, Velez, and others, also initiated direct contact with Zoom’s subagents and instructed them to promote CPE with prepaid services. (Id. ¶¶ 313-17.) Verizon threatened to punish subagents who did not increase prepaid activations (id. ¶ 319) and sought to implement measures to financially harm underperforming stores. (Id. ¶¶ 335-36; see, e.g., id. Exs. 16,'17.) For instance, on or about December 4, 2009, Velez informed a Zcom subagent that people would lose jobs if activations were not made, and that higher-ups including Varghese were demanding more prepaid numbers. (Id. ¶¶ 460-61; id. Ex. 14.) While the agreements governing the relationships between Zcom and its sub-agents prohibited “[u]nethical and fraudulent activity” (id. ¶ 333), Verizon directed Zcom’s subagents “to activate cellular instruments which had already been discarded by customers who had upgraded to newer equipment with prepaid services, even in fictitious names.” (Id. ¶ 306.) “The fictitious and fraudulent activations made by the [subagents] of Zcom, at the command of [Verizon], includ[ed] false celebrity account holders (sic) names.” (Id. ¶ 325.) Two of the subagents that activated prepaid accounts under fictitious names were owned by Shelly Bhumitra and Poonam Sawnhey. Zcom asserts that, in violation of New York State Penal Law § 175.05, Verizon caused Zcom’s subagents to record the fraudulent activations, including the false celebrity account holder names, into their business records, which were then transmitted to Zcom’s headquarters. (Id. ¶¶ 324-25.) Zcom suspected fraud (id. ¶ 327), and “detected what appeared to be fictitious prepaid account activations.” (Id. ¶ 337.) Zcom did not know that Verizon employees were directly contacting its subagents. (Id. ¶ 332.) Thus, it reported the fraudulent activations to Verizon, and on November 29, 2009, informed Verizon that it was implementing a “comprehensive anti-prepaid fraud program.” (Id. ¶¶ 337-38.) While Verizon commended Zcom, it was simultaneously and covertly “coercing” Zcom’s subagents to commit the very same “prepaid activation fraud.” (Id. ¶ 339.) Zcom alleges it was “unaware of the extent of [Verizon’s] misconduct.” (Id. ¶ 9(c).) 4. The “Cover-Up” Ultimately, the prepaid scheme was terminated (id. ¶ 372) and the Verizon defendants undertook to cover up their own misconduct by looking for “scapegoats.” (Id. ¶¶ 25-26, 28(c).) For instance Verizon terminated several of its employees, including Varghese. (Id. ¶¶ 64, 372.) Verizon also began its own internal investigation regarding the fraudulent prepaid activations. (Id. ¶ 377.) Soon after June 15, 2010, Fiocco and Pavlicek visited Zcom’s headquarters “ostensibly in furtherance of their ‘investigation.’ ” (Id. ¶ 380.) Pavlicek and Fiocco spoke with a former Zcom employee, Charu Sodhi, who was visiting at the time. Sodhi informed the internal investigators that Verizon was directing the “massive prepaid activations.” (Id. ¶ 386.) Pavlicek was also shown documents indicating that Verizon had aggressively promoted the sale of prepaid services, while Zcom attempted to prohibit unethical activations. (Id. ¶ 387.) Zcom and its employees substantially complied with the investigators’ requests. (Id. ¶¶ 381-82.) The investigation, according to Zcom, was a farce with a predetermined result. (Id. ¶ 377.) Pavlicek and Fiocco were actually fabricating evidence in order to cast blame onto Zcom, “as a means of ‘whitewashing’ the [Verizon] Defendants’ own wrongdoing....” (Id. ¶ 374.) In a letter dated July 26, 2011, Verizon terminated the Agency Agreement with Zcom, effective as of January 31, 2012. (Id. ¶¶ 368, 404; id. Ex. 5.) The letter states: [T]his letter constitutes [Verizon’s] without cause notice of termination of its agency relationship with Zcom ... effective as of 11:59 PM EST on January 31, 2012. Although this is a termination of the Agreement and of the parties’ agency relationship for “no cause,” I would like to point out that Verizon Wireless has grounds for a “with cause” termination. (Id. Ex. 5.) The letter cites to Paragraph 8.8 of the Agency Agreement (id.), which specifically provides that Verizon “has the right to terminate this Agreement at any time, with or without cause, upon six (6) months prior written notice to Agent.” (Id. Ex. 4 ¶ 8.8.) The letter goes on to explain that Zcom, inter alia, engaged in the fraudulent prepaid activation scheme by (1) making at least 125 false prepaid activations and (2) providing daily prepaid activation quotas to its subagents, advising them to use phony customer names if they could not meet the quotas legitimately. (Id. Ex. 5.) The letter avers that Zcom took part in other improper and/or unethical conduct including: paying for a Verizon employee to travel to Europe; issuing a mortgage to another Verizon employee; making improper gifts to Verizon employees; fraudulently obtaining commissions; and submitting false invoices. (Id.) According to Zcom, many of these false charges were fabricated via Pavlicek’s collaboration with Shelly Bhumitra. (Id. ¶ 378.) The Agreement facially permits Verizon to terminate “without cause” (id. Ex. 4 ¶ 8.8), and Verizon’s letter stated the termination was for “no cause.” (Id. Ex. 5.) Plaintiff alleges that Verizon provided “internally generated, fabricated, or false claims of bad acts” as “cause.” (Id. ¶ 409.) Verizon only claimed the termination was “without cause” in order to prevent Zcom from later contesting it in court. (Id. ¶ 410.) 5. The “Freeze-In” Scheme After receiving the termination letter, Zcom attempted to convince Verizon to reconsider its decision. It offered evidence that the allegations put forth in the July 26, 2011 termination notice were false. (See, e.g., id. Exs. 12, 21.) This was to no avail. Zcom then sought to mitigate its damages by selling its corporate-owned and subagent locations to another Verizon Master Agent. (Id. ¶¶ 438-39.) Paragraph 10.8 of the Agency Agreement provides that the “Agent shall not, whether involuntarily or voluntarily, by merger or otherwise by operation of law, permit a Change of Control or transfer Control of Agent, or assign, delegate or transfer, in whole or in part, this Agreement, to any Entity without the prior written consent of [Verizon].” (Id. Ex. 4 ¶ 10.8.) Zcom only sought to sell to business entities already authorized to sell Verizon products and services. Zcom presented Verizon with three prospective buyers. Verizon, however, rejected Zoom’s efforts to make a sale. (Id. ¶¶ 446-458.) The Amended Complaint refers to such conduct as the defendants’ “freeze-in” scheme. Voluminous e-mail traffic regarding the proposed transactions is annexed to the Amended Complaint as Exhibit 7; the Court puts forth Zcom’s interpretation of these communications, as described in the allegations of the Amended Complaint. The first prospective buyer (“Buyer # 1”) informed Zcom on or about October 8, 2011, that Verizon was showing Zcom’s store locations to other agents for “what appeared to be a take over (sic) of the entirety of Zcom without paying any consideration to Zcom.” (Id. ¶ 448(b).) Buyer # 1 e-mailed Verizon on October 10, 2011, seeking preliminary approval to take over as a Master Agent for Zcom. (Id. ¶ 448(c).) Verizon responded that it would need to “independently evaluate” each store and refused to permit any buyer to purchase the subagent locations. (Id. ¶ 448(d).) On October 14, 2011, Zcom e-mailed Verizon that it had been informed Verizon was “seeking to steal all of Zcom’s locations by distributing its stores to ‘National Agents’ of [Verizon].” (Id. ¶ 448(e).) Zcom subsequently e-mailed Verizon with a list of stores that would be part of the deal with Buyer # 1, and Verizon responded that “all of Zcom’s pre-approved locations would still have to be, in essence, re-approved, prior to any sale____” (Id. ¶ 448(g).) The second prospective buyer (“Buyer # 2”) with whom Zcom engaged in negotiations also had a pre-approved business relationship with Verizon. (Id. ¶ 450(a).) After Buyer # 2 contacted Verizon regarding a list of potential stores for purchase, Verizon advised Buyer #2 that Verizon had to approve any deal the parties might make, only after the terms of the deal were complete. (Id. ¶ 450(c)-(f).) On December 13, 2011, Buyer # 2 told Zcom that “Zcom stores were going to be coming to” it. (Id. ¶ 450(g).) The third prospective buyer, United Telecom, e-mailed Verizon when a deal between Zcom and United Telecom was near final on December 15, 2011. (Id. ¶ 452(a).) Verizon responded that United Telecom and Zcom “had not provided requested information,” even though Verizon knew the parties had provided such information. (Id. ¶ 452(b).) United Telecom also made clear it was willing to either use preexisting approved Zcom subagents or buy subagent locations and operate them through its corporate entity. (Id.) According to Zcom, this proposal complied with the guidelines Verizon had communicated. (Id.) However, in an e-mail dated January 11, 2012, Verizon urged that Zcom was not clear regarding its “authority to consummate the deal” on behalf of its subagents. (Id. ¶ 452(d).) Even after Zcom informed Verizon on January 16, 2012 that it had obtained confirmation and leases from all the subagents involved in the deal, Verizon only approved the transfer of 10 out of 71 proposed locations. (Id. ¶ 452(e), (f).) Verizon indicated that the subagent locations were not even considered because Zcom had not provided proof of its authority to convey such locations. (Id.) United Telecom again sought to make clear that it had obtained the written consent of the subagents involved in the deal (id. ¶ 452(g)), but to no avail. (Id. ¶ 452(h)-(j).) On January 31, 2012, the Agency Agreement terminated, as did Verizon’s obligation to pay Zcom monthly “residuals” on postpaid accounts. (Id. ¶ 408.) Further, Verizon, at its discretion, could now keep or “gift” Zcom’s locations to the agents of its choosing without compensating Zcom. (Id.) Verizon “granted former Zcom [sub-agents] direct probationary licenses to market and sell [Verizon] branded products and services.” (Id. ¶ 457.) These involved the same locations Verizon did not allow Zcom to sell “in an effort to allow them to continue in business by being taken over by an existing [Verizon] Master Agent.” (Id.) Verizon directly awarded agreements to prospective purchasers and their agents after thwarting deals between Zcom and the same entities. (Id. ¶454.) The Verizon defendants “sought to tortiously enrich themselves” by “taking Zcom’s business, agents and locations” without compensation. (Id. ¶ 456.) 6. The “Freeze-Out” Scheme The Amended Complaint describes a separate but related scheme in which defendants stunted Zcom’s store growth beginning in 2009. Until 2009, Zcom had been growing at a rate of approximately 30 stores per year, and had recorded 150 store locations. (Id. ¶ 355.) Zcom was on track to attain “National Agent” status in 2009, which would have entitled Zcom to higher commissions, residuals, market development funds, advertising monies, etc., as well as nationwide jurisdiction for store openings. (Id. ¶ 344.) Beginning in 2009, Varghese and others stopped approving new Zcom stores in an attempt to “freeze out” Zcom’s growth. Freezing Zcom’s growth benefitted Verizon in that Verizon saved money because it did not need to pay Zcom the higher residuals and commissions it paid to “National Agents.” (Id. ¶ 362.) The “freeze-out” scheme also “incidentally benefitted” the three non-Verizon defendants. (Id. ¶¶ 346-47, 359.) The non-Verizon defendants purportedly acted in concert in order to destroy Zcom’s agency relationship with Verizon. Zcom takes the position that destroying its relationship with Verizon would permit Ajay Bhumitra, a Zcom competitor, to take over “Zcom’s empire of [Verizon] branded prized locations at little or no cost.” (Id. ¶ 351.) Varghese was a good friend of Shelly and Ajay Bhumitra. (Id. ¶¶ 58-59.) According to Zcom, Shelly Bhumitra, Ajay Bhumitra, and Poonam Sawnhey bribed Varghese to stop approving new Zcom stores. (Id. ¶¶ 117, 122, 354, 360.) Shelly and Poonam also participated in Verizon’s prepaid activation scheme-even activating prepaid accounts using fictitious account names-in order to “ingratiate” themselves with the Verizon defendants, including Varghese. (Id. ¶ 348.) These prepaid activations further incentivized Varghese to freeze Zcom’s expansion because such activations enabled Varghese to report growth among the agents he supervised. (Id. ¶¶ 118,121-22, 352.) After Varghese’s termination in July 2011 — the same month Zcom received the termination letter — Verizon continued “[t]he freezing of Zoom’s growth” until its termination became effective on January-31, 2012. (Id. ¶ 672.) “[T]he policies and practices that were employed by the [Verizon] Defendants to freeze Zcom’s growth were approved of by, inter alia, by (sic) [Verizon].” (Id. ¶ 675.) 7. Subsequent Litigation On September 20, 2011, after Verizon ended its agency relationship with Zcom, Shelly Bhumitra and Poonam Sawnhey, through their corporate subagents, commenced a class action lawsuit against Zcom in New York State Supreme Court (the “State Court Action”). (Id. ¶ 368 (Reach-out Wireless, Inc., et al. v. In Touch, et al., Supreme Court New York County, Index No. 652587/2011 (Ramos, J.)).) Reachout and American Candy allege that (1) Zcomnot Verizon-fostered the fraudulent prepaid scam and (2) Zcom wrongfully withheld commissions. (Id.) Zcom named Ajay Bhumitra, Shelly Bhumitra, and Poonam Sawnhey as defendants in the State Court Action. Zcom asserted counterclaims against the non-Verizon defendants and their corporate entities. On November 4, 2011, Verizon filed an action in the United States District Court, District of New Jersey (the “Parallel Action”) seeking a declaratory judgment that it validly terminated the Agency Agreement. Cellco Partnership v. In Touch Concepts Inc., No. 11 Civ. 6493(PGS)(TJB) (D.N.J. filed Nov. 4, 2011), upon subsequent transfer, 13 Civ. 1418(PKC) (S.D.N.Y.). Zcom asserts that Verizon did not comply with the Agreement’s pre-suit notice and negotiation provisions prior to filing (Am. Compl. ¶¶ 773-76; see id. Ex. 4 ¶ 14) and was dishonest with the New Jersey District Court regarding its compliance with the same. (See id. ¶ 780.) The third suit, the instant action, was filed in New York State Supreme Court on December 28, 2011. The original complaint asserted class claims against the Verizon defendants for (1) tortious interference; (2) fraud and deceit; and (3) misrepresentation. The non-Verizon defendants were not named as defendants in any of the class claims. Zcom asserted, in its individual capacity, tort claims against the Verizon defendants as well as the non-Verizon defendants. On January 3, 2012, Verizon and several other then-named defendants removed the instant ease to this District, pursuant CAFA, alleging minimal diversity of citizenship. (Docket No. 1 ¶ 11.) The Notice of Removal asserted that the Court had supplemental jurisdiction over the individual claims. (Id. ¶ 19.) On January 24, 2012, after denying plaintiffs request for a preliminary injunction and in accordance with the first-filed rule, this Court transferred the action to the United States District Court for the District of New Jersey. (Docket No. 12.) On May 5, 2012, during the suit’s pendency in the District Court of New Jersey, Zcom amended the complaint. The Amended Complaint removed the class allegations as well as certain defendants. While the Amended Complaint contains no class allegations, Zcom continues to assert, in its individual capacity, the claims for (1) tortious interference; (2) fraud and deceit; and (3) misrepresentation against the Verizon defendants, as well as the various other tort claims. The Amended Complaint also adds breach of contract claims asserted against Verizon. Defendants filed four separate motions to dismiss (Docket Nos. 42, 46, 47, 48), pursuant to (1) Rule 12(b)(6), Fed.R.Civ.P., for failure to state a claim; (2) Rule 12(b)(2), Fed.R.Civ.P., for lack of personal jurisdiction; and (3) Rule 12(b)(3), Fed. R.Civ.P. and 28 U.S.C. §§ 1391, 1406, for improper venue. Judge Sheridan, of the District of New Jersey, heard oral argument of the various motions on February 19, 2013. Thereafter, he transferred the instant case as well as the Parallel Action to this District on March 1, 2013. (Docket No. 65.) Accordingly, the Court need not address arguments advanced by Ajay Bhumitra, Shelly Bhumitra, and Poonam Sawnhey that (1) venue was improper in the District of New Jersey and (2) the District of New Jersey lacked personal jurisdiction over such defendants. The Court now considers defendants’ motions to dismiss, pursuant to Rule 12(b)(6), for failure to state a claim upon which relief can be granted. MOTION TO DISMISS STANDARD UNDER RULE 12(b)(6) To survive a motion to dismiss for failure to state a claim upon which relief can be granted, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In assessing a complaint, courts draw all reasonable inferences in favor of the non-movant. See In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir.2007). Legal conclusions, however, are not entitled to any presumption of truth, and a court assessing the sufficiency of a complaint disregards them. Iqbal 556 U.S. at 678, 129 S.Ct. 1937. Instead, the court must examine only the well-pleaded factual allegations, if any, “and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679, 129 S.Ct. 1937. “[T]he complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002) (quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.1995) (per curiam)). “Where a document is not incorporated by reference, the court may nevertheless consider it where the complaint ‘relies heavily upon its terms and effect,’ thereby rendering the document ‘integral’ to the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.2010) (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.2006)). “However, ‘even if a document is “integral” to the complaint, it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document.’ ” Id. (quoting Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir.2006)). ANALYSIS The Court first addresses the threshold issue of subject matter jurisdiction. Then the Court discusses defendants’ motions to dismiss the causes of action alleged in the Amended Complaint. Finally, the Court considers Varghese’s motion to strike certain allegations in the Amended Complaint. I. Subject Matter Jurisdiction Removal of this action from state to federal court was premised upon the congressional grant of subject matter jurisdiction on the basis of minimal diversity where certain state law class action claims are asserted. 28 U.S.C. §§ 1332(d), 1453. But, while the action was pending in federal court, plaintiff was permitted to amend its complaint to remove the class action allegations. Had removal been premised upon the amended complaint, it would have been improper. The question here is whether the post-removal amendment destroys subject matter jurisdiction under CAFA. 1. Original Jurisdiction In general, federal courts adhere to the precept that subject matter jurisdiction is determined based on the circumstances at the time of filing, Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 570-71, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004) (“This time-of-fíling rule is hornbook law (quite literally).” (footnote omitted)); LeBlanc v. Cleveland, 248 F.3d 95, 100 (2d Cir.2001) (per curiam). Subsequent events do not necessarily divest a district court of its diversity jurisdiction. St. Paul Mercury Indent. Co. v. Red Cab Co., 303 U.S. 283, 293-95, 58 S.Ct. 586, 82 L.Ed. 845 (1938) (noting that after removal subsequent change of party’s citizenship or reduction of amount in controversy does not oust federal court of jurisdiction). The Seventh Circuit has concluded that a “post-removal amendment ... does not destroy CAFA jurisdiction.” In re Burlington Northern Santa Fe Ry. Co., 606 F.3d 379, 381 (7th Cir.2010) (per curiam). The Seventh Circuit’s reasoning drew upon the above-stated jurisdictional principle: CAFA is an extension of the court’s diversity jurisdiction, which is usually not destroyed by subsequent changes. Id. Moreover, while “it is sometimes possible for a plaintiff who sues in federal court to amend away jurisdiction, removal cases present concerns about forum manipulation that counsel against allowing a plaintiffs post-removal amendments to affect jurisdiction.” Id. (citing Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473-74 & n. 6, 127 S.Ct. 1397, 167 L.Ed.2d 190 (2007)). The manipulation concern arises because a dissatisfied plaintiff could seek to avoid anticipated adverse rulings from a federal court by removing class claims. Burlington analogized the plaintiffs decision to not pursue class allegations to a district court’s non-certification of a class, a development that several circuit courts have now concluded does not destroy CAFA jurisdiction. Cunningham Charter Corp. v. Learjet, Inc., 592 F.3d 805, 807 (7th Cir.2010) (“Our conclusion vindicates the general principle that jurisdiction once properly invoked is not lost by developments after a suit is filed, such as a change in the state of which a party is a citizen that destroys diversity.”) (Posner, J.); see also Metz v. Unizan Bank, 649 F.3d 492, 500-01 (6th Cir.2011) (following Cunningham); United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union, AFL-CIO, CLC v. Shell Oil Co., 602 F.3d 1087, 1091-92 (9th Cir.2010) (following Cunningham); Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1268 n. 12 (11th Cir.2009) (noting failure to show numerosity does not destroy subject matter jurisdiction under CAFA because “jurisdictional facts are assessed at the time of removal” and post-removal events “do not deprive federal courts of subject matter jurisdiction”). The court in Burlington noted, “[t]he same considerations of expense and delay apply” in both scenarios. 606 F.3d at 381. The Court had subject matter jurisdiction premised upon CAFA at the time of removal, a point no party disputes. The Court adopts the Seventh Circuit’s conclusion that the Court retains subject matter jurisdiction even when the claims upon which jurisdiction was originally premised are dropped by means of an amendment to the pleading. The Court retains original jurisdiction over the claims previously asserted as class claims. 2. Supplemental Jurisdiction The Court next considers whether it should or must exercise supplemental jurisdiction over the remaining state law causes of action. The Notice of Removal asserted that “[tjhose claims in the Complaint over which this Court does not have original jurisdiction” pursuant to CAFA formed part of the same case or controversy, and thus, the Court had supplemental jurisdiction over such claims. (Docket No. 1 ¶ 19.) Except as otherwise provided, “in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same ease or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). That 28 U.S.C. § 1367(b) puts forth exceptions to the general rule articulated in § 1367(a) for cases where original jurisdiction is premised on 28 U.S.C. § 1332, indicates that supplemental jurisdiction potentially exists in a case involving diversity jurisdiction. The Court may decline to exercise supplemental jurisdiction over a claim for several reasons including that “the district court has dismissed all claims over which it has original jurisdiction” and “in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” 28 U.S.C. § 1367(c)(3), (4). The CAFA claims, while no longer asserting class allegations, technically remain pending as individual claims. Thus, the Court has not “dismissed all claims over which it has original jurisdiction,” 28 U.S.C. § 1367(c)(3) (emphasis added), and instead considers whether there exist “exceptional circumstances” under § 1367(c)(4). The Second Circuit has observed that in order to be considered exceptional, a circumstance must be “ ‘quite unusual’ ” and that “federal courts ‘must ensure that the reasons identified as “compelling” are not deployed in circumstances that threaten’ ” the principle that declining jurisdiction outside of § 1367(c)(l)-(3) is “the exception rather than the rule.” Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 448 (2d Cir.1998) (quoting Executive Software N. Am., Inc. v. United States Dist. Court, 24 F.3d 1545, 1558 (9th Cir.1994)). “Once a court identifies one of the factual predicates which corresponds to one of the subsection 1367(c) categories, the exercise of discretion is informed by whether remanding the [supplemental] state claims comports with the underlying objective of most sensibly accommodating the values of economy, convenience, fairness, and comity.” Id. at 446 (internal quotation marks and citation omitted). As to the Verizon defendants, the Court concludes there are not exceptional circumstances and, in any event, concerns of judicial economy, convenience, fairness, and comity would favor exercising jurisdiction over all claims asserted against these defendants. All of the tort claims asserted against Verizon and its individual employees rely on substantially similar factual allegations. Moreover, the Parallel Action, which seeks a declaratory judgment regarding Zcom’s termination, involves issues also raised in Zcom’s breach of contract claims. As the Parallel Action was initially filed in the District of New Jersey, it cannot be remanded to state court. In order to maximize efficiency and avoid a race to judgment, it is most reasonable for both actions to proceed in this District. But the claims asserted against the non-Verizon defendants are differently situated. It is appropriate to remand them to the state court from which they were removed, even under the higher standard contemplated by § 1367(c)(4) because there are exceptional circumstances and compelling reasons to decline exercising jurisdiction. The Court notes the unusual circumstances under which the non-Verizon defendants arrived in federal court. Zcom did not file this action in federal court, and the non-Verizon defendants did not remove the case to federal court. Rather, other defendants removed the action pursuant to CAFA, which does not require all defendants to consent to removal. However, Zcom has never asserted class allegations — the basis for the Court’s original jurisdiction — against any of the non-Verizon defendants. While CAFA may contemplate that the non-Verizon defendants must live with a co-defendant’s decision to remove, here, the class claims are no longer pending. Moreover, after the instant litigation was filed in state court, Zcom named Ajay Bhumitra, Shelly Bhumitra, and Poonam Sawnhey, the non-Verizon defendants, as defendants in the State Court Action filed by the two corporate entities affiliated with Shelly Bhumitra and Poonam Sawnhey. Zcom filed counterclaims, which contain substantially similar allegations as alleged in the instant action. (Bhumitra & Sawnhey Ltr. Br. at 1-2; see also Bhumitra Ltr. Br. at 1 (noting counterclaims against Ajay in the State Court Action were based “upon the same purported facts ... and, in many respects, duplicative” of the claims asserted against Ajay in this action).) See Philip Morris Inc. v. Heinrich, 95 Civ. 0328, 1998 WL 122714, at *2 (S.D.N.Y. March 19, 1998) (noting one compelling reason to decline exercising jurisdiction was existence of pending state court action addressing same claims); but see SST Global Tech., LLC v. Chapman, 270 F.Supp.2d 444, 459-63 (S.D.NY.2003) (finding no exceptional circumstances where claims in state proceeding were not identical to claims in federal proceeding). Thus, Zcom has initiated two related proceedings against the non-Verizon defendants, who now defend themselves in two separate judicial systems. Discovery has been stayed in the instant action, while the parties have already begun to exchange responsive materials in the State Court Action. (Bhumitra Ltr. Br. at 2.) Remanding the claims against the non-Verizon defendants would “avoid the inherent duplication of discovery, depositions, as well as potentially inconsistent rulings.” (Bhumitra & Sawnhey Ltr. Br. at 3.) Furthermore, the two claims asserted against the non-Verizon defendants in this action for (1) injurious falsehood and (2) tortious interference with prospective business relations are at best peripheral to the allegations at the core of the Amended Complaint involving Zcom’s dispute with Verizon and its employees. Remanding the claims against the non-Verizon defendants would foster efficient case management in the action remaining in this Court, while minimizing the resources expended by the parties. Given these unusual circumstances, the Court concludes remanding such claims would best promote fairness to the parties and maximize judicial efficiency, while posing minimal threat to the general precept that declining jurisdiction is the exception rather than the rule. Accordingly, the Court declines to exercise supplemental jurisdiction over the claims asserted against Ajay Bhumitra, Shelly Bhumitra, and Poonam Sawnhey. The Court proceeds to address the claims asserted against the remaining defendants — the Verizon defendants. II. Zcom’s Breach of Contract Claims against Verizon The Amended Complaint asserts several claims alleging that Verizon breached the 2008 Agency Agreement. Count VIII asserts that Verizon breached the Agreement by failing to comply with pre-suit notice and negotiation provisions before filing the Parallel Action in the District of New Jersey. Count IX asserts that Verizon breached the Agreement by claiming in bad faith that it was terminating Zcom “without cause” when in truth it internally purported to have “cause,” but it was a bad faith determination of “cause.” Count X asserts that Verizon otherwise breached the Agreement by way of breaching the implied covenant of good faith and fair dealing. Relatedly, Count XI seeks a declaratory judgment that Paragraph 10.2 of the Agreement, which expressly waives all implied duties of good faith and fair dealing, is unenforceable. As several of the breach of contract claims depend on whether Paragraph 10.2 is valid and enforceable, the Court addresses the claim for declaratory relief before proceeding to Zcom’s claims for damages. 1. Express Waiver of Implied Covenant of Good Faith and Fair Dealing (Count XI) For all contracts, New York law imposes an implied covenant of good faith and fair dealing such that a party may be in breach of the duty even when it has abided by the express terms of the contract. Fishoff v. Coty Inc., 634 F.3d 647, 653 (2d Cir.2011); 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 153, 746 N.Y.S.2d 131, 773 N.E.2d 496 (2002). The implied “covenant [of good faith and fair dealing] embraces a pledge that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” 511 W. 232nd, 98 N.Y.2d at 153, 746 N.Y.S.2d 131, 773 N.E.2d 496 (internal quotation marks and citation omitted); Elmhurst Dairy, Inc. v. Bartlett Dairy, Inc., 97 A.D.3d 781, 784, 949 N.Y.S.2d 115 (2d Dep’t 2012) (holding complaint adequately alleged breach of implied covenant where defendant purportedly circumvented exclusivity provision in contract by converting milk “distribution” portion of business into “delivery” business); Frankini v. Landmark Constr. of Yonkers, Inc., 91 A.D.3d 593, 595, 937 N.Y.S.2d 80 (2d Dep’t 2012) (holding complaint adequately alleged breach of implied covenant where payment was due upon “completion and sale” of property and defendant leased property after completion). “Where the contract contemplates the exercise of discretion, this pledge includes a promise not to act arbitrarily or irrationally in exercising that discretion.” Dalton v. Educ. Testing Serv., 87 N.Y.2d 384, 389, 639 N.Y.S.2d 977, 663 N.E.2d 289 (1995). Paragraph 10.2 of the Agency Agreement, titled “No Implied Duties,” states that “[i]t is understood and agreed that this Agreement is not subject to any implied duties of good faith or fair dealing.” (Am. Compl. Ex. 4 ¶ 10.2.) Zcom seeks declaratory judgment severing Paragraph 10.2 from the Agency Agreement because, it argues, it is unenforceable under New York law. The parties agree there is no New York state case law directly on point. According to Zcom, no such authorities exist because the question is “so basic.” (PI. Mem. at 32.) Verizon asserts it is not aware of authorities refusing to give effect to such a waiver (Verizon Mem. at 10-11), and cites Schuster v. Dragone Classic Motor Cars, Inc., 98 F.Supp.2d 441, 447 (S.D.N.Y.2000), for the proposition that broad contractual waivers of rights are generally enforceable. The modern conception of an implied covenant of good faith and fair dealing is found in the New York Court of Appeals decision in The Kirke La Shelle Company v. The Paul Armstrong Company, 263 N.Y. 79, 188 N.E. 163 (1933). Briefly, the parties entered into an agreement to share royalties on a 50-50 basis from revivals of a play “Alias Jimmy Valentine” and granted each party pre-approval rights. Id. at 82, 188 N.E. 163. At the time of the 1921 agreement, talking pictures did not exist and were not addressed in the agreement. Concluding that a talking movie version of the play could destroy the value of a stage production, the Court implied a negative covenant not to destroy the value of the contract: [I]n every contract there is an implied covenant that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract, which means that in every contract there exists an implied covenant of good faith and fair dealing. Id. at 87, 188 N.E. 163. A partial answer to the question of whether this covenant can be waived or contracted away is found in common sense principles and dicta in The Kirke La Shelle. The Court distinguished an earlier federal case in words that express support for the proposition that the language of a contract may, depending upon its specificity, foreclose a covenant that might otherwise be implied: There the court refused to imply a negative covenant ... because the defendant was an innocent purchaser for value without notice and the contract expressly reserved to the grantor not only the motion picture rights but also all other rights. Id. at 89, 188 N.E. 163 (citing Macloon v. Vitagraph, Inc., 30 F.2d 634, 635 (2d Cir.1929)). The proposition which the The Kirke La Shelle court appeared to approve is wholly unremarkable. It is akin to a court declining to imply a term obligating a party to perform within a reasonable time where the contract expressly provides a specific time for performance. Where the implied covenant of good faith and fair dealing is sought to be used as a contractual gap filler, i.e. to restrain or require action for which there is no express provision in the contract, this Court concludes that other express language of the contract may foreclose such use. But New York cases have expanded the use of the implied covenant of good faith in a manner other than as a gap-filler. For example, it is used to cabin some contractual rights, holding that a contractual right affording discretion may not be exercised in bad faith — arbitrarily, irrationally, or malevolently. E.g., Dalton, 87 N.Y.2d at 389, 639 N.Y.S.2d 977, 663 N.E.2d 289; see also Richbell Info. Servs., Inc. v. Jupiter Partners, L.P., 309 A.D.2d 288, 302, 765 N.Y.S.2d 575 (1st Dep’t 2003). But even here the express provision of the agreement may negate a limitation on the exercise of a contractual right by defining when, with greater precision, discretion may or may not be exercised. So, for example and as will be discussed herein, a contractual right to terminate “without cause” means precisely that and the exercising party need not justify its exercise of that right in a judicial forum. But these principles do not answer one of the questions presented in this case: may the parties to a contract by a single term wholesale disclaim the implied covenant of good faith and fair dealing and thereby foreclose its use for any purpose by a court construing a contract? The first issue is to discern the parties’ intent in including this provision. Then, assuming it manifests an intent to strip a court of the ability to use the implied covenant as an interpretive tool, the next issue is whether such a result would offend the public policy of New York. While it may be convenient to view the implied covenant as embodying virtue and, literally, goodness, it has not been met so warmly in some of the literature and one author has suggested that it may not be needed in view of other modern interpretive tools. Fortunately, the Court need not reach the question at this juncture because, even if it is assumed that the covenant should be implied despite the contractual carve-out, the result on this motion is not altered. 2. Breach of Contract due to Verizon's Termination of Zcom (Count IX) As mentioned, the July 26, 2011 termination letter purports to terminate Zcom “without cause,” citing Paragraph 8.8 of the Agreement, but then goes on to list numerous reasons that Verizon considered adequate for a “cause” termination under separate provisions of the Agreement, such as Paragraph 8.4.1. Zcom asserts that Verizon breached the Agency Agreement by couching its “for cause” termination as “without cause” in bad faith. According to Zcom, Verizon’s “motives in terminating their contractual relationship were rooted in their bad faith desire to punish Zcom for [Verizon’s] own malice, while enabling [Verizon] to ‘steal’ Zcom’s assets and good will, without compensation.” (PI. Mem. at 31.) Count IX does not plausibly allege a breach of the Agreement. i. Zcom’s Termination did not Breach the Express Terms of the Agency Agreement Under New York law, when examining a contractual provision, “[t]he cardinal principle for the construction and interpretation of ... contracts ... is that the intentions of the parties should control.” SR Int’l Bus. Ins. Co., Ltd. v. World Trade Ctr. Props., LLC, 467 F.3d 107, 125 (2d Cir.2006) (quoting Newmont Mines Ltd. v. Hanover Ins. Co., 784 F.2d 127, 135 (2d Cir.1986)). “[T]he best evidence of intent is the contract itself; if an agreement is ‘complete, clear and unambiguous on its facet, it] must be enforced according to the plain meaning of its terms.’ ” Eternity Global Master Fund, Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 177 (2d Cir.2004) (second alteration in original) (quoting Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 569, 750 N.Y.S.2d 565, 780 N.E.2d 166 (2002)). “[A]mbiguity exists where a contract term could suggest more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.” Id. at 178 (alteration in original) (quoting World Trade Ctr. Props., L.L.C. v. Hartford Fire Ins. Co., 345 F.3d 154, 184 (2d Cir.2003) (internal quotation marks omitted)). “Whether or not a writing is ambiguous is a question of law to be resolved by the courts.” Id. (quoting W.W.W. Assocs., Inc. v. Giancontieri, 77 N.Y.2d 157, 162, 565 N.Y.S.2d 440, 566 N.E.2d 639 (1990)). Paragraph 8.8 of the Agency Agreement provides that Verizon “has the right to terminate this Agreement at any time, with or without cause, upon six (6) months prior written notice to Agent.” (Am. Compl. Ex. 4 ¶ 8.8.) The Court concludes that Paragraph 8.8 is unambiguous. The plain language permits Verizon to terminate the Agency Agreement at any time, with or without cause, so long as Zcom received notice at least six months in advance. Thus, Verizon did not need a “cause” or any specific reason to terminate the Agreement. Cf. Int’l Klafter Co., Inc. v. Continental Cas. Co., Inc., 869 F.2d 96, 99 (2d Cir.1989) (“[T]he words ‘any cause’ do not admit of any interpretation other than the meaning of the words themselves: termination is permitted for any reason at all.”). Other provisions in the Agency Agreement do not render Paragraph 8.8 ambiguous. True, separate provisions under Paragraph 8, titled “BREACH, TERMINATION,” require Verizon to allow the breaching party time to take curative action. Paragraph 8 states: (Am. Compl. Ex. 4 ¶ 8.) Paragraph 8.7 states that “[f]or any breach ... for which a particular cure period is not specified, the breaching party shall have a thirty (30) day cure period.” (Id. ¶ 8.7.) Paragraph 8.8, however, makes no mention of “reasonable discretion” or a “cure period.” It would be illogical for a “without cause” termination provision to provide a “cure period,” as there would be no underlying breach to cure. Had Verizon terminated the Agreement due to “unethical, misleading, or unfair business practices” pursuant to Paragraph 8.4.1, it would have been required to exercise reasonable discretion. How Verizon could exercise “reasonable discretion” in the context of a “without cause” termination — which obviates the need for any reason — is not evident. Accordingly, it is immaterial that Verizon failed to employ “reasonable discretion” or provide a period for Zcom to take curative action, pursuant to separate contractual provisions (e.g., Am. Compl. ¶¶ 800-02) because it was not required to do so. Verizon bargained for the right not to be required to state a reason for termination and is entitled to the benefit of that bargain. This Agreement may be terminated immediately upon written notice to the breaching party if the breach is not cured within the applicable cure period provided, however, that such termination notice may not be sent until after the applicable cure period has expired. There is no dispute that Verizon provided the contractually required six months notice to Zcom for a “without cause” termination. The July 26, 2011 letter purported to constitute a “without cause” notice of termination, pursuant to Paragraph 8.8, to take effect on January 31, 2012. (Id. Ex. 5.) Thus, Verizon complied with the unambiguous terms of the Agency Agreement. True, the July 26, 2011 letter also states: Although this is a termination of the Agreement and of the parties’ agency relationship for “no cause,” I would like to point out that Verizon Wireless has grounds for a “with cause” termination. (Id.) That Verizon might have had a belief, well-founded or not, that it would have had good cause to terminate under other provisions of the Agreement did not undermine its ability to terminate the Agreement “without cause” upon six months notice. ii. Zoom’s Termination did not Breach the Implied Covenant of Good Faith and Fair Dealing The Amended Complaint alleges that the termination was carried out in bad faith because Verizon was punishing Zcom for not participating in the prepaid activation scheme and passing blame onto Zcom for the very misconduct it had orchestrated by fabricating evidence against Zcom. (Am. Compl. ¶¶7, 792-796, 809.) Thus, Zcom was deprived of the benefit of its bargain. (Id. ¶ 811.) Assuming arguendo, as Zcom urges, that the implied covenant or good faith and fair dealing cannot be waived, it does not improve Zcom’s position on termination. The implied obligation “is in aid and furtherance of other terms of the agreement of the parties.” Sheth v. New York Life Ins. Co., 273 A.D.2d 72, 73, 709 N.Y.S.2d 74 (1st Dep’t 2000) (quoting Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 304, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983)) (considering an at-will employment agreement). Therefore, “[n]o obligation can be implied ... which would be inconsistent with other terms of the contractual relationship.” Id. (alteration in original) (quoting Murphy, 58 N.Y.2d at 304, 461 N.Y.S.2d 232, 448 N.E.2d 86); see also Richbell Info. Servs., 309 A.D.2d at 302, 765 N.Y.S.2d 575 (“[T]here is clearly some tension between, on the one hand, the imposition of a good faith limitation on the exercise of a contract right and, on the other, the avoidance of using the implied covenant of good faith to create new duties that negate explicit rights under a contract.”). The implied covenant “encompass[es] any promises which a reasonable person in the position of the promisee would be justified in understanding were included.” 511 W. 232nd, 98 N.Y.2d at 153, 746 N.Y.S.2d 131, 773 N.E.2d 496 (internal quotation marks and citation omitted). New York State appellate courts have recognized that “[a] party has an absolute, unqualified right to terminate a contract on notice pursuant to an unconditional termination clause without court inquiry into whether the termination was activated by an ulterior motive.” Triton Partners LLC v. Prudential Sec. Inc., 301 A.D.2d 411, 411, 752 N.Y.S.2d 870 (1st Dep’t 2003) (quoting Big Apple Car, Inc. v. City of New York, 204 A.D.2d 109, 111, 611 N.Y.S.2d 533 (1st Dep’t 1994)) (“The breach of the covenant of good faith and fair dealing claim was properly dismissed since it was merely a substitute for a nonviable breach of contract claim.”); A.J. Temple Marble & Tile, Inc. v. Long Is. R.R., 256 A.D.2d 526, 527, 682 N.Y.S.2d 422 (2d Dep’t 1998). Here, the Agency Agreement unambiguously permits Verizon to unconditionally terminate the agency relationship without cause, provided written notice is given to the agent at least six months in advance. Still, Zcom argues that where a contract affords a party discretion, the implied covenant mandates that the party exercise such discretion in good faith, rather than in an arbitrary or irrational manner. See Dalton, 87 N.Y.2d at 389, 639 N.Y.S.2d 977, 663 N.E.2d 289; Maddaloni Jewelers, Inc. v. Rolex Watch U.S.A., Inc., 41 A.D.3d 269, 270, 838 N.Y.S.2d 536 (1st Dep’t 2007) (“[T]he implied covenant obligated [the party] to exercise such discretion in good faith, not arbitrarily or irrationally.”); Outback/Empire I, Ltd. P’ship v. Kamitis, Inc., 35 A.D.3d 563, 563, 825 N.Y.S.2d 747 (2d Dep’t 2006) (“Therefore, although certain provisions allowed the plaintiff, in its sole and absolute discretion, to terminate its obligations under the lease, the plaintiff was required to carry out its contractual obligations incident to the exercise of its discretion in good faith.”). Further, Zcom asserts such contractual discretion may not be exercised malevolently. See Richbell Info. Servs., 309 A.D.2d at 302, 765 N.Y.S.2d 575 (concluding allegations went beyond claiming defendant “should be precluded from exercising a contractual right” and supported a claim that defendant “exercised a right malevolently, for its own gain as part of a purposeful scheme”). However, an obligation cannot be implied which is inconsistent with or negates the express terms of the contract. A reasonable party in Zcom’s position would not believe any implied limitations were incorporated into the “without cause” termination provision. Cf. Int’l Klafter, 869 F.2d at 99 (“The word ‘cause’ does not have any intrinsic component of good faith or even rationality; the words ‘for any cause’ are not the opposite of ‘without cause.’ Rather, ‘any cause’ means at will termination, even at the whim of the terminating party. The party terminating is not required to give any reason.”). A contracting party who has bargained for a “without cause” termination provision and incurs a significant notice period in exchange in order to avoid subsequent litigation regarding whether the reason for termination was adequate is entitled to the benefit of that bargain. As the New York Court of Appeals recently noted, courts “do not ordinarily read implied limitations into unambiguously worded contractual provisions designed to protect contracting parties.” Moran v. Erk, 11 N.Y.3d 452, 456, 872 N.Y.S.2d 696, 901 N.E.2d 187 (2008). The language in Paragraph 8.8 makes plain that the fruits of the contract were contingent on Verizon’s absolute discretion to terminate. Had Zcom wished for more restrictive grounds for termination, “it could have bargained with ¡Verizon] to include specific limitations on [Verizon’s] ability to” terminate. World Wide Polymers, Inc. v. Shinkong Synthetic Fibers Corp., No. 03 Civ. 8843, 2010 WL 3155176, at *1