Michell et al v. McDonald's Corporation et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
GEORGE R. MICHELL; MICHELL NORTH LLC;
MICHELL.BRADLEY LLC; BERLIN FOODS, LLC;
and UTICA FOODS, LLC,
Plaintiffs,
-against-
MCDONALD'S CORPORATION; MCDONALD'S
USA, LLC; JOSEPH CHICZEWSKI; JEFF ROTH;
and JOHN CRONAN,
Defendants.
MEMORANDUM & ORDER
24-CV-3442 (NGG) (PK)
NICHOLAS G. GARAUFIS, United States District Judge.
Plaintiffs George R. Michell, Michell North LLC, Michel.Bradley
LLC, 	Berlin Foods LLC, 	and 	Utica Foods 	LLC 	(collectively,
"Michell") have filed a motion seeking leave to amend their com-
plaint under Federal Rule of Civil Procedure 	lS(a). Michell
acknowledges, however, that the motion "is functionally a mo-
tion to reconsider" the court's dismissal of its contract claim in
the Memorandum and Order entered on September 23, 2025
(the "Order"). (Pls.' Request for Pre-Motion Conf. re Claim for
Breach of Contract ("Pls.' Mot.") (Dkt. 91) at 1; see Mem. & Order
Granting 	in 	Part 	McDonald's 	Mot. 	to 	Dismiss 	("Order")
(Dkt. 88).) Alternatively, Michell seeks permission to file an in-
terlocutory appeal of that dismissal. 1 (Pls.' Mot. at 1.) Defendants
1 Michell titled the present motion as "Plaintiffs' Request for Pre-Motion
Conference on Request for Leave to File Second Amended Complaint."
(Pls.' Mot. at 1.) Doing so was in line with Rule N(A) (2) of this court's
Individual Rules, which requires a pre-motion conference for a "motion to
amend a pleading pursuant to Fed R. Civ. P. 15." But as Michell acknowl-
edges, the motion "is functionally a motion to reconsider" the court's
treatment of its contract claim. (Id.) For that reason, along with the exten-
sive discussion that Michell provided in this filing, the court construes
1
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McDonald's 	Corporation, 	McDonald's 	USA, 	llC, 	Joseph
Chiczewski, Jeff Roth, and John Cronan (collectively, "McDon-
ald's") 	oppose Michell's motions. 	(Defs.' Resp. to Pls.' Mot.
("Defs.' Opp.") (Dkt. 97) at 1.) The court DENIES both Michell's
motions for reasons that it now explains.
I. 	BACKGROUND2
Plaintiff George R. Michell is a franchisee of McDonald's restau-
rants. (First Am. Compl. (Dkt. 55) '! 9.) After McDonald's refused
to renew his franchisee license, he filed the present suit in May
2024. He asserts eight counts, alleging that the chain violated its
franchise agreement; state and federal antidiscrimination laws;
state statutory protections for franchise operators; and common
law protections for promissory estoppel, tortious interference,
and fraud. 	(Id. '!'! 164-330.) In December 2024, McDonald's
moved to dismiss all but two counts of Michell's complaint. 3 (See
Defs.' Mot. to Dismiss ("Defs.' Mot.") (Dkt. 61-1).)
The court granted in part and denied in part McDonald's
motion. 	It dismissed 	Michell's 	state 	law claims for 	alleged
breaches of the franchise agreement, common law fraud, and
promissory estoppel, as well as Michell's federal retaliation claim
under Section 1981(a) of Title 42 of the U.S. 	Code 	("Sec-
tion 1981") (respectively, "Counts III, N, V, and VIII"). (Order at
Plaintiffs' motion as a motion for reconsideration and a motion for inter-
locutory appeal. (See Text Order Dated 10/20/2025.) Those motions are
fully briefed and ready for the court to resolve. (See generally Pls.' Mot.;
Defs.' Opp.; Pls.' Reply (Dkt. 98).)
2 The court assumes familiarity with the relevant facts and procedural his-
tory of this case. For a fulsome treatment of those details, see Order at
2-14.
3 Those two counts allege violations of Connecticut's Franchise Act and its
Unfair Trade Practices Act against corporate defendants McDonald's Cor-
poration and McDonald's USA, LLC (respectively, "Counts I and II"). (See
Order at 13 & n.14.)
2
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18-26 (dismissing Count III), 26-31 (dismissing Count IV), 31-34
(dismissing Count V), 46-51 (dismissing Count VIII).) However,
the court declined to dismiss Michell's state law tortious interfer-
ence claim 	('(Count VI") 	and his 	Section 1981(a) 	disparate
treatment claim (((Count VII"). (Id. at 34-38 (denying McDonald's
motion to dismiss Count VI), 38-46 (denying McDonald's motion
to dismiss Count VII).) The court also granted Michell leave to
amend his common law fraud (Count IV) and retaliation (Count
VIII) claims, but denied him leave to replead his contract (Count
III) and promissory estoppel (Count V) claims. (Id. at 52.) As to
these latter claims, the court reasoned that they ((contravene[d]
fundamental principles of contract law." (Id. at 52-53 (internal
citations omitted}.)
Relevant 	here 	is 	Michell's 	contract claim based 	on 	alleged
breaches of the parties' franchise 	agreement (the ((Franchise
Agreement") (Count III). Through this claim, Michell argues that
corporate defendants McDonald's Corporation and McDonald's
USA, LLC abused their discretion and breached the implied cov-
enant 	of good 	faith 	and 	fair 	dealing by making decisions
arbitrarily, capriciously, and with improper motive. (Id. at 18.)
The court, however, held that under applicable state law, the
Franchise 	Agreement's 	express 	and 	unambiguous 	language
trumped the implied covenant. (Id. at 22; see al.so id. at 25-26
(((As a matter of law, the Franchise Agreement's express terms
defeat Michell's contract claim based on an alleged breach of the
implied covenant of good faith and fair dealing.").) As the court
explained, that clear language states:
No future franchise or offers of franchises for additional
McDonald's restaurants ... have been promised to [Michell]
and any other franchise offer shall only be in writing, exe-
cuted by an officer of McDonald's, and specifically identified
as a Franchise Agreement or Rewrite Commitment Letter.
3
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(Id. 	at 23 	(quoting (Executed Franchise Agreement Between
McDonald's 	Corporation 	& 	Franchisee 	George 	R. 	Michell
("Franch. Agr.") (Dkt. 29-3 at ECF pp. 8-20) Cf 28(h)).) That lan-
guage also cautioned that the agreement contains "no promise or
representation as to the renewal of this Franchise or the grant of
a new franchise." (Id. (quoting Franch. Agr. If 28(a)).)
Michell now seeks reconsideration of the court's order to the ex-
tent that it denied his request to replead his contract claim. (Pls.'
Mot. at 1 (citing Order at 51-52).) Specifically, he challenges the
court's conclusion that "amendment" of this claim ''would be fu-
tile.'' (Id. 	(citing Order at 51-52); see Order at 52 (denying
Michell leave to replead the contract claim because it "ask[s] this
court to contravene fundamental principles of contract law").) In
the alternative, he seeks leave to file an interlocutory appeal from
the court's ruling. (Pls.' Mot. at 11-12.) The court now resolves
those requests. 4
II. 	LEGAL STANDARDS
The standard for granting a motion for reconsideration is "strict."
Shraderv. CSXTransp.J Inc., 70 F.3d 255,257 (2d Cir. 1995); see
Van Buskirk v. United Grp. of Cos., 935 F.3d 49, 54 (2d Cir. 2019)
("A motion for reconsideration is an extraordinary request that is
granted only in rare circumstances, such as where the court failed
to consider evidence or binding authority.").5 "[R]econsideration
will generally be denied unless the moving party can point to
controlling decisions or data that the court overlooked-matters,
4 Pursuant to the Order, Michell filed a second amended complaint under
seal on October 30, 2025, which amends the common law fraud (Count
IV) and retaliation (Count VIII) claims. (See Order at 52; Sealed Second
Am. Compl. (Dkt. 94) .) The court does not address that complaint in this
opinion. (See Defs.' Letter Requesting Pre-motion Conf. (Dkt. 102); Text
Order Dated 11/14/2025.)
5 When quoting cases, unless otherwise noted, all citations and internal
quotation marks are omitted, and all alterations are adopted.
4
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in other words, that might reasonably be expected to alter the
conclusion reached by the court." Van Buskirk, 935 F.3d at 54
(quoting Shrader, 70 F.3d at 257); see VirginAtl. Airways, Ltd. v.
Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (''The
major grounds justifying reconsideration are 	an intervening
change of controlling law, the availability of new evidence, or the
need to correct a clear error or prevent manifest injustice."). Re-
consideration 	"is 	not 	a 	vehicle 	for. relitigating 	old 	issues,
presenting the case under new theories, securing a rehearing on
the merits, or otherwise taking a 'second bite at the apple."' Ana-
lytical Survs., Inc. v. Tonga Ptrs., 684 F.3d 36, 52 (2d Cir. 2012)
(quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir.
1998)). "Courts in this circuit have thus generally held that par-
ties seeking reconsideration may not advance new facts not
previously presented to the [c]ourt." United States v. Raniere, No.
18-CR-0204 (NGG), 2024 WL 991098, at *1 (E.D.N.Y. Mar. 7,
2024) (citing In re Facebook, Inc., IPO Secs. & Derivative Litig., 43
F. Supp. 3d 369, 373 (S.D.N.Y. 2014)).
Interlocutory appeal under 28 U.S.C. § 1292(b) provides "a rare
exception to the final judgment rule that generally prohibits
piecemeal appeals" to "avoid protracted litigation." Koehler v.
Bank of Berm. Ltd., 101 F.3d 863,865 (2d Cir. 1996). Under that
statute, a district court can certify a nonfinal order in a civil case
for interlocutory appeal if it finds that the "order involves a con-
trolling question of law as to which there is substantial ground
for difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the lit-
igation[.]" 28 U.S.C. § 1292(b). But even if a movant satisfies
these three criteria, certification remains "entirely a matter of dis-
cretion for the district court." In re Roman Gath. Diocese ofAlbany,
Inc., 745 F.3d 30, 36 (2d Cir. 2014).
5
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III. DISCUSSION
Michell fails to meet the demanding standards for reconsidera-
tion or interlocutory appeal. The court discusses why.
A. 	Motion for Reconsideration
Michell's argument for reconsideration is twofold. First, he urges
the court to allow him to plead new facts. (Pls.' Mot. at 2.) He
reasons that those facts would "reasonably be expected to alter
the conclusion reached by the court." (Id. (citing Shrader, 70 F.3d
at 257).) He discusses three sets of facts that he believes show
that the implied covenant controls this case. First is McDonald's
recent representations to the Federal Trade Commission (the
"FTC") that its "franchise agreement is designed to set clear ex-
pectations that are consistently applied to all parties." (Id. at 3.)
Second is McDonald's June 2022 announcement of a modified
procedure for franchise renewal. (Id. at 5.) That, according to
Michell, ''bolster[s] the conclusion that McDonald's longstanding
course 	of dealing was to consistently grant[,] 	rewrite[,] 	or
[re]new terms to franchisees who consistently met McDonald's
National Franchising Standards." (Pls.' Reply at 7.) And third is
a set of FTC-mandated disclosures about franchise renewal that
leaves an "overall impression" that McDonald's will apply its re-
newal 	policy 	"fairly, 	consistently, 	and 	equally 	among 	all
franchisees." (Pls.' Mot. at 5-7.)
Separately, Michell contends that a correction is needed to "pre-
vent manifest injustice." (Id. at 1 (citing Article 13, LLC v. Ponce
de Leon Fed. Bank, 686 F. Supp. 3d 212, 216 (E.D.N.Y. 2023)).)
He thinks that Dayan v. McDonald's Corp., 125 Ill. App. 3d 972
(1984) "should be controlling here." (Id. 	at 8.) According to
Michell, Dayan held that a decision by McDonald's to terminate
a franchisee for repeated noncompliance was "was reviewable
under the common law [i]mplied [c]ovenant." (Id. (citing Dayan,
125 Ill. App. 3d at 990-91).) Michell proclaims that in light of
6
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that holding, this court's ruling "makes no sense." (Id. at 9.) He
then hedges by saying that the Franchise Agreement "at a mini-
mum" presents an "ambiguity as to whether" it "disavow[s] the
[i]mplied 	[c]ovenant." (Id. 	at 11 	(emphasis omitted) 	(citing
Franch. Agr. '['[ l(c)-(d), 28(a), (h)).)
Michell has failed to meet the "strict" standard required to grant
a motion for reconsideration. See Shrader, 70 F.3d at 257. As
McDonald's observes, the new facts that Michell seeks to intro-
duce 	"support the 	same 	contract theory 	[that] 	the 	[c]ourt
rejected" in the Order. (Defs.' Resp. at 2-3; see Order at 22-23.)
And even assuming these facts are "new," the sole reason that
Michell provides for failing to discuss the facts in the complaint
was that he ''believe[ed] the[] contract claim was sufficient un-
der notice pleading." (Pls.' Reply at 7.) Michell cannot add facts
to his complaint via a motion for reconsideration just because he
did not think that he needed to plead them the first time around.
See Raniere, 2024 WL 991098, at *1 (citing In re Facebook, 43 F.
Supp. 3d at 373 (noting that a "party seeking reconsideration"
may not "advance new facts, issues, or arguments not previously
presented to the [c]ourt." (quoting Schonberger v. Serchuk, 742
F. Supp. 108, 119 (S.D.N.Y. 1990))). To allow otherwise would
impermissibly permit him a "second bite at the apple.'' Analytical
Survs., 684 F.3d at 52. Thus, Michell cannot plead his three new
facts.
Michell's other arguments concerning "manifest injustice" fare no
better. 	(See 	Pls.' Mot. 	at 	1.) As McDonald's 	notes, 	Michell
"make[s] no attempt to identify any controlling law the [c]ourt
overlooked.'' (Defs.' Reply at 2.) Indeed, the only case Michell
"prominently cites" is Dayan-a case that is not controlling (as a
decision of an intermediate appellate state court) and which
Michell cited in his opposition to McDonald's motion to dismiss
(which the court did not deem persuasive). (See id.; see also Pls.'
Opp'n to Defs.' Mot. (Dkt. 73) at 10 (citing Dayan, 125 Ill. App.
7
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3d at 989-91), 13 (citing Dayan, 125 Ill. App. 3d at 991).) But as
McDonald's explains, "Dayan involved McDonald's attempt to
terminate a franchise, not its decision to deny an operator fran-
chise renewal." 	(Id. 	at 6 (emphasis in original).) Therefore,
Dayan did not address the provisions underpinning the court's
analysis because paragraph 28(a) and (h) of the Franchise Agree-
ment were not implicated. (See id.; see also Order at 22-24
(analyzing paragraphs 1, 15, and 28 of the Franchise Agree-
ment).) So, Michell's argument that the court erred by finding
those provisions to be clear is what "makes no sense." (See Pls.'
Mot. at 9, 11.) Thus, Michell fails to demonstrate any error in the
court's dismissal of his contract claim, let alone "manifest injus-
tice."6 See Virgin Atl. Airways, 956 F.2d at 1255.
For these reasons, the court denies Michell's motion for reconsid-
eration. See Shrader, 70 F.3d at 257.
B. 	Motion for Interlocutory Appeal
Michell argues that the court should allow him to file an interloc-
utory appeal from its ruling dismissing his contract claim. He
6 Michell also lists several newly raised arguments to support his preferred
interpretation of the Franchise Agreement. Two are chief among them.
First, Michell contends that the court's interpretation is "unconscionable."
(Pls.' Mot. at 10-11.) But "McDonald's reserving for itself the right to decide
with whom it wants to embark on what is typically a 20-year business re-
lationship at a restaurant location" does not implicate the extremely high
standard for unconscionability. (Defs.' Resp. at 7); see Doctor's Assocs., Inc.
v. Jabush, 89 F.3d 109, 113 (2d Cir. 1996) ("An unconscionable bargain is
one which no man in his senses and not under delusion would make on
the one hand, and no honest and fair man would accept on the other.").
Second, Michell states that he should be allowed to oppose McDonald's
counterclaim for breach of the parties' franchise agreements by arguing
that McDonald's violated its own standards. (Pls.' Mot. at 8.) But as
McDonald's explains, "there is nothing about the [c]ourt's dismissal of
Plaintiffs' contract claim that will restrict or impair Plaintiffs' ability to
make whatever arguments they wish in defending themselves against the
counterclaim." (Defs.' Resp. at 7.)
8
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asserts that the dismissal "raises legal issues on a controlling
question of law on which there is substantial ground for a differ-
ence of opinion." (Pls.' Mot. at 12 (citing United States ex rel.
Quartararo v. Gath. Health Sys. of Long Island Inc., 521 F. Supp.
3d 265, 277 (E.D.N.Y. 2021)).) As support, he notes that the
court cited "decisions involving McDonald's from outside the Sec-
ond Circuit." (Id.; see Pls.' Reply at 8 (arguing that cases cited by
McDonald's are not controlling, "conflict with Dayan," and that
the conflict "must be resolved").) Michell also contends that ap-
pellate review is "imperative" because the issues raised by the
contract claim are "important'' to him, "all other McDonald's
franchisees," and "other franchisees with similar contracts." (Pls.'
Mot. at 12.) He then notes that "the start of the trial is not likely
to be materially delayed" by an appeal because "the fact issues
underlying the contract claim largely overlap [with] other claims
that remain in the case on which discovery is ... proceeding."
(Id.)
Michell has not shown this case to be "a rare exception" meriting
interlocutory appeal. See Koehler, 101 F.3d at 865. As McDonald's
notes, a "question of contract interpretation typically is not a
'controlling question of law' that serves as a basis for interlocu-
tory appeal." (Defs.' Resp. at 8 (quoting U.S. Underwriters Ins. Co.
v. Kenfa Madison, LLC, No. 20-CV-2761 (NGG) (LB), 2023 WL
5617772, at *4 (E.D.N.Y. Aug. 30, 2023) (collecting cases)).)
And even if it were, McDonald's correctly observes that there is
no "substantial ground for difference of opinion" in this case.
(Id.) As mentioned, the express and unambiguous terms of the
Franchise Agreement supersede the implied covenant-a conclu-
sion that the case law "uniformly'' supports. (Id.; see Order at 22-
26 (discussing case law and concluding "[a]s a matter oflaw, the
Franchise Agreement's express terms defeat Michell's contract
claim based on an alleged breach of the implied covenant of good
faith and fair dealing").) Michell also fails to justify his claim that
immediate appellate review "may materially advance" the case's
9
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s/Nicholas G. Garaufis
resolution. (Pls.' Mot.
at
12; Pls.' Reply
at
8.) Instead, he argues
only that an appeal would not delay the start of trial or impede
discovery.
(See
Pl.'s Mot.
at
12; Pls.' Reply at 8.) Section 1292(b)
requires more.
See
28 U.S.C. § 1292(b) (immediate appeal must
"materially advance the ultimate termination of the litigation").
In sum, Michell
is
not entitled to an interlocutory appeal from the
court's ruling on his contract claim. 7
See
Koehler, 101 F.3d at 865.
IV.
CONCLUSION
For the foregoing reasons, the court
DENIES
Michell's motion to
amend his complaint-which the court construes as a motion for
reconsideration-and his motion for interlocutory appeal.
SO ORDERED.
Dated: 	Brooklyn, New York
December
{_
i_,
2025
Ni CHOLAS
G.
GARAUFIS
United States District Judge
7 Because Michell has satisfied "[n]one of the statutory criteria for an in-
terlocutory appeal," (Defs.' Resp. at 9), the court need not address whether
it would have exercised its discretion to grant immediate appellate review,
see In re
Roman
Gath. Diocese, 745 F.3d at 36.
10
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