Tudeme v Walters
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Tudeme v Walters 2012 NY Slip Op 31087(U) April 24, 2012 Sup Ct, New York County Docket Number: 651396/10 Judge: Charles E. Ramos Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK 70UNTY T H * . C T -v- . IT T c Index Number : 60393312007 PART TUDEME, MACDONALD 53 VS. WALTERS, DAVID INDEX NO. SEQUENCE NUMBER : 004 MOTION DATE VACATE I IIU IWIIIJWIII~ MOTION SEQ. NO. pupen, rlurlluwrwu Notice of MotlonlOrder to Show Cause Anlworlng Amdavlts , wow WIYU011 I LO UIIU rnouon tonor -Affldavb - Exhibltn - Exhlbita Replying Afldavib Upon the foregolng papem, It Is ordemd that thio motlon lo - uccompanyIng ,-,.-. , "A- n J ,J.S.C. Dated: ..................................................................... 0 CASE DISPOSED DENIED 2. CHECK AS APPROPRIATE: ........................... MOTION I : 0GRANTED S 3. CHECK IF APPROPRIATE: ................................................ SETTLE ORDER 1. CHECK ONE: DO NOT POST NON-FINAL DISPOSITION W A ID IN PART RN E 0OTHER 0SUBMIT ORDER FIDUCIARY APPOINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW Y0RK:COMMERCIAL D I V I S I O N -----------__--__----------------------X MACDONALD TUDEME AND MARGUERITE TUDEME, Index No. 651396/10 Plaintiffs, -against- DAVID WALTERS, MONARCH STAFFING, I N C * AND ITECH EXPRESS, I N C . , Chlrlrm Edward -OB, J.S.C.: Motion sequences 0 0 4 and 0 0 5 are c o n s o l i d a m disposition. In motion sequence 004, defendants David Walters ("Walters") and Monarch S t a f f i n g , I n c . ("Monarch") move p u r s u a n t to CPLR 3 2 1 1 ( a ) (11, ( a ) (2), and ( a ) ( 7 ) to dismiss t h e amended complaint (the "Amended Complaint") of Macdonald Tudeme and Marguerite Tudeme ( t h e " P l a i n t i f f 3") I n motion sequence 005, defendant iTechExpress, Inc. ("iTech") also moves pursuant to CPLR (a)( l ) , ( a ) ( 2 ) , and ( a ) (7) t o dismiss the Amended Complaint. Baokpround This action arises from the exchange of s h a r e s of MT Ultimate Healthcare Corporation ("MT"), a publically traded Nevada corporation previously owned and operated by the Plaintiffs as a nurse s t a f f i n g and home care p r o v i d e r in the N e w York City metropolitan area. In 2005, when t h e business began to 1 [* 3] experience f i n a n c i a l difficulties, the Plaintiffs met with Walters, a self described "investment banker, merchant banker, " to discuss t h e sale of s h a r e s of MT. After a series of meetings in New York, the p a r t i e s entered i n t o a s t o c k exchange agreement dated November 4, 2005 (the "Agreement"). According to the terms of the Agreement, t h e P l a i n t i f f s exchanged their shares of MT for shares of a newly formed corporation, Newco, that was a wholly owned subsidiary of MT. In exchange, MT agreed to make a cash payment of $30,442.82 to the P l a i n t i f f s and to assume c e r t a i n liabilities of t h e P l a i n t i f f s ( t h e "Assumed Tudeme Liabilities").' The Agreement provides that MT " s h a l l c a u m t h e Assumed Tudeme Liabilities t o be satisfied or refinanced, or p a i d according to their respective terms" and t h a t MT "shall use b e s t e f f o r t s to substitute its guarantee and collateral to [ t h e Plaintiffs' creditors] with guaranteed and collateral obligation to such creditors and to cause t h e l i e n and security interest relating to such obligations to be removed f r o m [the Plaintiffs] real estate and o t h e r a s s e t s " (Shapiro Affidavit, Exhibit 11, Section 2 [b]- [c]) . The Agreement was The Assumed Tuderne Liabilities include the following: (1) $205,921.32 to Lisa Stern as It appears on the balance sheet of MT dated September 30, 2005; (2) all obligations of MT on the balance sheet and payable list, each dated September 30, 2005 not otherwiae enumerated in S e c t i o n 3 of t h e Agreement: and a l l obligations of MT to NIR Group and ita affiliates and the United S t a t e s Internal Revenue Service (Shapiro Affidavit Exhibit 11, Schedule 1 [ a ] ) . 2 [* 4] executed by the Plaintiffs a s o f f i c e r s o r representatives of MT and by Walters as "Executive Vice President" (Shapiro A f f i d a v i t , Exhibit 11). The record indicates t h a t W a l t e r s was employed by Monarch Bay C a p i t a l Group and was Executive V i c e President of i T e c h a t t h e time t h e Agreement was executed, but is u n c l e a r as to whether Walters signed i n his c a p a c i t y a s a r e p r w e n t a t i v e of one of these companies or another (Chang Affirmation, Ex. E). The record also indicates t h a t he was a ahareholder or majority shareholder of both Monarch and i T e c h (id.). The Agreement contains mutual r e l e a s e provisions ( t h e "Release Provisions") a s follows: ( d ) (i) [MT] hereby f u l l y and unconditionally releases and discharges a l l claims and c a u s e s of a c t i o n which it, ever had, now have, or hereafter may have a g a i n s t Macdonald and Marguerite, in each case paat, .present, or as t h e y may exist at any time after this d a t e , w h e t h e r currently known o r unknown, relating to, or a r i s i n g under, o r i n connection w i t h , the Assumed Tudeme Liabilities. (ii) Each of Macdonald, Marguerite, and Newco j o i n t l y and s e v e r a l l y , h e r e b y fully and unconditionally releases and discharges a l l claims and causes of a c t i o n which it, ever had, now have, or hereafter may have a g a i n s t [MTI, i n e a c h case past, present, or as they may e x i s t at any time a f t e r t h i s date, whether c u r r e n t l y known o r unknown, r s l a t i n g to, o r arising under, o r i n c o n n e c t i o n with, the Assumed Tudeme Liabilities ( S h a p i r o Affidavit Exhibit 11, Section 3 ( d ) ( i ) (ii)1 The Agreement also contains the following choice of law and forum provision ( t h e "Forum Selection Clause") : [This agreement] hall be governed by and construed in 3 [* 5] accordance with the laws of the S t a t e of New York, without giving effect to conflict of l a w s . Any a c t i o n , suit, or proceeding arising out of, based on, or in connection with this Agreement or the transactions contemplated h e r e b y may be b r o u g h t in t h e United States District Court for the Southern D i s t r i c t of New York and each party covenants and agrees n o t t o assert, by way of motion, defense, or otherwise, in any action, suit, or proceeding, any claim that it or he I s n o t subject personally to the jurisdiction of such court, that i t s or his proceeding is b r o u g h t in an inconvenient forum, that the venue of the a c t i o n , suit, or proceeding i a improper, or that this Agreement or the s u b j e c t matter hereof may not be enforced i n or by such c o u r t (Shapiro Affidavit, E x h i b i t 11, Section 7 [ w . Finally, t h e Agreement notes t h a t "[s]imultaneously with the execution and delivery and delivery [sic] hereof, [MT], iTechexpress, I n c . , a Nevada corporation . . . and the stockholders thereof are executing and delivering t h e Share and Reorganization Agreement, dated a3 of the date hereof ( S h a p i r o Affidavit, Exhibit 11 at l)," On November 3, 2005, MT, iTech, and c e r t a i n iTech shareholders entered into t h e referenced agreement, the Share Exchange and Reorganization Agreement (the "iTech Agreement"). By way of the i T e c h Agreement, iTech acquired 88.75% of t h e fully diluted Outstanding MT common stock.2 The procedural history for t h i s action is unfortunately quite convoluted. On September 30, 2007, the P l a i n t i f f s initiated t h e action by filing a summons and complaint for breach of The parties subsequently entered into two other related agreements t h a t are n o t a t issue for the purpose8 of this motion (See S h a p i r o Affidavit, Exhibits 12-13). 4 [* 6] c o n t r a c t and f r a u d i n t h e inducement against Walters, M ~ n a r c h , ~ and Walters' business partner, Keith Moore ('\Moore") (together, the "Original Defendants"). Upon consent of t h e parties, the case was assigned t o J u d i c i a l Hearing Officer Ira Gammerman for adjudication. On April 2 9 , 2 0 0 8 , the Original Defendants filed a motion t o dismiss all claims pursuant to CPLR 3211(a) (l), ( 7 ) , and ( E ) . Following several h e a r i n g s and a reference to a referee f o r factfinding, JHO Gammerman dismissed all claima against Moore and t h e claim f o r fraud i n the inducement a g a i n s t a l l defendants. In February 2010, t h e Plaintiffs moved for leave to serve and f i l e the "Amended Complaint" that would add iTech as a d e f e n d a n t , assert new claims against Walters, and assert piercing the corporate veil claims to h o l d Walters and i T e c h l i a b l e f o r t h e alleged breach of contract ( t h e "Motion t o Amend"). A t a hearing on February 2 4 , 2010, JHO Gammerman granted the P l a i n t i f f s leave to amend but noted t h a t the Proposed Amended Complaint had not yet been served on Monarch, Walters, and iTech ( t h e "Defendants") . Despite JHO Gammerman's admonishment regarding service, t h e P l a i n t i f f s d i d not s u b s e q u e n t l y fils t h e Amended Complaint or serve s u c h on t h e Defendants. Nonetheless, Walters and Monarch f i l e d a n answer t o t h e Amended Complaint on J u n e 2 4 , 2010 and i T e c h f i l e d both a n answer to the Amended Monarch is t h e successor i n interest of MT. 5 [* 7] Complaint on J u l y 8, 2010 and an amended answer on J u l y 28, 2010. After i T e c h f i l e d i t s answer to t h e Amended Complaint, I t filed a notice with the clerk's o f f i c e indicating that it did not c o n s e n t to a d j u d i c a t i o n J H O Gammerman. The case was in turn transferred to t h i s Court. Walters and Monarch f i l e d motion sequence 004 on March 28, 2011, and i T e c h filed motion sequence 005 on April 4 , 2011. At a hearing on June 2, 2011, t h i s C o u r t ordered the Plaintiffs to serve and file a copy of the Amended Complaint. The Amended Complaint, along w i t h certificates of service evidencing service on counsel f o r the Defendants was subsequently filed on June 15, 2011. The Defendants f i l e d answers on June 23, 2011. Di6aummion The Defendants move this Court to dismiss the Amended Complaint for lack of both s u b j e c t matter and personal jurisdiction, Improper venue, and on t h e grounds that the Plaintiffs released them from liability related to the Assumed Tudems Liabilities by way of the Release Provisions.' Walters and i T e c h move to dismis8 on t h e grounds t h a t t h e Plaintiffs have failed to s t a t e a claim for piercing the corporate veil. Finally, In making its argument, ITech incorporated by reference the brief of Monarch and Walters. While t h e Defendants f a i l t o cite CPLR 3211(a)(8) as grounds for dismissal, they nonetheless argue that this Court lacks subject matter jurisdiction. As s u b j e c t matter j u r i s d i c t i o n is n o t walvable, t h i s Court is obliged to entertain these arguments ( F i n a n c i a l f n d u s . Regulatory A u t h . , Inc. v Fiero, 10 N.Y.3d 12 [ 2 0 0 8 1 ) . 6 [* 8] i T e c h moves t o dismiss on the grounds that they cannot be held liable for b r e a c h of contract because they were not a party to the Agreement. The Defendants f i r s t move to dismiaa on the grounds that this C o u r t lacks subject matter and p e r s o n a l jurisdiction over them because of the Plaintiffs' delay in s e r v i c e and filing of the Amended C ~ r n p l a i n t .The P l a i n t i f f s argue that t h e errors in ~ s e r v i c e and filing are c o r r e c t a b l e pursuant, citing to Fry v V i l l a g e of Tarrytown (Fry v V i l l a g e of Tarrytown, 8 9 NY2d 714 [1997]). As the summons and Amended Complaint were properly served on a l l Defendants and have been filed w i t h this C o u r t , the operative question at t h i s juncture i s w h e t h e r t h e errors in filing and service are correctable a s a m a t t e r of law. Fry was superceded by a 2007 amendment to CPLR 2001 which provides f o r the c o r r e c t i o n of errors r e l a t e d to filing. The broad language of the statute provides t h a t " [ a J t any stage of an action, including the filing of a summons w i t h notice, ~ummonlg and complaint or p e t i t i o n to commence an action, the court may permit a mistake, omission, d e f e c t or irregularity, including the failure Among the various jurisdictional defects cited by the Defendants, iTech argues that this Court l a c k s jurisdiction because the Plaintiffs f a i l e d to pay an additional filing fee pursuant to CPLR 306-a. This Court notes that the filing fee requirement under CPLR 306-a applies only to third p a r t y actions and is therefore inapplicable i n this c a s e . 7 [* 9] t o purchase o r acquire an index number or o t h e r mistake in the f i l i n g process, to be corrected, upon s u c h terms as may be j u s t , or, if a substantial right of a p a r t y is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded, provided that any a p p l i c a b l e fees shall be paid" (NY CPLR 2001). In Ruffin v Lion Corp., t h e Court of Appeals h e l d that CPLR 2001 may be used to correct technical non-prejudicial defects in both f i l i n g and service (Ruffin v L i o n Corp, 1 5 NY3d 578 [2010]). The Court of Appeals provided the f o l l o w i n g guidance f o r determining which infirmities in filing and service are " t e c h n i c a l " in nature: In deciding whether a defect in service is merely technical, courts must be guided by t h e principle of notice t o t h e defendant-notice t h a t m u s t be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the a c t i o n and a f f o r d them an opportunity to present t h e i r objections" ( R u f f i n , 1 5 NY3d at 5 8 2 ) . The record indicates t h a t t h e Amended Complaint was attached to the Motion to Amend which was f i l e d and p r o p e r l y served on at least one defendant, W a l t e r s . W a l t e r s i s o r was an officer of both Monarch and iTech and is a s h a r e h o l d e r of iTach. Additionally, Monarch and Walters appeared in the case prior to the Motion to Amend and all three p a r t i e s appeared before JHO Gammerman in opposition t o t h e Motion t o Amend. They were, in f a c t , all represented by the same a t t o r n e y , Mr. Shapiro. Furthermore, each p a r t y submitted answers t o t h e Amended Cornplaint both a f t e r t h e Motion t o Amend was granted and after t h e Amend Complaint was served. There can be no question that t h e 8 [* 10] p a r t i e s were on n o t i c e of t h i s proceeding and were afforded an opportunity to, and did in fact, present their objections. As B U C ~ , no p a r t y will be prejudiced by disregarding the mistakes in filing and service to be corrected pursuant to CPLR 2001. Therefore, it is the f i n d i n g of t h i s Court that the technical errors in filing and service are deemed corrected pursuant t o CPLR 2001. The Defendants contend that venue in this Court is improper pursuant to the terms of the Forum Selection Clause, to t h e exclusive jurisdiction of the United States District Court for the Southern D i a t r i c t of New Y o r k . New York c o u r t s have acknowledged that forum selection c l a u s e s may be e i t h e r permissive or mandatory in nature (Boss v. American Express Financial Advisors, I n c . , 6 NY3d 242 [2006]) Mandatory clauses provide that contracting parties both submit to exclusive jurisdiction in a particular forum or forums while permissive clauses provide that contracting parties shall submit to jurisdiction in a particular forum but do not preclude litigation where jurisdiction is otherwise proper. In New York, mandatory clauses a r e prima facie valid ( S t e r l i n g N a t . Bank a s Assignee of NorVergence, Inc. v. E a s t e r n Shipping Worldwide/ Inc. I 35 AD3d 222, 237 [lst Oept 2006]), and where parties have c o n t r a c t e d for exclusive jurisdiction in a particular forum, it i s the policy of the Courts to enforce these provisions (id.). Where c o n t r a c t i n g 9 [* 11] p a r t i e s have agreed to a permissive forum selection c l a u s e , the general rule is t h a t "[wlhen only jurisdiction is specified t h e clause will generally n o t be enforced without aome f u r t h e r language indicating the parties' i n t e n t to make jurlsdlction exclusive" ( F e a r & F e a r , I n c . v N. I. I. Brokerage, LLC, 50 AD3d 185, 187 [2008]) (internal quotations omitted). Here, the parties' use of the permissive language "may" in the Forum Selection Clause suggests that the clause is permissive rather than mandatory. iTech cites to F e a r & Fear f o r t h e proposition t h a t " [ a ] provision stating t h a t a n action 'may' be b r o u g h t in a jurisdiction means that the action must be brought in that jurisdiction" (iTech Mem of Law at 10). iTech's reliance on Fear is misguided. The forum selection clause at issue in Fear provided that suits arising from the contract "may be litigated in any federal or s t a t e c o u r t of competent j u r i s d i c t i o n located in the Borough of Manhattan" ( F e a r , 50 AD3d at 187). The Appellate Division h e l d that " a ' my' was used to r e f e r t Q the choice of a state or federal forum and the clause was mandatory to the e x t e n t that the p a r t i e s were bound to bring s u i t in one of t h o s e two foruma. Here, the Forum Selection C l a u s e is distinguishable in that it does not offer such a choice. It merely provides t h a t the parties "may" bring s u i t in t h e U n i t e d S t a t e s District Court of t h e S o u t h e r n District of New Y o r k and that each party consents to jurisdiction in that forum. There is 10 [* 12] no further language that indicatea the parties intended the District Court to be the exclusive forum for the litigation of disputes. It ia, therefore, the concluaion of this Court t h a t the - Forum Selection Clause c o n f e r s jurisdiction in the designated forum b u t does not deny the P l a i n t i f f s their choice of forum in this C o u r t . B- Dismissal under CPLR 321.1 ( a ) (1) is warranted "only if the documentary evidence submitted conclusively establishes a d e f e n s e to the asserted claims as a matter of law" (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]1 . The Defendants contend that the mutual release provisions In the Agreement release them from liability related to the Assumed Tudeme Liabilities and bar t h i s litigation. "In the absence of f r a u d , d u r e s s , illegality or m i s t a k e , a g e n e r a l release bars an action on any cause of a c t i o n ariBing prior to its execution"(Hack v U n i t e d Capital Corp, 2 4 7 AD2d 300, 301 [1998])[emphasis added]). The Assumed Tudeme Liabilities arose - from the Agreement, not prior to it. Therefore, t h e release provision8 in the Agreement do not release the Defendants from liability. c- The Plaintiff8 move this C o u r t to pierce the corporate v e i l s of both Monarch and iTech and hold Walters personally liable for 11 [* 13] the alleged breach of contract. Walters moves ta dismiss t h e Plaintiffs' claim for piercing the corporate v e i l p u r s u a n t to CPLR 3211(a)(7) on the grounds that the P l a i n t i f f s have not alleged facts sufficient to support the claim. The P l a i n t i f f s alao present a threshold issue by a s s e r t i n g t h a t this claim should not be dismissed pursuant to the doctrine of "law of the caae" because JHO Gammerman g r a n t e d their Motion t o Amend d e s p i t e Walters making the ''same 1 arguments" in opposition. A t the February 2 4 , 2010 h e a r i n g where JHO Gammerman granted t h e Motion to Amend, he stated that w i t h respect to the claim for piercing the c o r p o r a t e veil, "I've indicated to counsel in an off-the-record discussion that if this is going to be t r i e d by a j u r y , I'll resolve that issue before the matter is submitted to the j u r y . If i t ' s n o t going t o be t r i e d by a j u r y , I ' l l resolve it within the framework of the trial" ( S h a p i r o Affirmation, Ex 6 at 2). These comments indicate t h a t JHO Gammerman did n o t m a k e a determination on this matter, but r a t h e r preserved t h e issue f o r a later time. T h e r e f o r e , it is t h e determination of this C o u r t t h a t the law of the case doctrine does not apply to this issue. When determining whether to grant a motion pursuant to CPLR 3211(a)(7), the C o u r t must determine whether the pleadings atate a cause of a c t i o n . T h e motion must be denied if from t h e pleadings' four corners "factual allegations are discerned which 12 [* 14] taken t o g e t h e r manifest a n y cause of action cognizable at law." (511 W. 2 3 P d Owners C o r p . v J e n n i f e r Realty Co., 98 NY2d 1 4 4 , 152 [2002], quoting Guggenhelmer v Ginzburg, 43 NY2d 268, 275 [1977]. The Court m u s t a f f o r d t h e pleadings a liberal construction, accept the allegations of the complaint and any submissions in opposition to the motion as true, and a f f o r d the plaintiffs the benefit of every possible favorable inference (id.). Courts have the a u t h o r i t y to look beyond the corporate form "to prevent fraud or to achieve e q u i t y " (Port Chester Elec. C o n s t . Co. v. A t l a s , 4 0 NY2d 652, 656 119761). "In order for a p l a i n t i f f to state a viable claim against a shareholder of a corporation in his or her individual c a p a c i t y f o r actions purportedly t a k e n on behalf of the corporation, plaintiff must allege facts that, if proved, indicate that the shareholder exercised complete domination and c o n t r o l over t h e corporation and 'abused the privilege of doing business in t h e corporate form to perpetrate a wrong OF injustice'" ( E a s t Hampton Unlon Free School D i s t . v Sandpebble B l d r s . , Inc., 16 NY3d 775, 777 [20111). To support its c l a i m for piercing t h e c o r p o r a t e veil, the P l a i n t i f f s assert that "Walters was and is the alter ego" of both Monarch and iTech, both companies were undercapitalized, n e i t h e r Monarch n o r iTech ever had a legitimate buainess purpose, and n e i t h e r business ever made a p r o f i t (Amended Complaint at 13 . - -. .. . . .. . .. ΒΆ 30- [* 15] 39), but fail to plead f a c t s to support these c o n c l u s o r y allegations. The claim is, therefore, Insufficient t o survive a motion to dismiss (Godfrey v. Spano, 13 N.Y.3d 358, 3 7 3 [2009])["Although on a motion to dismiss plaintiffs' allegations are presumed t o be t r u e and accorded every favorable inference, conclusory allegations-claims consisting of bare legal conclusions w i t h no f a c t u a l specificity-are insufficient t o s u r v i v e a motion to dismiss."]). F i n a l l y , iTech moves to dismiss the claims against them on t h e grounds that it was n o t a p a r t y to the Agreement and therefore cannot be h e l d liable for the alleged breach of c o n t r a c t . Plaintiffs again assert that the law of the case doctrine bars dismissal of the claims against iTech because " [ i l n opposing plaintiffs' motion to amend their complaint, iTech's counsel made the same arguments, but plaintiffs' application was granted" and "[nlothing has changed since that t h e " (Plaintiffs' Memorandum of Law at 6). While JHO Gammerman did grant t h e Motion to Amend, permitting t h e P l a i n t i f f s ' to plead claims againat i T e c h , the record does not i n d i c a t e that he made a determination on the merits of the p l e a d i n g s . Therefore, the law of t h e case does n o t a p p l y . The Plaintiffs assert t h a t iTech is liable for Monarch'B debts because the Share and Reorganization Agreement caused i T a c h and Monarch to become "essentially t h e same" (Plaintiffa 14 [* 16] memorandum of law at 7), but f a i l e d to make a claim for successor liability o r p l e a d f a c t s beyond a showing t h a t iTech is a major shareholder of Monarch. The P l a i n t i f f s claims against i T e c h are therefore insufficient to preclude dismissal. Accordingly, it is ORDERED that t h e defendants David Walter8 and Monarch Staffing, Inc. motion to dismiss (motion s e q u e n c e 004) is granted in part and t h e third cause of action (piercing t h e c o r p o r a t e v e i l ) of t h e complaint is dismissed; and it is f u r t h e r ORDERED t h a t the defendant iTechExpress, Inc. s motion to dismiss (motion sequence 005) is granted in p a r t and t h e second (breach of contract) and t h i r d causes of a c t i o n (piercing the c o r p o r a t e veil) of the complaint are diermissed. Dated; April 19, 2012 ENTER: 671 I CHARL~S RAMOS E. 15
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