Swan Media Group, Inc. v. Staub, No. 1:2011cv02250 - Document 19 (S.D.N.Y. 2012)
Court Description: MEMORANDUM AND OPINION re: 7 MOTION to Dismiss Notice of Motion. filed by Danielle Staub.For the foregoing reasons, Plaintiff's breach of contract claim is dismissed pursuant to Rule 12 (b) (6) and the remaining claims are dismissed for lack of jurisdiction. Leave to replead granted within thirty (30) days. IT IS SO ORDERED. (Signed by Judge Robert W. Sweet on 1/17/2012) (ama)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --- --------- --- X SWAN MEDIA GROUP, INC., 11 Civ. 2250 Plaintiff, OPINION against DANIELLE STAUB, Defendant. - ---x A P PEA RAN C E S: Attorneys for Plaintiff NEAL GREENFIELD, ESQ. 617 11th Avenue New York, NY 10036 By: Neal Greenfield, Esq. At for Defendants MYEROWITZ, JEFFREY & GLIDDEN 132 Buena Vista Road New CitYI NY 10956 By: Howard Myerowitz, Esq. Sweet, O.J. This case arises out of an alleged breach of contract between Swan Media Group, the parent company defendant Dani television actress Jersey." (the of Inc. "Scores New York" ( "Staub" Staub Ie ("Swan Media" formerly of "Plainti ff" ) , men's club, and "Defendant") , or the or "Real the Housewives New of The alleged breach is of a Personal Services Agreement "Agreement ") , dated November creation of a video (the "Video"). 19, 2010, regarding the On August 2, 2011, Defendant filed the instant motion to dismiss or in the alternative for summary judgment. Based upon the conclusions set forth below, the motion is granted. I. Applicable Legal Standards Standard On a motion to dismiss pursuant to Rule 12(b) (6), all factual allegations in the complaint are accepted as true, and I inferences are drawn ar Molecular ---is not favor of the pleader. Mills v. ./12 F.3d 1170,1174 (2d Cir. 1993). .......~----------------~ issue in whether a plaintiff 1 will "'The ultimately prevail but aimant whether the the claims ,II F.3d 375, 378 is entitled to offer evidence to support of Darien, 56 Vill (2d Cir. 1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). To 12 (b) (6), survive a motion to pursuant "a complaint must contain sufficient accepted as true, (2009) factual Rule matter, f that is plausible , 556 U.S. 662, 129 S.Ct. 1937, (quoting 570 (2007)). to to 'state a claim to rel on its face.'" Ashcroft v. I 1949 dismiss 1 Atl. Corp. v. Twombly, 550 U.S. 544, Plaintiffs must allege sufficient facts to "nudge [ their claims across the line from conceivable to plausible . ." Twombly, the factual 550 U.S. at 570. legations of a Though the Court must accept complaint as true, it is '''not bound to accept as true a legal conclusion couched as a factual allegation. ' 129 II S.Ct. at 1950 (quoting Twombly, 550 U.S. at 555). When presented with a Rule 12 (b) (6) , the Court may motion to dismiss pursuant consider documents that to are referenced in the complaint, documents that the plaintiff reI on in bringing suit and that are 2 either in the plaintiff's possession or that the plaintiff knew of and relied on when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, 153 (2d Cir. 't of Educ., 313 F.3d 768, v. Vt. 2002) i 282 F. 3d 147, 776 (2d Cir. Inc., --~--------------~------------- "If, 2002) . on a motion under Rule matters 12(b) (6) outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d). B. The Rule 56(c) Standard A motion for summary judgment must be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). of material fact exists, but, rather, determine sufficient disagreement whether is it In determining whether a genuine issue the courts do not try issues of fact, "whether to require so one sided that matter of law." Anderson v. the evidence submission one party must Liberty Lobby, Inc., 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 3 presents to a jury a or prevail as a 477 U.S. 242, "The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of 1060-61 law./I (2d Cir. Rodriguez v. 1995) City of N.Y., (citation omitted). 72 F.3d 1051, Summary judgment is appropriate where the moving party has shown that "little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine judgment L.P., is issue of proper. /I material fact Gallo Prudential 22 F.3d 1219, 1223-24 In considering a motion for v. and a (2d Cir. 1994) grant of summary Residential Servs. , (citations omitted). summary judgment, the Court must "view the evidence in the light most favorable to the non moving party and draw all reasonable inference grant summary judgment only when no its favor, reasonable could find in favor of the nonmoving party." 64 F.3d 77, 79 (2d Cir. citations omitted}i 1995) (internal trier of Allen ----- Indus. (1986). fact v. -------~---- quotation marks see also Matsushita Elec. v. Zenith Radio Corp., 475 U.S. 574, 587 and may and Co., Ltd. However, "the non-moving party may not rely simply on conclusory legations or speculation to avoid summary judgment, but instead must offer evidence to show that its version 4 of events is not wholly fanciful." Morris v. Lindau, 196 F.3d 102, 109 (2d Cir. 1999) (internal quotation marks and citation omitted) . II. The Complaint is Dismissed iff has Failed to State a Claim for Breach of Contract Under New York contract claim are (1) the existence adequate performance of the contract breach of contract by law, the Eternity Global Master Fund F.3d 168, 177 (2d Cir. the elements defendanti ~td. 2004); of of a breach of an and (2) the by agreement; plaintiff; (3) damages. See (4) v. Morgan Guar. Trust Co., 375 see also Johnson v. Nextel Comm. Inc., 660 F . 3d 13 I, 142 ( 2 d Ci r. 2011). The Agreement, instant action is dated November 19, based, (Compl. Ex A, Dkt. No.1.). video shoot and that regards the 2010, creation on which the of a Video. The contract provides for a one day Staub would make herself available for voiceover and other re records and for a live online video chat session. Video, part: (Id.) . The description of the intended content of the in paragraph 1. c of the Agreement, provides in relevant "Artist acknowledges that she has been fully informed as 5 to the nature of the Company's services and the proposed content of the Video and agrees to comply with the instructions of the (Id. ) director." The Complaint alleges that Staub participated in the video shoot $25,000, but on November that on or 19, 2010, about for February which 7, she 2011, was paid Defendant's legal representative advised Plaintiff that she would "have no further involvement" with Swan Media. Complaint alleges that "Defendant, (CompI. the Complaint does not 10, 21.) The by refusing to comply with its obligations, has breached the Agreement." However, ~ specify (Compl. which ~ clause 20 21.) of the Agreement Defendant is alleged to have breached or through what actions or inactions. allegations of a Though the Court must accept the factual complaint as true and draw all the pleader's favor, inferences in it is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 129 S.Ct. at 1950 not line. (quoting Twombly, alleged sufficient 550 U.S. facts to at 555) nudge Here, its Plaintiff has claims across the See Twombly, 550 U.S. at 570. In addition, were the complaint to be alleging breach of contract with regard to the creation or content of the Video, 6 such a claim might fail as a matter of law on the grounds that the contract, with respect to the Video, is void for vagueness. It is well-established in New York that: [B] efore one may secure redress in our courts because another has failed to honor a promise, it must appear that the promisee assented to the obligation in question. It also follows that, before the power of law can be invoked to enforce a promise, it must be sufficiently certain and specific so that what was promised can be ascertained. Otherwise, a court, in intervening, would be imposing its own conception of what the parties should or might have undertaken, rather than confining itself to the implementation of a bargain to which they have mutually committed themselves. Thus, definiteness as to material matters is of the very essence in contract law. Impenetrable vagueness and uncertainty will not do. Jr. lOS, 109 (1981) Delicatessen (citations Inc. v. omitted). Schumacher, It is 52 N.Y.2d likewise settled that for a contract to be valid in New York, the agreement between the parties must be definite and explicit so their intention may be ascertained to a reasonable degree of certainty. Even if the parties believe they are bound, if the terms of the agreement are so vague and indefinite that there is no basis or standard for deciding whether the agreement had been kept or broken, or to fashion a remedy, and no means by which such terms may be made certain, then there is no enforceable contract. 7 well Candid Productions, v. Int' I & n.10 argues Plaintiff that because Skating Union, Staub signed including paragraph 1. c which states that informed as proposed to the content nature of the of the Video, s the Supp. omitted). Agreement, "she has been fully Company's II 530 F. (citations 1982) (S.D.N.Y. 1333 34 1330, Inc. services demonstrates and that entered into a valid contract whose terms she understood. Br. 6, Dkt. No. (Pl. Candid Productions, 530 F. Supp. at bound is beside the point. From the Agreement, 1333-34. "she believed they were Whether the part 14.) 1I the it may not be possible for the Court to ascertain what the parties intended with respect to the content or creation of the Video, and, accordingly, to implement the bargain to which they mutually committed themselves. See Schumacher, 52 N.Y.2d at 109. Additionally, aintiff has failed to sufficiently allege its adequate performance under the Agreement, element under New York law, 375 F.3d at "Plaintiff has Agreement ," accept The performed (Compl, as allegation. 177. true II a Iqbal, ~ 20.) legal 129 See Eterni Complaint all of Global Master Fund, alleges its a required conclusorily obligations under that the However, the Court is "not bound to conclusion S.Ct. at 8 1950 couched as a factual (quoting Twombly, 550 U.S. the Moreover, due to the contract language regarding at 555) content of the Video, it is not clear whether Plaintiff could plead its adequate performance as a matter of law. For the foregoing reasons, as pled, the complaint fails to state a claim for breach of contract, and that claim is therefore dismissed. B. The Remaining Claims are Dismissed Federal jurisdiction in this case is predicated on 28 U.S.C. § 1332(a), which provides that diverse parties may sue in federal court if "the matter in controversy exceeds the sum or value of $75,000, argues that aintiff's "A exclusive of interest and costs." diversity contract party jurisdiction claim, invoking fails Plaintiff's the Defendant because damages jurisdiction of cannot the absent reach federal court has the burden of proving that it appears to a 'reasonable probability' that the claim is in jurisdictional amount." Tongkook Am., Co., 14 F.3d 781, 784 (2d Cir. 1994) 9 excess of the statutory Inc. v. Shipton Sportswear (quoting Moore v. Betit, 511 1006 1004 , F. 2d ' (2d Cl r. 1975)). This burden is "hardly onerous," Scherer v. Equitable Life Assurance Soc'y of U.S., 347 F.3d 397 394, (2d because however, 2003) , Cir. of the "rebuttable presumption that the face of the complaint is a good faith representation of the actual amount in controversy." Servs. Wolde-Meskel Inc., 166 F.3d 59, 63 (2d Cir. 1999). A defendant may rebut the presumption by showing \\, to a legal certainty'" that the amount recoverable (quoting St. 283, 288 89 does not meet the jurisdictional Paul Mercury Indem. (1938)). Co. v. threshold. Red Cab Co., Id. 303 U.S. The "legal certainty" standard is a "high bar" and even "'grave doubt about the likelihood of a recovery of the requisite amount'll is insufficient. 397i 202 Scherer, 347 F.3d at (quoting Zacharia v. Harbor Island (2d Cir. 1982)) i see also Tongkook, the damages sought are uncertain, Inc., 684 F.2d 199, 14 F. 3d at 785 ("Where the doubt should be resolved in favor of the plaintiff's pleadings."). Here, with the breach of contract claim dismissed, is a legal Plaintiff certainty that cannot jurisdiction. pleaded claims as this recover sufficient action damages is currently pled, to invoke In addition to the contract claim, for money had and 10 received it and federal aintiff has for unjust enrichment, both premised on an alleged payment by Plaintiff to Defendant on the day of the Video shoot in the sum of $25,000. (Compl. ~ 23-30, Dkt. No.1.) \\A cause established where of (1) action for money had and received is the defendant received money belonging to the plaintiff, (2) money, under principles of equity and good conscience, and (3) the defendant benefited from receipt of the the defendant should not be permitted to keep the money.1t v. Int'l Asset Recovery Corp., Div. 2008). may "recover 866 N.Y.S.2d 823, 826 money which [when] has come under the into the hands it circumstances of against is good conscience for the defendant to keep the money. 474 N.E.2d 235, 237 quotation marks omitted). (1984) (citations the jurisdictional threshold. With respect for (1) establish plainti unjust 's to the enrichment that the expense; and It and the Parsa v. internal The sole money Plaintiff points under this claim is the $25,000 payment, aim (N.Y. App. On a claim for money had and received a plaintiff defendant State, State short of (Compl. , 27.) final in that 11 claim, New defendant (3) which falls to York \\ [t] t 0 a plaintiff benefitted; equity and prevail on a (2 ) good at must the conscience require Cir. (internal 2000) Because the restitution, claim v. restitution. If is of marks unjust measure of on based defendant, quotation doctrine the Grossman, amount the 202 F.3d and citation enrichment damages for of an benefit is 12.1 (1), § at 9 based on the defendant's gain, Giordano v. Thomson, on such a claim unjust (2d omitted). in enrichment retained by See 3 D. the Dobbs, ("Restitutionary recoveries are not on the plaintiff's loss. If) 564 F.3d 163, 170 [of 616 grounded unjust rather than by a plaintiff's loss. Law of Remedies 611, (2d Cir. 2009) enrichment i ("Recovery under New York law] is limited to the reasonable value of the services rendered by the plaintiff. II (citations and internal quotation marks omitted)). The complaint alleges that Defendant was enriched by the $25,000 payment as well as unspecified "additional Plaintiff took outside the contract, efforts lf that though Plaintiff does not identify those efforts or allege that Defendant benefitted from them sufficiently to meet the jurisdictional threshold. ~ Id. at 29-30.) Thus, absent the the as contract to jurisdiction claim, amount - in-controversy this 12 28 U.S.C. § action as pled cannot requirement are dismissed without prejudice. under and the remaining 1332, satisfy claims Plaintiffs are granted leave to replead within thirty (30) days of this order. iff The court notes that to the extent the states valid claims, jurisdiction to hear them, but this Court lacks diversity such claims may be brought state court. III. Conclusion For contract the foregoing reasons, claim is dismissed pursuant iff's to e breach 12 (b) (6) remaining claims are dismissed for lack of jurisdiction. to replead granted within thirty (30) days. It is so ordered. -, ! New York, NY January I 2012 7, ~-?ou:t ~ 13 ROBERT W. SWEET U.S.D.J. of and the Leave
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