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dismissing civil conspiracy claim because “the allegations in the instant complaint are merely formulaic and conclusory, again failing under the Iqbal standard”
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11 Civ. 7768 (KBF)
02-23-2012
HILTON HEAD HOLDINGS b.v., on its own behalf and derivatively on behalf of ART CAPITAL GROUP, INC., Plaintiff, v. IAN PECK, et al., Defendants.
MEMORANDUM AND ORDER
:
On October 28, 2011, Hilton Head Holdings b.v. ("HHH"), on its own behalf and derivatively on behalf of Art Capital Group, Inc. ("ACG Inc."), filed this diversity action against Ian Peck, AGC Inc., Fine Art Finance, LLC, Art Capital Group, LLC, ACG Credit Company, LLC, Art Finance Company, LLC, ACG Credit Company II, LLC, ACG Credit Company III, LLC, ACG Finance Company III, LLC, and American Photography LLC. (except for ACG Inc., collectively "Affiliated Companies"). Defendants have moved to dismiss the complaint in its entirety and for a stay of discovery pending resolution of their motion.
For the reasons set forth below, defendants' motion to dismiss is GRANTED in part and DENIED in part, defendants' motion for a stay is DENIED as moot.
FACTUAL BACKGROUND
Between 1999 and 2008, defendant Peck formed nine separate companies. (Compl. ¶¶ 16, 26-33.) In fact, he formed two or more in each of 2003, 2005 and 2006 and one in 2008. The companies bear similar names, some only differentiated by roman numerals (e.g. ACG Credit Company, ACG Credit Company II, ACG Credit Company III). (Id. ¶¶ 16, 26-33.) ACG Inc. was in the business of providing art-related services, including museum exhibition services for art owners (id. ¶ 18) and leasing, financial and consulting services for art owners, art purchasers, art merchants and artists (id. ¶¶ 19, 24). "Among other services, ACG Inc. offered recourse and non-recourse asset-based loans to artists, individuals, galleries, and other businesses utilizing their intellectual property and art assets as the collateral securing the loan or as a component of the collateral package." (Id. ¶ 25; see also id. ¶ 35.) In April 2001, ACG Inc. filed a trademark application for "Art Capital Group," which reserved the trademark for various purposes, including "financial services." (Id. ¶ 22; see also West Decl. Ex. 11.) The Patent and Trademark Office granted that application on January 2, 2007. (Compl. ¶ 22.)
In June 2001, plaintiff purchased 41,667 shares of ACG Inc. for a total investment of $250,002. (Id. ¶ 23.) In May 2002, plaintiff was allegedly informed that ACG Inc. was "currently in the process of closing a new financing to facilitate our continued growth" and was soliciting an additional investment from plaintiff. (Id. ¶ 42.)
The complaint alleges that ACG Inc. has remained a viable, operating company over the past decade. According to plaintiff, an article in The New York Times reported that ACG Inc. had made $80 million in loans secured by fine art in 2008 and forecasted making another $120 million in such loans in 2009. (Id. ¶ 40; see also West Decl. Ex. 6.) In June 2009, ACG Inc. was the named plaintiff in a suit against the well-known photographer, Annie Leibovitz, regarding the terms of a loan ACG Inc. had arranged. (Compl. ¶ 41; see also West Decl. Ex. 3.)
Plaintiff alleges that from the time it became a shareholder until April 20, 2011, it made repeated requests for information regarding ACG Inc.'s operations and performance. (Compl. ¶ 36.) On April 20, 2011, plaintiff submitted a formal demand to inspect the books and records of ACG Inc. (Id. ¶ 37.) In response to that demand in May 2011, counsel for ACG Inc. represented that ACG Inc. had ceased operations in 2001 and had no assets. (Id. ¶ 38.) Plaintiff conducted additional investigation of ACG Inc.'s operations and submitted two additional demand letters to inspect the books and records in September and October 2011. (Id. ¶¶ 39, 43-46.) Plaintiff received no response to its October demand and initiated this lawsuit on October 28, 2011. (Id. ¶ 47.)
The complaint claims that Ian Peck, the Chief Executive Officer ("CEO") and controlling shareholder of ACG Inc., breached his fiduciary duty to the company by usurping corporate opportunities and wasting and converting assets for his benefit and that of the Affiliated Companies. (See id. ¶¶ 49-59 (First Cause of Action).) The remaining claims are variations on the same: That the Affiliated Companies, all controlled by Peck (id. ¶¶ 4-12), aided and abetted Peck's various acts (id. ¶¶ 60-68 (Second Cause of Action)) and tortiously interfered with ACG Inc.'s prospective business relationships (id. ¶ 66 (Third Cause of Action)); and that Peck and the Affiliated Companies engaged in a civil conspiracy to commit the conduct alleged in the First Cause of Action (id. ¶¶ 69-72 (Fourth Cause of Action)). The Fifth and Sixth Causes of Action are for "alter ego liability" and common law dissolution or buy-out. (Id. ¶¶ 73-76.)
STANDARD OF REVIEW
On a motion to dismiss, this Court accepts as true all well-plead factual allegations. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). To withstand dismissal, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949. Thus, while "Rule 8 marks a notable and generous departure from hyper-technical, code-pleading regime of a prior era, [] it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 1950. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief." Id. (internal punctuation omitted); see also Fed. R. Civ. P. 8(a)(2).
On a motion to dismiss, "'the complaint is deemed to include any written instrument attached to it as an exhibit or any statement or documents incorporated in it by reference.'" In re Bristol-Myers Squibb Securities Litig., 312 F.Supp.2d 549, 555 (S.D.N.Y. 2004) (quoting Int'l Audiotext Network, Inc. v. Sum Holding, L.P., 949 F.2d 42, 47 (2d Cir. 1991)). Additionally, where a plaintiff "has relied on the terms and effect of a document in drafting the complaint, and that document is thus integral to the complaint, [the Court] may consider its contents even if it is not formally incorporated by reference." Broder v. Cablevision Sys. Corp., 418 F.3d 187, 196 (2d Cir. 2005); accord Chambers v. Time Warner, 282 F.3d 147, 153 (2d Cir. 2002).
DEFENDANTS' STYLE OF ADVOCACY
In places too numerous to cite, defendants' briefs use extreme language to underscore their basic point that the complaint lacks merit. The repeated use of hyperbolic rhetoric is distracting. Where, as here, the Court finds itself counting and underlining the outrageous statements, effective advocacy is diminished. It should go without saying that clearly stated points with supportive citations are the best way to convince this Court of a position. That said, the Court has considered each of defendants' arguments.
Defendants' reply also tries to make much of plaintiff's alleged failure to respond in its opposition brief to certain of defendants' opening arguments. The law is well settled, however, that failure to respond to a 12(b)(6) motion does not warrant dismissal where the complaint itself is sufficient to state a claim. See McCall v. Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000); see also Goldberg v. Danaher, 599 F.3d 181 (2d Cir. 2010).
FIRST CAUSE OF ACTION
In its First Cause of Action, plaintiff alleges that defendant Peck breached his fiduciary duty by usurping corporate opportunities and wasting and converting corporate assets. (Compl. ¶¶ 49-59.) Defendants argue that this claim is time barred, inadequately pled and "contradicted by the documents upon which the complaint relies." (Defs.' Opening at 8-12.)
CPLR Section 213(7) is the applicable statute of limitations for this cause of action. Skorr v. Skorr Steel Co., 29 A.D.3d 594 (2006) (applying CPLR § 213(7) to shareholder derivative claims alleging misappropriation of corporate opportunity, diversion of corporate assets and breach of fiduciary duty); Whitney Holdings, LTD. V. Givotovsky, 988 F. Supp. 732, 741-42 (S.D.N.Y. 1997) ("Section 213(7) supplants all other statutes of limitation potentially applicable to a suit on a corporation's claim against its director, officer or shareholder."); see also N.Y. CPLR § 213(7). Section 213(7) provides that a derivative action against a director, officer and/or shareholder, like this one, must be commenced within six years of accrual. N.Y. CPLR § 213(7); see also Whitney Holdings, 988 F. Supp. at 741-42. Defendants claim that plaintiff knew of defendant Peck's alleged breach of fiduciary duty in 2007 when plaintiff began accusing Peck of such conduct, and should have known of the alleged breach in December 2005 when the Affiliated Companies' lending practices were prominently covered in the news. (Defs.' Opening Mem. at 9-10.) Such times are within the six-year statute of limitations.
Where, as here, jurisdiction rests upon diversity of citizenship and the cause of action accrues in New York, the Court applies New York statutes of limitations. E.g., Stuart v. Am. Cyanamid Co., 158 F.3d 622, 626 (2d Cir. 1998); Quinn v. Teti, 234 F.3d 1262 (2d Cir. 2000). The parties also assume that New York's statute of limitations applies. See infra note 5; (see also Defs.' Opening at 8; Pls.' Opp. at 16-17).
Contrary to defendants' assertions, plaintiff has also adequately pled a claim for breach of fiduciary duty under Delaware law. Under Delaware law, the elements of such claim are (1) the existence of a fiduciary duty, and (2) a breach of that duty. E.g., Marino, 2011 WL 3837153, at *5. Here, plaintiff adequately alleges both of those elements. (See, e.g., Compl. ¶¶ 54-59.) On a motion to dismiss, the proper inquiry is not whether defendant Peck as a matter of fact usurped corporate opportunities, engaged in waste or converted assets, but rather whether the complaint states a claim that is plausible on its face. The instant complaint does.
As this case arises under the diversity jurisdiction of a federal court sitting in New York, New York's conflict of law rules apply to plaintiff's claims. E.g., Marino v. Grupo Mundial Tenedora, S.A., No. 10 Civ. 4126, 2011 WL 3837153, at *5 (S.D.N.Y. Aug. 30, 2011). New York applies the "internal affairs" doctrine to claims for breach of fiduciary duty and thus applies the law of the state of incorporation to those claims. Id. ACG Inc. was incorporated in the state of Delaware and so that state's substantive law applies. (See Compl. ¶ 16.)
Nor do the materials properly considered on this motion clearly contradict the allegations underlying the cause of action. See In re Bristol-Myers Squibb, 312 F. Supp. 2d at 555 ("The court need not accept as true an allegation that is contradicted by documents on which the complaint relies."). While some of the materials contained in defendants' Declaration of Matthew B. West are incorporated by reference or relied on for term and effect in the complaint (e.g. Exs. 1-3, 5), others are not and so may not be considered by the Court at this stage of the litigation (e.g. Exs. 7-9). See, e.g., Chambers, 282 F.3d at 152-53. Regardless, the document primarily relied on by defendants for their argument - the April 2001 Executive Summary - does not contradict plaintiff's allegations that in 2008 and 2009 (or at earlier points after April 2001), ACG Inc. was acting as a lender. (See West Decl. Ex. 2; see also Compl. ¶ 40; Defs.' Opening at 12-13.) Despite defendants strongly held conviction that this lawsuit lacks merit, the Court may not, at this stage of the proceedings, make determinations regarding, for instance, whether ACG Inc. was, in fact, a lender or whether Peck usurped opportunities for ACG Inc. to offer, arrange or service art-backed loans. Accordingly, the Court finds that the First Cause of Action adequately states a claim.
Similarly, ACG Inc.'s tax returns from 2000, 2001, 2002 and 2003 do not contradict that the company had the ability, and was, a lender at a later point (nor do those returns even clearly contradict that ACG Inc. was (or could have been) a lender during those years - Peck, for instance, had enough capital to form eight separate affiliated companies in 2003 and the years following). (See Defs.' Opening at 13; West Decl. Ex. 1.)
SECOND CAUSE OF ACTION
In its Second Cause of Action, plaintiff asserts that the Affiliated Companies aided and abetted defendant Peck's breach of fiduciary duty. (Compl. ¶¶ 60-64.) To state such a claim under New York law, plaintiff must adequately plead (1) the existence of a violation by the primary wrongdoer, (2) knowledge of the violation by the aider and abettor; and (3) substantial assistance by the aider and abettor of the primary wrongdoer. In re Refco Inc. Sec. Litig., No. 07 MDL 1902 (JSR), 2011 WL 1219265, at *27 (S.D.N.Y. Mar. 30, 2011). While plaintiff recites those elements in support of its claim, its allegations are nothing more than labels and conclusions that fail under Iqbal. As defendants put it, "HHH simply parrots the key phrases - e.g., that the [Affiliated Companies] 'had actual knowledge,' (Comp. ¶ 61), and 'knowingly rendered substantial assistance,' (Comp. ¶ 62) - without any further substantive allegations" as support. (Defs.' Mem. at 14.)
With regard to the "substantial assistance" element and plaintiff's corresponding allegation, the law is also clear that inaction on the part of the alleged aider and abettor does not constitute "substantial assistance" unless the aider and abettor owes a fiduciary duty to the plaintiff. E.g., Renner v. Chase Manhattan Bank, No. 98 Civ. 926 (CSH), 2000 WL 781081, at *12 (S.D.N.Y. June 16, 2000) ("[A]bsent a fiduciary duty, inaction does not constitute substantial assistance."); Kolbeck v. LIT America, 939 F. Supp. 240, 247 (S.D.N.Y. 1996) ("[I]naction, or a failure to investigate, constitutes actionable participation only when a defendant owes a fiduciary duty directly to the plaintiff; that the primary violator owes a fiduciary duty to the plaintiff is not enough."). Here, the Affiliated Companies do not owe ACG Inc. any fiduciary duty. Thus, plaintiff's argument that the Court may reasonably infer from the complaint that the Affiliated Companies did not "interfere[]" with Peck's alleged conduct is legally insufficient. (See Pls.' Mem. at 19.) Only factual content regarding the Affiliated Companies' affirmative assistance will suffice. Accordingly, plaintiff's second cause of action is dismissed with leave to replead.
THIRD CAUSE OF ACTION
In its Third Cause of Action, plaintiff alleges that the Affiliated Companies tortiously interfered with ACG Inc.'s prospective contracts. (Compl. ¶¶ 65-68.) A properly pled claim for tortuous interference with a prospective contract requires a showing that
'(1) plaintiff had a business relationship with a third party; (2) the defendant[s] knew of that relationship and intentionally interfered with it; (3) the defendant acted solely out of malice, or used dishonest, unfair or improper means; and (4) the defendant's interference caused injury to the relationship.'Refco, 2011 WL 1219265, at *31 (quoting Kirch v. Liberty Media Corp., 449 F.3d 388, 400-02 (2d Cir. 2006)). As a threshold matter, plaintiff fails to recite the formal elements of that claim - "legitimate expectations of business relations" are not the same as an established business relationship. Plaintiff's allegation that the Affiliated Companies used "improper means" to disrupt ACG's "legitimate expectations of business relations" also depends on plaintiff's aiding and abetting claim, which claim the Court has dismissed. (See Compl. ¶ 66.) In any event, like with the Second Cause of Action, plaintiff's conclusory assertions fall short of the Iqbal pleading standard. Accordingly, plaintiff's Third Cause of Action is dismissed with leave to replead.
The Appellate Division (as recently recognized by this Court) has also instructed that a claim for interference with pre-contractual relations is only actionable "when a contract would have been entered into but for the actions of the defendant." Bankers Trust Co. v. Bernstein, 169 A.D.2d 400, 401 (1st Dep't 1991) (emphasis original); accord Jones v. City School Dist. of New Rochelle, 695 F. Supp. 2d 136, 148 (S.D.N.Y. 2010). Plaintiff here has also failed to allege that ACG Inc. would have entered into any contracts but for defendants' interference.
FOURTH CAUSE OF ACTION
Plaintiff has alleged a claim for a civil conspiracy by defendant Peck and the Affiliated Companies to commit the asserted breach of fiduciary duty. (Compl. ¶¶ 69-72.) New York law is well settled that civil conspiracy is not an independent tort, but a theory under which the plaintiff may establish vicarious liability of co-conspirators for each other's offenses. See Kirsch, 449 F.3d at 401; Alexander & Alexander v. Fritzen, 68 N.Y.2d 968, 969 (1986); see also Marino, 2011 WL 3837153, at *8; Green v. Beer, No. 06 Civ. 4156, 2009 WL 911015, at *1 n.1 (S.D.N.Y. Mar. 30, 2009). Thus, in order to adequately plead a claim for civil conspiracy, a plaintiff must establish first the underlying tort that the parties have conspired to commit. Marino, 2011 WL 3837153, *8. Because the complaint adequately states a claim for breach of fiduciary duty (the First Cause of Action), plaintiff's conspiracy claim passes that threshold test.
Even if an underlying tort is adequately pled, however, the claim also requires (1) an agreement between two or more parties; (2) an overt act in furtherance of that agreement; (3) the parties' intentional participation in the furtherance of the plan or purpose; and (4) resulting damage or injury. E.g., id. With regard to those elements, the allegations in the instant complaint are merely formulaic and conclusory, again failing under the Iqbal standard. Cf. Grove Press, Inc. v. Angelton, 649 F.2d 121, 123 (2d Cir. 1981) ("[B]are conclusory allegation of conspiracy does not state a claim."); Campbell v. Thales Fund Mgmt., No. 10 Civ. 3177 (JSR), 2010 WL 4455299, at *7 (S.D.N.Y. Oct. 12, 2010) ("Because [] allegation is wholly conclusory, it cannot serve as a basis for invoking the doctrine of civil conspiracy under New York law"). Accordingly, the Fourth Cause of Action is dismissed with leave to replead.
FIFTH CAUSE OF ACTION
Plaintiff also claims "alter ego liability" against defendant Peck for the causes of action against the Affiliated Companies. That claim rests on the single allegation that
[d]efendant Peck exercised complete domination of the ACG Affiliates in respect to all business operations; and such domination was used to commit a fraud or wrong against ACG Inc., as set forth in the [former] causes of action, which resulted in ACG Inc.'s injury.(Compl. ¶ 73.) A party seeking to pierce the corporate veil under New York law "bear[s] a heavy burden of showing that the corporation was dominated as to the transaction attacked and that such domination was the instrument of fraud or otherwise resulted in wrongful or inequitable consequences." TNS Holdings v. MKI Sec. Corp., 92 N.Y.2d 335, 339 (1998). The Court has dismissed the causes of action against the Affiliated Companies, and so there are no well-pled allegations of wrongdoing by those companies on which to base the instant claim. Moreover, the single allegation in the complaint is nothing more than a bare, conclusory assertion - here too failing under Iqbal. Cf. White v. Nat'l Home Protection, Inc., 09 Civ. 4070 (SHS), 2010 WL 1706195, at *4 (S.D.N.Y. Apr. 21, 2010) (dismissing alter ego allegations that were "unsupported by anything but plaintiff's bare, conclusory allegations").
The parties both assume that New York law applies to this claim (plaintiff's allegation tracks the elements of the claim under New York law). While normally, the Court would apply Delaware law under the internal affairs doctrine, see, e.g., Ritchie Capital Mgmt. v. Coventry First LLC, No. 07 Civ. 3494 (DLC), 2007 WL 2044656, at *4 (S.D.N.Y. July 17, 2007), "[u]nder the New York choice of law rules . . . where both parties agree that New York law applies, [that] is sufficient to establish choice of law," Fed. Ins. Co. v. American Home Assur. Co., 639 F.3d 557, 566 (2d Cir. 2011); accord Response Personnel, Inc. v. Hartford Fire Ins. Co., No. 10 Civ. 5196 (DLC), 2011 WL 2566066, at *4 (S.D.N.Y. June 29, 2011) (applying New York law where "[b]oth parties assume that New York law applies, but do not directly address the choice-of-law issue").
Accordingly, this cause of action is dismissed with leave to replead. If plaintiff chooses to replead, it should also consider whether this claim is better cast as a remedy than a cause of action. See In re Morris v. New York State Dep't of Taxation & Fin., 82 N.Y.2d 135, 141 (1993) (stating that an attempt to pierce the corporate veil by a third party does not constitute a cause of action independent of that against the corporation).
SIXTH CAUSE OF ACTION
Plaintiff HHH's last claim seeks common law dissolution or buyout for itself against ACG Inc. (Compl. ¶¶ 75-76.) Under the New York choice of law rules, the internal affairs of a corporation are governed by the law of the state of incorporation. E.g., Marino, 2011 WL 3837153, at *5. "No 'affair' is more 'internal' than a claim that could result in the termination of the existence of the corporation." Marcus v. Lincolnshire Mgmt., 409 F. Supp. 2d 474, 481 (S.D.N.Y. 2006); see also In re Warde-McCann v. Commex, Ltd., 522 N.Y.S.2d 19, 19 (2d Dep't 1987) ("It is well-settled that a foreign corporation is controlled, as to its dissolution, by the laws of its domicile, and is not affected by laws which are intended to govern the dissolution of corporations created under local laws." (internal quotation marks omitted)). Similarly, a claim that could result in the forced purchase of stockholdings implicates the internal affairs of a corporation. Accordingly, Delaware substantive law applies to HHH's claim. Under Delaware law, however, there is no common-law dissolution - the remedy is exclusively statutory. Marcus, 409 F. Supp. 2d at 481. Delaware law also does not recognize common law buy out. See Nixon v. Blackwell, 626 A.2d 1366, 1380-81 (Del, 1993) ("It would do violence to normal corporate practice and our corporation law to fashion an ad hoc ruling which would result in a court-imposed stockholder buy-out for which the parties had not contracted.") Thus, plaintiff fails to state a claim upon which dissolution or buy out may be granted.
PUNITIVE DAMAGES
Defendants also challenge plaintiff's requests for an award of punitive damages on each of its claims. Each of plaintiff's first five causes of action contains such a request in virtually identical form:
The unlawful conduct set forth in this cause of action was committed by Defendant Peck with willful, malicious and with intentional disregard for the rights of ACG Inc., thus entitling ACG Inc. to punitive damages.(E.g., Compl. ¶ 59.) As an initial matter, the requests in plaintiff's Second through Fifth Causes of Action are dismissed along with their corresponding claims. With regard to plaintiff's request on its First Cause of Action, the Court agrees with plaintiff that "[t]he limitation of an award for punitive damages to conduct directed at the general public applies only in breach of contract cases, not in tort cases for breach of fiduciary duty." Don Buchwald & Assoc., 281 A.D.2d 329, 330 (1st Dep't 2001); accord Amusement Indus., Inc. v. Stern, 693 F. Supp. 2d 301, 317 (S.D.N.Y. 2010); (see also Pls.' Opp. at 23-24). Rather, plaintiff must show "intentional or deliberate wrongdoing, aggravating or outrageous circumstances, a fraudulent or evil motive, or a conscious act that willfully and wantonly disregards the rights of another." Don Buchwald, 281 A.D.2d at 330.
The only difference between the requests is the party or parties named in the cause of action. (See Compl. ¶¶ 64, 68, 72, 74.)
Here, plaintiff's request is purely conclusory and cannot alone support a prayer for punitive damages. (Compl. ¶ 59.) Plaintiff is correct, however, that the Court need not assess that request in isolation but rather may consider the facts alleged in support of the associated tort claim. See Amusement Indus., 693 F. Supp. 2d at 318. Doing so, the Court agrees with plaintiff that those factual allegations, if proved, could plausibly show "intentional or deliberate wrongdoing, aggravating or outrageous circumstances, or a conscious act that willfully and wantonly disregarded the rights of [ACG Inc.]." See Don Buchwald, 281 A.D.2d at 330; see also Iqbal, 129 S. Ct. at 1949; (Pls.' Opp. at 22).
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss is granted as to plaintiff's Second through Sixth Cause of Action, and denied as to the First Cause of Action, including as to the request for punitive damages on that claim. With the exception of the Sixth Cause of Action which is dismissed with prejudice, the other claims are dismissed without prejudice and with leave to replead in 30 days. Failure to replead those claims within the 30-day period, however, will result in their dismissal with prejudice.
The parties shall appear for an initial pretrial conference in this matter, as scheduled, on February 24, 2012. The Clerk of Court is directed to close the motion at Docket No. 11. SO ORDERED: Dated: New York, New York
February 23, 2012
/s/_________
KATHERINE B. FORREST
United States District Judge