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dismissing breach of good faith and fair dealing claim as duplicative with breach of contract claim, notwithstanding plaintiff's argument that the first claim was based on defendant's refusal to acknowledge the agreement, while the second was based on defendant's refusal to pay plaintiff under the agreement
Summary of this case from PrinceRidge Grp. LLC v. Oppidan, Inc.Opinion
12 Civ. 1078 (DAB)
01-29-2013
REBEL ELY, Plaintiff, v. ROBERT BERNARD PERTHUIS, WINDOMERE ADVISORS LLC, and SCOTT-MACON SECURITIES, INC., Defendants.
MEMORANDUM AND ORDER
Plaintiff, Rebel Ely ("Ely") brings this diversity action against Defendant Robert Bernard Perthuis ("Perthuis"), Defendant Windomere Advisors LLC ("Windomere"), and Defendant Scott-Macon Securities, Inc. ("Scott-Macon") (collectively "Defendants"). Plaintiff asserts eight causes of action against Defendants. This matter is now before the Court on Defendants' Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"). For reasons that follow, Defendants' Motion to Dismiss is GRANTED in its entirety. I. BACKGROUND
The following facts are drawn from Plaintiff's Complaint ("Compl.") filed on February 10, 2012 and are assumed true for purposes of the Motion to Dismiss.
Perthuis was and is a Managing Director of Scott-Macon and an officer, director, owner, and/or employee of Windomere. (Compl. ¶¶ 10-13.) Perthuis acted both individually and on behalf of Scott-Macon and Windomere. (Compl. ¶¶ 12, 14.)
Plaintiff initially worked for Scott-Macon for nearly seven months and had "extensive experience in fundraising for, conducting due diligence on, launching, operating, growing and selling start-up companies in the alternative energy and high technology industries." (Compl. ¶¶ 15, 17.) Because of this expertise, Perthuis contacted Plaintiff in 2007. (Compl. ¶ 16.) They reached an agreement: Plaintiff would be paid $10,000 per month for her work for Defendants as well as fifty-percent of Defendants' commissions and equity stakes on the matters that they worked on together. (Compl. ¶¶ 19-20.)
On multiple occasions in April and May 2009, Perthuis asked Plaintiff to become business partners with him, offering a "50/50" partnership; Plaintiff accepted. (Compl. ¶¶ 21-28.) They agreed to raise money for various Scott-Macon companies, facilitate business transactions, and take a percentage commission on them. (Compl. ¶ 30.) "[I]n furtherance of the parties' partnership," Plaintiff moved from Connecticut to New York City in June 2009. (Compl. ¶ 22.) For nearly seven months, Plaintiff met with Scott-Macon clients and conducted due diligence for Defendants. (Compl. ¶ 29.)
In September 2009 a third party was working on a transaction for the sale of gold. (Compl. ¶ 32.) Perthuis informed Plaintiff that, if they found a buyer for the gold, they would split a five-percent commission. (Compl. ¶¶ 33, 35.) Both Perthuis and Plaintiff worked towards finalizing the sale, but after Perthuis had a meeting alone with the third party, he abruptly ceased their partnership, stating, "I don't think there is a reason for us to be in business anymore," and "I don't want to be partners with you anymore." (Compl. ¶¶ 37-41.) After completion of the gold sale, Defendants received a commission, which Plaintiff believes exceeded sixty million dollars; Plaintiff received no money stemming from the transaction. (Compl. ¶ 43.) Despite Plaintiff's demands, Defendants have refused to pay Plaintiff, save two checks totaling $10,000. (Compl. ¶ 47.)
As a result of these events, Plaintiff filed suit on February 10, 2012, alleging eight causes of action: (1) breach of contract, (2) quantum meruit, (3) unjust enrichment, (4) breach of the implied covenant of good faith and fair dealing, (5) breach of the partnership agreement, (6) promissory estoppel, (7) accounting, and (8) constructive trust. (Compl. ¶¶ 49-86.) Defendants brought this instant Motion to Dismiss on May 16, 2012, arguing all eight claims should be dismissed. II. DISCUSSION
A. Legal Standard for a Rule 12(b)(6) Motion to Dismiss
For a complaint to survive a motion brought pursuant to Rule 12(b)(6), the plaintiff must have pleaded "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility," the Supreme Court explained,
[W]hen the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. "Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of entitlement to relief."Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556-57). "[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal quotation marks omitted). "In keeping with these principles," the Supreme Court stated,
[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Iqbal, 556 U.S. at 679. These well-pleaded factual allegations must tender more than "'a formulaic recitation of the elements of a cause of action'" or "'naked assertion[s]' devoid of 'further factual enhancement.'" Id. at 678 (quoting Twombly, 550 U.S. at 555, 557).
In considering a motion under Rule 12(b)(6), the Court must accept as true all factual allegations set forth in the complaint and draw all reasonable inferences in favor of the plaintiff. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n. 1 (2002); Blue Tree Hotels Inv. (Canada) Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004). However, this principle is "inapplicable to legal conclusions," Iqbal, 556 U.S. at 678, which, like the complaint's "labels and conclusions," Twombly, 550 U.S. at 555, are disregarded. Nor should a court "accept [as] true a legal conclusion couched as a factual allegation." Id. at 555. Additionally, in a suit alleging breach of contract, "[c]onsideration of the Statute of Frauds as an affirmative defense is appropriate on a motion to dismiss." Zeising v. Kelly, 152 F. Supp. 2d 335, 343 (S.D.N.Y. 2001).
B. Breach of Contract Claim
Plaintiff alleges Defendants breached their contract regarding the agreement to split, 50/50, the proceeds of the gold sale. (Compl. ¶¶ 51-53.) Defendants argue the claim is barred by New York's Statute of Frauds. (Defs. Mot. Dismiss at 5.)
Under New York's Statute of Frauds, certain agreements are void if they are not written and signed by the party to be charged. N.Y. Gen. Oblig. L. § 5-701(a). Subject to the Statute of Frauds are contracts
to pay compensation for services rendered in negotiating a loan, or in negotiating the purchase, sale, exchange, renting or leasing of . . . a business opportunity . . . . "Negotiating" includes procuring an introduction to a party to the transaction or assisting in the negotiation or consummation of the transaction. This provision shall apply to a contract implied in fact or in law to pay reasonable compensation.N.Y. Gen. Oblig. L. § 5-701(a)(10). Section 5-701(a)(10) is a broad umbrella that "includes the use of 'connections,' 'ability' and 'knowledge' to facilitate or assist in the transaction by helping the acquirer of the business opportunity meet the right people and have the right information." Orderline Wholesale Distribs., Inc. v. Gibbons, Green, van Amerongen, Ltd., 675 F. Supp. 122, 128 (S.D.N.Y. 1987) (quoting Freedman v. Chem. Constr. Corp., 43 N.Y.2d 260, 267 (1977); Zeising, 152 F. Supp. 2d at 343. For example, a motion to dismiss was granted when the agreement required the party to "conduct due diligence and financial analysis . . . , seek out and interact with potential sources of financing, and develop a general negotiating strategy." GEM Advisors, Inc. v. Corporacion Sidenor, S.A., 667 F. Supp. 2d 308, 324 n. 5 (S.D.N.Y. 2009). Further, receiving a commission for assisting in the negotiation and completion of a transaction, including providing the "know-who" and "know how," falls within New York's Statute of Frauds. Intertex Trading Corp. V. Ixtaccihuatl S.A. de CV, 754 F. Supp. 2d 610, 616-17 (S.D.N.Y. 2010) (holding an oral agreement for a commission for introducing and brokering a deal between buyers and sellers falls within the Statute of Frauds).
In 2007 Perthuis contacted Plaintiff "because of her extensive expertise in fundraising for, conducting due diligence on, launching, operating, growing and selling start-up companies." (Comp. ¶ 15.) For her efforts in conducting due diligence and working for Defendants' clients, Plaintiff would be paid a share of the commissions, equity, and/or fees garnered from the matters on which she worked. (Comp. ¶¶ 16-20, 26, 33.) This was consistent with the finder's fee commission Perthuis and Plaintiff would receive after finding a buyer for the gold and finalizing the sale. (Comp. ¶¶ 33-37.)
Plaintiff argues that the scope of her work is so broad that it takes her away from Section 5-701(a)(10)'s reach. (Pl. Opp'n at 6-7.) Her situation, based on the facts she pled, is inapposite to the cases that she cites. In Super v. Abdelazim, the court held the Statute of Frauds did not apply because plaintiff's role was more extensive than negotiating a business opportunity when the plaintiff performed all the services to find a suitable location and then acted as a construction manager. 485 N.Y.S.2d 612, 613 (App. Div. 1985). In Riley v. N.F.S. Services, the plaintiff was hired as a Senior Vice President, had numerous responsibilities, and received a compensation package. 891 F. Supp. 972, 978 (S.D.N.Y. 1995). Plaintiff's work was not so broad; instead, all her work related to negotiating business opportunities and completing those deals.
Furthermore, the court in Riley distinguished the plaintiff's responsibility from the responsibility of person acting as an intermediary, in which case the Statute of Frauds would apply. Riley, 891 F. Supp. at 977. An intermediary role existed when a person "was to use his connections, his ability, and his knowledge to arrange for [the defendant] to meet appropriate persons . . . . [T]he intermediary's activity is . . . of providing know-how or know-who, in bringing about between principals an enterprise of some complexity or an acquisition of a significant interest." Id. (internal citations and quotations omitted).
Rather, Defendants correctly point out that such an arrangement falls squarely within New York's Statute of Frauds. The Parties' agreement was "to pay compensation for services rendered in negotiating . . . a business opportunity . . . , procuring an introduction, . . . or assisting in the negotiation or consummation of the transaction." N.Y. Gen. Oblig. L. § 5- 701(a)(10). Perthuis found a buyer, and Perthuis and Plaintiff worked to facilitate the completion the transaction. Therefore, to survive a motion to dismiss, Plaintiff must plead there was a written agreement. See, e.g., GEM Advisors, Inc., 667 F. Supp. 2d at 324 & 324 n. 5. Plaintiff does not do so. Accordingly, Defendants' Motion to Dismiss Plaintiff's claim of breach of contract is GRANTED.
Although not pled in her Complaint, Plaintiff alleges that the contract and partnership agreement fall outside the Statute of Frauds because Perthuis and Plaintiff entered into a joint venture agreement. (Pl. Opp'n at 7-8.) Pleading a joint venture partnership agreement would allow an oral contract to be enforceable despite the Statute of Frauds. See Zeising, 152 F. Supp. 2d at 347. The Court will discuss the joint venture agreement alongside the partnership claim because it appears as though, since Plaintiff did not address the partnership agreement's validity in her Opposition, she asserts that a joint venture agreement was the basis of the partnership. Additionally, at times joint venture and partnership have been discussed nearly interchangeably. See, e.g., Barash v. Estate of Sperlin, 706 N.Y.S.2d 439 (App. Div. 2000).
C. In Quantum Meruit Claim
Plaintiff asserts she has a cause of action in quantum meruit stemming from her valuable services rendered to and accepted by the Defendants who knew she expected to be paid for her services. (Compl. ¶¶ 55-59.) As explained above, the Parties' agreement needed to be in writing to be enforceable. Defendants correctly point out that "[t]he requirement of a writing cannot be circumvented by an action for compensation in quantum meruit." Orderline Wholesale Distribs., 675 F. Supp. at 128; Zeising, 152 F. Supp. 2d at 345 (dismissing the claim in quantum meruit because "Plaintiff merely attempts to overcome the bar of the Statute of Frauds by seeking recovery in quantum meruit"). Like in Zeizing, Plaintiff's claim in quantum meruit is an attempt "to recover on an unenforceable contract." See id. Accordingly, Defendants' Motion to Dismiss Plaintiff's claim in quantum meruit is GRANTED.
D. Unjust Enrichment Claim
Plaintiff asserts, if her breach of contract claim fails, Defendants were unjustly enriched at her expense. (Compl. ¶¶ 60-66.) As Defendants' correctly argue, "Section 5-701(a)(10)'s requirement of a written agreement signed by the party to be charged applies to claims for unjust enrichment and quantum meruit as well." Transition Invs., Inc. v. Allen O. Dragge, Jr. Family, No. 11-cv-4775, 2012 WL 1848875, at *9 (S.D.N.Y. May 21, 2012) (citing Snyder v. Bronfman, 13 N.Y.3d 504, 508-09 (2009)). Thus, to prevail on an unjust enrichment claim, Plaintiff is "required to prove not only that the usual common law elements of unjust enrichment were present, but also that the writing requirement of the Statute of Frauds was satisfied." Tower Intern., Inc. v. Caledonian Airways, Ltd., 133 F.3d 908, 1998 WL 3614, at *3 (2d Cir. 1998).
Assuming Plaintiff's claims are true, it is undeniable that she conferred a benefit upon Defendants without them adequately compensating her. However, because the contract claim is barred by the Statute of Frauds, Plaintiff's claim of unjust enrichment on the basis of that contract is barred as well. Accordingly, Defendants' Motion to Dismiss Plaintiff's unjust enrichment claim is GRANTED.
In her Opposition, Plaintiff argues, where there is a genuine dispute as to the existence of a contract, a plaintiff may allege both contract and quasi-contract claims. (Pl. Opp'n at 11-12.) She is correct. However, for purposes of their Motion to Dismiss, Defendants take all facts asserted by Plaintiff as true, including the existence of an unwritten contract. (Defs. Mot. Dismiss at 1.)
E. Breach of the Implied Covenant of Good Faith and Fair Dealing Claim
Plaintiff asserts that, by preventing performance of the contracts and withholding the benefits of the Parties' agreements, Defendants breached the implied covenant of good faith and fair dealing. (Compl. ¶¶ 67-70.) In response, Defendants assert there is not a separate cause of action for the implied covenant of good faith and fair dealing when the breach of contract claim is based on the same facts, and since the breach of contract claim is unenforceable, this cause of action is also barred. (Defs. Mot. Dismiss at 7-8.)
The covenant of good faith and fair dealing is implicit in all contracts. Piven v. Wolf Haldenstein Adler Freeman & Herz LLP, 08-CV-10578, 2010 WL 1257326, at *7 (S.D.N.Y. Mar. 10, 2010). However, New York law "does not recognize a separate cause of action for breach of the implied covenant of good faith and fair dealing when a breach of contract claim, based upon the same facts, is also pled." Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 81 (2d Cir. 2002). Although Plaintiff argues the covenant claim is based on different facts than the contract claim, this Court disagrees. Both claims relate to the same events; therefore, the breach of covenant claim must be dismissed as duplicative.
In claiming the covenant and contract claims are based on separate and distinct facts, Plaintiff writes, "Defendants breached the express terms by refusing to pay Plaintiff ELY [sic] her earned fees . . . . In contrast, Defendants breached their implied obligations by refusing to acknowledge the express terms of the oral agreement." (Pl. Opp'n at 15.) The express terms and fee payments are one in the same.
Even if the contract were not breached and Plaintiff only had a cause of action under the implied covenant of good faith and fair dealing, Plaintiff's claim fails. "Under New York law, when an oral agreement is unenforceable, there can be no breach of the implied covenant of good faith and fair dealing." Thiam v. Am. Talent Agency, Inc., 11-cv-1465, 2012 WL 1034901, at *6 (S.D.N.Y. Mar. 27, 2012) (citing Dalton v. Educ. Testing Serv., 87 N.Y.2d 284, 289 (1995). Because Plaintiff's contract is unenforceable under the Statute of Frauds, her breach of covenant claim is barred. Therefore, Defendants' Motion to Dismiss the breach of covenant claim is GRANTED.
F. Breach of the Partnership Agreement Claim
Plaintiff alleges she entered into a partnership agreement with Perthuis on several occasions, agreeing to raise money for Scott-Macon companies and to facilitate business transactions. (Compl. ¶ 21-23, 25, 28-30.) Because Defendants did not give Plaintiff any commission from the gold sale, Plaintiff claims Defendants breached their partnership agreement. (Compl. ¶ 71-77.) Without referencing any facts, Plaintiff states the Parties "specifically agreed that each would have mutual control and management of the business." (Compl. ¶ 73-74.) Defendants argue the partnership agreement is unenforceable under the Statute of Frauds and that it does not fall into the joint venture agreement exception. (Defs. Mot. Dismiss at 5-7; Defs. Reply at 3-5.)
Under New York law, the party "pleading the existence of a partnership has the burden of proving its existence." N. Am. Knitting Mills, Inc. v. Int'l Women's Apparel, Inc., 99-cv-4643, 2000 WL 1290608, at *1 (S.D.N.Y. Sept. 12, 2000) (quoting Central Nat'l Bank, Canajoharie v. Purdy, 671 N.Y.S.2d 866 (App. Div. 1998)). The elements of a partnership are "(1) the sharing of profits and losses of the enterprise; (2) the joint control and management of the business; (3) the contribution by each party of property, financial resources, effort, skill or knowledge; and (4) an intention of the parties to be partners." N. Am. Knitting Mills, 2000 WL 1290608 at *1.
While it is true that a partnership agreement need not be in writing in order to be enforceable, Ronis v. Carmine's Broadway Feast, Inc., 10-cv-3355, 2012 WL 3929818, at *5 (S.D.N.Y. Sept. 7, 2012), Plaintiff fails to plead facts that establish that a partnership was created. Plaintiff alleges Perthuis repeatedly asserted they were partners. (Comp. ¶¶ 21-28.) "However, it is well settled that 'calling an organization a partnership does not make it one.'" N. Am. Knitting Mills, 2000 WL 1290608 at *2 (quoting Kyle v. Ford, 584 N.Y.S.2d 698 (App. Div. 1992)). "The use of the word 'partnership' does not create a partnership unless there is an agreement to share profits and losses." Nynex Corp. v. Shared Resources Exchange, Inc., 89-cv-14577, 1990 WL 605347, at * 5 (N.Y. App. Div. 1990) (citing Ramirez v. Goldberg, 439 N.Y.S.2d 959, 961 (App. Div. 1981)). Plaintiff never pled facts alleging that they agreed to share losses in addition to profits or that Perthuis and Plaintiff agreed to the joint control and management of a business. Accordingly, Plaintiff failed to plead the existence of a partnership agreement.
Using conclusory language, Plaintiff states she and Perthuis agreed to be 50/50 partners, without explaining whether or not they would share losses; the only time she explains the terms of the agreement is to state "they would share equally on any commissions or equity," thereby only referencing profits. (Compl. ¶¶ 21-28.)
Plaintiff asserts they "specifically agreed that each would have mutual control and management of the business." (Compl. ¶ 73-74.) She, however, fails to specifically explain how that agreement was made or what was discussed in making that agreement. A complaint's factual allegations must tender more than "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. With respect to element two of a partnership agreement, Plaintiff's Complaint merely states the element and is devoid of any factual enhancement.
With respect to elements three and four of a partnership, Plaintiff did allege facts sufficient to survive a motion to dismiss.
Additionally, Plaintiff fails to plead facts that establish there was a joint venture. To demonstrate the formation of a joint venture, a party must establish five elements:
"If the oral agreement entered into by the parties was a joint venture, it is not subject to the Statute of Frauds and therefore, may be enforceable." Zeising, 152 F. Supp. 2d at 347.
(1) two or more persons must enter into a specific agreement to carry on an enterprise; (2) their agreement must evidence their intent to be joint venturers; (3) each must make a contribution of property, financing, skill, knowledge or effort; (4) each must have some degree of joint control over the
venture; and (5) there must be a provision for the sharing of both profits and losses.Dinaco, Inc. v. Time Warner, Inc., 346 F.3d 64, 67-68 (2d Cir. 2003). As explained above, Plaintiff did not plead sufficiently elements four or five. Furthermore, "[A] joint venture 'is in a sense a partnership for a limited purpose, and it has long been recognized that the legal consequences of a joint venture are equivalent to those of a partnership.'" Itel Containers Int'l Corp. v. Atlanttrafik Express Serv., Ltd., 909 F.2d 698, 701 (2d Cir. 1990) (quoting Gramercy Equities v. Dumont, 72 N.Y.2d 560, 565 (1988)). Since Plaintiff failed "to allege a partnership, [P]laintiff also has failed to allege a joint venture." N. Am. Knitting Mills, 2000 WL 1290608 at *3. Therefore, Defendants' Motion to Dismiss Plaintiff's breach of a partnership agreement claim is GRANTED.
G. Promissory Estoppel Claim
Plaintiff asserts promissory estoppel, claiming that she detrimentally relied on Defendants' promises, which caused her to expend money and time and forgo other business opportunities. (Compl. ¶¶ 78-80.) In response, Defendants argue, because her promissory estoppel claim relies on an agreement that does not satisfy the Statute of Frauds, Plaintiff must demonstrate she suffered an unconscionable injury, which she has not done. (Defs. Mot. Dismiss at 11.)
To establish a promissory estoppel cause of action, a plaintiff must allege "(1) a clear and unambiguous promise, (2) reasonable and foreseeable reliance by the party to whom the promise is made, and (3) an injury sustained in reliance on the promise." Sabre Int'l Sec. Ltd. v. Vulcan Capital Mgmt., Inc., 944 N.Y.S.2d 36, 42 (App. Div. 2012) (quoting Gurreri v. Assos. Ins. Co., 669 N.Y.S.2d 629 (App. Div. 1998)). When a plaintiff's promissory estoppel claim seeks relief as a way to "circumvent the Statute of Frauds, plaintiff must demonstrate unconscionable injury." Darby Trading Inc. v. Shell Int'l Trading & Shipping Co. Ltd., 568 F. Supp. 2d 329, 342 (S.D.N.Y. 2008) (quoting Merex A.G. v. Fairchild Weston Sys., 29 F.3d 821, 826 (2d Cir. 1994). An unconscionable injury is an injury "beyond that which flows naturally from the non-performance of the unenforceable agreement." Merex A.G., 29 F.3d at 826; United Res. Recovery Corp. v. Ramko Venture Mgmt., Inc., 584 F. Supp. 2d 645, 658 (S.D.N.Y. 2008) (collecting cases where injury was not unconscionable).
Plaintiff cites to no case law that her injuries, namely "remaining with the Defendants, expending various sums of money and time, and foregoing other business opportunities elsewhere," were unconscionable. (Comp. ¶ 70; Pl. Opp'n at 14). Those injuries flow directly from the unenforceable agreement: they are the loss of time and revenue stemming from the gold sale and other transactions. Further, the loss of business opportunities does not amount to an unconscionable injury. See 720 Lex Acquisition LLC v. Guess? Retail, Inc., 09-CV-7199, 2011 WL 5039780, at *4 (S.D.N.Y. Oct. 21, 2011). Even though Plaintiff's alleged monetary loss is millions of dollars, that loss falls squarely within the expectation damages, so it is not unconscionable. See Fishoff v. Coty, Inc., 676 F. Supp. 2d 209, 219-20 (S.D.N.Y. 2009) (holding the receipt of 200,000 stock options at $31 rather than $58 was not unconscionable).
Rather, Plaintiff asserts that unconscionablity cannot be decided on the pleadings. (Pl. Opp'n at 14.) But, that is not the case. See, e.g., Sheresky v. Sheresky Aronson Mayefssky & Sloan, LLP, 950 N.Y.S.2d 611 (App. Div. 2011).
Even if, due to her partnership or joint venture claims, Plaintiff only needed to plead that she suffered an injury, as opposed to an unconscionable one, her claim would still fail. Oral partnership and joint venture agreements are terminable at will. Foster v. Kovner, 840 N.Y.S.2d 328, 331-32 (App. Div. 2007); Shandell v. Katz, 464 N.Y.S.2d 177 (1983) (holding a partnership at will be dissolved, without liability for breach of contract on a "moment's notice"). When a party is free at any time to discontinue business, any money or time "spent in reliance on a continued relationship" is "done at [the other's] own risk," which cannot be the basis of promissory estoppel because there is no breach of a clear and unambiguous promise. Beautiful Jewellers Private Ltd. v. Tiffany & Co., 2010 WL 2720007, at *4 (S.D.N.Y. June 28, 2010). Because Parties' agreements were verbal and thereby terminable at will, Plaintiff's partnership and joint venture claims cannot be the basis of promissory estoppel. Accordingly, Defendants' Motion to Dismiss Plaintiff's promissory estoppel claim is GRANTED.
H. Accounting Claim
Because of Plaintiff's alleged partnership with Defendants, Plaintiff argues she is entitled to an accounting as to her share of the profits in the partnership and from the gold sale. (Compl. ¶¶ 81-83; Pl. Opp'n at 15.) Absent "an existing partnership or other fiduciary relationship, [a] plaintiff [is] not entitled to an equitable accounting." Simons v. Ross, 765 N.Y.S.2d 859, 860 (App. Div. 2003); Leveraged Leasing Admin. v. PacifiCorp. Capital, Inc., 87 F.3d 44, 49 (2d Cir. 1996). Plaintiff failed to allege sufficient facts to demonstrate a partnership relationship, and Plaintiff has not asserted a fiduciary relationship with Defendants. Therefore, Defendant's Motion to Dismiss Plaintiff's accounting claim is GRANTED.
I. Constructive Trust Claim
Plaintiff also alleges Defendants hold commissions and equity, including the proceeds from the gold sale, in constructive trust. (Comp. ¶¶ 84-86.) A constructive trust claim has four elements: "(1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment." Ronis, 2012 WL 3929818 at *8 (quoting Marini v. Lombardo, 912 N.Y.S.2d 693, 696 (App. Div. 2010)). Plaintiff failed to plead sufficiently the existence of a partnership, and the Complaint does not allege any other form of confidential or fiduciary relationship. Accordingly, Defendants' Motion to Dismiss Plaintiff's constructive trust claim is GRANTED. IV. CONCLUSION
For the foregoing reasons, Defendants' Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) is GRANTED in its entirety. Plaintiff's claims are dismissed, with leave to amend only with respect to her breach of a partnership agreement, accounting, and constructive trust claims. All other claims are dismissed with prejudice "as the statute of frauds infirmity discussed above render futile any proposed amendment." Transition Invs., 2012 WL 1848875, at *10 (internal citation and quotations omitted). If Plaintiff chooses to amend, her Amended Complaint must be filed within thirty (30) days of this Order. If Plaintiff does not do so, judgment will be entered in Defendants' favor without further Order of the Court. SO ORDERED. Dated: New York, New York
January 29, 2013
/s/_________
DEBORAH A. BATTS
United States District Judge