FACTEON, INC. v. COMP CARE PARTNERS, LLC et al
Filing
38
OPINION filed. Signed by Judge Joel A. Pisano on 11/26/2014. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
FACTEON, INC.,
Plaintiff,
v.
COMP CARE PARTNERS, LLC, et al.,
Defendants.
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Civil Action No. 13-6765
OPINION
PISANO, District Judge
Before the Court is a motion to dismiss filed by Defendant Pfizer Inc. (―Defendant‖ or
―Pfizer‖) pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff, Facteon, Inc.
(―Plaintiff‖ or ―Facteon‖), opposes this motion. The Court decides these matters without oral
argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, the
Court grants Defendant‘s motion.
I.
Background
Facteon is a corporation that provides working capital financing to companies by
purchasing all or a portion of its accounts receivables at a discount by way of ―factoring
agreements.‖ Pursuant to its standard factoring agreement, Facteon (a) purchases its clients‘
accounts receivables in advance of their payments; (b) collects payment of those accounts
receivable; and (c) upon receipt of payment of those accounts receivable, collects the funds
advances and associated fees and remits any balance to the clients.
In or around September 2009,1 Comp Care, a company that provides medical testing
services, approached Facteon with an offer to sell a portion of its accounts receivables. Facteon
alleges it completed its standard due diligence investigation, and then entered into a factoring
agreement with Comp Care on or about December 23, 2009 (the ―Comp Care Agreement‖).
Pursuant to the Comp Care Agreement, Facteon purchased $1,754,000 in invoices allegedly
owed to Comp Care by JBS, a non-party, in 2011 (the ―JBS Receivables‖). Also pursuant to the
Comp Care Agreement, Facteon purchased more than $6 million in accounts receivable that
Comp Care claimed it was owed by Pfizer at some point between November 2012 and
November 2013 (the ―Pfizer Receivables‖).2
Facteon alleges that, sometime in the summer of 2013, it became concerned when
payment of the Pfizer and JBS Receivables was not forthcoming. Facteon then contacted Pfizer
and JBS about the status of payment, and was advised that neither Pfizer nor JBS had any
information supporting the sums claimed to be outstanding and due to Comp Care. Facteon
accordingly undertook an investigation to determine the reason for the delayed payments.
Plaintiff alleges that both Pfizer and JBS provided Facteon truthful information regarding the
amounts they owed to Comp Care; for example, the total valid accounts receivable outstanding
to Comp Care totaled less than 10% of the balance of the Pfizer Receivables sold to Plaintiff.
Facteon then brought this suit, seeking to recoup losses relating to its factoring agreement
with Defendant Comp Care against two distinct Defendants: (1) Comp Care; Samuel Perez
(―Perez‖), the president of Comp Care; Rene Guzman (―Guzman‖); Alaine Kamin-Mack; Lina
Garcia; and Karol Gambino (together, the ―Comp Care Defendants‖) and (2) Pfizer. Facteon
1
In its Complaint, Facteon alleges that its initial discussion with Comp Care, and the execution of the agreement
between the two companies, took place in 2010. The date on the Facteon-Comp Care factoring agreement, attached
to the Complaint as Exhibit A, appears to have been signed on December 23, 2009.
2
While not directly stated in the Complaint, Plaintiff Facteon alleges that it ―purchased $6,731,000 in Pfizer
Receivables during the past year.‖ Compl. ¶ 49. Plaintiff‘s Complaint was filed November 6, 2013.
2
generally alleges that the Comp Care Defendants carried out an ―illicit [and] wide-ranging
scheme orchestrated by Defendant Samuel Perez . . . and his co-conspirators to defraud [Facteon]
through his enterprise, Comp Care.‖ Compl. ¶ 2. Facteon‘s allegations include claims that one
or more of the Comp Care Defendants fabricated and sold to Facteon fake invoices from Pfizer
and JBS, set up fake email addresses through which they falsely verified the fabricated JBS and
Pfizer invoices, created a fake website that was actually owned by Defendant Perez, and falsely
claimed an association between contacts verifying the receivables and the alleged Comp Care
debtors. Facteon alleges that its CEO, Thomas Nort, confronted Perez on October 3, 2013,
regarding the seemingly fraudulent invoices. Facteon alleges that Perez did not deny the
allegations of fraud, and that Perez admitted that Comp Care was, in reality, owed only $76,606
in accounts receivable from Pfizer, despite Comp Care‘s sale of $6 million of invoices to
Facteon.
The vast majority of the Complaint contains counts against one of more of the Comp
Care Defendants, alleging claims for breach of contract, fraud, breach of the implied covenant of
good faith, misappropriation and theft, conversion of property, federal and state civil
Racketeering and Corrupt Organizations Act (―RICO‖) claims, common law conspiracy,
foreclosure, injunctive relief, and receivership.
Facteon does not assert against Pfizer any of the fraud, conspiracy, or theft claims that it
alleges against the Comp Care Defendants. Rather, the Complaint contains four causes of action
against Pfizer for negligent misrepresentation, detrimental reliance, equitable estoppel and
implied contract. Facteon alleges that before purchasing accounts receivable pursuant to its
factoring agreements, it normally completed a ―verification process‖ that included receipt of a
written acknowledgment from the underlying customer that ―each invoice reflected services
3
actually rendered.‖ Compl. ¶ 5. Pursuant to the Comp Care Agreement, there were detailed
procedures to be followed by Facteon and Comp Care, including numerous provisions that would
protect Facteon‘s interests and provide notice to the ―customer‖ that purportedly owed the
invoice amount. See generally Compl. Ex. A. The Comp Care Agreement also provided that
Facteon ―shall have the right at any time . . . to notify any and all Account Debtors of the
assignment to [Facteon] . . . and to direct . . . payment . . . directly to [Facteon].‖ Compl. Ex. A
at Section 10. Pfizer was not a party to the Comp Care Agreement.
In its Complaint, Facteon alleges that it departed from its normal ―verification process‖
when it purchased invoices that Comp Care claimed were in connection with services it had
performed on behalf of Pfizer. Facteon alleges that this departure was ―mandated‖ by an
employee in Pfizer‘s Global Occupational Health and Wellness Group, Michelle Dorry. See
Compl. ¶¶ 42–46. Specifically, Facteon alleges that, shortly after entering into the Comp Care
Agreement, Facteon‘s Underwriter, Carol Jelks, contacted Ms. Dorry on or about January 4,
2010, to explain the nature of its relationship with Comp Care and to ascertain the best way to
verify the balance due and procure an acknowledgement for each Pfizer Receivable. Facteon
alleges that it received the following ―instructions‖ in an email from Ms. Dorry:
Pfizer has a contract with the vendor, Comp Care Partners for managing our
drug/alcohol testing program. Currently invoices are submitted and approved
through Pfizer‘s Ariba platform. Comp Care Partners representative for Ariba is
Rene Guzman; her email address is rene.guzman@ariba-network.com. Rene can
be contacted at the email address above.
My contact information is as follows if you need to contact me further:
Michelle Dorry, Manager Global Occupational Health and Wellness
Michelle.Dorry@pfizer.com.
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Compl. ¶ 44. This email is the lone written communication from anyone at Pfizer, and is the
basis of Facteon‘s claims against Pfizer.3
At least two and a half years after this January 4, 2010 interaction, at some point between
November 2012 and November 2013, Facteon purchased over $6 million of alleged Pfizer
Receivables from Comp Care. Facteon alleges that, prior to purchasing these receivables, it sent
an acknowledgement to Rene Guzman for approval. This form is addressed to Pfizer, despite
the fact that Ms. Dorry‘s email fails to describe Guzman as a Pfizer employee, in accounts
receivable, or at Pfizer‘s New York address. When Ms. Guzman signed the acknowledgement
regarding certain invoices allegedly from Pfizer, Facteon purchased the alleged Pfizer
Receivables from Comp Care. Facteon does not allege that it ever showed its acknowledgement
form to Pfizer, or actually mailed this form to Pfizer‘s address. There is no allegation that
Facteon made any effort to contact Pfizer over this period, to confirm its alleged interpretation of
Ms. Dorry‘s email ―instructions‖ from over two years earlier, or to verify the receivables with an
actual Pfizer employee before purchasing them. Facteon alleges that it only contacted a Pfizer
employee to contact the amount of invoices allegedly due to Pfizer in about mid-2013. Facteon‘s
investigation later revealed that Ms. Guzman is actually a business associate of Defendant Perez,
and that the email address for ―rene.guzman@ariba-network.com‖ is false as the domain is
owned by Perez.
II.
Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint
―for failure to state a claim upon which relief can be granted.‖ Fed. R. Civ. P. 12(b)(6). When
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There appears to be a dispute regarding the content of this email. Pfizer asserts that the email attached to and cited
in the Complaint is a version forwarded to Facteon by Defendant Perez. Pfizer states that the direct email sent from
Ms. Dorry to Facteon on January 4, 2010, has one material difference; specifically, Ms. Dorry‘s email refers Facteon
to the email address ―renee.guzman@ariba-network.com‖ rather than ―rene.guzman@ariba-netwrok.com.‖ At this
stage of the proceedings, and as Pfizer recognizes, the Court assumes the truth of the allegation in the Complaint.
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reviewing a motion to dismiss, courts must first separate the factual and legal elements of the
claims, and accept all of the well-pleaded facts as true. See Fowler v. UPMC Shadyside, 578
F.3d 203, 210–11 (3d Cir. 2009). All reasonable inferences must be made in the Plaintiff's favor.
See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010).
In order to survive a motion to dismiss, the plaintiff must provide ―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). This standard requires the plaintiff to show ―more than a sheer possibility that a
defendant has acted unlawfully.‖ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A ―plaintiff's
obligation to provide the grounds of his entitle[ment] 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 quotations and citations omitted). When assessing the
sufficiency of a civil complaint, a court must distinguish factual contentions and ―[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements.‖ Iqbal,
556 U.S. at 678. Any legal conclusions are ―not entitled to the assumption of truth‖ by a
reviewing court. Id. at 679. Rather, ―[w]hile legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.‖ Id. See also Fowler, 578 F.3d at 210
(explaining that a proper complaint ―must do more than allege a plaintiff's entitlement to relief‖).
Finally, where there are well-pleaded factual allegations, a court should assume their veracity
and then determine whether they plausibly give rise to an entitlement for relief.‖ Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (internal quotation omitted).
Generally, a district court may not consider matters extraneous to the complaint when
determining a Rule 12(b)(6) motion to dismiss. See In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1426 (3d Cir. 1997). This means that the district court relies on ―the complaint,
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attached exhibits, and matters of public record.‖ Sands v. McCormick, 502 F.3d 263, 268 (3d
Cir. 2007). A district court may, however, appropriately consider ―a document integral to or
explicitly relied upon in the complaint may be considered without converting the motion to
dismiss into one for summary judgment.‖ Angstadt v. Midd–West Sch. Dist., 377 F.3d 338, 342
(3d Cir. 2004).
III.
Discussion
As discussed, Plaintiff Facteon‘s Complaint asserts four claims against Pfizer: negligent
misrepresentation, detrimental reliance, or equitable estoppel. The Court addresses each claim
individually below.
A.
Negligent Misrepresentation
Under New Jersey law, a claim for negligent representation requires ―(1) an incorrect
statement, (2) negligently made, (3) upon which plaintiff justifiably relied, and (4) resulted in
economic loss or injury as a consequence of that reliance.‖ Mason v. Coca-Cola Co., 774 F.
Supp. 2d 699, 704 (D.N.J. 2011) (citing H. Rosenblum, Inc v. Adler, 93 N.J. 324, 333–34
(1983)). Like any other negligent tort, negligent misrepresentation requires proof ―that the
putative tortfeasor breached a duty of care.‖ Sander v. HR Trust Servs., LLC, Civil Action No.
08-1383, 2009 U.S. Dist. LEXIS 86194, at *9 (D.N.J. Sept. 21, 2009) (quoting S. Broward Hosp.
Dist. v. MedQuist, Inc., 516 F. Supp. 2d 370, 395 (D.N.J. 2007)).
Here, Plaintiff Facteon asserts that it is bringing its negligent misrepresentation claim
pursuant to Section 552 of the Restatement (Second) of Torts, which governs information
negligently supplied for the guidance of others. Specifically, Section 552 states:
One who, in the course of his business, profession or employment, or in any other
transaction in which he has a pecuniary interest, supplies false information for the
guidance of others in their business transactions, is subject to liability for
pecuniary loss caused to them by their justifiable reliance upon the information, if
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he fails to exercise reasonable care or competence in obtaining or communicating
the information.
Restatement (Second) of Torts § 552 (1977). To state a claim under Section 552, a plaintiff must
allege sufficient facts that establish that the defendant (1) in the course of its profession, supplied
false information for plaintiff‘s guidance in a business transaction; (2) the defendant failed to
exercise reasonable care in gathering the information; (3) the plaintiff relied on the false
information in a transaction that defendant knew the information would influence; and (4) the
plaintiff suffered pecuniary losses. Somarelf v. American Bureau of Shipping, 720 F. Supp. 441,
452 (D.N.J. 1989). Negligent misrepresentation under Section 552, accordingly, requires the
same basic elements as a common law claim for negligent misrepresentation, except in regards to
the ―duty of care‖ element. Under Section 552, liability only attaches when the defendant has a
pecuniary interest in the transaction in which the information is given. ―If he has no pecuniary
interest and the information is given purely gratuitously, he is under no duty to exercise
reasonable care and competence in giving it.‖ Restatement (Second) of Torts § 552 cmt. c.
Here, Plaintiff has failed to allege any facts establishing that Pfizer had any pecuniary
interest in the transaction between Comp Care and Facteon. To the extent that Facteon addresses
this point at all in its brief, it appears to contend that Pfizer‘s interest existed in continuing to
―receive [Comp Care‘s] support‖ as a vendor and that Facteon‘s ―funding obviously was
essential to Comp Care‘s ability to ‗perform‘ to its obligations for Pfizer.‖ See Pl.‘s Opp. Br. at
19, 22. This argument, however, is completed unsupported by Facteon‘s pleading. The
Complaint contains no allegations that this theoretical pecuniary interest was a topic of
conversation in the January 4, 2010, phone call between the representatives of Facteon and
Pfizer, and there are no allegations relating to any reliance by Pfizer on Comp Care‘s services (as
opposed to any other vendor) or any discussion of Comp Care requiring financing to stay in
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business. Rather, the information provided to Facteon by the Pfizer representative was given
gratuitously; accordingly, there was no obligation to exercise reasonable care in providing this
information and liability cannot fairly extend to Pfizer. Further, the Complaint fails to reveal
that Facteon discussed with Pfizer—in either the single phone call or the email—how much
Comp Care typically billed to Pfizer, the amount of receivables Facteon contemplating
purchasing from Comp Care, or when this purchase of receivables would take place. Without
any such allegations, the Court cannot fairly extend to Pfizer a duty of care that encompasses
millions of dollars of responsibility and extends thirty months into the future, particularly when
there is no evidence of subsequent confirmation or any further contact between Facteon and
Pfizer.
To that regard, even if Facteon had properly alleged that Pfizer owed it a duty of care,
Facteon has failed to establish that it justifiably relied upon the statements made by Pfizer. See
Mason, 774 F. Supp. 2d at 704. Facteon‘s claim against Pfizer is based on its contention that it
reasonably relied upon the email sent from Ms. Dorry for how to confirm the work that Comp
Care performed; specifically, it alleges that the email sent from Ms. Dorry to Facteon contained
―instructions‖ that created a ―Verification Process approved and mandated by Pfizer,‖ in which
Facteon was instructed that Ms. Guzman would verify invoices on behalf of Pfizer. Compl. ¶¶
42, 44–46, 48. Facteon alleges that only after Ms. Guzman signed an acknowledgement form
would it purchase any Pfizer receivables. First, to the extent that the email did ―mandate‖ a
certain verification process, the Court finds it patently unreasonable for Facteon to have relied
singularly upon that email for purchasing the relevant Pfizer receivables at least two and a half
years later, in the absence of any further confirmation or contacts between them. See Compl. ¶
49. This is particularly true when the language of the email warns of the potential for change in
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the way that the invoices are submitted; Ms. Dorry directly states that the invoices are submitted
and approved ―currently‖ through the Ariba platform. See Compl. ¶ 44. Further, and perhaps
more significantly, Facteon‘s interpretation of the email sent from Ms. Dorry is simply
implausible. In the email, Ms. Dorry clearly indicates that Ms. Guzman is a representative of
Comp Care and not an employee of Pfizer. The email never states that Ms. Guzman should be
contacted on ―Pfizer‘s behalf‖ to approve Comp Care receivables, or that Ms. Guzman has the
power to approve invoices generally. There is simply no way to read the email as ―mandating‖
or otherwise creating a verification process in which Ms. Guzman, a representative of Comp
Care, would approve of invoices for Facteon‘s purchase of Pfizer receivables. See Compl. ¶¶ 42,
44, 48, 57; Pl.‘s Opp. Br. at 8, 11–12. To the extent that Facteon did interpret and rely on the
email that way, this reliance was unreasonable as a matter of law. Accordingly, Plaintiff has
failed to establish a plausible claim for negligent misrepresentation, and the claim must be
dismissed.
B.
Detrimental Reliance
Next, Facteon has brought a claim for detrimental reliance against Pfizer. ―Under New
Jersey law, a plaintiff may prevail on a detrimental reliance claim (also referred to as promissory
estoppel) if she proves: ‗(1) a clear and definite promise; (2) made with the expectation that the
promisee will rely on it; (3) reasonable reliance; and (4) definite and substantial detriment.‘‖
Millar v. Pitman Bd. of Educ., Civil No. 10-4104 (RBK/JS), 2011 U.S. Dist. LEXIS 63962, at
*6–7 (D.N.J. June 13, 2011) (quoting Toll Bros., Inc. v. Bd. of Chosen Freeholders of
Burlington, 944 A.2d 1, 19 (N.J. 2008)).
A ―clear and definite promise‖ is an indispensible element of detrimental reliance. See
Malaker Corp. Stockholders Protective Committee v. First Jersey Nat'l Bank, 395 A.2d 222, 230
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(N.J. App. Div. 1978). The Malaker Court stressed that ―an express promise of a ‗clear and
definite‘ nature‘ was necessary to establish a claim for promissory estoppel; this language
suggested ―that New Jersey Courts expect proof of most, if not all, of the essential legal elements
of a promise before finding it to be ‗clear and definite.‘‖ Pop’s Cones, Inc. v. Resorts Intern.
Hotel, Inc., 704 A.2d 1321, 1325 (N.J. App. Div. 1998). However, later New Jersey cases
―tended to relax strict adherence to the Malaker formula for determining whether a prima facie
case of promissory estoppel exists.‖ Id. Accordingly, Facteon argues that, based on this more
relaxed standard, it has sufficiently alleged a ―clear and definite promise‖ in that ―Pfizer
promised that the ‗Ariba-Network‘ was the proper methodology in which Plaintiff could obtain
verification of the receivables it was considering for acquisition.‖ Pl.‘s Opp. at 19. The Court
notes, as an initial matter, that the Pop’s Cone Court emphasized that any relaxation of this
standard is more appropriately applied in the cases involving contractual negotiations where a
promise has been made in the course of negotiations that did not result in a final agreement. See
id. This is no such case. More significantly, regardless of the showing of a proof that is
necessary to establish a clear and definite promise has been made, a party still must allege some
semblance of a ―clear and definite promise.‖ Here, in its Opposition, Facteon argues the
existence of a promise that is totally devoid from its own allegations, including the content of the
January 4, 2010 email. The email contains no language that can be reasonably construed as a
promise that is ―clear, unconditional and definite.‖ Mejias v. Am. Boychoir Sch., 2011 U.S. Dist.
LEXIS 82692, at *14 (D.N.J. July 27, 2011) (citing Del Sontro v. Cendant Corp., 223 F. Supp.
2d 563, 574 (D.N.J. 2002) (citing Bonczek v. Carter-Wallace, Inc., 701 A.2d 742 (N.J. App. Div.
1997))). Accordingly, this failure to allege any such facts dooms Plaintiff‘s claim for promissory
estoppel as a matter of law.
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Further, even if the Court were to assume that there were sufficient allegations of a
promise in Facteon‘s Complaint, Facteon has failed to allege any facts establishing or leading to
an inference that Pfizer had any expectation that Facteon would rely on its statements in the
January 4, 2010 email. Facteon appears to have relied not on the actual words in Pfizer‘s
email—which provide contact information and an invitation to follow-up with more questions—
but on its interpretation of Pfizer‘s email as creating a ―verification process‖ that was
―mandated‖ by Pfizer. See Compl. ¶¶ 42, 46. As discussed, the language of the email makes any
such interpretation patently unreasonable. Pfizer could not have reasonably expected its email to
be interpreted in the manner alleged by Facteon, particularly when it stated that invoices were
―currently‖ submitted through Ariba Networks. The facts, as alleged by Facteon, fail to allow
for any reasonable inference that Pfizer had an expectation that Facteon would rely on its
statements more than two and a half years later when purchasing certain receivables from Comp
Care.
Finally, Plaintiff has failed to allege any facts allowing for an inference that its reliance
on any ―promise‖ by Pfizer was reasonable. Facteon alleges that it relied on a single email sent
thirty months earlier, which contained no acknowledgement or instructions for a verification
process of Pfizer invoices. The email only contains a referral to an individual at an entity
through which Comp Care invoices were purportedly sent. Facteon has failed to allege that it
made any effort to contact Pfizer or confirm that the information contained within this email was
valid in late 2012 or 2013, when the purchases allegedly occurred. Overall, Facteon has failed to
allege enough facts to establish a plausible claim for promissory estoppel, and its claim must be
dismissed.
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C.
Equitable Estoppel
Facteon has also brought a claim for equitable estoppel against Pfizer. In New Jersey,
―the doctrine of equitable estoppel is applied only in very compelling circumstances.‖ Davin,
L.L.C. v. Daham, 746 A.2d 1034, 1040 (N.J. App. Div. 2000). New Jersey courts typically apply
equitable estoppel ―where the interests of justice, morality and common fairness clearly dictate
that course.‖ Id. (quoting Palatine I v. Planning Bd., 628 A.2d 321 (N.J. 1993)). In order to
properly establish a claim for equitable estoppel, a plaintiff
must show that the alleged conduct was done, or representation was made,
intentionally or under such circumstances that it was both natural and probable
that it would induce action. Further, the conduct must be relied on, and the relying
party must act so as to change his or her position to his or her detriment.
Phillips v. Borough of Keyport, 107 F.3d 164, 182 (3d Cir. 1997) (quoting Miller v. Miller, 478
A.2d 351, 355 (N.J. 1984)).
As with its other claims, Facteon has failed to allege any actionable ―representations‖
made by Pfizer, or that it reasonably and justifiably relied on these representations. See Knorr v.
Smeal, 836 A.2d 794, 799 (N.J. 2003); C.R. v. J.G., 703 A.2d 385, 395 (Ch. Div. 1997). Further,
even if these shortcomings did not preclude consideration of equitable estoppel, the Court cannot
find that Plaintiff has sufficiently alleged facts establishing that this is a case with ―very
compelling circumstances,‖ such that ―the interests of justice, morality and common fairness
clearly dictate‖ granting the relief sought here against Pfizer. See Davin, 746 A.2d at 1040.
Pfizer was contacted once by Facteon, an entity with which it had no prior relationship. When
Facteon started purchasing Pfizer receivables over two years after this communication, it made
the decision to rely on its own interpretation of a ―verification process‖ without any attempt to
confirm or otherwise follow-up with Pfizer. To hold Pfizer responsible for Comp Care‘s alleged
fraudulent scheme would offend the notions of fairness and justice that are intended to guide the
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application of the doctrine of equitable estoppel. Accordingly, Facteon has failed to adequately
plead several elements necessary for equitable estoppel, and its claim must be dismissed.
D.
Breach of Implied Contract
Under New Jersey law, there are two types of implied contracts: (1) implied-in-fact, and
(2) implied-in-law. See Wanaque Borough Sewerage Auth. v. Twp. of W. Milford, 677 A.2d 747,
752 (N.J. 1996). In its Complaint, Facteon asserts that Pfizer breached an implied-in-fact
contract between the parties.4 A contract that is implied-in-fact ―is in legal effect an express
contract and varies from the latter only insofar as the parties‘ agreement and assent thereto have
been manifested by conduct instead of words.‖ St. Barnabas Medical Ctr. v. County of Essex,
543 A.2d 34, 39 (N.J. 1988) (internal quotations omitted). In other words, the distinction
between an express and implied contract is based on the way the parties manifest their mutual
assent; ―[c]ontracts are ‗express‘ when the parties state their terms and ‗implied‘ when the parties
do not state their terms.‖ See Baer v. Chase, 392 F.3d 609, 616 (3d Cir. 2004). An implied-infact contract ―depend[s] on mutual agreement and intent to promise, and can be established by
objective proofs.‖ Id. (internal quotation omitted).
A review of the Complaint demonstrates a complete lack of an agreement between Pfizer
and Comp Care, either verbally or through the conduct of Pfizer. Plaintiff‘s assertions otherwise
are belittled either by its own actions or the January 2010 email upon which its claim relies. For
example, Plaintiff asserts that ―Plaintiff and Defendant Pfizer‘s conduct created a legally
enforceable agreement as Plaintiff agreed to provide working capital financing to support Comp
Care‘s business, based upon which Pfizer was receiving the benefit of Comp Care‘s services.‖
4
In its Opposition, Plaintiff alleges that it has also established that an implied-in-law contract existed between the
parties. To the extent that such a claim was in the Complaint, Plaintiff has failed to allege any facts that support the
necessary element of establishing that Pfizer was ―unjustly enriched at the expense of [Facteon.]‖ Wanaque
Borough, 144 N.J. at 575.
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Compl. ¶ 191. Plaintiff goes on to explain that Pfizer ―benefited from Facteon‘s financial
support for its vendor in exchange for the promise that Facteon would receive payment directly
from Pfizer.‖ Id. Plaintiff, however, has alleged facts that establish that it did not start
purchasing invoices from Comp Care until November 2012, meaning that any financial support it
may have provided to Comp Care did not start until November 2012. Accordingly, not only was
the alleged benefit that Pfizer was to receive absent for at least two and a half years after the
January 2010 interaction, but Facteon‘s own inaction for over two and a half years after the
alleged ―agreement‖ weakens any basis for an implied-in-fact contract. Further, even the most
liberal reading of the January 2010 email reveals no intent to promise anything to Facteon by
Pfizer such that any sort of implied contract was created. Contrary to Facteon‘s assertions, the
email does not read as promising to approve Comp Care‘s invoices for payment to Facteon.
Likewise, the email does not indicate that Pfizer relied on or otherwise needed Comp Care‘s
services such that it would be invested in its relationship with Facteon, nor does it refer to any
understanding that Comp Care required financing to stay in business. Rather, the email only
reads as Ms. Dorry voluntarily offering referral information to Facteon‘s representative. Overall,
Facteon‘s assertions regarding any implied-in-fact contract finds no support in either the actual
text of the January 2010 email, Facteon‘s own allegations, or the conduct of Facteon.
Accordingly, it cannot form the basis of a plausible claim, and Plaintiff‘s claim for breach of
implied contract must be dismissed.
IV.
Conclusion
The Complaint, as alleged, establishes that Facteon was the victim of an intricate and
fraudulent scheme, which cost it millions of dollars in damages. While the Court sympathizes
with Facteon, there is no basis in the Complaint for any claims against Pfizer. Accordingly, and
15
for the reasons set forth above, the Court grants Pfizer‘s motion to dismiss. An appropriate
Order accompanies this Opinion.
/s/ Joel A. Pisano
JOEL A. PISANO, U.S.D.J.
Dated: November 26, 2014
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