Avazpour Networking Services, Inc. et al v. Falconstor Software, Inc.
Filing
46
AMENDED MEMORANDUM AND ORDER; For the reasons set forth herein, the court grants Defendant's motion to the extent that it orders dismissal of all claims based in tort. The Court therefore dismisses the claims for grossnegligence and negligent mi srepresentation. The court construes the claim alleging grossly negligent breach of contract as a claim asserting breach of contract. The court dismisses the claim alleging breach of the implied covenant of good faith and fair dealing as redundant in light of the claim for breach of contract. The Clerk of the Court is directed to terminate the motionappearing as docket entry number 21 in this matter and the parties are directed to continue with discovery with respect to the breach of contract claim that remains. (Ordered by Judge Leonard D. Wexler on 4/3/2013.) (Fagan, Linda)
US
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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A VAZPOUR NETWORKING SERVICES, INC.,
JIM AVAZPOUR AND KIM A V AZPOUR,
IN/
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Disrk~~'bS OFFiCE:
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LONG ISLAND
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OFFiCE
AMENDED MEMORANDUM
AND ORDER'
Plaintiff,
cv 12-3574
-against(Wexler, J.)
FALCONSTOR SOFTWARE, INC.
Defendants.
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APPEARANCES:
LIEFF, CAB RASER, HEIMANN &
BERNSTEIN, LLP
BY: JONATHAN D. SELBIN, ESQ.
MICHAEL JOSEPH MIARMI, ESQ.
DOUGLAS IAN CUTHBERTSON, ESQ.
Attorneys for Plaintiffs
250 Hudson Street, gth Floor
New York, New York 10013-1413
LIEFF, CABRASER, HEIMANN &
BERNSTEIN, LLP
BY: ERIC B. FASTIFF
Attorneys for Plaintiffs
275 Battery Street 30th Floor
San Francisco, California 94111
WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER, LLP
BY: ADAM BIALEK, ESQ.
RICHARD LYLE REITER, ESQ.
Attorneys for Defendant
This Amended Memorandum and Order is intended to replace the memorandum
and order dated March II, 2013 and filed as docket entry number 38 in this matter.
I
!50 East 42"d Street
3 Gannett Drive
White Plains, New York I 0604
WEXLER, District Judge
In this diversity action, Plaintiffs assert causes of action arising out of their business
relationship with Defendant. The complaint sets forth four causes of action pursuant to the laws
of the State ofNew York, as follows: (1) gross negligence; (2) negligent misrepresentation; (3)
breach of contract "(due to gross negligence)," and (4) breach of the implied covenant of good
faith and fair dealing. Plaintiffs are Avazpour Networking Services, Inc., ("Avazpour" or
"ANS"), Jim Avazpour and Kristy Avazpour (collectively the "Individual Plaintiffs"). The
Individual Plaintiffs are the founders of ANS. Jim Avazpour is the President and former CEO of
ANS. Kristy Avazpour served as the company's Vice President of Marketing from 2006 through
October of2010. Defendant is F
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