Harbor Distributing Corp. v. GTE Operations Support Incorporated et al
Filing
38
ORDER granting 19 Motion to Dismiss. For the reasons set forth herein, defendants' motion to dismiss is granted. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/28/2016. (Akers, Medora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 15-CV-4123 (JFB)(AYS)
_____________________
HARBOR DISTRIBUTING CORP.,
Plaintiff,
VERSUS
GTE OPERATIONS SUPPORT INCORPORATED AND VERIZON NEW YORK INC.,
Defendants.
___________________
MEMORANDUM AND ORDER
March 28, 2016
___________________
JOSEPH F. BIANCO, District Judge:
is a type of remedy, not a cause of action, and
(3) plaintiff has failed to sufficiently allege a
claim for breach of the lease.
Plaintiff, Harbor Distributing Corp.
(hereinafter, “plaintiff”), brings this suit
against defendants, GTE Operations Support,
Inc. (hereinafter, “GTEOSI”) and Verizon
New York Inc. (hereinafter, “Verizon”)
(collectively, “defendants”). Plaintiff (1)
seeks a declaratory judgment that GTEOSI
cannot terminate its lease agreement with
plaintiff and that the obligations in the
parties’ lease remain in full force and effect,
(2) requests a preliminary and permanent
injunction barring GTEOSI from unilaterally
terminating the parties’ lease, and (3) asserts
that defendants have breached the lease.
Defendants now move to dismiss plaintiff’s
complaint pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil
Procedure, asserting that (1) this Court lacks
subject matter jurisdiction to hear plaintiff’s
declaratory judgment claim, (2) plaintiff
cannot maintain a claim for preliminary or
permanent injunction because an injunction
For the reasons set forth herein, the Court
grants defendants’ motion to dismiss in its
entirety. First, with respect to plaintiff’s
declaratory judgment claim, there is no case
or controversy for the Court to decide, as
defendants agree that they cannot terminate
the lease at this time. Second, plaintiff’s
breach of lease claim fails because plaintiff
has made only a conclusory allegation of
breach, and has failed to provide notice to
defendants as to the nature of the alleged
breach. Given the vagueness of the claim, the
Court also cannot decide whether a plausible
claim exists. Finally, because the two
substantive claims are dismissed, plaintiff’s
claim for injunctive relief must be denied as
well. However, plaintiff will be permitted to
re-plead its beach of lease claim. Moreover,
the dismissal of the declaratory judgment
claim is without prejudice to re-asserting it
1
once defendants provide a notice of
termination (or otherwise indicate they
believe the conditions to terminate have been
satisfied).
I.
A.
further provided that the remediation work
would be deemed complete upon the
satisfaction of three conditions: (i) the
restoration of the property to the condition in
which it existed at the commencement of the
lease, (ii) the absence of any leasing
restrictions imposed by any State
governmental authority, and (iii) GTEOSI’s
vacation of the premises. (Id. ¶ 21.) Pursuant
to the agreement, the lease would terminate
six months after defendants completed the
remedial work. (See Pl.’s Opp’n, Ex. 1 §
3.1.3(b).)
BACKGROUND
Factual Background
Unless otherwise noted, the following facts
are taken from the complaint (“Compl.”) filed
in this Court on July 14, 2015 and are not
findings of fact by the Court.
This dispute involves a piece of real
property (hereinafter, the “property”) in
Hicksville, New York. (Compl. ¶ 1.) A
predecessor of GTEOSI, 1 manufactured
nuclear fuel elements on the property from
1952 to 1967, which contaminated the
property with uranium, thorium, and
tetrachloroethylene. (Id. ¶¶ 6-7.) Plaintiff is
the current owner of the property. (Id. ¶ 13.)
From 1992 to 2002, plaintiff leased the
property, which includes an industrial
building with office space, to a non-party
tenant. (See id. ¶¶ 6, 8, 14.)
In 2009, the United States Army Corps of
Engineers accepted oversight of the
remediation of the property. (Compl. ¶¶ 4243.) Several years later, in August 2014,
GTEOSI wrote plaintiff explaining that:
[S]ome years ago the United
States Army Corps of
Engineers (USACE) accepted
oversight of the responsibility
for
investigating
and
remediating
the
contamination that was being
addressed by GTEOSI . . . .
Rather than simply walk away
from the site[,] GTEOSI has
remained at the property to
help facilitate the USACE
effort. . . . GTEOSI has
recently decided that it is no
longer appropriate for it to
remain in this position.
GTEOSI approached [you] to
help assure a smooth
transition to the government. .
. . GTEOSI will not terminate
the lease at this time to better
enable [you] to successfully
work things out with the
When the historic contamination of the
property was discovered, GTEOSI agreed to
undertake certain remedial efforts to restore
the property. (See id. ¶¶ 8, 18, 20.) In
connection with this undertaking, in April
2002, GTEOSI entered into an agreement
(hereinafter, the “agreement” or the “lease”)
with plaintiff, whereby it agreed to assume
the non-party’s commercial lease and pay
rent to plaintiff. (See id. ¶¶ 8, 14-15.) The
agreement between GTEOSI and plaintiff
provided that GTEOSI would perform certain
remedial work at the property and that the
lease would extend until this work was
complete. (See id. ¶¶ 8, 19.) The lease
1
Defendants maintain that it was actually a
predecessor-in-interest of GTEOSI’s corporate
affiliates. (Defs.’ Mot. at 3 n.1.)
2
3 (“GTEOSI has not declared the [l]ease
terminated and acknowledges that the
condition precedent to termination has not
been satisfied.”); Defs.’ Mot. at 9 (same).)
Federal Government. While I
do not know how long
GTEOSI will agree to refrain
from providing notice of
termination, I am hopeful that
it will not have to do so before
[you] are able to come to
terms with the USACE.
B.
Procedural History
Plaintiff filed this action in New York
State Court on June 17, 2015, and defendants
removed the action to this Court on July 14,
2015. Plaintiff’s complaint asserted causes
of action for declaratory judgment,
preliminary and permanent injunction,
misrepresentation, violation of the New York
State Navigation Law, alter ego, breach of
fiduciary duty, and breach of lease.
Defendants moved to dismiss the complaint
on July 31, 2015. Plaintiff, in its opposition
filed February 23, 2016, 3 abandoned all
causes of action except for its claims for
declaratory judgment, injunctive relief, and
breach of lease. (See Pl.’s Opp’n at 2 n.2.)
Defendants filed their reply on March 8,
2016. The Court held oral argument on
March 16, 2016. The matter is fully briefed,
and the Court has considered all of the
parties’ submissions.
(Id. ¶ 27; Pl.’s Opp’n, Ex. 3 at 1-2.)
According to plaintiff, at a meeting in
January 2015, counsel for Verizon informed
plaintiff that Verizon intended to terminate
the agreement.2 (Compl. ¶ 28.) However, in
a subsequent communication regarding this
meeting, plaintiff clarified that: “[a]t our
meeting, you expressed the opinion that your
company had completed the first phase of
remediation, and was permitted to terminate
the lease. You indicated that it was the
intention of GTEOSI to terminate, but that it
was not something that would occur in the
immediate future, and that you would provide
us several months’ advance warning of this.”
(See Pl.’s Opp’n, Ex. 8 at 1.) Nevertheless,
concerned that defendants intended to
prematurely end the parties’ agreement,
plaintiff filed this suit, seeking a declaration
that “pursuant to the terms of the [lease] . . .
[GTEOSI] has no right to terminate the lease
between it and [plaintiff].” (Compl. at Prayer
for Relief (i).)
II.
STANDARD OF REVIEW
Relevant here are Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6), which
respectively govern motions to dismiss for
lack of subject matter jurisdiction, and
motions to dismiss for failure to state a claim.
The following standards of review are
applicable to motions brought under these
provisions.
In their opposition and at oral argument,
defendants represented that they are not
seeking to terminate the lease at this time and
that they do not believe that they have
satisfied the contractual prerequisites for
termination. (See, e.g., Defs.’ Reply Mot. at
January 14, 2016, the Court denied plaintiff’s motion
to remand and ordered plaintiff to submit its
opposition to defendants’ motion to dismiss. (See ECF
No. 31.)
2
Verizon likely would not be able to terminate the
lease, as it does not appear that it was a party to the
agreement. (See Pl.’s Opp’n, Ex. 1.)
3
Briefing on the motion to dismiss was delayed while
the Court considered plaintiff’s motion to remand. On
3
A.
Subject Matter Jurisdiction
see also Kamen v. Am. Tel. & Tel. Co., 791
F.2d 1006, 1011 (2d Cir. 1986).
On a motion to dismiss pursuant to Rule
12(b)(1), “[t]he plaintiff bears the burden of
proving subject matter jurisdiction by a
preponderance of evidence.” Aurecchione v.
Schoolman Transp. Sys., Inc., 426 F.3d 635,
638 (2d Cir. 2005). “A case is properly
dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the
district court lacks the statutory or
constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000). While the court must
generally “take all facts alleged in the
complaint as true and draw all reasonable
inferences in favor of plaintiff,” Morrison v.
Nat’l Australia Bank Ltd., 547 F.3d 167, 170
(2d Cir. 2008) (internal quotation marks
omitted) (quoting Natural Res. Def. Council
v. Johnson, 461 F.3d 164, 171 (2d Cir.
2006)), jurisdiction “must be shown
affirmatively, and that showing is not made
by drawing from the pleadings inferences
favorable to the party asserting it,” id.
(quoting APWU v. Potter, 343 F.3d 619, 623
(2d Cir. 2003)); see also Figueroa v. Comm’r
of Soc. Sec., No. 12-cv-7129 (LGS)(SN),
2013 WL 3481317, at *2 (S.D.N.Y. July 11,
2013) (“[N]o presumptive truthfulness
attaches to the complaint’s jurisdictional
allegations.” (internal quotation marks
omitted) (quoting Guadagno v. Wallack Ader
Levithan Assocs., 932 F. Supp. 94, 95
(S.D.N.Y. 1996))). Moreover, “even on a
motion to dismiss, courts are not bound to
accept as true a legal conclusion couched as
a factual allegation.” Conyers v. Rossides,
558 F.3d 137, 143 (2d Cir. 2009) (citation
and internal quotation marks omitted). The
Court may resolve “disputed jurisdictional
fact issues by referring to evidence outside of
the pleadings, such as affidavits, and if
necessary, hold an evidentiary hearing.”
Zappia Middle East Constr. Co. v. Emirate of
Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000);
B.
Motion to Dismiss
In reviewing a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6),
the Court must accept the factual allegations
set forth in the complaint as true and draw all
reasonable inferences in favor of the plaintiff.
See Cleveland v. Caplaw Enters., 448 F.3d
518, 521 (2d Cir. 2006); Nechis v. Oxford
Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.
2005). “In order to survive a motion to
dismiss under Rule 12(b)(6), a complaint
must allege a plausible set of facts sufficient
‘to raise a right to relief above the speculative
level.’” Operating Local 649 Annuity Trust
Fund v. Smith Barney Fund Mgmt. LLC, 595
F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This
standard does not require “heightened fact
pleading of specifics, but only enough facts
to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570.
In connection with a motion to dismiss
under Rule 12(b)(6), the Court generally may
only consider “facts stated in the complaint
or documents attached to the complaint as
exhibits or incorporated by reference.”
Nechis v. Oxford Health Plans, Inc., 421 F.3d
96, 100 (2d Cir. 2005); accord Kramer v.
Time Warner Inc., 937 F.2d 767, 773 (2d Cir.
1991). The Court may only consider a
document not appended to the complaint if
the document is “incorporated in [the
complaint] by reference” or is a document
“upon which [the complaint] solely relies and
. . . is integral to the complaint.” Roth v.
Jennings, 489 F.3d 499, 509 (2d Cir. 2007)
(quoting Cortec Indus., Inc. v. Sum Holding
L.P., 949 F.2d 42, 47 (2d Cir. 1991)).
4
III.
A.
DISCUSSION
to a dispute where the alleged liability has
already accrued or the threatened risk
occurred, or rather whether the feared legal
consequence remains a mere possibility, or
even probability of some contingency that
may or may not come to pass.” Dow Jones &
Co., Inc. v. Harrods, Ltd., 237 F. Supp. 2d
394, 406-07 (S.D.N.Y. 2002) (citing Thomas
v. Union Carbide Agric. Prod. Co., 473 U.S.
568, 580-81, 105 S.Ct. 3325, 87 L.Ed.2d 409
(1985)), aff’d, 346 F.3d 357 (2d Cir. 2003).
“Whether a real and immediate controversy
exists in a particular case is a matter of degree
and must be determined on a case-by-case
basis.” Kidder, 925 F.2d at 562.
Declaratory Judgment Claim
1.
Legal Standard
The Declaratory Judgment Act (“DJA”)
provides that “any court of the United States
. . . may declare the rights and other legal
relations of any interested party seeking such
a declaration, whether or not further relief is
or could be sought.” 28 U.S.C. § 2201(a).
However, actions for declaratory judgment
still must meet “case or controversy”
requirements and the party seeking
declaratory judgment has the burden to prove
subject matter jurisdiction. E.R. Suibb &
Sons, Inc. v. Lloyd’s & Co., 241 F.3d 154,
177 (2d Cir. 2011). A court cannot adjudicate
conjectural or hypothetical cases or
controversies.
Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61, 112 S.Ct.
2130, 119 L.Ed.2d 351 (1992).
“The
disagreement . . . must have taken a fixed and
final shape so that a court can see what legal
issues it is deciding, what effect its decision
will have on its adversaries, and some useful
purpose to be achieved in deciding them.”
Pub. Serv. Comm’n of Utah v. Wycoff Co.,
Inc., 344 U.S. 237, 244, 73 S.Ct. 236, 97
L.Ed. 291 (1952). The question to be asked
is “whether the facts alleged, under all the
circumstances, show that there is a
substantial controversy, between parties
having adverse legal interests, of sufficient
immediacy and reality to warrant the
issuance of a declaratory judgment.” Olin
Corp. v. Consolidated Aluminum Corp., 5
F.3d 10, 17 (2d Cir. 1993) (citing Maryland
Cas. Co. v. Pacific Coal & Oil Co., 312 U.S.
270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941));
Kidder, Peabody & Co. v. Maxus Energy
Corp., 925 F.2d 556, 562 (2d Cir. 1991).
“Accordingly, a touchstone to guide the
probe for sufficient immediacy and reality is
whether the declaratory relief sought relates
Additionally, the DJA states “‘[i]n a case
of actual controversy within its jurisdiction .
. . any court of the United States . . . may
declare the rights and other legal relations of
any interested party seeking such declaration,
whether or not further relief is or could be
sought.’” Dow Jones, 346 F.3d at 359
(second and third alterations in original)
(quoting 28 U.S.C. § 2201(a)). “Courts have
consistently interpreted this permissive
language as a broad grant of discretion to
district courts to refuse to exercise
jurisdiction over a declaratory action that
they would otherwise be empowered to
hear.” Id.
2.
Application
Plaintiff’s complaint asserts that a
“justiciable controversy presently exists . . .
as to whether GTEOSI may properly
terminate the lease,” (Compl. ¶ 55), and seeks
a “declaratory judgment that GTEOSI’s
obligations under the terms of the lease
remain in full force and effect,” (id. ¶ 58).
However, defendants have represented
repeatedly to this Court, both in their papers
and at oral argument, that they do not intend
to terminate the lease at this time and that
they recognize that there remains remedial
5
work to be completed. 4 (See, e.g., Defs.’
Reply Mot. to Dismiss at 1 (“GTEOSI fully
recognizes that it cannot terminate the lease
at this time.”), 5 (“GTEOSI has . . .
acknowledged that it must complete
additional work at the Property before the
Lease terminates.”).) Thus, this Court cannot
say that “there is a substantial controversy,
between parties having adverse legal
interests, of sufficient immediacy and reality
to warrant the issuance of a declaratory
judgment.” Olin, 5 F.3d at 17 (emphasis
omitted); see also Halo Optical Products,
Inc. v. Liberty Sport, Inc., No. 6:14-CV00282, 2016 WL 796069, at *2 (N.D.N.Y.
Feb. 22, 2016) (observing that DJA claim
would fail for want of case or controversy
where there was no intent to terminate
agreement); City of Parma, Ohio v. Cingular
Wireless, LLC, 278 F. App’x 636, 641-42
(6th Cir. 2008) (dismissing DJA claim
because there was no case or controversy
where both parties agreed that defendants
were not entitled to terminate agreement). At
the moment, both parties agree that the
conditions necessary for termination of the
lease have not been satisfied and, therefore,
the lease cannot be terminated.
4
Amidax, 671 F.3d at 147 (“[W]e need not ‘credit a
complaint’s conclusory statements without reference
to its factual context.’” (quoting Ashcroft v. Iqbal, 556
U.S. 662, 686, 129 S. Ct. 1937, 1953, 173 L. Ed. 2d
868 (2009))).
Plaintiff is likewise not entitled to a
declaration that, if, in the future, defendants
should attempt to terminate the lease, doing
so would be improper because defendants
have not—or will have not—complied with
the requisite preconditions for termination.5
To make such a ruling would require the
Court to assume that defendants will
eventually terminate the lease and to
speculate about the status of the three
termination preconditions at that theoretical
time.
Doing so would be especially
inappropriate because the restoration of the
property (one of the preconditions for
termination) is ongoing, so the Court would
have to make assumptions about the extent
and nature of the restoration that will have
been performed by some indefinite point in
the future when defendants terminate the
agreement. See Beautiful Home Textiles
(USA), Inc. v. Burlington Coat Factory
Warehouse Corp., No. 13 CIV. 1725 LGS,
2014 WL 4054240, at *6 (S.D.N.Y. Aug. 15,
As noted, when a defendant raises a factual challenge
to subject matter jurisdiction, the Court assumes that
all facts alleged in the complaint are true, “unless
contradicted by more specific allegations or
documentary evidence.” Amidax Trading Grp. v.
S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011). In
the complaint, plaintiff asserts that, in January 2015,
Verizon’s representative informed plaintiff that
defendants intended to terminate the lease. (Compl. ¶
28.) However, subsequent correspondence from
plaintiff in February 2015 clarifies that during this
meeting defendants did not indicate that they intended
to terminate the agreement at that time: plaintiff wrote
to defendants: “[a]t our meeting, you expressed the
opinion that your company had completed the first
phase of remediation, and was permitted to terminate
the lease. You indicated that it was the intention of
GTEOSI to terminate, but that it was not something
that would occur in the immediate future, and that you
would provide us several months’ advance warning of
this.” (See Pl.’s Opp’n, Ex. 8 at 1.) Accordingly, the
Court can consider defendants’ repeated contentions
that they are not terminating the lease at this time.
5
It appears from the briefing that the parties dispute
the scope of the remaining required remediation work
(e.g., whether defendants must remediate the entire
property or just restore the industrial building on the
property). However, neither party has provided any
meaningful legal or factual support with which the
Court could undertake to resolve this issue of contract
interpretation, and it would be unwise for the Court to
answer this question in the absence of a full record.
See Kelly v. Evolution Markets, Inc., 626 F. Supp. 2d
364, 375 (S.D.N.Y. 2009) (declaratory judgment on
issue of contract interpretation would have been
imprudent, given “paucity” of record on the matter).
Moreover, the question of remediation to the entire
property may never need to be reached by the Court
unless (and until) GTEOSI restores the industrial
building on the premises.
6
2014) (noting that courts may not issue “an
opinion advising what the law would be upon
a hypothetical state of facts” (quoting
MedImmune, Inc. v. Genentech, Inc., 549
U.S. 118, 127 (2007) (internal quotation
marks omitted))); Advanced Glob. Tech.,
LLC v. XM Satellite Radio, Inc., No. 07 CIV.
3654 (JSR), 2007 WL 3196208, at *3
(S.D.N.Y. Oct. 29, 2007) (refusing to issue
declaratory judgment that certain potential
future conduct would constitute a breach of
contract as it “involve[d] contingent issues
not ripe for adjudication”); see also Metro
Motors, LLC v. Nissan Motor Corp. in USA,
170 F. Supp. 2d 888, 890 (D. Minn. 2001)
(holding that declaratory relief was
unwarranted where the court would be
required to presume both that defendants
would terminate the agreement and what
their basis for doing so would be).
financial penalties. Hertzog, 933 F. Supp. at
249-250; Gilbert, 785 F. Supp. at 456. The
courts reasoned that the plaintiffs should not
have to first breach their lease—potentially
subjecting themselves to serious penalties—
before being allowed to seek judicial
resolution on the question of whether they
would be subjected to penalties for breach.
Hertzog, 933 F. Supp. at 250; Gilbert, 785 F.
Supp. at 459. Thus, declaratory relief was
necessary so that the parties could obtain
judicial relief “without the immediate
prospect of incurring damages.”
Atl.
Richfield Co. v. Alcan Aluminum Holdings
Ltd., 12 F. Supp. 2d 460, 461 (S.D.N.Y.
1998).
In contrast, here, the Court does not see
how plaintiff would face an imminent and
definite injury by waiting until defendants
attempt to terminate the lease before suing for
breach of contract. See Odyssey Marine
Expl., Inc. v. Unidentified, Shipwrecked
Vessel, No. 8:06-CV-1685-T-23MAP, 2012
WL 3541988, at *4 (M.D. Fla. Aug. 15,
2012) (dismissing declaratory judgment
claim where plaintiff would suffer no injury
by waiting to see if defendant actually
breached agreement), aff’d sub nom. Odyssey
Marine Expl., Inc. v. Unidentified,
Shipwrecked Vessel or Vessels, 512 F. App’x
890 (11th Cir. 2013). Nor has plaintiff
identified (either at oral argument or in its
papers) what harm it would suffer absent
immediate relief or why a breach of contract
action would not be a suitable alternate
remedy. 6 In fact, the terms of the lease
provide that it will not terminate until six
Finally, and importantly, plaintiff will not
be harmed by waiting to resolve its
contentions concerning defendants’ alleged
non-compliance if, and when, defendants
eventually seek to terminate the agreement.
For this reason, the cases relied upon by
plaintiff in arguing that declaratory judgment
may occasionally be appropriate even when
no party has taken steps to terminate the lease
(Hertzog, Calamari & Gleason v. Prudential
Insurance Co. of America, 933 F. Supp. 246
(S.D.N.Y. 1996) and Gilbert, Segall & Young
v. Bank of Montreal, 785 F. Supp. 453
(S.D.N.Y. 1992)) are inapposite. In both
cases, the plaintiff/lessee sought to terminate
its lease, but there was a dispute about
whether doing so would result in significant
Plaintiff’s opposition asserts that “plaintiff disputes
that a breach of contract action subsequent to
defendants’ termination of the [agreement] would be
an adequate remedy for the losses it will incur.” (Pl.’s
Opp’n at 17.) It then goes on to state: “[i]f defendants
are permitted to terminate the [agreement] based on a
unilateral fiat that their obligations under the
[agreement] are complete, the plaintiff will be left with
a worthless piece of property contaminated by
6
radioactive waste, and may ultimately be forced to
forfeit the property.” (Id. at 18.) However, the Court
sees no reason why these asserted harms could not be
remedied by a breach of contract action or by a
declaratory judgment action once GTEOSI provides
the requisite six months’ notice that it intends to
terminate, as noted infra.
7
months after the remediation is complete,
(see Pl.’s Opp’n, Ex. 1 at 6)7; thus, plaintiff
shall have six months during which it may
challenge defendants’ termination while still
receiving rent.
B.
1.
Legal Standard
Rule 8 of the Federal Rules of Civil
Procedure requires that pleadings present a
“short and plain statement of the claim
showing that the pleader is entitled to relief.”
Swierkiewicz v. Sorema, N.A., 534 U.S. 506,
512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).
Pleadings are to give “fair notice of what the
plaintiff’s claim is and the grounds upon
which it rests” in order to enable the opposing
party to answer and prepare for trial, and to
identify the nature of the case. Dura
Pharms., Inc. v. Broudo, 544 U.S. 336, 346,
125 S.Ct. 1627, 161 L.Ed.2d 577 (2005)
(internal quotation marks omitted) (quoting
Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct.
99, 2 L.Ed.2d 80 (1957), overruled in part on
other grounds by Twombly, 550 U.S. 544).
As noted above, a district court has
substantial discretion in determining whether
to grant a declaratory judgment. It would be
improvident to do so under the circumstances
here, given that defendants have not
undertaken to terminate the lease at this time,
and there is no harm to plaintiff in waiting to
sue defendants should they eventually seek to
terminate the lease in a manner plaintiff
deems violative of its terms. See J.C. Penney
Corp. v. Carousel Ctr. Co., L.P., 635 F. Supp.
2d 126, 135 (N.D.N.Y. 2008) (declaratory
judgment claim was “unnecessary and
inappropriate” where breach of contract
claim provided plaintiff with an adequate
remedy); see also Odyssey Marine, 2012 WL
3541988, at *4 (denying declaratory relief
where defendants had not yet breached their
agreement with plaintiff, and plaintiff could
secure his desired relief through breach of
contract cause of action and observing
“[a]bsent a threat of an immediate injury or
harm, ‘[n]o controversy exists when a
declaratory judgment plaintiff attempts to
obtain a premature ruling . . . typically
adjudicated in a future actual controversy.’”
(quoting MedImmune, 549 U.S. at 139
(Thomas, J. dissenting))).
Accordingly, plaintiff’s claim
declaratory judgment is dismissed.
Breach of Lease Claim
In Twombly, the Supreme Court clarified
this pleading standard, declaring that:
While, for most types of
cases, the Federal Rules
eliminated the cumbersome
requirement that a claimant
“set out in detail the facts
upon which he bases his
claim,” Rule 8(a)(2) still
requires a “showing,” rather
than a blanket assertion, of
entitlement to relief. Without
some factual allegation in the
complaint, it is hard to see
how a claimant could satisfy
the requirement of providing
not only “fair notice” of the
nature of the claim, but also
“grounds” on which the claim
rests.
for
The Court may resolve “disputed jurisdictional fact
issues by referring to evidence outside of the
7
pleadings, such as affidavits, and if necessary, hold an
evidentiary hearing.” Zappia Middle, 215 F.3d at 253.
8
550 U.S. at 556 n.3 (quoting Conley, 355 U.S.
at 47, and citing 5 C. Wright & A. Miller,
Federal Practice & Procedure § 1202, at 94,
95 (3d ed. 2004)). (See also supra II.B
(discussing pleading standard in connection
with a motion to dismiss).)
existence of an agreement, (2) adequate
performance of the contract by plaintiff, (3)
breach of the contract by defendant, and (4)
damages.” Eternity Global Master Fund Ltd.
v. Morgan Guar. Trust Co. of N.Y., 375 F.3d
168, 177 (2d Cir. 2004).
Conclusory
allegations that a defendant breached an
agreement are insufficient to support a breach
of contract claim. See Berman v. Sugo LLC,
580 F. Supp. 2d 191, 202 (S.D.N.Y. 2008)
(collecting cases).
Rule 8(a) is “not meant to impose a great
burden upon a plaintiff.” Dura Pharms., 544
U.S. at 347. As the Second Circuit has
observed, “[d]ismissal pursuant to the rule ‘is
usually reserved for those cases in which the
complaint is so confused, ambiguous, vague,
or otherwise unintelligible that its true
substance, if any, is well disguised.’”
Wynder v. McMahon, 360 F.3d 73, 80 (2d
Cir. 2004) (quoting Salahuddin v. Cuomo,
861 F.2d 40, 42 (2d Cir. 1988)).
2.
Application
The complaint gives only the most
cursory treatment to the breach of lease
claim. Plaintiff first provides the following
provision, which it draws from the 1992 lease
between the non-party tenant and plaintiff,
which defendants subsequently assumed in
the 2002 agreement:
However, as the Second Circuit has held,
Rule 8(a) does not indicate that “[p]laintiffs
bear no burden at the pleading stage.” Amron
v. Morgan Stanley Inv. Advisors Inc., 464
F.3d 338, 343 (2d Cir. 2006). Instead, a court
retains the power, “[w]hen a complaint does
not comply with the requirement that it be
short and plain, . . . to dismiss the complaint.”
Salahuddin, 861 F.2d at 42; see, e.g., RussoLubrano v. Brooklyn Fed. Sav. Bank, No. 06
Civ. 0672(CPS), 2007 WL 121431, at *4
(E.D.N.Y. Jan. 12, 2007). “Further, if the
court dismisses the complaint for failure to
comply with Rule 8, it should generally give
the plaintiff leave to amend.
This is
especially true when the complaint states a
claim that is on its face nonfrivolous.”
Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d
Cir. 1995).
[GTEOSI is required to]
maintain
the
Demised
Premises and make repairs,
restorations,
and
replacements to the Demised
Premises . . . as and when
needed to preserve them in
their current order and
condition, and regardless of
whether
the
repairs,
restorations,
and
replacements are ordinary or
extraordinate, foreseeable or
unforeseeable, capital or
noncapital or not the fault of
Tenant, its agents, employees,
invitees, and contractors.
To make out a claim for breach of
contract under New York law, the complaint
must allege facts which show: “(1) the
Compl. ¶ 103.) 8 Plaintiff then conclusorily
asserts “[n]otwithstanding the foregoing
8
The complaint cites two lengthy provisions from the
lease (the first pertaining to “Requirements of Law,
Fire Insurance, Floor Loads” and the second to
“Repairs”), (Compl. ¶¶ 102-03); however, most of the
contents of these two provisions appear to be
inapposite. In its opposition, however, plaintiff
excerpts from the “Repairs” provision the language
9
provisions of the Lease, the Defendants have
not taken good care of the demised premises,
and have not maintained the premises in good
substantial condition and repair during the
lease term.” (Id. ¶¶ 103-04.)
plausible factual demonstration of the basis
of Plaintiffs’ claim”); Mr. Elec. Corp. v.
Khalil, No. 06-2414-CM-GLR, 2011 WL
5900810, at *2 (D. Kan. Nov. 23, 2011)
(“Defendant’s complaint, however, does not
include sufficient factual allegations for the
breaches alleged . . . . Rather, for these
counterclaims, defendant’s complaint only
includes a conclusory allegation that plaintiff
breached a section of the Agreement. . . .
Defendant does not need to provide detailed
factual allegations. But he must provide
sufficient factual allegations that the court—
assuming all well-pleaded facts to be true—
can determine that defendant’s right to relief
is plausible.” (internal citations omitted));
Arma v. Buyseasons, Inc., 591 F. Supp. 2d
637, 643 (S.D.N.Y. 2008) (“The bare
allegations that Defendants ‘failed to make
timely payments’ and ‘failed to properly
account’ to Plaintiffs, are, without more,
conclusory. They are unsupported by any
specific facts indicating what particular
payments were late, when they were due and
made, how such late payments give rise to a
claim under the Distribution Agreement, or
how such a claim translates into damages.”);
Quik Park Felise LLC v. 310 W. 38th LLC, 13
Misc. 3d 1228(A), 831 N.Y.S.2d 349 (Sup.
Ct. 2006) (dismissing claim because
“[n]owhere in the complaint does plaintiff
explain how the lease was breached”). In
Frontline Processing Corp. v. Merrick Bank
Corp., the court dismissed the plaintiff’s
breach of contract claim because of similarly
threadbare pleadings, explaining that the
plaintiff “[did] not plead any facts at all
specifying how [the defendant] allegedly
breached the [a]greement,” but instead
merely “insert[ed] the word ‘failed’ in front
The complaint fails to identify any further
factual support for this assertion, for instance,
any necessary repairs that have not been
performed. 9 Therefore, plaintiff’s claim
must fail, as “[c]onclusory allegations that a
defendant breached an agreement are
insufficient to support a breach of contract
claim.”
Frontline Processing Corp. v.
Merrick Bank Corp., No. 13 CIV. 3956, 2014
WL 837050, at *2 (S.D.N.Y. Mar. 3, 2014);
see also Excellent Home Care Servs., LLC v.
FGA, Inc., No. 13 CIV. 05390 ILG, 2014 WL
4258992, at *2 (E.D.N.Y. Aug. 27, 2014)
(dismissing cause of action because plaintiff
failed “to include sufficient factual material
to make its claim plausible”); N. Shipping
Funds I, L.L.C. v. Icon Capital Corp., No. 12
CIV. 3584 JCF, 2013 WL 1500333, at *9
(S.D.N.Y. Apr. 12, 2013) (“Stating in a
conclusory manner that an agreement was
breached does not sustain a claim of breach
of contract.” (quoting Berman v. Sugo LLC,
580 F. Supp. 2d 191, 202 (S.D.N.Y. 2008)));
Soroof Trading Development Co. v. GE Fuel
Cell Systems, LLC, 842 F. Supp. 2d 502, 51213 (S.D.N.Y. 2012) (dismissing breach of
contract claim because complaint “does no
more than make naked assertions without any
factual enhancement to support”); Fink v.
Time Warner Cable, 810 F. Supp. 2d 633,
645 (S.D.N.Y. 2011) (dismissing breach of
contract
claim
because
“simplistic
allegations that Defendant failed to perform,
are insufficient to make the requisite
quoted above, presumably as the terms it deems
relevant to its claim. (See Pl.’s Opp’n at 11.)
claim, which instead relates to the maintenance of the
industrial building on the property. In fact, as
indicated, the contract term allegedly breached was
drawn from the original lease between plaintiff and its
non-party lessor, which was adopted in 1992, before
the remediation of the nuclear contamination even
commenced.
9
The complaint includes factual allegations
concerning the remediation of the historic on-site
nuclear contamination; however, this remediation
does not appear to be relevant to the breach of lease
10
of contract provisions.” 2014 WL 837050, at
*3. Here, plaintiff has taken the same
approach by simply identifying terms of the
lease, and then denying defendants’
performance therewith.
defect, plaintiff shall be given leave to replead.11 See Simmons, 49 F.3d at 86-87.
The inadequacy of the complaint is
underscored by the fact that, when questioned
at oral argument regarding how defendants
had “not taken good care of the demised
premises,” and “[had] not maintained the
premises in good substantial condition and
repair,” plaintiff was unable to point to any
conduct that had been alleged in the
complaint. At oral argument, while plaintiff
identified various repairs (e.g. fixing the roof
and installing a working air conditioner) that
had allegedly not been performed, these facts
(which would be sufficient to provide notice
to defendants of the nature of the claim) were
not included in the pleadings. While at the
pleading stage, its burden is minimal,
plaintiff must at least put defendants on
notice of the allegedly offending behavior.
See, e.g., Membreno v. Fu Wei, No.
215CV06322ODWRAOX,
2015
WL
5567763, at *2 (C.D. Cal. Sept. 22, 2015)
(dismissing complaint where plaintiffs failed
to support claims with any specific facts that
would allow defendants to understand the
allegations against them).
Plaintiff’s claim for injunctive relief is
also denied. Plaintiff acknowledges that “[a]
cause of action for injunctive relief . . . is not
available if the plaintiff does not have any
remaining substantive causes of action
against a defendant.” (Pl.’s Opp’n at 19.)
Thus, as plaintiff’s only substantive causes of
action have been dismissed, plaintiff’s claim
for injunctive relief cannot stand. See Chiste
v. Hotels.com L.P., 756 F. Supp. 2d 382, 407
(S.D.N.Y. 2010).
C.
Preliminary and Permanent
Injunction Claim
Accordingly, plaintiff’s claim for breach
of lease is dismissed without prejudice. 10
Given that plaintiff can correct this pleading
The Court denied plaintiff’s motion to remand,
concluding that the Court had jurisdiction over this
action pursuant to the Price-Anderson Act, 42 U.S.C.
§§ 2011 et seq. However, since the only claim being
re-pled is the breach of lease claim, which appears to
relate, not to a nuclear incident, but rather only to
building repairs, Price-Anderson is likely not
implicated. See § 2210(n)(2). Therefore, continued
federal jurisdiction may not be appropriate, and the
Court intends on conducting a telephone conference
with the parties to address this issue.
10
11
It appears that the only claim plaintiff asserts against
defendant Verizon is for breach of lease. Defendants
contend that Verizon was not a party to the lease, and
therefore, cannot be sued for its breach. (See Defs.’
Reply Mot. at 7 n.5 (citing Kamdem-Ouaffo v.
Pepsico, Inc., No. 14-CV-227 (KMK), 2015 WL
1011816, at *7 (S.D.N.Y. Mar. 9, 2015)).) Because
the breach of lease claim is being dismissed as facially
insufficient, the Court does not reach this argument.
11
IV.
CONCLUSION
For the foregoing reasons, plaintiff’s
complaint is dismissed in its entirety;
however, plaintiff is granted leave to re-plead
its claim for breach of lease within 30 days of
this Memorandum and Order. 12 Moreover,
the declaratory judgment claim is dismissed
without prejudice to re-asserting it once the
defendants take the position that the lease can
be terminated (by providing the six months’
requisite notice or communicating their intent
in some other manner).
SO ORDERED.
___________________
Dated:
March 28, 2016
Central Islip, NY
Plaintiff is represented by Robert P. Lynn, Jr.,
Kenneth L. Gartner, and Tiffany D. Frigenti,
Lynn, Gartner, Dunne & Covello, LLP, 330
Old Country Road, Suite 103, Mineola, NY
11501. Defendants are represented by John
P. Del Monaco and Nathaniel J. Kritzer,
Kirkland & Ellis LLP, 601 Lexington
Avenue, New York, NY 10022, and Robert
L. Folks, Robert L. Folks & Associates, LLP,
510 Broad Hollow Road, Suite 304A,
Melville, NY 11747.
As all of plaintiff’s claims are dismissed, the Court
need not reach defendants’ argument that, to the extent
that plaintiff’s claims are predicated on the allegation
12
that defendants have failed to properly remediate the
property, those claims are preempted by CERCLA.
12
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