Press Access LLC v. 1-800 Postcards, Inc.
Filing
36
MEMORANDUM OPINION AND ORDER: Defendant Postcards has moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b) (6). For the reasons set forth below, defendant's motion is GRANTED IN PART and DENIED IN PART. Accordingly, defendant's motion with respect to the First Cause of Action of Breach of Contract is GRANTED with prejudice.Plaintiff has failed to state a claim and defendant's motion to dismiss the Second Cause of Action is GRANTED without prejudice. D efendant's motion to dismiss the Third Cause of Action is therefore GRANTED without prejudice. Accordingly, defendant's motion with respect to the Fourth Cause of Action is therefore DENIED. Plaintiff is given 30 days to replead the Second and Third Causes of Action. SO ORDERED. (Signed by Judge Katherine B. Forrest on 12/13/2011) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC't~________~~~11
DATE FILED: 1 3 DEC 2011
--------------------------------------X
PRESS ACCESS LLC,
11 Civ. 1905 (KBF)
Plaintiff,
MEMORANDUM OPINION
& ORDER
-v-
1-800 POSTCARDS, INC.,
Defendant.
--------------------------------------x
KATHERINE B. FORREST, District Judge:
On March 18, 2011, plaintiff Press Access LLC commenced an
action against defendant 1-800 Postcards, Inc.
("Postcards") for
Breach of Contract (First Cause of Action), Account Stated
(Second Cause of Action), Unjust Enrichment (Third Cause of
Action) and Replevin (Fourth Cause of Action).
All four causes
of action relate to the sale of a large printing press to
Postcards in 2008.
Defendant Postcards has moved to dismiss the
Complaint pursuant to Federal Rule of Civil Procedure 12(b) (6).
For the reasons set forth below, defendant's motion is GRANTED
IN PART and DENIED IN PART.
THE STANDARD OF REVIEW
In determining whether a complaint fails to state a claim
under Rule 12(b) (6), this Court accepts all well plead factual
allegations as true.
Cir. 2010).
Kuck v. Danaher, 600 F.3d 159, 166 (2d
The Court must not consider factual matters outside
of a complaint unless the parties are given notice that the
motion to dismiss is being converted to a motion for summary
judgment under Rule 56 and are afforded an opportunity to submit
additional affidavits.
Max Impact, L.L.C. v. Sherwood Grp.,
Inc., No. 09 Civ. 902 (LMM), 2011 WL 507600, at *3 (S.D.N.Y.
Feb. 14, 2011).
Here, both parties have submitted affidavits
concerning assertions of fact outside of the Complaint.
The
Court is not converting the motion to one for summary judgment
and has not and will not consider such affidavits in connection
with this motion.
The Court has considered only the facts as
asserted in the Complaint, which for purpose of this motion it
assumes as true, along with the three attachments to the
Complaint:
a UCC Financing Statement dated April 7, 2009 (Ex.
A), the contract between the parties dated October 21, 2008 (the
"Contract")
(Ex. B) and a "Statement of Account"
(Ex. C).
RELEVANT FACTUAL ALLEGATIONS
On October 21, 2008, the parties entered into a contract
for the purchase and sale of a large, used, printing press
called a "Heidelberg SM XL 15-5 +L".
(Compl. , 2.)
Plaintiff
filed a UCC-1 Financing Statement Form with the Secretary of
State of New York on April 7, 2009.
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The contract between the parties provided for payments upon
deposit, delivery and completion of installation.
Ex. B.)
(Id. ~ 10i
Plaintiff does not allege when the equipment was
installed but the face of the Statement of Account states the
one year warranty expired on December 22, 2009.
(Ex. C.)
Installation therefore occurred no later than December 22, 2008.
This is consistent with the date of interest payments accruing
as of December 2008.
(Ex. C.)
On its face, the Contract provides, "Any action for breach
of this contract arising out of the sale of the equipment must
be commenced within one year after the cause of action has
occurred or shall therefore forever be barred."
(Ex. B.)
Plaintiff alleges that "Defendant defaulted under the terms of
the Agreement by failing to make the payments .
. as set forth
(Compl. ~ 15.)
Paragraph 10 of
herein in Paragraph Number 10."
the Complaint refers to the payments due as deposit and upon
delivery and installation.
Accordingly, breach of the Contract
occurred no later than December 22, 2008.
DISCUSSION
Defendant urges the Court to dismiss all four causes of
action on the theory that each "arise from the exact same
alleged breach of contract.1I
(Def. Mem. at 5.)
Defendant
argues that the four causes of action are therefore barred by
the one year limitation on actions contained in the Contract.
3
{Id.)l
Defendant has constructed a bridge too far: as set forth
below, the First Cause of Action, based upon a breach of the
Contract is barred by explicit contractual language contained in
the Contract itself requiring actions for breach to be commenced
within one year of the breach.
(Compl. , 9; Ex. B.)
Plaintiff
alleges in Paragraphs 10 and 15 of the Complaint that default
occurred when defendant failed to make timely payments as
required by the Contract.
Accordingly, any action for breach of
contract had to be brought no later than December 2009.
This
action was not commenced until March 2011.
In its memorandum in opposition to this motion, plaintiff
also urges that there are facts suggesting a "reaffirmation" of
the Contract, or that defendant should be equitably estopped
from enforcing the contractual agreement that actions for breach
must be brought within one year of a breach.
(Pl. Mem. at 12.)
These arguments are contrary to the clear allegations of default
contained in Paragraphs 10 and 15 of the Complaint.
Moreover,
there are no facts alleged in the Complaint suggestive of any
"reaffirmation" or other facts that would support a claim of
equitable estoppel.
The law is clear that a plaintiff cannot
amend a complaint with information contained in an opposition to
The Contract explicitly states it is governed by Alabama law.
(Ex. B.)
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a motion to dismiss.
In re Livent, Inc. Noteholders Sec.
Litig., 151 F. Supp. 2d 371, 432 (S.D.N.Y. 2001).
Accordingly, defendant's motion with respect to the First
Cause of Action of Breach of Contract is GRANTED with prejudice.
Defendant's argument that dismissal of the contract claim
must necessarily result in dismissal of the remaining claims is
without merit.
The remaining claims rise or fall upon the law
and the adequacy of the allegations within the four corners of
the Complaint.
This Court starts its analysis by determining
which law applies to the remaining non-contract causes of
action.
Federal courts sitting in diversity look to the choice-ofÂ
law rules of the forum state.
12 (2d Cir. 1998).
Curley v. AMR Corp., 153 F.3d 5,
"If the law of more than one jurisdiction is
potentially applicable to a contract dispute, New York courts
undertake 'grouping of contacts' analysis to determine the
governing law."
Int'l Bus. Machs. Corp. v. Liberty Mut. Ins.
Co., 363 F.3d 137, 143 (2d Cir. 2004).
"Choice of law does not
matter, however, unless the laws of the competing jurisdictions
are actually in conflict."
rd.
Here, the parties agree that
there is no significant conflict between New York and Alabama
law on the principles that decide this case.
7; Def. Reply Mem. at 3.)
(Pl. Opp. Mem. at
Even if the parties did not agree,
though, New York law would apply under the "grouping of
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contacts
U
analysis for at least the following reasons:
the
Contract appears to have been signed in New York (see Ex. B),
defendant Postcards is a New York domicile (Compl. ~ 7) and the
subject matter of the Contract--i.e., the printing press--was
delivered to New York (id.
~
14; Ex. B).
See 2004 Stuart Moldaw
Trust v. XE L.I.F.E., LLC, 374 F.App'x 78, 81 (2d Cir. 2010).
Accordingly, the law of New York applies.
For the reasons set forth below, plaintiff has not
adequately pled a claim for account stated.
Under New York law, a plaintiff must allege three elements
for an account stated claim:
(1) an account was presented,
(2)
it was accepted as correct and (3) the debtor promised to pay
the amount stated.
See Nat'l Econ. Research Assoc., Inc. v.
Purolite "C" Corp., No. 08 Civ. 7600 (PGG) , 2011 U.S. Dist.
LEXIS 24458, at *7 (S.D.N.Y. Mar. 10, 2011).
The account stated
therefore becomes a new agreement between the parties, and the
right to recovery in no way depends upon the obligation
originally stated.
Hall v. New York Bick & Paving Co., 95 A.D.
371, 373 (N.Y. App. Div. 1904).
In the Complaint, plaintiff alleges only the first two
elements of an account stated cause of action, and fails
entirely to plead the third.
Plaintiff has failed to state a
claim and defendant's motion to dismiss the Second Cause of
Action is GRANTED without prejudice.
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For the reasons set forth below, plaintiff has not
adequately pled a claim for unjust enrichment.
Under New York law, claims for unjust enrichment and breach
of contract are mutually exclusive.
See Clark-Fitzpatrick, Inc.
v. Long Island R.R. Co., 70 N.Y.2d 382, 388 (N.Y. 1987) ("The
existence of a valid and enforceable written contract governing
a particular subject matter ordinarily precludes recovery in
quasi contract for events arising out of the same subject
matter.
A 'quasi contract' only applies in the absence of an
express agreement, and is not really a contract at all, but
rather a legal obligation imposed in order to prevent a party's
unjust enrichment.")
Since it is undisputed that the Contract
is an enforceable contract (including enforcement of the one
year limitation on actions for breach), plaintiff has failed to
state a claim for unjust enrichment.
Defendant's motion to
dismiss the Third Cause of Action is therefore GRANTED without
prejudice.
The remaining count for Replevin (Fourth Cause of Action)
is properly plead and within the applicable statute of
limitations.
The one year contractual limitation on the breach
of contract action does not constitute a "statute of
limitations.
II
To the extent the parties based arguments on
application of the one year contractual limitation to the
Replevin claim, those arguments are without merit.
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Accordingly, defendant's motion with respect to the Fourth
Cause of Action is therefore DENIED.
Plaintiff is given 30 days to replead the Second and Third
Causes of Action.
SO ORDERED:
Dated:
New York, New York
December 13, 2011
KATHERINE B. FORREST
United States District Judge
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