Bonsey v. Kates

Filing 20

OPINION re: 7 MOTION to Dismiss filed by Mary Louise Kates, 15 CROSS MOTION to Amend/Correct 2 Amended Complaint filed by David Bonsey. For the foregoing reasons, Defendant's motion to dismiss is granted and Plaintiff's leave to amend is denied. (Signed by Judge Robert W. Sweet on 8/17/2013) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

----- ---------------------- -- --X
DAVID BONSEY,
Plaintiff;
13 Civ. 2708

- v. ­
OPINION
MARY LOUISE KATES,
Defendant.

-- ---- ---X
A P PEA RAN C E S:
Attorney for Plaintiff DAVID BONSEY
COWAN, DEBAETS, ABRAHAMS & SHEPPARD LLP
41 Madison Avenue, 34th Floor
New York, New York 10010
By: Al J. Daniel, Jr., Esq.

Attorney for Defendant MARY LOUISE KATES
KORNSTEIN WEISZ WEXLER & POLLARD, LLP
757 Third Avenue
New York, New York 10017
By:
Daniel J. Kornstein, Esq.

(RWS)

Sweet, D.J.

s

dismiss Plaintiff Mary Louise

moves the Court to

es's

Defendant David Bonsey ("

("Kates")

First Amended

r lack of personal jurisdiction

Complaint (the "Complaint")

under Fed. R. Civ. P. 12 (b) (2) and for failure to state a claim
under Fed. R. Civ. P. 12(b) (6), and to dismiss or transfer
improper venue under
1404 (a).

.

R.

C

.

P.

12(b) (3) and 28 U.S.C.

Plaintiff, in turn, cross-moves for leave to

r
§

the

Complaint.
For the fa

ng reasons, Defendants' mot

to

smiss is

granted and Plaintiff's leave to amend is deni
I. PRIOR PROCEEDINGS

The original
First Amended

laint was filed on April 24, 2013, and the
, filed two days later, was served on

Plaintiff in Cali
Defendant se

a on May 1, 2013.
interrogatories and

Plaintiff's counsel on June 24, 2013,
answers to t

interrogatories and

requests on
Defendant served
58 pages of

documents responsive to Defendant's requests on July 24, 2013.
(See Declarat

of David Bonsey, "Bonsey Decl.";

1

~~

13-14.)

II .

BACKGROUND

etts

tizen and resident of Massa

Plaintiff was a

this action was filed on April 24, 2013, but

to

Manhattan shortly thereafter and has been a resident and citizen
(Compl.

June 1, 2013.

of New York s
<J[ 5.)

iff is a tra

and an expert in

field of

De

.

7.);

(see Bonsey

violinmaker and musician,
and antique st

ng making re

instruments, incl

<J[

lar appearances as an

appraiser on the Antiques Road

ow television se

es.

(Compl.

Defendant is domiciled in California, where she has lived

<J[ 7.)

since moving from Maryland in

il of 2013.

Defendant is a

signer and wi

rmer interior

Kates, a well known cellist

•

professor at t

<J[

9.)

r of Stephen
Peabody

Conservatory of Music of Johns Hopkins University in Baltimore,
Maryland.

(Compi.

9.)

arises over an alleged

The
cello (

<J[

"cello") .

on loan to t

In August 2005,

nt over a rare

Plaintif

placed the cel

Department of Musical Instruments in the

Metropolitan Museum of Art in New York City.
Defendant that she was still interested
provided him with phot
would be of interest to

Plaintiff told

selling the cel

and provenance documents whi
ential purchasers.

During this time, Defendant found several
2

(Compi.

<J[<J[

19-20.)

ential purchasers

and, with Plaintiff's express permission, arranged for several
potential musical artists and other

ential purchasers to

examine the instrument at the Metropolitan Museum and

law offices of Plaintiff's attorney in Manhattan.

case at
(Compl.

~~

20; 25.)
he and Defendant

iff alleges t

In August 2010, PIa

on the telephone that he would be

"orally ag
agent

one

r exclus

r the showing and sale of the cello "until mutually

ed

rwise."

(Compl.

~

21.)

parties also orally agreed

PIa

According to
iff,

return for his

services, would receive a 10% commission of t
The Compla

all

did, reduce t

s that the part

oral

Defendant

sales

ceo

s intended to, but never

reement to writing.

August 2010, Plaintiff sent a

aintiff, the

Toward that end, in

tten Exclusivity Agreement to

r the purpose of "memoraliz[ing] the terms" of their

alleged oral agreement.

(Compl.

~

22.)

Defendant did not s

written agreement, but said that she sent it to her
attorney, who later claimed it was lost.
Despite this,

(Compl.

~~

21-22.)

Plaintiff believed he was and continued to act as

Defendant's exclusive agent under the alleged oral agreement.
In fact,

in September of 2010, Plaintiff recruited the Pei

Calhoun foundation as a potential buyer.

PI

ntiff's attorney

fted an option agreement between Pei Calhoun and Defendant,
3

which included
or

ker t

aintiff's representation that "the only agent

t Seller [Defendant] has used in connection with

the sale contemplated by this agreement is

d Bonsey and

[Defendant] agrees that Seller will be solely respons

for

\

payment of any commission payable to him.1f

(CompI.

<j[

3(b).)

Defendant's attorney, Mr. Varet, sent copies of this draft to
tely, the foundation withdrew from the deal

both parties.

Ult

due to an il

ss of one of its principals, but Plaintiff still

arranged for Defendant to be reimburs

for

$5,000 in le

and accounting expenses connected with the transaction.
<j[

1

(Compl.

26.)

On

I 26, 2011,

aintiff was contacted by another

potential buyer who was agreeable to the asking
wanted to examine the cello
cel

had a crack on its

cause
ck.

ce, but

'd hear a rumor that

Plaintiff informed Defendant and

Mr. Varet of this potential buyer's request, and Mr. Varet
responded that Defendant "did not want to show" the cello at
that time.

(Compl.

<j[<j[

28 31.)

However, Defendant personally

sent an email to Plaintiff on April 29, 2011 directing him to
"[p]lease dispel any false and nasty rumors regarding any cracks
whatsoever.

The cello was in perfect

with the Met and was verifi

as

tion when

"

.)

on

Defendant also

rected Plaintiff arranged to arrange for the potential buyer
4

rk City on or about

to examine the cello at the Museum in New
(Compl.

May 2, 2011.

continued to pursue t

~

31.) Biddulph, the potential buyer,
cello through Plaintiff, requesting

documents regarding the cello and asking for contact informat
the next day.

for Mr. Varet on May 25, 2011, which was provi
Biddulph con
(Comp I.

~

rmed receipt of the documents in early June 2011.

25.)

A few weeks later, still
PIa

June of 2011, Biddulph t

had been sold, and asked if Plaintiff

iff that the cel

had been well treated in connection
(Compl.
bel

~

34.)

d

As a result of

of t

th the sa

cello.

ddulph's statement, Plaintiff

s that Defendant sold her cello to one of Biddulph's

clients
all

Mayor June of 2011.

s that

(Compl.

~

36.)

Plaintiff thus

buyer was "introduced to Defendant through

Plaintiff's dealings" and owes Plaintiff commission on the sale.
In August 2011, Plaintiff asked Mr. Varet to confirm

(Id. )

r Defendant had sold the cello; Mr. Varet did not confirm
or deny

sale, but asked Plaintiff to cease any

lings with third

rties

rding the cello.

r

(CampI.

Plaintiff has to date refused to pay Defendant
commission of the sales p

ce, whi

belief, was sold for $6,000,000.

,upon
(CampI.

5

agreed 10
rmat

~

~

37.)

and

35.)

sed on these allegations, Plaintiff cla

that Defendant

breached their purported contract, whether "express or implied,"
and that

aintiff is owed $600,000, representing 10% commission

of the sales price.

Further,

intiff relies on these facts to

aims of (1) quantum meruit, seeking the same $600,000

allege

for the "reasonable value" of his "services" (Compl.

~~

44 49),

and (2) unjust enrichment, for restitution for the "value of his
services" (Compl.

~~

50-55.).

III. STANDARD OF REVIEW

On a motion to di

ss pursuant to Rule 12 (b) (6), all

I allegations in the complaint are accepted as true, and

lls v. Polar

all inferences are drawn in favor of the pleader.

Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993).
"is not whether a pIa inti
the claimant is entit

will ultimately prevail but whether
to offer

claims." Villager Pond, Inc. v.
(2d Cir. 1995)

issue

dence to support the

Town of Darien, 56 F.3d 375, 378

(quoting Scheuer v. Rhodes, 416 U.S. 232, 235-36

(1974)).
To survive a motion to dismiss pursuant to Rule 12 (b) (6),
"a comp

int must contain s

fic

nt factual matter, accepted as

true, to 'state a claim to relief that is plaus
6

e on its

face.'

" Ashcroft v.
. Corp. v.

1 A

Iqbal, 129 S.

. 1937, 1949 (2009)

(quot i

Twombly, 550 U.S. 544, 570 (2007)).

Plaintiffs must al

sufficient facts to "nudae[
~

1
J

their

claims across the line from conceivable to plausible." Twombly,
550 U.S. at 570. Though the court must accept the factual
allegations of a complaint as true, it is "not bound to accept
as true a legal conclusion couched as a

ctual all

tion."

Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555).
rul

on such a motion, "t

court may cons

In

r any written

strument attached to the complaint as an exh

t

or

incorporated in the complaint by reference, as well as documents
upon which the complaint relies
complaint."
F.3d 119, 122

which are integral to the

Subaru Distribs. Corp. v. Subaru

Am.,

Inc.,

425

(2d Cir. 2005).

B. Rule
On a motion to dismiss for lack of
pursuant to Rule 12 (b) (2), the

rsonal juri

aintiff bears t

ction

burden of

showing that the court has jurisdiction over the moving
defendant(s). Metro. Li
F.3d 560, 566

Ins. Co. v. Robertson-Ceco Corp., 84

(2d Cir.1996). To satisfy that burden where the

rt

s have conducted juri

evident

ry hearing has

en

ctional discovery but no
ld, a plaintiff need only rna

prima facie showing of personal jurisdiction. Metro. Li
7

a

Ins. ,

84 F.3d at 567. Such a prima fa

by "an

e showing is satisfi

averment of facts that, if credit

ultimate trier of

by [

ctJ, would suffice to establish jurisdiction over the
defendant." Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d
194, 197

(2d Cir. 1990).
, a court must construe

In reviewing a Rule 12 (b) (2) mot

all pleadings and affidavits "in the light most favorable to t
plaintiff and doubts are resolved in the

aintiff's favor,

notwithstanding a controverting presentation by the moving
Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80

party." A.I. Tra
(2d

r.1993); accord Metro.

Res. Corp. v.

fe Ins., 84 F.3d at 567; Landoil

exander & Alexander Servs., Inc., 918 F.2d 1039,

1043 (2d Cir. 1990). However, a plaintiff may not rely merely on
conclusory statements or allegations to est

lish jurisdiction.

Ball, 902 F.2d at 197.
IV.

EXERCISE OF PERSONAL JURISDICTION OVER DEFENDANT

In a federal diversity case such as this, the resolution of
issues concerning

rsonal juri

of the state in which the

ction are governed by the law

strict court sits.

Carozzi N. Am., Inc., 286 F.3d 8 , 84

(2d Cir. 2001); CutCo

Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d
Accordingly, New York law controls
action.
8

DiStefano v.

sonal juri

r.

1986).

ction

this

A. Jurisdiction Under CPLR 302 a
CPLR 302(a) (1) permits a court to exercise jurisdiction
over a person or entity that "in person or through an agent ...
transacts business within the state or contracts anywhere to
supply goods and services
(McKinney's 2004).

the state."

N.Y. CPLR

§

302(a) (1)

Specifically, jurisdiction under CPLR

302 (al (1) is proper where:

(1) the

fendant has transacted

business in New York; and (2) the cause of action arises out of
the subject matter of the transacted business. CutCo Indus.,

Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986).
First, a non-domiciliary transacts business under CPLR
302(a) (1) where she "purposefully avails [herself] of the
privilege of conducting activities within [New York], thus
invoking the benefits and protections of its laws." CutCo

Indus., Inc., 806 F.2d at 365 (quoting McKee Elec. Co. v.
Rauland-Borg Corp., 20 N.Y.2d 377, 382 (1967)).

A court must

look to the totality of the circumstances in deciding whether
the

fendant has engaged in such purposeful activity. CutCo

Indus., 806 F.2d at 365.

Second,

court must find "some

articulable nexus between the business transacted and the cause
of action sued upon." McGowan v. Smith, 52 N.Y.2d 268, 272

1981); accord Kreutter v. McFadden
(N.Y. 1988)

(N.Y.

1 Corp., 71 N.Y.2d 460, 467

(requiring a "substantial relationship between the
9

transaction and the claim asserted

see also PDK Labs, Inc. v.

fl
);

, 103 F.3d 1105, 1109 (2d Cir.1997).

Freidl

In a breach of

contract case, the pivotal inquiry is "whether the defendant has
relation to the

performed purposeful acts in New York
contract.fI A.C.K.

ts, Inc. v. Doug Wilson Enters., 661

F.Supp. 386, 390 (S.D.N.Y. 1989).
mail,

telephone calls,
insuffi

Though contacts through

by facs

ent to confer personal j

Customs Assoc., Inc. v.
(S.D.N.Y. 1995)

Ie, are usually

sdiction,

see International

Motor Co., 893 F.Supp. 1251, 1261

(collecting cases), "one need not

sent in order to

subject to the juri

r, particularly in

r CPLR 302

physically

ction of our courts

s day of instant long-

range communications, one can engage in extensive purposeful
in the State. fI

activity here without ever actually setting

Pa

-Bernet Gall

es, Inc. v. Franklyn,

26 N.Y.2d 13 (1970)

(citing International Shoe Co. v. Washington,

326

u.s.

310, 31

17 (1945)).
In this case, Plaintiff herself

through the actions of

Mr. Varet "performed purposeful acts

New York in relation to

the contract. fI

A.C.K. Sports, Inc.,

661 F. Supp. at 390.

property at issue in the contract, and performance under
contract in securing a buyer, was cente
Plaintiff's proposed contract was
10

in New York.

fted and sent to

The

Defendant's attorney in New York, and all potential buyers found
by

aintiff were directed to examine the cello in New York,

including at Mr. Varet's off

s in New York.

Further,

Defendant sought out a New York attorney, and dealt with the
cello exclusively in New York, refusing to have the cello moved
for inspection, for the entire six year pe
purported agreement.

od at issue in the

Defendant's physical presence in New York

is thus irrelevant, see Chloe v. Queen Bee of Beverly Hills,
LLC,

616 F.3d 158, 166-170 (2d Cir. 2010)

("a

fendant need not

be physically present in New York to transact business there
within the meaning of the first clause of section 302(a) (1)
."), as she was still

an "active participant" in selling

cello, which was in New York.
N.Y.S.2d at 340.

Parke-Bernet Galleries, Inc.,

308

Moreover, she was "directly assisted in this

activity by [Mr. Varet], who was physically present."
Whether we "

r

Id.

ew this case as one in which [Kates had personally

engaged in purposeful activity here or as one in whi

the

language of section 302-[sJhe had engaged in such activity
'through an agent' present here, there is ample basis

r

concluding that the [D]efendant is subject to the jurisdiction"
wi

respect to the cause of action arising out of the sale of

the cello.

Id.

11

A. Due Process
In

r the New York long-arm

ning

ion to

statute extends the state's juris

ction over a non-domiciliary

defendant, a court must also dete

ne whether exercise of this

jurisdiction comports with federal

process.

Lambert v. Fiddler Gonzalez & Rodri

z, 305 F.

Cir. 2002).

Bank Brussels
120, 127

Though the meaning of "transacting

(2d

siness" under

section 302 (a) (1) "overlaps significantly" with t

minimum-

contacts due-process test, New York's long-arm statute
encompasses a wi
doctrine.

r range of act

ty than

Best Van Lines, 490 F.3d at 247 48

ec. Co. v. Ra

(citing McKee

and-Borg Corp., 20 N.Y.2d 377, 382

satisfy due process, a court must therefore
ional two-st

analys is:

(1967)).

To

rtake an

(1) a "minimum contacts" i

and (2) a "reasonableness" inquiry. Bank
F.

minimum-contacts

ry;

s Lambert, 305

at 127; Metro. Life Ins., 84 F.3d at 567.
First,

r the "minimum contacts" inquiry, a court must

ermine whether the def
[with the forum]
s not of

. such

the maintenance of t

traditional notions of

justice.'" U.S.

Titan, Inc. v. Guangzhou

241 F.3d 135, 152
U.S. 783, 788

"has 'certain minimum contacts

(2d Cir.2001)

(1984))

suit

ir play and s

tantial

Hua

g Co.,

(quoting Calder v. Jones, 465

(alteration in original and internal
12

cations omitted).

To establish minimum contacts

York, a plaintiff must show t

New

t the moving de

"purposefully availed" himself of the privile
iness In New York
hauled

o court

"should reasonably antic

re." World-Wide Volkswagen Corp. v.

Woodson, 444 U. S. 286, 297

King Corp. v.

(1980); accord

Rudzewicz, 471 U.S. 462, 475 (1985)
some act by which the de
pr

(requiring that "there be

purposely avails itself of the

lege of conducting activities within
king t

e being

forum State, thus

benefits and protections of its laws").

Under the second st

of the

process analysis, a court

must determine "whether the assertion of
comports with 't

ional notions of

rsonal jurisdiction
ir play and substantial

justice'-that is, whether it is reasonable under the
circumstances of the particular case." Metro.

Li

Ins., 84 F.3d

at 568 (quoting Int'l Shoe, 326 U.S. at 316). In evaluat
reasonableness, courts must cons

r the following f

"(1) the burden that the exercise of j
the defendant;

factors:

sdiction will impose on

(2) the interests of the forum state in

adjudicating the case;

(3) the plaintiff's interest in obta

convenient and effective reI

f;

(4) t

interstate judicial

system's interest in obtaining the most ef

ent resolution of

controversy; and (5) the shared interest of
13

states in

rthering substantive social policies." Metro. Life Ins., 84
F.3d at 568; accord Asahi Metal Indus. Co. v. Superior Court,
480 U.S. 102, 113-14 (1987); Burger King, 471 U.S. at 476-77;
Bank Brus

, 305 F.3d at 129.

s

Exercising personal jurisdiction over Defendant comports
with the additional requirements of due process.
actions and the act

Through

r

of Mr. Varet, Kates purposely availed

herself to the privileges of doing business with Plaintiff in
New York and could reasonably ant
actions in a New York court.
297.

ipate having to defend her

World-Wi

Defendant placed the cello at issue

Volkswagen, 444 U.S. at
the contract in New

York, hired a New York attorney to assist with the process, and
had buyers come to New York to examine the cello for potential
purchase.

As a result, Defendant has sufficient "minimum

contacts" with New York such that the exercise of this Court's
jurisdiction over her "does not offend traditional notions of
ir play and substantial justice." Ca
Further,

, 465 U.S. at 788.

ven that the cello was held in New York for the six

year period at issue, that Defendant's lawyer is based in New
York, that

I potential legal documents were sent to Mr.

Varet's offices

New York, and that most witnesses who viewed

the cello came to New York to do so, exercise of jurisdiction
over Kates is reasonable.
14

V. BREACH OF CONTRACT CLAIM

A.

the Necess

s

The Complaint "raises the right to relief above the
speculative level" regarding the alleged agreement for the
purposes of a motion to dismiss.
662

Aschcroft v.

(2009); see also Kelly-Brown v. Winfrey,

(2d Cir. 2013)

Iqbal,

560 U.S.

717 F.3d 295, 297

(at the motion to dismiss phase, the Court must

'accept all factual allegations in the complaint as true,
drawing all reasonable inferences
Though Plaintiff cannot recall t

favor of plaintiff.").
exact date of the purported

oral agreement, certain documents confirm t

parties' intention

that Bonsey would act as exclusive agent in seeking a buyer
the cello.

(Compl.

'J['J[

22, 24, 26, 31.)

T

draft option

purchase agreement, for instance, prepared by Defendant's
attorney in September of 2010 contained the

resentation that

"the only agent or broker that Seller (Defendant] has used in
connection with the sale contemplated by this agreement is David
Bonsey and [Defendant] agrees that Seller will be solely
responsible for payment of any commission payable to him."
(Compl.

'J[

26.)

Further,

intiff throughout the s

ar

period actively recruited numerous buyers, and communicated
directly with Mr. Varet and Defendant regarding the potential
purchase.

In addition, Mr. Varet in August of 2011 told
15

ng the cello,

Plaintiff to cease contacting third parties rega

Plaintiff previously was

elucidating an understanding

(Compl.

cello.

~

se facts are

together,

35.) Ta

tween the parties

sufficient to establish an understanding

sale of t

Plaintiff was to assist in

De

cello, and

Plaintiff a commission if the cello were

would

sold through these ef

rts.

B. The Oral

is Barred

Statute of Frauds

However, "a service contract of indefi
which one

the sale of the

part, for assisting

responsible, at least

te duration,

1n

rty agrees to procure customers, or accounts, or

rs on behalf of the second party, is not by its terms
performable within a
signed by

ar

party to

hence must be in writ
charged -- since per

rmance is

dependent, not upon the will of the parties to
on that of a third
361, 361
701.

rty."

It 1S undisputed that
parties.

specific buyer, it

term Exclus
asserts as the

re was no

Though the

s intent by the
for

contract,

Chisholm,

't 1984)i see also General Obli

(2d

between

McCollester v.

ft opt

and

rmal,

104 A. D. 2d

ions Law, §5­
si

d contract

purchase a

ement

ies to pay commission to Plaintiff
ils to show evidence of a longer

ty Agreement between the parties that Plaintiff
sis for his breach of contract cIa
16

See

--------~---------~-------

McCollester,

104 A.D. at 361 (documents which do not "contain

ssly or by reasonable implication all of the material terms
of the agreement, including the rate of compensation", fail to
meet the essential elements of a memorandum sufficient to
satis

Statute of Frauds).

t

In addition, though the sale of

cello could have been completed within one year, "performance
[wa]s dependent, not upon the will of the parties to the
contract, but on that of a third party" bu
A.D. at 361.

r. McCollester,

104

Where "the accrual of commission is dependent upon

the will of a third party and not upon the parties to the
contract, the oral commission agreement is, by its terms,
incapable of completion within one year" and barred by the
Statue of Frauds.

Intertex Trading Corp. v.

CV, 754 F. Supp. 2d 610,
Zwirner,

613

Ixtaccihuatl S.A. de

(S.D.N.Y. 2010); see also Robins v.

713 F. Supp. 367, 375 (S.D.N.Y. 2010)

agreement between the

rt

s call[s]

(Where an "oral

r performance of an

indefinite duration and [can] only be terminated within one year
by its breach during that period," it is void under

Statute

of Frauds); Koret, Inc. v. RJR Nabisco, Inc., 702 F. Supp. 412,
414 15 (S.D.N.Y.1988)

("An oral contract that is 'terminable

within one year only upon a breach by one of the part

s' is not

enforceable under New York law." (citations omitted)).

The oral

agreement as described in the Complaint, to continue until
17

"mutually agreed otherwise," is therefore invalid and
Plaintiff's breach of contract claim fails.
VI .

QUANTUM MERUIT OR UNJUST ENRICHMENT CLAIMS

In the alternative to breach of contract,

Plaintiff pleads

claims for quantum meruit or unjust enrichment.

However, "it is

well settled in New York [] that a plaintiff may not assert an
unjust enrichment claim to circumvent the statute of frauds."
Intertex Trading Corp.,

754 F. Supp. 2d at 616.

See, e.g.,

Minichiello v. Royal Business Funds Corp., 18 N.Y.2d 521, 525
(1966)

(holding that section 5-701 (a) (10)

"make [s] clear that

the contracts required to be evidenced by writing include a
contract or agreement for the compensation of a business broker
. and that the requirement cannot be avoided by an action
for compensation in quantum meruit")

(quoting N.Y. Legis Doc.,

1964, No. 65(f)); Tower International, Inc. v. Caledonian
Airways, Ltd., 133 F.3d 908, 1998 WL 3614, *3
(table)

(2d Cir. 1998)

(noting that, in order to succeed on an unjust

enrichment claim, the plaintiff has to prove the common law
elements of unjust enrichment and that the writing requirement
of the statute of frauds is satisfied); Zeising v. Kelly, 152
F.Supp.2d 335, 345

(S.D.N.Y. 2001)

("Plaintiff cannot simply

restate his contract claim, which is barred by the Statute of
Frauds, in an attempt to obtain damages in a quasi-contractual
18

claim.").

Plainti

, therefore, may not simply rely on the

doctrine of unjust enrichment or quantum meruit to recast a
contract action t

t would otherwise be barred by the statute of

frauds, and as such these claims are dismissed.
Verizon New YorkI'

Inc.,

plaintiff's other
cIa

See Corsello v.

18 N.Y.2d 777, 790 (2012)

("if

ims are defective, an unjust enrichment

cannot remedy the

fects.") .

VII. VENUE

28 U.S.c.
dist

§

1391(b) (2) provides for venue in a "judicial

ct in which a substantial part of the events or omissions

giving

se to the claim occurred, or a substantial part of

property that is the subject of the action is situated.
In this case, a substantial
the cIa

rt of

occurred in New York.

events

"

ing rise to

Despite Defendant's contentions

to the contrary, Plaintiff's proposed contract was sent to
Defendant's attorney in New York, and the draft option contract
evidencing some type of agreement between the parties was
dra

ed by Mr. Varet in New York.

cello

self was

New

York, and all potential buyers came to view and examine the
cel

in New York.

Further,

aintiff

0

en dealt with

Defendant's attorney regarding the alleged agreement, and Mr.
Varet is located
PIa

New York.

With respect to transfer,

iff has made clear that he will accommodate Defendant's
19

ct to the taking and location

personal situation with re
depositions.

Venue is there

intiff's c

VIII.

ims are

re proper.

smissed,

s issue is irrelevant.

LEAVE TO AMEND IS DENIED

In the event the Court finds

ficiencies in Plaintiff's

pleadings, Plaintiff also moves for

bears the burden of establi

See Blaski

cz v.

137-38 (E.D.N.Y. 1998)

County of

, 29 F.

.2d 134,

(citing Harrison v. NBD Inc., 990 F.Supp.
amendment to a pleading

ile if it could not withstand a motion to dismiss

e 12 (b) (6)." Oneida

pursuant to

City

re the Defendant,

ing that an amendment would

179, 185 (E.D.N.Y. 1998)). "A propos
would be

to amend.

a motion to amend,

The party oppos

futile.

In any event, because

an Nation of New York v.

Sherrill, 337 F.3d 139, 168

Ricciuti v. N.Y.C.
1991)). There

(2d Cir. 2003)

(citing

Transit Auth., 941 F.2d 119, 123 (2d Cir.

, "[f]or the purposes of evaluating futility,

the 12(b) (6)

st

rd is applied: all well pleaded allegations

are accept

as true, and all

rences are drawn in favor of

eader." E*Trade Fin. Corp. v. Deutsche Bank AG, 420
F.Supp.2d 273, 282

Molecular

(S.D.N.Y. 2006)

., 12 F.3d 1170, 1174

20

ting Mills v.
(2d Cir. 1993)).

Polar

Here,
merely not
ual

aintiff did not submit a propos
t

amendment, and

t "Plaintiff can readily provide additional

tails to [the] complaint if deemed necessary."

(Plaintiff Memorandum, "Mem."; at 23.)

Without a proposed

pleading, courts have often denied leave to amend, as it is
impossible to determine whether the plaintiff's "claim could
survive a motion to dismiss, whether it was futile, or whether
it was

ivolous." Rosendale v.

(2d Cir. May 20, 2003)

Iuliano, 2003 WL 21182134, at *3

(affirming District Court's denial of

leave to amend where Plaintiff failed to submit proposed
amendment); see also Dougherty, 282 F.3d at 87 88 (noting that
futility of amendment will serve to prevent amendment) .
Further, in this case, Plaintiff has already alleged that the
oral agreement was to remain "until mutually agreed otherwise,"
which vo
additional

the agreement under the statue of frauds.
cts can remedy

circumstances, Plaintiff's

See, e.g.,

is flaw.
st

No

Under these
leave to amend is denied.

State Trading Corp. of India, Ltd. v.

Assuran
(imputing lack

ingen Skuld, 921 F.2d 409, 418
good

(2d Cir.1990)

ith to plaintiff in part because

plaintiff "did not file a proposed amended complaint" when
sought leave to amend);

Twohy v. First Nat'l Bank of Chicago,

758 F.2d 1185, 1197 (7th Cir.1985)
21

(observing that "normal

procedure is for the proposed amendment or new pleading to be
submitted" with t

motion for leave to amend, and that

to do so "indicates a lack of diligence and good faith").

22

ilure

IV.

CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss is

granted and Plaintiff's leave to amend is deni
It is so ordered.
New York, NY
August !
2013

1'

U.S.D.J.

23