Dominick & Dominick LLC v. Deutsche Oel & Gas AG

Filing 72

MEMORANDUM AND ORDER granting 61 Motion for Summary Judgment. The Court denied Dominick's motion for summary judgment on its breach of contract and good faith and fair dealing claims (Memorandum and Order, August 15, 2016 (the "Memoran dum and Order")). (Dkt. 56.) Deutsche now moves for summary judgment on all of Dominick's claims pursuant to Rule 56, Fed. R. Civ. P. Deutsche's motion for summary judgment (Dkt. 61) is GRANTED. All pending motions are terminated. The Clerk shall enter final judgment for the defendant and close the case. (As further set forth in this Order.) (Signed by Judge P. Kevin Castel on 8/24/2017) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DOMINICK & DOMINICK LLC,
Plaintiff,
-against-

14-cv-06445 (PKC)
MEMORANDUM
AND ORDER

DEUTSCHE OEL & GAS AG,
Defendant.
-----------------------------------------------------------x
CASTEL, Senior District Judge:
Dominick & Dominick LLC, now known as Dominick & Dickerman, LLC,
(“Dominick”) brings this action against Deutsche Oel & Gas AG (“Deutsche”) for breach of
contract, breach of the covenant of good faith and fair dealing, and unjust enrichment.
Dominick, a financial services institution, entered into an agreement with Deutsche, a German
energy company, to provide Deutsche with assistance in acquiring funding for an energy
development project in Alaska (the “Agreement”). Dominick alleges primarily that Deutsche
breached the terms of the Agreement when it failed to pay Dominick a $2.9 million dollar fee
after Deutsche closed a funding deal with a third-party investor, Energy Capital Partners
(“ECP”). The Court denied Dominick’s motion for summary judgment on its breach of contract
and good faith and fair dealing claims (Memorandum and Order, August 15, 2016 (the
“Memorandum and Order”)). (Dkt. 56.)
Deutsche now moves for summary judgment on all of Dominick’s claims
pursuant to Rule 56, Fed. R. Civ. P. For reasons to be explained, Deutsche’s motion for
summary judgment is granted.

BACKGROUND
The following facts are undisputed except where otherwise noted. All reasonable
inferences are drawn in favor of Dominick, as the non-movant. Costello v. City of Burlington,
632 F.3d 41, 45 (2d Cir. 2011).
At all times relevant to this action, Deutsche was a German holding company
based in Stuttgart, Germany. (Plaintiff’s Counterstatement of Material Facts (“Pl. 56.1”) ¶ 3.)
Through its wholly-owned subsidiaries Cornucopia Oil and Gas Company, LLC (“Cornucopia”)
and Furie Operating Alaska, LLC (“Furie”), Deutsche engaged in the development of oil and gas
resources in Cook Inlet, Alaska. (Pl. 56.1 ¶¶ 6, 8-9.) In or around November 2013, Furie
obtained permits to construct an offshore production facility in Cook Inlet, which gave Furie the
opportunity to commence operation of a new natural gas field. (Pl. 56.1 ¶ 12.) Deutsche and its
subsidiaries sought to raise substantial capital through outside investors in order to advance this
new project. (Pl. 56.1 ¶ 4j.)
On October 1, 2013, Deutsche formally engaged Dominick, a New York-based
financial services institution, to assist Deutsche in procuring that funding (the “Agreement”).
(Pl. 56.1 ¶¶ 1, 4, 13, 15.) The written Agreement between Deutsche and Dominick provided that
Dominick would be Deutsche’s “exclusive advisor on all Funding transactions in the United
States.” (Declaration of William R. Fried (the “Fried Decl.”) Ex. 11, Clause 5.) Dominick
agreed to:
[U]se its commercially reasonable efforts to assist [Deutsche] to:
(a) secure up to Three Hundred Twenty Five Million Dollars
($325,000,000) in primarily debt-based funding (and/or eventually
equity-based funding) upon terms acceptable to [Deutsche]
(“Funding(s)”); and, (b) undertake such other activities as the
parties may from time-to-time mutually agree and determine
(“Financial Services”). Dominick shall provide such Financial

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Services to [Deutsche] in such form, manner and place as
[Deutsche] may reasonably request.
(Fried Decl. Ex. 11, Clause 1.) In exchange, Dominick received an “Initial Advisory Fee” of
$15,000, which was for preliminary work including “completing requisite due diligence review
of [Deutsche] and its operations, [and] developing a valuation model,” as well as “otherwise
positioning [Deutsche] for Funding activities.” (Fried Decl. Ex. 11, Clause 3.) The Agreement
also entitled Dominick to other “Funding Fee[s],” i.e. commissions, calculated as a certain
percentage of each “Funding” closed. (Fried Decl. Ex. 11, Clause 3.)
The Agreement provides that New York law governs the contract, “without giving
effect to its conflicts of law principles.” (Fried Decl. Ex. 11, Clause 12.)
By the middle of 2014, Dominick procured term sheets for Deutsche on two
possible funding transactions with two different investors: The Campo Group (“Campo”) and
Freepoint Commodities LLC (“Freepoint”). (Dkt. 46 ¶¶ 44, 52.) For a variety of reasons,
neither the Campo nor Freepoint deals ever closed.
During the same time period, approximately June to July 2014, Deutsche and its
subsidiaries negotiated and finalized a funding deal with ECP for $160 million. (Fried Decl. Ex.
28.) The deal provided operational funding directly to Furie, but required Deutsche and its other
affiliates to fully guarantee the transaction. (Fried Decl. Ex. 26.) On July 15, 2014, after ECP
publically announced the deal (Fried Decl. Ex. 28), Dominick requested a draft copy of the ECP
term sheet to present to Campo, who, according to Dominick, remained a potential investor,
(Declaration of Gil Feder (the “Feder Decl.”) Ex. P.) Deutsche did not provide Dominick with
the ECP term sheet. About ten days later on July 24, 2014, Dominick sent Deutsche another
email requesting a copy of the ECP agreement, but this time Dominick attached an invoice for a
$2.9 million fee arising out of the ECP transaction. (Feder Decl. Ex. R.) Shortly after receiving
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that invoice, Deutsche terminated the Agreement with Dominick and explicitly disputed
Dominick’s entitlement to any “Funding Fee” from the ECP deal. (Feder Decl. Ex. S.)
PROCEDURAL HISTORY
As will be seen, Dominick in its opposition to summary judgment has endeavored
to assert new claims of breach of contract and breach of the covenant of good faith and fair
dealing that are not alleged in its amended complaint. Dominick has attempted to raise these
new theories after the date for amendments to the pleadings, after the close of discovery and after
the Court’s decision denying Dominick’s motion for summary judgment. Accordingly, the
procedural history bears some relevance to the disposition of the present motion. The action was
filed on August 13, 2014 and Dominick amended its complaint on September 3, 2014. (Dkt. 6.)
At an initial conference, the Court gave the parties 30 days for further amendments of the
pleadings, i.e. until February 4, 2015, and set the close of discovery for July 10, 2015. (Dkt. 17.)
Thereafter the Court extended discovery to September 30, 2015. (Dkt. 24.)
Shortly before the close of discovery and beyond the period set for any
amendments to the pleadings, Deutsche sought to amend its answer. (Dkt. 25.) Dominick
opposed the application arguing that Deutsche failed to meet the 30-day deadline of February 4,
2015, should have known the facts upon which the amendments were based at an earlier
juncture, the timing of the request “supports a finding of bad faith,” and that it would be “highly
prejudicial” to Dominick to allow Deutsche to raise new defenses with so little time left in the
discovery period. (Dkt. 26.) The Court denied Deutsche’s application writing, in part, that
“[g]iven the date set in the Scheduling Order for motions to amend a pleading and the absence of
good cause, leave to amend the answer is DENIED.” (Dkt. 27 (citing Parker v. Columbia
Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000).)

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Thereafter, Dominick moved for summary judgment on its claims for breach of
contract and breach of the implied covenant of good faith and fair dealing. (Dkt. 40.) The Court
concluded that under New York law, a contract granting an exclusive right to a broker or agent to
secure a transaction for the principal must clearly and expressly provide that payment is due the
broker or agent even when a sale is independently secured by the principal, and that the
Agreement contained no such provision. (Memorandum and Order at 10-11.) Dominick would
nevertheless be entitled to a commission on the ECP deal if it had been the procuring cause of
that deal. (Id. at 14-15.) But, in the context of Dominick’s motion, the Court concluded that
Dominick was not the procuring cause. (Id.) In addition, the Court found that none of
Deutsche’s actions violated the covenant of good faith and fair dealing. (Id. at 15-20.)
Deutsche now moves for summary judgment on Dominick’s claims for breach of
contract, breach of the covenant of good faith and fair dealing, and unjust enrichment. (Dkt. 61.)
In response, Dominick argues that it has additional theories of wrongdoing that it should be
permitted to put to a jury, including that Deutsche breached the Agreement by having
Cornucopia hire a competing broker and that Deutsche breached the covenant of good faith and
fair dealing by promising, as part of the ECP deal, not to seek the kind of equity and debt
financing Dominick had been hired to procure. These are factual assertions not found in
Dominick’s Amended Complaint nor argued in opposition to Deutsche’s summary judgment
motion.
DISCUSSION
I.

Legal Standard.

Summary judgment should be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

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law.” Rule 56(a), Fed. R. Civ. P. A fact is material if it “might affect the outcome of the suit
under the governing law . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It is
the initial burden of a movant on a summary judgment motion to come forward with evidence on
each material element of his claim or defense, demonstrating that he is entitled to relief as a
matter of law. Vt. Teddy Bear Co., Inc. v. 1–800 Beargram Co., 373 F.3d 241, 244 (2d Cir.
2004).
When the moving party has met this initial burden and has asserted facts
demonstrating that the non-moving party’s claim cannot be sustained, the opposing party “must
set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250
(internal quotation marks omitted). In raising a triable issue of fact, the non-movant carries only
a “limited burden of production,” but nevertheless “must demonstrate more than some
metaphysical doubt as to the material facts, and come forward with specific facts showing that
there is a genuine issue for trial.” Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 84 (2d Cir.
2004) (internal quotation marks omitted).
An issue of fact is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The Court must “view
the evidence in the light most favorable to the non-moving party and draw all reasonable
inferences in its favor, and may grant summary judgment only when no reasonable trier of fact
could find in favor of the nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995)
(internal quotations and citations omitted). In reviewing a motion for summary judgment, the
Court “need consider only the cited materials, but it may consider other materials in the record.”
Rule 56(c). In the absence of any disputed material fact, summary judgment is appropriate.

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II.

Breach of Contract.
a. Breach of Contract: Failure to Pay Funding Fee.

In the complaint, Dominick claims that Deutsche owes it a $2.9 million “Funding
Fee” arising out of the $160 million financing deal Deutsche closed with ECP during the term of
the Agreement. Because Deutsche has not paid Dominick that fee, Dominick contends Deutsche
is in breach of the Agreement. In the Court’s prior summary judgment decision, the Court
concluded that Deutsche did not breach the Agreement as a matter of law by failing to pay
Dominick the $2.9 million fee because the Agreement established only an exclusive agency
relationship and, on the facts presented, no reasonable juror could find that Dominick had
procured the ECP deal. (Memorandum and Order at 9-15.) Deutsche asserts the Court’s prior
Memorandum and Order are the law of the case.
“[L]aw of the case is concerned with the extent to which law applied in a decision
at one stage of litigation becomes the governing principle in later stages of the same litigation.”
Rezzonico v. H & R Block, Inc., 182 F.3d 144, 148 (2d Cir. 1999). “As most commonly
defined, the doctrine posits that when a court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in the same case.” Arizona v.
California, 460 U.S. 605, 618 (1983). However, even when the law of the case doctrine applies,
it “directs a court’s discretion, it does not limit the tribunal’s power.” Id. Rulings of a district
court remain subject to revision “at any time before the entry of a judgment adjudicating all the
claims and all the parties’ rights and liabilities.” Rule 54(b), Fed R. Civ. P. “The major grounds
justifying reconsideration are an intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest injustice.” DiLaura v. Power
Auth. of N.Y., 982 F.2d 73, 76 (2d Cir. 1992) (quotations and citations omitted).

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While the Court has the discretion to reconsider its prior legal rulings in the
Memorandum and Order, no principled reason for doing so has been tendered. This Court’s
construction of the Agreement remains binding on the parties. But Deutsche endeavors to take
the law of the case doctrine further and extended it to the Court’s conclusions that there were no
genuine issues of fact in dispute on whether Dominick was a procuring cause of the ECP
transaction. There is some support for the proposition that a prior judicial conclusion that there
was no evidence to support a claim may qualify as a legal ruling for the purposes of the law of
the case doctrine. Ovadia v. Top Ten Jewelry Corp., No. 04 Civ. 2690 (RJH) (MHD), 2005 WL
1949970, at *1 (S.D.N.Y. Aug. 12, 2005). But Rule 56, at least since the 2010 amendments,
requires advance notice and opportunity to respond if the Court proposes to grant summary
judgment in favor of the non-movant. Rule 56(f). Here, the prior non-movant now proceeds by
a separate new motion and the Court declines to hold that the law of the case doctrine forecloses
any factual opposition to that second summary judgment motion by the prior movant.
Applying these principles, the Court adheres to its prior legal ruling that the
Agreement did not grant Dominick exclusive status and thus Deutsche was free to procure a
transaction on its own without incurring liability to Dominick. Separately, and despite argument
to the contrary, Dominick has not come forward with evidence which, if believed, would permit
a reasonable fact-finder to find that it was the procuring cause of the ECP transaction.
Accordingly summary judgment will be granted in favor of Deutsche on Dominick’s breach of
contract claim.
b. Breach of Contract: Hiring Competing Brokers.
Dominick’s complaint alleges that Deutsche refused to pay “the sums called for”
under the Agreement thus breaching the Agreement. (Compl. ¶ 76.) Dominick now asserts new

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theories of liability that were not included in its complaint nor in its motion for summary
judgment. This new theory is that Deutsche breached the Agreement by directing its subsidiary
to hire a competing broker, BGR, and by paying a broker’s fee to Wildcat.
Discovery in this action closed on November 5, 2015. (Dkt. 31.) In the course of
discovery in this action, Dominick learned that effective September 11, 2013, Cornucopia
formally engaged BGR Capital & Trade, LLC and BA Securities, LLC (together “BGR”) to
provide transaction advisory services to Cornucopia and “any of its affiliated entities” (the “BGR
Agreement”). (Fried Decl. Ex. 13.) Dominick maintains that Deutsche is an “affiliated entit[y]”
such that Cornucopia entered this agreement on behalf of Deutsche as well as itself. (Pl. 56.1 ¶
4n.) Deutsche disputes this characterization of the BGR Agreement. (Defendant’s Reply to
Plaintiff’s Counterstatement of Material Facts (“Def. Reply 56.1”) ¶ 4n.) The contract between
Cornucopia and BGR stated that BGR would advise Cornucopia on potential “Financing
Transaction[s]” that would provide debt or equity capital for the Cook Inlet project. (Fried Decl.
Ex. 13, Clause 1.) Specifically, the BGR Agreement obligated BGR to identify and approach
potential investors for the Cook Inlet project, prepare due diligence information for those
investors, manage the negotiation process, advise Cornucopia and any of its affiliated entities on
financing agreements and assist Cornucopia and any of its affiliated entities in closing a
financing transaction. (Fried Decl. Ex. 13, Clause 3.) In exchange, Cornucopia agreed to pay
BGR a retainer fee as well as a “Success Fee” on any funding deal signed during the term of the
agreement between Cornucopia or any of its affiliated entities and an investor introduced to it by
BGR. (Fried Decl. Ex. 13, Clause 4.) The BGR Agreement was signed by BGR representatives
and Damon Kade, President of Cornucopia. (Fried Decl. Ex. 13 at 10.) The parties dispute the

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extent to which Deutsche and Kay Rieck, Deutsche’s CEO, were involved in procuring and
approving this agreement. (Compare Pl. 56.1 ¶ 4n, with Def. Reply 56.1 ¶ 4n.)
Several individuals testified that during the fall of 2013, BGR introduced Wildcat
Midstream Partners LLC (“Wildcat”) to Cornucopia as a potential counterparty for debt or equity
financing. (Def. Reply 56.1 ¶ 4u.) It was Wildcat who then brought in ECP, the company with
which Deutsche and its subsidiaries ultimately finalized a funding deal. (Pl. 56.1 ¶ 4v.) At some
point during negotiations between Deutsche, its subsidiaries, Wildcat and ECP the decision was
made not to include Wildcat in the final deal although the parties dispute the circumstances
surrounding this decision. (Pl. 56.1 ¶ 4z; Def. Reply 56.1 ¶ 4z.) In a “Mutual Release Letter”
dated June 23, 2014, Wildcat, ECP, and “the Furie Parties” (Deutsche, Cornucopia and Furie)
agreed to release each other from any prior agreements. (Fried Decl. Ex. 27, Clause 2.) This
letter was signed by representatives of Wildcat and ECP and by Kay Rieck on behalf of Deutsche
and Damon Kade on behalf of Cornucopia and Furie. (Fried Decl. Ex. 27 at 6.) In addition,
Furie agreed to pay Wildcat a fee “as consideration” for “the substantial time, resources and
expense by Wildcat in negotiating the transactions contemplated by” earlier letters of intent
between ECP, Wildcat, Cornucopia and Furie. (Fried Decl. Ex. 27, Clause 3.) Furie’s obligation
to pay Wildcat was memorialized in Clause 4.28 of the ECP deal which provides that
No broker’s, finder’s or investment banking fee or commissions will
be payable by either [Cornucopia or Furie] to any Person with
respect to the transactions contemplated by this Agreement . . .
except . . . as are required to be paid to the Wildcat Parties pursuant
to Section 3 of the Mutual Release Letter . . . .
(Fried Decl. Ex. 29, Clause 4.28 (DOGAG0010617).) The parties disagree as to
whether this payment constituted a “break-up” or “walk-away” fee to compensate Wildcat for
the time and effort it expended on negotiations of a potential three-way deal between it, ECP and

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Furie, or a broker’s fee for bringing ECP to the table and brokering the ECP deal. (Compare Pl.
56.1 ¶ 4aa, with Def. Reply 56.1 ¶ 4aa.)
BGR claimed an entitlement to a fee based on the ECP transaction on the theory
that BGR introduced Wildcat to Cornucopia, and Wildcat, in turn, introduced ECP to
Cornucopia. (Fried Decl. Ex. 12.) Dominick was aware that Cornucopia brought a declaratory
judgment suit against BGR and referenced that suit in its prior summary judgment motion, but
never claimed that the retention of BGR was a breach of the Agreement.
At no time during the course of this three year-old action has Dominick sought to
amend its complaint to assert that the Agreement was breached by the retention of BGR by
Cornucopia, whether at the direction of Deutsche or otherwise. While the complaint repeatedly
asserts that Dominick was Deutsche’s exclusive agent to raise funding, it is explicit in asserting
that “Defendant was working outside of the Exclusive Agency Agreement and negotiating on its
own behalf with one or more other institutions, including [ECP]. . . .” (Compl. ¶ 38 (emphasis
added).)
“It is well established that a party cannot assert a claim for the first time in its
motion papers.” Mignault v. Ledyard Pub. Sch., 792 F. Supp. 2d 289, 301 (D. Conn. 2011)
(quotation marks omitted) (plaintiff waived Fourteenth Amendment claims based on a particular
protected property interest raised in opposition to summary judgment where complaint
specifically cited a different protected property interest). “At the summary judgment stage, the
proper procedure for plaintiffs to assert a new claim is to amend the complaint in accordance
with Fed. R. Civ. P. 15(a).” Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir.
2004) (explaining that “[a] plaintiff may not amend her complaint through argument in a brief
opposing summary judgment”). As this claim is not present in the complaint and Dominick has

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not sought to amend, the Court will not consider Dominick’s breach of contract claim based on
alleged competing brokers. See Lyman v. CSX Transp., Inc., 364 F. App’x 699, 701 (2d Cir.
2010) (summary order) (agreeing with district court that claims raised for the first time in
opposition to summary judgment need not be considered); Greenidge v. Allstate Ins. Co., 446
F.3d 356, 361 (2d Cir. 2006) (District Court did not err in finding claim raised for the first time
in opposition to summary judgment untimely); Allah v. Poole, 506 F. Supp. 2d 174, 193
(W.D.N.Y. 2007) (dismissing claims raised for the first time in opposition to summary
judgment); Hickey v. State Univ. of New York at Stony Brook Hosp., No. 10 Civ. 1282 (JS)
(AKT), 2012 WL 3064170, at *5 (E.D.N.Y. July 27, 2012) (declining to address claims raised
for the first time in motion for summary judgment).
Deutsche’s motion for summary judgment is granted as to Dominick’s breach of
contract claims.
III.

Breach of the Covenant of Good Faith and Fair Dealing.

“Under New York law, a covenant of good faith and fair dealing is implied in all
contracts.” Fishoff v. Coty Inc., 634 F.3d 647, 653 (2d Cir. 2011). “This covenant embraces a
pledge that neither party shall do anything which will have the effect of destroying or injuring
the right of the other party to receive the fruits of the contract.” Id. (quoting 511 West 232nd
Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 153 (2002)) (internal quotation marks
omitted). “Even if a party is not in breach of its express contractual obligations, it may be in
breach of the implied duty of good faith and fair dealing . . . when it exercises a contractual right
as part of a scheme to realize gains that the contract implicitly denies . . . .” Elmhurst Dairy, Inc.
v. Bartlett Dairy, Inc., 97 A.D.3d 781, 784 (2d Dep’t 2012) (internal quotation marks omitted).
However, the implied covenant “can only impose an obligation consistent with other mutually

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agreed upon terms in the contract. It does not add to the contract a substantive provision not
included by the parties.” Broder v. Cablevision Sys. Corp., 418 F.3d 187, 198–99 (2d Cir. 2005)
(internal quotation marks and citations omitted).
In support of its prior summary judgment motion, Dominick argued that Deutsche
acted in bad faith when it signed on as guarantor of the ECP deal, encumbering all of its
available collateral. Dominick also argued that Deutsche acted in bad faith by failing to disclose
that it was negotiating with ECP, by missing meetings with investors procured by Dominick
because of the ECP deal, by allowing Dominick to continue rendering services despite having
closed the ECP deal, and by promising to pay Dominick a fee but failing to do so. This Court
concluded that none of these actions established that Deutsche breached the covenant of good
faith and fair dealing. (Memorandum and Order at 15-20.) To the extent the Court’s prior ruling
turned on an interpretation of the Agreement and the application of New York law, Dominick
has not offered any reason to disturb it. Nor has Dominick come forward with any additional
evidence establishing a material issue of fact as to any of these claims.
However, Dominick raises a new and different argument not contained in its
pleading that Deutsche breached the covenant of good faith and fair dealing by agreeing in the
ECP deal not to “solicit, initiate, encourage, facilitate or cooperate with respect to, engage in any
discussions or negotiations . . . concerning, enter into any agreement with any person or entity . .
. related to, or consummate, any transaction . . . involving any debt or equity financing” for the
Cook Inlet project other than “any preferred equity interests of [Deutsche]” or “any exchanges of
preferred equity of [Deutsche] for common equity of [Deutsche] . . . .” (Fried Decl. Ex. 26
(DOGAG0011851).) According to Dominick, this provision “eviscerat[ed] Dominick’s ability to
perform under the Agreement” because Deutsche was effectively promising not to negotiate or

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enter into the kinds of financing transactions that Dominick had been hired to procure for the
Cook Inlet project. (Plaintiff’s Mem. in Opp’n to Mot. for Summ. J. at 7.) Dominick also
alleges that Deutsche breached the covenant after executing the ECP deal by encouraging
Dominick to expend resources seeking financing deals Deutsche had already promised ECP it
would not entertain.
As with Dominick’s claim that Deutsche breached the Agreement when
Cornucopia engaged BGR, these claims were not included in Dominick’s complaint nor in its
motion for summary judgment. The time period set by the Court for amendments to the
pleadings has passed and discovery in this action is closed. Dominick referenced other terms of
the ECP deal in its prior summary judgment motion, but never claimed that Deutsche’s promise
to ECP regarding future financing transactions violated the covenant of good faith and fair
dealing. Nor has Dominick sought to amend its complaint to assert that this particular provision
of the ECP deal breached the covenant. Therefore, the Court will not consider Dominick’s
newly raised good faith and fair dealing claims. See Lyman, 364 F. App’x at 701; Greenidge,
446 F.3d at 361; Allah, 506 F. Supp. 2d at 193; Hickey, 2012 WL 3064170, at *5.
Deutsche’s motion for summary judgment on the claim for breach of the implied
covenant of good faith and fair dealing is granted.
IV.

Unjust Enrichment.

Finally, Deutsche seeks summary judgment on Dominick’s unjust enrichment
claims. “In order to succeed on a claim for unjust enrichment under New York law, a plaintiff
must prove that (1) defendant was enriched, (2) at plaintiff’s expense, and (3) equity and good
conscience militate against permitting defendant to retain what plaintiff is seeking to recover.”
Diesel Props S.r.l. v. Greystone Bus. Credit II LLC, 631 F.3d 42, 55 (2d Cir. 2011) (internal

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quotation marks omitted). A plaintiff need not establish “the performance of any wrongful act
by the one enriched” to prevail provided equity and good conscience requires return of the
property. Ptachewich v. Ptachewich, 465 N.Y.S.2d 277 (2d Dep’t 1983). However, “[t]he
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.”
Clark–Fitzpatrick, Inc. v. Long Island R. R. Co., 70 N.Y.2d 382, 388 (1987).
Dominick argues that Deutsche was unjustly enriched by its failure to pay
Dominick in connection with the ECP deal and for work done outside of seeking funding for the
Cook Inlet project. Specifically, Dominick claims that it advised Deutsche on the ECP deal that
Deutsche was pursuing independently. (Pl. 56.1 ¶ 20c.) Dominick also contends that Deutsche
was unjustly enriched through its use of Dominick’s work product, such as the Freepoint and
Campo term sheets, in its own independent negotiations.
There is no dispute that the Agreement is a valid and enforceable contract. That
Agreement covered the services Dominick agreed to provide and the compensation Dominick
was to receive for those services. (See Fried Decl. Ex. 11, Clauses 1, 3.) Contrary to
Dominick’s assertion, any work it performed outside of seeking funding for Deutsche was
contemplated by the Agreement which states that Dominick will assist Deutsche in securing
funding and “(b) undertake such other activities as the parties may from time-to-time mutually
agree and determine (‘Financial Services’). Dominick shall provide such Financial Services to
[Deutsche] in such form, manner and place as [Deutsche] may reasonably request.” (Fried Decl.
Ex. 11, Clause 1.) The Court’s prior holding that the Agreement is an exclusive agency contract
rather than an exclusive right to sell does not eliminate this promise to do more than just seek to
be the procuring source of any funding.

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The Agreement also covers the extent to which Dominick will be compensated for
the services it promised to perform. According to Clause 3 of the Agreement, Dominick is
entitled to an “Initial Advisory Fee” as well as a percentage of any funding that it procures for
Deutsche. (Fried Decl. Ex. 11, Clause 3; Memorandum and Order at 14 (holding that Dominick
is entitled to a funding fee only for funding it procured).) Because Deutsche and Dominick
entered into a valid and enforceable contract and because the subject matter at issue – namely the
services Dominick was obligated to provide and the extent to which Dominick would be
compensated for those services – is governed by that contract, Dominick’s unjust enrichment
claims fail.
Finally, Dominick argues that Deutsche was unjustly enriched when it used the
Campo and Freepoint term sheets as leverage in its own independent funding negotiations.
(Compl. ¶ 88.) This claim is based on deposition testimony from Dominick’s Lead Banker,
Todd DeMatteo, who stated that based on his experience and the circumstances of the deal,
Deutsche was “clearly” using the term sheets procured by Dominick in its negotiations with
ECP. (Fried Decl. Ex. 3 at 214:4-25.) This was nothing more than opinion. Absent some
evidence supporting DeMatteo’s suspicions (after full and fair discovery), this argument is too
speculative to defeat a motion for summary judgment. See Kulak v. City of New York, 88 F.3d
63, 71 (2d Cir. 1996) (“Though we must accept as true the allegations of the party defending
against the summary judgment motion, . . . conclusory statements, conjecture or speculation by
the party resisting the motion will not defeat summary judgment.”) (internal citations omitted);
Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (noting that to defeat a
motion for summary judgment, the non-movant must “do more than simply show that there is
some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or

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unsubstantiated speculation”) (internal quotation mark omitted); Knight v. U.S. Fire Ins. Co., 804
F.2d 9, 12 (2d Cir. 1986) (“[A] party [may not] rely on mere speculation or conjecture as to the
true nature of the facts to overcome a motion for summary judgment.”). Dominick’s suspicion
that Deutsche used the Campo and Freepoint term sheets to its advantage is insufficient to create
a genuine issue of material fact.
Deutsche’s motion for summary judgment on Dominick’s claim for unjust
enrichment is granted.
CONCLUSION
Deutsche’s motion for summary judgment (Dkt. 61) is GRANTED. All pending
motions are terminated. The Clerk shall enter final judgment for the defendant and close the
case.
SO ORDERED.

Dated: New York, New York
August 24, 2017

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