Bentivoglio et al v. Event Cardio Group Inc. et al
Filing
93
OPINION AND ORDER re: 80 MOTION to Dismiss . filed by Event Cardio Group Inc., Efil Sub of ECG, Inc.. Defendants' motion to dismiss the first and third causes of action and to dismiss EFIL as a defendant is GRANTED. Bentivoglio's breach of contract claim against ECGI remams. The Clerk is directed to terminate the motion (Doc 80). SO ORDERED. (Signed by Judge P. Kevin Castel on 11/27/2019) (ks)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------x
GIANFRANCO "JOHN" BENTIVOGLIO,
Plaintiff,
18-cv-2040 (PKC)
-against-
OPINION
AND ORDER
EVENT CARDIO GROUP, INC., and
EFIL SUB OF ECG, INC.,
Defendants.
-----------------------------------------------------------x
CASTEL, U.S.D.J.
Plaintiff Gianfranco "John" Bentivoglio filed his Second Amended Complaint
("SAC") on February 15, 2019. (Doc 62.) The SAC alleges three causes of action against
defendants Event Cardio Group, Inc. ("ECGI") and EFIL Sub of ECG, Inc. ("EFIL"):
(1) fraudulent filing of information returns in violation of26 U.S.C. § 7434; (2) breach of
contract; and (3) unjust enrichment. Bentivoglio alleges that EFIL is ECGI's alter ego, and thus
a proper defendant here. (Doc 62 ,r,r 47-66.) Formerly the sole director and officer ofECGI,
Bentivoglio resigned in 2016 and Gary Blom then became the President and CEO of the
company. (JJL ,r 14.) Bentivoglio contends that in July 2017, ECGI sent Bentivoglio IRS Forms
1099 that wrongly reflected business-related expenses as personal income to Bentivoglio in an
amount in excess of $700,000. (Id. ,r,r 40, 48.) Bentivoglio states that ECGI, via its auditors, had
access to receipts and records showing that these were business expenses, but instead chose to
"extort" Bentivoglio. (Id. ,r 49.)
As part of the terms of his resignation, Bentivoglio and ECGI entered into a
contract (the "Consulting Agreement") that provided for monthly payments to Bentivoglio of
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$10,416.67, and an additional monthly fee of$1,000, to be paid to him for four years. (Id.
,r 29.)
The Consulting Agreement included New Yark choice of law and forum selection provisions.
(Id.
,r 30.)
Bentivoglio states that in May 2017, ECGI stopped making payments due to him
under the Consulting Agreement and remains in breach of the contract. (Id.
,r,r 36, 58-60.)
Defendants move to dismiss the first cause of action for lack of personal
jurisdiction, pursuant to Rule 12(b)(2), Fed. R. Civ. P., and to dismiss all claims against
defendant EFIL for lack of personal jurisdiction on the grounds that Bentivoglio has not
adequately and plausibly alleged that EFIL is ECGI' s alter ego. Defendants also move to
dismiss the third cause of action as duplicative of Bentivoglio' s breach of contract claim. (Doc
80.) For the reasons set forth below, defendants' motion will be granted. 1
BACKGROUND
When deciding a motion to dismiss for lack of personal jurisdiction pursuant to
Rule 12(b)(2), Fed. R. Civ. P., the Court may consider averments of fact outside the pleadings,
including in affidavits. Dorchester Fin. Secs., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir.
2013). On a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), Fed. R. Civ.
P., however, the Court "must accept as true all of the factual allegations set out in plaintiffs
complaint, draw inferences from those allegation in the light most favorable to plaintiff, and
construe the complaint liberally." Roth v. Jennings. 489 F.3d 499, 510 (2d Cir. 2007) (internal
quotation marks and citation omitted). For purposes of a Rule 12(b)(6) motion, the complaint is
considered to include writings or statements attached to or incorporated in it by reference. Int'!
Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995). Bentivoglio filed
1
Because defendants do not challenge the sufficiency of Bentivoglio's breach of contract claim against defendant
ECGI, it survives.
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his initial complaint on March 6, 2018 (Doc 1), and has amended the pleading twice. (Docs 28,
62.) The SAC (Doc 62) alleges three causes of action: (1) fraudulent filing of information
returns (IRS Forms 1099) in violation of26 U.S.C. § 7434; (2) breach of contract; and (3) unjust
enrichment. (Doc 62
,r,r 47-66.)
Bentivoglio, a Canadian citizen and resident of Florida, developed NowCardio, a
non-invasive heart monitoring device, in 2012. (Doc 62
,r,r 1, 10-11.)
In 2014, he established
ECGI, which owned NowCardio and the National Cardiac Monitoring Center. (Id.
operated ECGI as its sole officer and director until 2016. (Id.
corporation with offices in Maryland. (Id.
,r 14.)
,r 12.)
He
ECGI is a Nevada
,r 2; Deel. of Gary Blom (Doc 83) ,r 4.)
On
November 1, 2016, Bentivoglio resigned from ECGI and entered into, among other agreements,
the Consulting Agreement, under which he would receive monthly payments of $10,416.67 and
$1,000 for a four-year period. (Doc 62
,r,r 14, 29.)
of law and fotum selection provisions. (Id.
,r 30.)
became the sole officer and director ofECGI. (Id.
These agreements contain New York choice
When Bentivoglio resigned, Gary Blom
,r,r 14, 31.)
In January 2017, ECGI notified Bentivoglio that he had failed to substantiate
certain reimbursed expenses as business expenditures from 2014 through 2016, and that ECGI
disputed paying him the amounts owed under the Consulting Agreement. (Id.
,r,r 33-34.)
Bentivoglio maintained that he had given receipts reflecting these business expenses to ECGI's
accountants, who had in turn provided them to ECGI's auditors. (Id.
,r 34.)
ECGI made
payments to Bentivoglio under the Consulting Agreement after raising this issue, but allegedly
stopped making these payments in May 2017. (Id.
,r,r 35-36.)
In July 2017, Bentivoglio received from ECGI IRS Forms 1099 for tax years 2014
through 2016. (Id.
,r 48.)
These forms reflected business-related expenses as income paid to
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Bentivoglio in excess of$700,000. (Id. ,r,r 40, 48-50.) Bentivoglio alleges that ECGI and EFIL,
as ECGI's alter ego, filed these forms in violation of26 U.S.C. § 7434, which prohibits
"willfully fil[ing] a fraudulent information return with respect to payments purported to be made
to any other person .... " (Id. ,r,r 51-53 .) A now-defunct New York law firm, Eaton & Van
Winkle, LLP, was listed as ECGI's "care of" address on these IRS forms. (Id. ,r 40; Deel. of
Bradley Nash (Doc 82), Ex. C.) Bentivoglio further alleges that ECGI and EFIL, as ECGI's alter
ego, are in breach of the Consulting Agreement by failing to make payments to him owed under
the Agreement. (Doc 62 ,r,r 58-64.) Bentivoglio asserts that the failure to make these payments
has also resulted in unjust emichment of the defendants. (Id. ,r 66.)
In support of dismissal, defendants argue that the Court lacks personal jurisdiction
over ECGI as to the first cause of action because ECGI is a Nevada corporation that does not
transact business or maintain an office in New York, and because the conduct giving rise to this
claim did not occur in New York. (Doc 84 at 4-11.) Bentivoglio contends that by listing a New
York law firm as a "care of' mailing address on the IRS Forms I 099, and by using the services
of New York lawyers, ECGI and EFIL, as ECGI' s alter ego, are properly sued in New York.
(Doc 85 at 5-7.) Defendants also argue that the Court does not have personal jurisdiction over
EFIL because Bentivoglio has failed to plead adequate and plausible facts to show that EFIL is
the alter ego ofECGI. (Doc 84 at 11-12.) In opposition, Bentivoglio repeatedly asserts that
ECGI's own representations establish that EFIL is ECGI's alter ego, but does not provide the
substance of these alleged representations. (Doc 85 at 4, 8.) He also alleges that ECGI
fraudulently transferred its assets to EFIL in order to avoid its obligations, including the
payments owed to Bentivoglio under the Consulting Agreement. (Doc 62 ,r,r 43-46; Doc 85 at 89.) Finally, defendants argue that Bentivoglio does not state a claim for unjust emichment
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because it is duplicative of his breach of contract claim. (Doc 84 at 15.) For his part,
Bentivoglio asserts that at this stage of the litigation, he may plead unjust enrichment in the
alternative. (Doc 85 at 10-11.) For the reasons set forth below, the Court grants defendants'
motion to dismiss.
DEFENDANTS' MOTION TO DISMISS IS GRANTED
I.
The First Cause of Action is Dismissed for Lack of Personal Jurisdiction
"A plaintiff bears the burden of demonstrating personal jurisdiction over a person
or entity against whom it seeks to bring suit." Penguin Grp. (USA) Inc. v. Am. Buddha, 609
F.3d 30, 34 (2d Cir. 2010). At the pleading stage, a plaintiff need only make a prima facie
showing that personal jurisdiction exists, which "may be established solely by allegations." Ball
v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990). The Court may take
affidavits and other submissions outside of the pleadings into account when deciding such a
motion pursuant to Rule 12(b)(2), Fed. R. Civ. P. Dorchester Fin. Secs., Inc., 722 F.3d at 84.
Where a cause of action arises under a federal statute, such as 26 U.S.C. § 7434,
that does not contain a jurisdictional provision, the forum state's personal jurisdiction rules
apply. Penguin Grp., 609 F.3d at 35. The Court therefore looks to sections 301 and 302 of the
New York Civil Practice Law and Rules ("CPLR"), which govern general and specific personal
jurisdiction, respectively. Because ECGI is a Nevada corporation with offices allegedly located
in Maryland, and EFIL is alleged to be a Delaware corporation (Doc 62 ,r,r 2, 4), neither
defendant is domiciled in New York. 2 Further, per Blom's declaration, ECGI does not have
2
Plaintiff alleges that ECGI operated as a public company whose shares were traded over the counter on the OTC
Markets Group, which the complaint compares to the New York Stock Exchange. This allegation may be read as an
attempt to plead that ECG! should be subject to general jurisdiction in New York. (Doc 62111119, 24-27.) However,
"prevailing caselaw accords foreign corporations substantial latitude to list their securities on New York-based stock
exchanges and to take the steps necessary to facilitate those listings ... without thereby subjecting themselves to
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offices or conduct business in New York. (Doc 83114-6.) Therefore, there is no general
jurisdiction over ECGI and CPLR § 301 does not apply. The question here is whether the Court
has personal jurisdiction under New York's long-arm statute, CPLR § 302. Section 302(a)
provides, in relevant part, that "a court may exercise personal jurisdiction over any nondomiciliary ... who in person or through an agent ... transacts any business within the state
.... " CPLR § 302(a)(l). The Court concludes that the facts alleged do not satisfy section
302(a)(l ), and thus the Court lacks personal jurisdiction over ECGI as to the first cause of action.
For a court to exercise personal jurisdiction pursuant to section 302(a)(l ), a
defendant must transact business within the state, and the cause of action must arise out of that
transaction. Reich v. Lopez, 38 F. Supp. 3d 436, 457-58 (S.D.N.Y. 2014). Bentivoglio argues
that because defendants listed a New York "care of' mailing address on the assertedly wronglyfiled Forms 1099, and these IRS filings form the basis of his first cause of action, defendants are
subject to personal jurisdiction in New York. (Doc 85 at 5.) Plaintiffs argument fails. ECGI
listed an address in "care of' ("c/o") attorneys Eaton & Van Winkle LLP, located at 3 Park
Avenue, New York, NY 10016. (Doc 85-2.) This does not mean that ECGI itself has a New
York address. Merely listing a New York law firm as a place that ECGI would accept mail does
not support a finding that ECGI was "transacting business" in New York sufficient to serve as a
basis for personal jurisdiction. Greenman-Perdesen, Inc. v. Berryman & Renigar, Inc., No. 09
Civ. 0167 (TPG), 2009 WL 2523887, at *5 (S.D.N.Y. Aug. 18, 2009) (where an entity "has
asked its New York law firm to accept its mail is of no significance" to asserting personal
jurisdiction).
New York jurisdiction for unrelated occurrences." Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 97 (2d Cir.
2000).
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While hiring New York counsel may constitute transacting business under section
302(a)(l), there must be "an articulable nexus or a substantial relationship between the asserted
claim and the transacted business." Reich, 38 F. Supp. 3d at 458 (internal quotation marks and
citations omitted). There is no such relationship here. First, the retention of Eaton & Van
Winkle is insufficient to support the exercise of personal jurisdiction over ECGI because there is
no allegation that this law firm participated in preparing or filing the IRS forms at issue.
Bentivoglio's complaint states that ECGI's New York counsel (without naming Eaton & Van
Winkle specifically) sent Bentivoglio and his New York counsel a letter "disput[ing] payment of
his Consulting [Agreement payments] .... [and] claim[ing] that Mr. Bentivoglio had failed to
substantiate reimbursed business expenditures." (Doc 621133-34.) Sending a letter to-or
receiving a letter from-counsel in New York is not a basis to exercise personal jurisdiction.
Continental Field Serv. Corp. v. ITEC Int'!, Inc., 894 F. Supp. 151, 154 (S.D.N.Y. 1995)
("forwarding a letter to New York in response to a letter from New York does not indicate[]
purposeful availment of benefits and obligations of transacting business in New York."); cf.
PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1109 (2d Cir. 1997) (finding that defendant
transacted business in New York where he did more than "send[] a cease and desist letter to
[plaintiff] and attempt[] to settle legal claims.") (internal quotation marks omitted).
Further, per the declaration of Lawrence Lichter, the California accounting finn
of Lichter, Yu and Associates prepared and filed the IRS Forms 1099 that are the basis of
Bentivoglio's first cause of action. (Doc 82, Ex. B.) The forms were not filed in New York.
(Id.) Bentivoglio rather vaguely contends that defendants "used the services of their New York
lawyers in connection with the information returns," and again points to ECGI listing Eaton &
Van Winkle's New York office as its "care of" mailing address. (Doc 85 at 7.) For the reasons
-7-
set forth above, this is an insufficient basis to assert an articulable nexus or substantial
relationship between any transaction of business in New York and the first cause of action.
Bentivoglio also asserts that several meetings negotiating his resignation from
ECGI, and the ultimate execution of the agreements governing his resignation, including the
Consulting Agreement, occurred in New York at the law firm of Eaton & Van Winkle. (Doc 62
,r,r 15-16; 28.)
Courts in this District have held that signing a contract in New York, "although a
link in the chain of causation leading to plaintiffs claims," was an insufficient basis to exercise
personal jurisdiction where the cause of action did not arise out of the written agreement.
Faherty v. Fender, 572 F. Supp. 142, 147 (S.D.N.Y. 1983). The court in Thackurdeen v. Duke
University, citing Faherty, found no personal jurisdiction over defendants under section
302(a)(l) where "contracts signed in New York were a factual precursor" to the relevant
incident, but the plaintiffs' "claims do not arise from the contracts the signed in New York." 130
F. Supp. 3d 792,802 (S.D.N.Y. 2015). Here, the link between these parties' negotiations of
Bentivoglio's resignation and the filing of the IRS forms is similarly attenuated. Negotiating and
signing these agreements in New York preceded the filing of the disputed tax forms, but the
filing of these forms, and thus this cause of action, did not arise out of the contract negotiations
or execution. Therefore, those events cannot serve as a hook to exercise personal jurisdiction
over ECGI as to the first cause of action. Because the Court lacks personal jurisdiction over
ECGI as to this cause of action, even if EFIL were ECGI' s alter ego, the Court would also lack
personal jurisdiction as to EFIL. See Transfield ER Cape Ltd. v. Indus. Carriers, Inc., 571 F.3d
221, 224 (2d Cir. 2009) ("[I]n general, alter egos are treated as one entity for jurisdictional
purposes.") (internal quotation marks and citation omitted).
For these reasons, Bentivoglio's first cause of action is dismissed.
-8-
II.
EFIL is Dismissed as a Defendant
Bentivoglio repeatedly alleges that ECGI made representations that EFIL is its
alter ego, and therefore, that EFIL is a proper defendant in this case. (Doc 62 ,r,r 4, 53, 64, 66.)
Nowhere, however, does Bentivoglio provide the substance of these representations, but merely
realleges the conclusory statement that ECGI and its representatives made these statements about
EFIL being an alter ego ofECGI. (Doc 85 at 8-9 (citing Doc 62 ,r 4).) Bentivoglio further
contends that ECGI transfe1Ted its assets to EFIL without consideration in order to avoid
liability. (Doc 62 ,r,r 43-46.) These allegations fail to plausibly plead that EFIL is in fact ECGI's
alter ego. As a result, Bentivoglio has failed to state a claim against EFIL pursuant to Rule
12(b)(6), Fed. R. Civ. P.
Defendants style their motion to dismiss EFIL on grounds of both lack of personal
jurisdiction pursuant to Rule 12(b)(2) and for failure to state a claim pursuant to Rule 12(b)(6),
Fed. R. Civ. P. (Doc 84 at 11-15.) Because the Cami understands defendants' argument to be
that ECGI has failed to state a claim that EFIL is ECGI's alter ego, the Court treats this motion
as one pursuant to Rule 12(b)(6). Rule 12(b)(6) requires a complaint to "contain sufficient
factual matter, accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft
v. Igbal, 556 U.S. 662,678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,570
(2007)). In assessing the sufficiency of a pleading, a court must disregard legal conclusions,
which are not entitled to the presumption oftrnth. Id. Instead, the Court must examine the wellpleaded factual allegations and "determine whether they plausibly give rise to an entitlement to
relief." Id. at 679.
"Under New York choice oflaw principles, the law of the state of incorporation
determines when the corporate form will be disregarded." Fletcher v. Atex, Inc., 68 F.3d 1451,
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1456 (2d Cir. 1995) (internal quotation marks, alterations, and citation omitted). Defendants
contend that Bentivoglio is seeking to pierce ECGI's corporate veil, and therefore, that Nevada
law should govern. (Doc 84 at 12.) Bentivoglio's opposition argues-without contesting
defendants' choice of law argument-that he has met the alter ego pleading requirements under
Nevada law. (Doc 85 at 9.) However, Bentivoglio alleges that EFIL is ECGI's alter ego. (Doc
6211 43-46.)
This allegation means, in effect, that EFIL's corporate form should be disregarded
so that ECGI and EFIL may be treated as a single entity. In turn, treating these entities as one
would allow Bentivoglio to reach the assets allegedly transfe1Ted to EFIL to satisfy the payments
ECGI contractually owes him under the Consulting Agreement. Kertesz v. Korn, 698 F.3d 89,
91 (2d Cir. 2012) (reviewing application of Delaware law to veil-piercing claim: "[A] court may
exercise its equitable power to disregard the legal privilege of the corporate form to reach the
owner's assets.") Therefore, it is EFIL's place of incorporation that controls, not ECGI's. Nat'!
Gear & Piston, Inc. v. Cummins Power Sys., LLC, 975 F. Supp. 2d 392,401 (S.D.N.Y. 2013).
Because EFIL is a Delaware corporation, the Court will apply Delaware law to Bentivoglio's
alter ego allegations. 3
Delaware law pe1mits corporate veil piercing "where there is fraud or where a
subsidiary is in fact a mere instrumentality or alter ego of its owner." Geyer v. Ingersoll Publ'ns
Co., 621 A.2d 784, 793 (Del. Ch. 1992). Delaware courts rarely disregard the corporate form.
Nat'! Gear & Piston, Inc., 975 F. Supp. 2d at 401-402. A plaintiff does not need to allege actual
fraud, but must show that the entities at issue actually "operated as a single economic entity, and
3
Even if Nevada law governed this question, Bentivoglio's complaint also fails to plausibly plead the elements
required to pierce the corporate veil in Nevada. Basic Mgmt. Inc. v. U.S., 569 F. Supp. 2d 1106, 1117-18 (D. Nev.
2008) (listing the three requirements to pierce the corporate veil in Nevada, and finding that plaintiffs had not
satisfied them).
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that an overall element of injustice or unfairness is present." Id. at 402 (internal quotation marks
and citation omitted).
Operating as a "single entity" requires showing the parent entity's "complete
domination and control" to such an extent that the subsidiary entity "no longer has legal or
independent significance of its own." Wallace ex rel. Cencom Cable Income Partners II, Inc. v.
L.P. Wood, 752 A.2d 1175, 1183-84 (Del. Ch. 1999) (internal quotation marks and alterations
omitted). Courts consider the following factors when determining whether a parent and
subsidiary are a single entity for veil-piercing purposes: "Whether the corporation was
adequately capitalized ... ; whether the corporation was solvent; whether dividends were paid,
corporate records kept, officers and directors functioned properly, and other corporate formalities
were observed; whether the dominant shareholder siphoned corporate funds, and whether, in
general, the corporation simply functioned as a fa9ade for the dominant shareholder." Fletcher,
68 F.3d at 1458 (internal quotation marks and citation omitted).
Here, Bentivoglio alleges that EFIL is owned and controlled by the same three
people as ECGI-Gary Blom, who became ECGI's President and CEO upon Bentivoglio's
resignation; Frank Sgro, an investor in ECGI who Bentivoglio alleges controls a majority of
ECGI stock; and Gino Alberelli, ECGI's accounting advisor. (Doc 62 ,r,r 3-4, 43-46.)
Allegations of overlapping management, or "a parent's ownership and operation of a
subsidiary-even exclusively for the parent's gain--do not merit piercing the corporate veil."
Nat'! Gear & Piston, Inc., 975 F. Supp. 2d at 404. Bentivoglio further alleges that Blom, Sgro,
and Alberelli transferred ECGI's assets-the NowCardio device and the National Cardiac
Monitoring Center-to EFIL without consideration in order to avoid ECGI's liabilities, including
payments owed to Bentivoglio. (Id.
,r,r 43-46.)
A transfer of assets is not a basis for piercing the
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corporate veil where the plaintiff fails to plead details about the allegedly fraudulent transfer
without consideration. Yu v. GSM Nation, LLC, No. 12293-VCMR, 2017 WL 2889515, at *4,
n.18 (Del. Ch. July 7, 2017); see also Harco Nat'l Ins. Co. v. Green Farms, Inc., Civ. A. No.
1131, 1989 WL 110537, at *6 (Del. Ch. Sept. 19, 1989) (denying motion for summary judgment,
noting that it was "premature to pierce the corporate veil" where plaintiffs had not yet shown that
"transfers were done to defraud creditors or ... merely to siphon off corporate assets, rather than
to repay outstanding loans.") Bentivoglio's opposition admits that he "does not have access to
information regarding the current corporate structure or corporate assets of either ECGI or
EFIL." (Doc 85 at 8.) Without more, such allegations are insufficient to show that ECGI and
EFIL are a single entity such that corporate veil piercing would be appropriate here.
Bentivoglio also fails to meet the "injustice or unfairness" prong of Delaware veil
piercing. Nat'l Gear & Piston, Inc., 975 F. Supp. 2d at 402; (Doc 62 ,r,r 43-46.) Fairly read,
Bentivoglio pleads that ECGI's breach of contract is a basis to pierce EFIL's corporate veil in
order to reach the assets allegedly wrongly transferred to EFIL and to satisfy ECGI's obligations
to him. (Doc 62 ,r,r 46, 63-64.) This is not "the type of 'injustice' ... [that] is contemplated by
the common law rule that piercing the corporate veil is appropriate only upon a showing of fraud
or something like fraud." Mobil Oil Corp. v. Linear Films, Inc., 718 F. Supp. 260,268 (D. Del.
1989). An underlying cause of action-here, breach of contract-cannot "supply the necessary
fraud or injustice. To hold otherwise would render the fraud or injustice element meaningless,
and would sanction bootstrapping." Id.
For these reasons, Bentivoglio has failed to allege that EFIL is ECGI's alter ego,
and therefore has not adequately or plausibly asse1ied a claim against EFIL.
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III.
The Third Cause of Action is Dismissed as Duplicative
The Second Circuit has held that under New York law, where there is a valid,
enforceable contract that governs the subject at issue, there is "no cognizable claim for unjust
enrichment separate from [the] breach of contract claim." Rabin v. Morry Life Ins. Co., 387 F.
App'x 36, 42 (2d Cir. 2010); see also Maryland Cas. Co. v. W.R. Grace & Co., 218 F.3d 204,
212 (2d Cir. 2000) ("The notion of unjust enrichment applies where there is no contract between
the parties"). One possible exception to this rule is where the plaintiff can "explain[] how the
claim is not simply duplicative of[his] other claims." APP Mfg. Corp. v. APP Imaging Corp.,
No. l 7-CV-03292 (NSR), 2018 WL 3329859, at *11 (S.D.N.Y. July 6, 2018). Further, where
the validity of a contract is in dispute, courts may allow a plaintiff to plead unjust enrichment
along with breach of contract claims. Marshall v. Hyundai Motor Am., 51 F. Supp. 3d 451,471
(S.D.N.Y. 2014)
Here, the Consulting Agreement clearly controls the payment of fees to
Bentivoglio, and the validity of this agreement does not appear to be in dispute. Id.; (Doc 62
155.) Confusingly, despite defendants not raising the validity of the contract in their
submissions, or even seeking to dismiss Bentivoglio's breach of contract claim against ECGI,
Bentivoglio offers to withdraw his unjust enrichment claim if defendants concede the contract's
validity. (Doc 85 at 11.) Bentivoglio's unjust enrichment allegation is a repetition of his breach
of contract claim, which dooms the unjust enrichment claim as duplicative. Ortho-Clinical
Diagnostics Bermuda Co. Ltd. v. PCM, LLC, No. 15 Civ. 5607 (NRB), 2017 WL 2984023, at *6
(S.D.N.Y. July 6, 2017). Bentivoglio alleges that defendants were unjustly enriched by
breaching the Consulting Agreement and failing to pay the fees owed to him. (Doc 62166.) As
this Court has previously found, "when a plaintiff has asserted a viable breach of contract claim,
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an unjust enrichment claim should be dismissed as redundant." iSentium, LLC v. Bloomberg
Finance L.P., No. 17-cv-7601 (PKC), 2018 WL 6025864, at *4 (S.D.N.Y. Nov. 16, 2018).
Accordingly, Bentivoglio's unjust enrichment claim is dismissed.
CONCLUSION
Defendants' motion to dismiss the first and third causes of action and to dismiss
EFIL as a defendant is GRANTED. Bentivoglio's breach of contract claim against ECGI
remams. The Clerk is directed to terminate the motion (Doc 80).
SO ORDERED.
United States District Judge
Dated: New York, New York
November 27, 2019
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