Summary
finding the laws of New York and Connecticut arc in agreement regarding unjust enrichment
Summary of this case from Dhir v. Carlyle Grp. Emp. Co.Opinion
04 Civ. 2270 (RCC).
June 22, 2005
MEMORANDUM ORDER
Czech Beer Importers, Inc. ("Plaintiff") commenced this action by filing suit against C. Haven Imports, LLC, doing business as Distinguished Brands International ("Defendant"), alleging tortious interference with contract, tortious interference with prospective economic advantage, unfair competition, unjust enrichment by misappropriation of good will, and unjust enrichment by misappropriation of intellectual property rights. Defendant filed a motion to dismiss Plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. For the following reasons, Defendant's motion to dismiss is GRANTED in part and DENIED in part.
I. BACKGROUND
Plaintiff, a Connecticut corporation with its principal place of business in Connecticut, is engaged in the business of importing and reselling beer to distributors throughout the United States. (Compl. ¶ 1.) Defendant, one of Plaintiff's competitors, is a Colorado limited-liability company that also imports and resells beer to distributors throughout the United States. (Id. ¶ 2.) Defendant regularly and consistently conducts business in the State of New York, deriving substantial income from sales within the state. (Id. ¶ 2.) Defendant's largest-volume sales territory for the product at issue is New York City. (Id. ¶¶ 3-4.)
On December 21, 2000, Plaintiff entered into an agreement ("Agreement") with Budejovicky Budvar Narodni Podnik ("BBNP"), the brewery in the Czech Republic that manufactures Czechvar Premium Czech Lager ("Czechvar Lager"). (Id. ¶¶ 7-8.) The Agreement provided Plaintiff with the right to import, market, and purchase Czechvar Lager from BBNP for a three-year term to expire on December 31, 2003. (Id. ¶ 8.) By the Agreement's terms, Plaintiff was given the option to extend the Agreement for an additional five years provided that Plaintiff fulfilled all of the Agreement's conditions and gave BBNP notice of its intent to exercise the extension option by July 31, 2003. (See id.)
Plaintiff alleges that, based on BBNP's representations and Plaintiff's ability to extend the Agreement, Plaintiff forewent other business opportunities and expended nearly $1.5 million in capital to build the Czechvar Lager brand in the United States. (Id. ¶ 9.) When Plaintiff first began to import Czechvar Lager into the United States, no Czechvar Lager was sold in this country. (Id. ¶ 10.) In 2002, Plaintiff sold approximately 75,000 case equivalents of Czechvar Lager in the United States. (Id.) Plaintiff asserts that the good will established by Plaintiff and the investment of time and money in creating the market for Czechvar Lager resulted in the increase of sales of Czechvar Lager from zero to approximately $1.3 million in 2002. (Id. ¶ 41.) Plaintiff alleges that, having fulfilled the terms of the Agreement and substantially invested time and capital in the Czechvar Lager brand, Plaintiff timely notified BBNP of its decision to extend the Agreement for an additional five years beyond December 31, 2003. (Id. ¶ 11.)
Plaintiff alleges that, before the Agreement between Plaintiff and BBNP expired, Defendant met with BBNP to obtain importation rights to Czechvar Lager for itself. (Id. ¶ 12.) Plaintiff alleges that Defendant — knowing of the Agreement between Plaintiff and BBNP and of Plaintiff's option to extend the Agreement until December 31, 2008 — intentionally, willfully, and maliciously induced BBNP to breach the Agreement by refusing to accept Plaintiff's valid extension request. (Id. ¶¶ 13-14, 18-19.) Plaintiff, having lost the right to import and resell Czechvar Lager, contends that Defendant is liable for the loss of Plaintiff's substantial investment in the Czechvar Lager brand because the damage was caused by Defendant's tortious interference with the Agreement between Plaintiff and BBNP. (Id. ¶ 20.)
Plaintiff had valid contracts with numerous distributors for them to purchase Czechvar Lager from Plaintiff. (Id. ¶ 23.) Plaintiff alleges that, during the course of its business relationship with BBNP, it provided BBNP with confidential information regarding Plaintiff's operations and distributors that BBNP improperly provided to Defendant. (Id. ¶¶ 29-30.) Plaintiff alleges that — before the Agreement expired and before BBNP notified Plaintiff that it would not extend it — Defendant's representatives contacted Plaintiff's distributors, using information obtained from BBNP, and wrongfully informed the distributers that Defendant would be taking over the importation of Czechvar Lager into the United States, thereby causing the distributors to stop buying Czechvar Lager from Plaintiff. (Id. ¶¶ 15, 25-26.) Plaintiff alleges that Defendant financially damaged and unfairly competed with Plaintiff by employing Plaintiff's improperly obtained confidential business information, giving rise to Plaintiff's claims for tortious interference with prospective economic advantage and unfair competition. (Id. ¶¶ 25-26, 30-32.)
Plaintiff contends that, as a result of its investment of time and money, Plaintiff developed substantial good will relating to the Czechvar Lager brand name and created a market for Czechvar Lager that did not exist prior to the Agreement. (Id. ¶¶ 35, 41.) Plaintiff also asserts it owned the rights to distribute Czechvar Lager, as an intangible asset and intellectual property rights, and is therefore entitled to compensation for infringement of those rights. (Id. ¶¶ 40-41, 43.) Plaintiff alleges that Defendant misappropriated Plaintiff's good will and intellectual property rights such that Plaintiff is entitled to compensation for unjust enrichment. (Id. ¶¶ 37, 41-44.)
II. DISCUSSION
A. Legal Standard
Defendant moves to dismiss Plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a legally cognizable claim. When ruling on a 12(b)(6) motion, the Court may consider "only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken," Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir. 1993), and must take all allegations in the complaint as true and draw all reasonable factual inferences in favor of the plaintiff, Ortiz v. Cornetta, 867 F.2d 146, 149 (2d Cir. 1989). A complaint may be dismissed under Rule 12(b)(6) "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations."Hishon v. King Spalding, 467 U.S. 69, 73 (1984).
B. Choice of Law
Defendant asserts that Connecticut law governs this matter. (See Mem. Supp. Mot. Dismiss at 2-5.) Plaintiff does not contest this assertion or comment on Defendant's choice-of-law analysis, and relies predominantly on Connecticut law in opposition to this motion to dismiss. Although parties may under certain circumstances consent by their conduct to have the law of the forum state apply to their claims, see American Fuel Corp. v. Utah Energy Dev. Co., 122 F.3d 130, 134 (2d Cir. 1997) ("[W]here the parties have agreed to the application of theforum law, their consent concludes the choice of law inquiry." (emphasis added)); W.M. Passalaqua Builders, Inc. v. Resnick Developers, Inc., 933 F.2d 131, 137 (2d Cir. 1991) (applying the law of New York, the forum state, because both parties had relied on that law to support their arguments); Walter E. Heller Co. v. Video Innovations, Inc., 730 F.2d 50, 52-53 (2d Cir. 1984) (applying the law of New York, the forum state, even when the parties had contracted to be governed by Illinois law, because the parties later relied on New York authority to support their respective contentions); Granat v. Center Art Galleries-Hawaii, Inc., No. 91 Civ. 7252 (RLC), 1993 WL 403977, at *2 (S.D.N.Y. Oct. 6, 1993) (applying the law of New York, the forum state, because both parties relied on New York law and failed to brief the choice of law issue), we are in New York, not Connecticut.
Under New York choice-of-law principles, the substantive law of New York, not Connecticut, applies to Plaintiff's claims. Under the doctrine of Erie R.R. v. Tompkins, 304 U.S. 64 (1938), a federal court sitting in diversity must apply the law of the state in which it sits. In Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941), the Supreme Court held that a federal district court sitting in diversity must also apply the choice-of-law principles of the forum state. This Court has subject matter jurisdiction based on diversity and must therefore apply New York choice-of-law principles.
New York applies different choice-of-law tests for tort and unjust-enrichment claims, but the first step in any case presenting a potential choice-of-law issue is to determine whether an actual conflict exists between the laws of the jurisdictions involved. See In re Allstate Ins. Co., 613 N.E.2d 936, 937 (N.Y. 1993). When no conflict exists, "the court should apply the law of the forum state in which the action is being heard." Frazer Exton Dev., LP v. Kemper Envtl., Ltd., No. 03 Civ. 0637 (HB), 2004 WL 1752580, at *12 (S.D.N.Y. July 29, 2004) (applying the law of New York, the forum state, where no conflict existed between the laws of Pennsylvania and New York) (quoting Excess Ins. Co. v. Factory Mut. Ins. Co., 2 A.D.3d 150, 151 (N.Y.App.Div. 2003)); see also AEB Assocs. Design Group, Inc. v. Tonka Corp., 853 F.Supp. 724, 731 n. 6 (S.D.N.Y. 1994) (applying the law of New York, the forum state, to the plaintiff's claims of breach of implied contract and unjust enrichment where the parties agreed that no conflict existed between the laws of Ohio and New York). Choice-of-law analysis can be dispensed with "only when it can be said that there is no actual conflict." Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir. 1998). When there is an actual conflict, however, a federal district court sitting in New York must "classify the conflicting laws by subject matter with reference to New York law . . . then select and apply the proper body of choice of law rules." Harris v. Provident Life Accident Ins. Co., 310 F.3d 73, 81 (2d Cir. 2002).
1. Choice of Law for Plaintiff's Claim for Tortious Interference with Contract
New York law and Connecticut law are in conflict with regard to Plaintiff's claim for tortuous interference with contract. The elements required to state a claim for tortious interference with contract under either New York or Connecticut law are similar.Compare Foster v. Churchill, 665 N.E.2d 153, 156 (N.Y. 1996) (setting forth the elements of a claim for tortious interference with contract under New York law as including (1) that a valid contract exists between the plaintiff and a third party; (2) that the defendant had knowledge of the contract; (3) that the defendant intentionally interfered with or procured the breach of the contract without justification; and (4) that the breach resulted in damage to the plaintiff) and Mina Inv. Holdings LTD v. Lefkowitz, 184 F.R.D. 245, 252 (S.D.N.Y. 1999) (setting out these same four elements as necessary to state a claim for tortious interference with contract under New York law) with Appleton v. Bd. of Ed. of Town of Stonington, 757 A.2d 1059, 1063 (Conn. 2000) (setting forth the elements of a claim for tortious interference with contract under Connecticut law as including (1) the existence of a contractual or a beneficial relationship; (2) the defendants' knowledge of the relationship; (3) the defendants' intent to interfere with the relationship; (4) the interference was tortious; and (5) the plaintiff suffered a loss that was caused by the defendants' tortious conduct) and Boulevard Assocs. v. Sovereign Hotels, Inc., 72 F.3d 1029, 1035 (2d Cir. 1995) (defining tortious interference with contract under Connecticut law as a knowing interference with another's contractual rights without justification).
A conflict between New York and Connecticut law arises, however, in the application of the two states' substantive laws. "Laws are in material conflict if the differences in the laws have a significant possible effect on the outcome of the trial."Hidden Brook Air, Inc. v. Thabet Aviation Int'l, Inc., 241 F. Supp. 2d 246, 279 (S.D.N.Y. 2002) (internal quotation marks and citations omitted). Under Connecticut law, a plaintiff cannot recover for breach of an existing contract if the defendant was engaging in lawful behavior, Blake v. Levy, 464 A.2d 52, 54 (Conn. 1983) (stating that not every act that disturbs a contract is actionable and that a plaintiff must allege that defendant's conduct was in fact tortious to prosecute under tortious interference of contract), but such recovery is permissible under New York law, see NBT Bancorp Inc. v. Fleet/Norstar Financial Group, Inc., 87 N.Y.2d 614, 621 (N.Y. 1996) ("[W]here there is an existing, enforceable contract and a defendant's deliberate interference results in a breach of that contract, a plaintiff may recover damages for tortious interference with contractual relations even if the defendant was engaged in lawful behavior."). Under Connecticut law, a plaintiff must prove that the defendant had an improper motive or used improper means in interfering with the plaintiff's business to succeed on a claim for tortious interference with contract, Blake, 464 A.2d at 54, but New York Law will not excuse a legitimate business motive for breach of an existing contract, Perry v. Int'l Transp. Workers Found., 750 F.Supp. 1189, 1201 (S.D.N.Y. 1990) ("[I]f the interferer acts with a business (competitive) motive as well with as a malicious one, the conduct may be actionable when there is an existing contract."). Thus, New York law and Connecticut law are in conflict with regard to Plaintiff's claim for tortious interference of contract.
In tort actions in which there is a conflict of laws, New York courts apply an "interests analysis," under which the substantive law of the jurisdiction having the greatest interest in the litigation applies. AroChem Int'l, Inc. v. Buirkle, 968 F.2d 266, 270 (2d Cir. 1992). In deciding which jurisdiction has the prevailing interest, a court must look "only to those facts or contacts that relate to the purpose of the particular laws in conflict." Id. The particular laws of tortious interference with contract at issue regulate behavior and protect contractual relationships, and the Court looks to the facts and contacts with Connecticut and New York at issue accordingly.
Plaintiff is a Connecticut corporation with its primary place of business in Connecticut. Although Plaintiff may have suffered monetary injury in Connecticut as a result of BBNP's alleged breach of the Agreement, the hub of competition between Plaintiff and Defendant as it relates to this matter is clearly New York. As Plaintiff alleged in the complaint, the "largest sales territory in terms of volume of the relevant product is New York City," Plaintiff lost substantial business in New York City as the result of Defendant's alleged tortious interference with the Agreement, and Plaintiff alleges that Defendant "has committed a tort within the State of New York." (Compl. ¶¶ 4-6.)
New York has a greater interest in having its conduct-regulating law apply to this case than does Connecticut because New York has a strong interest in regulating behavior within its borders. See Krock v. Lipsay, 97 F.3d 640, 646 (2d Cir. 1996) ("Where the parties are domiciled in different states, the locus of the tort will almost always be determinative in cases involving conduct regulating laws."). New York has a strong interest in regulating behavior within its borders. See Cooney v. Osgood Mach., Inc., 612 N.E.2d 277, 280 (N.Y. 1993) (holding that, when the laws in conflict are conduct-regulating, rather than loss-allocating, "the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders"); see also Hidden Brook Air, 241 F. Supp. 2d at 277 (holding that tortious interference with contractual relations is a conduct-regulating tort). Connecticut's interest in protecting competition would not be greatly advanced by applying Connecticut law to this case, given that the only Connecticut contact is the domicile of one of the parties, nor would it be hindered by the application of New York law. New York's substantive law therefore applies to Plaintiff's claim for tortious interference with contract.
2. Choice of Law for Plaintiff's Claim for Tortious Interference with Prospective Economic Advantage
The laws of New York and Connecticut are in agreement regarding Plaintiff's claim for tortious interference with prospective economic advantage. To state a claim for tortious interference with prospective economic advantage under either New York or Connecticut law, a plaintiff must show that: (1) the plaintiff had a business relationship with a third party; (2) the defendant, knowing of that relationship, intentionally interfered with it; (3) the interference was tortuous; and (4) the the defendants' tortious conduct caused the plaintiff to suffer a loss. Compare Purgess v. Sharrock, 33 F.3d 134, 141 (2d Cir. 1994) (setting out these elements under New York law) with Appleton, 757 A.2d at 1063 (setting out these elements under Connecticut law). Under the law of either state, a plaintiff must allege that the defendant had some improper motive to sustain a claim for tortious interference with prospective economic advantage. Compare Blake, 464 A.2d at 54 (holding that, to successfully raise a claim for tortious interference under Connecticut law, a plaintiff must show that "the defendant was guilty of fraud, misrepresentation, intimidation, or molestation or that the defendant acted maliciously") with Purgess, 33 F.3d at 141 (holding that, to sustain a claim for tortious interference under New York law, a plaintiff must show "that defendant acted with the sole purpose of harming the plaintiff or used dishonest, unfair, or improper means"). Because no actual conflict exists, the Court will apply the substantive law of the forum state, New York, to Plaintiff's claim for tortious interference with prospective economic advantage.
3. Choice of Law for Plaintiff's Unfair-Competition Claim
The laws of New York and Connecticut are in agreement regarding Plaintiff's claim for common-law unfair competition. "The essence of an unfair competition claim under New York law is that the defendant has misappropriated the labors and expenditures of another." Saratoga Vichy Spring Co. v. Lehman, 625 F.2d 1037, 1044 (2d Cir. 1980). Under Connecticut law, although good-faith competition is not prohibited, Connecticut State Medical Soc. v. Connecticut Bd. of Exam'rs in Podiatry, 524 A.2d 636, 640 (Conn. 1987), competition is considered "unfair" if the plaintiff alleges fraud or deceit or the defendant has engaged in activities that are dominantly and primarily aimed at destroying a competitor's business, Savoy Laundry Linen Supply, Inc. v. Morgan Linen Serv., Inc., 16 Conn. Supp. 408, 411 (Conn.Super.Ct. 1949); see also Larsen Chelsey Realty Co. v. Larsen, 656 A.2d 1009, 1022 n. 23 (Conn. 1995) (stating that unfair competition is considered a generic term for a number of related torts involving improper interference with business prospects). To prevail on this claim under either New York or Connecticut law, some element of bad faith must be involved. Compare Saratoga Vichy Spring, 625 F.2d at 1044 (finding that, under New York law, the essence of an unfair competition claim is that defendant has misappropriated the labors and expenditures of another) with Connecticut State Medical Soc., 524 A.2d at 640 (establishing that, under Connecticut law, one who causes loss of business or occupation in good faith is not liable to the other for the loss caused, though a loss will result). Because no actual conflict exists, the Court will apply the substantive law of the forum state, New York, to Plaintiff's claim for common-law unfair competition as well.
4. Choice of Law for Plaintiff's Unjust-Enrichment Claims
The laws of New York and Connecticut are in agreement regarding Plaintiff's unjust-enrichment claims. To prevail on a claim for unjust enrichment under either Connecticut or New York law, a plaintiff bears the burden of showing that the defendant was enriched at the plaintiff's expense and that the benefit to the defendant was unjust. Compare Clark v. Daby, 300 A.D.2d 732, 732 (N.Y.App.Div. 2002) and R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 60 (2d. Cir. 1983) (applying New York law) with Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 649 A.2d 518, 521-2 (Conn. 1994) and Nora Beverages, Inc. v. Perrier Group of America, Inc., 164 F.3d 736, 752 (2d Cir. 1998) (applying Connecticut law). The laws of both states consider unjust enrichment to be a broad and flexible equitable remedy.Compare Clark, 300 A.D.2d at 732 (noting that a plaintiff can prevail on a claim for unjust enrichment under New York law when it is "against equity and good conscience to permit defendant to retain what is sought to be recovered" (quoting Paramount Film Distrib. Corp. v. New York, 285 N.E.2d 695, 698 (N.Y. 1972)))and McDermott v. City of New York, 406 N.E.2d 460, 462 (N.Y.App.Div. 1980) (holding that to prevent unjust enrichment New York courts have "assumed the duty of placing the obligation where in equity it belongs") with Hartford Whalers Hockey Club, 649 A.2d at 521 (noting that, under Connecticut law, unjust enrichment is a claim "consistent with the principles of equity") and Garwood Sons Construction Co., Inc. v. Centos Assocs. Ltd. P'ship, 511 A.2d 377, 379 (Conn.App. 1986) (noting that, under Connecticut law, unjust enrichment permits recovery based on the principle that, in a given situation, "it is contrary to equity and good consciousness for the defendant to retain the benefit which has come to him at the expense of the plaintiff"). Because no actual conflict exists, the Court will apply the substantive law of the forum state, New York, to Plaintiff's claims for unjust enrichment.
C. Claim One: Tortious Interference With Contract
Plaintiff pleads the required elements for tortious interference with contract under New York law to survive Defendant's motion to dismiss. Plaintiff has alleged that a valid contract existed between Plaintiff and third-party BBNP; that Defendant knew of the contract and the extension option that it contained; that Defendant improperly and intentionally caused BBNP to breach the contract by refusing to accept Plaintiff's extension request; and that the breach resulted in damage to Plaintiff. See Mina Inv. Holdings, 184 F.R.D. at 252;Foster, 665 N.E.2d at 156. Further, Plaintiff has alleged that Defendant was the "but for" cause of BBNP's breach by alleging that Defendant procured the breach intentionally. See Sharma v. Skaarup Ship Mgmt. Corp., 916 F.2d 820, 828 (2d Cir. 1990) ("[P]laintiff must allege that there would not have been a breach [of an existing contract] but for the activities of defendant."). Defendant's motion to dismiss is DENIED as to Claim One of Plaintiff's complaint.
D. Claim Two: Tortious Interference With Prospective Economic Advantage
Plaintiff pleads the required elements for tortious interference with prospective economic advantage under New York law by alleging that Plaintiff had business relationships with numerous third-party distributors, and that Defendant knew of and intentionally interfered with those relationships by improperly obtaining the distributors' information and contacting them, thereby causing the distributors to stop purchasing Czechvar Lager from Plaintiff through wrongful means. See Purgess, 33 F.3d at 141. Because Plaintiff's facts as plead in the complaint must be accepted as true when ruling on a motion to dismiss, Defendant's motion to dismiss is DENIED as to Claim Two of Plaintiff's complaint.
E. Claim Three: Unfair Competition
Plaintiff fails to allege the required elements for a common-law claim for unfair competition. The essence of an unfair-competition claim is that the defendant, in bad faith, has "misappropriated the labors and expenditures of another."Saratoga Vichy Spring, 625 F.2d at 1044. Although Plaintiff asserts that BBNP improperly provided Defendant with Plaintiff's confidential information, Plaintiff fails to allege that Defendant misappropriated the information from BBNP. A common-law claim for unfair competition is flexible, but it cannot be sustained simply by alleging that defendant's actions were "unfair." See id. (holding that New York law will not support the view that the only finding necessary for unfair competition is that a competitor-defendant's actions were "unfair"). Because Plaintiff fails to plead the elements required to allege a claim for unfair competition, Defendant's motion to dismiss is GRANTED as to Claim Three of Plaintiff's complaint.
F. Claims Four and Five: Unjust Enrichment
Plaintiff has failed to state a claim for unjust enrichment under New York law. Although Plaintiff recites the elements of unjust enrichment and asserts that they have been met by allegations in the complaint — specifically, that Defendant was enriched by the value of the good will and distribution rights developed by Plaintiff through the investment of time and capital in the Czechvar Lager brand, that this enrichment was at Plaintiff's expense because Plaintiff has lost the $1.5 million investment it made to develop the brand's good will as well as sales, and that it would be inequitable for Defendant not to compensate Plaintiff because Defendant caused the loss by tortiously interfering with Plaintiff's Agreement with BBNP — Plaintiff has failed to allege that a contractual or quasi-contractual relationship existed between Plaintiff and Defendant. Unjust enrichment is a quasi-contractual remedy, and its elements cannot be removed "from the context in which they must be viewed: as an alternative to contract, where a contractual relationship has legally failed." Reading Int'l, Inc. v. Oaktree Capital Mgmt. LLC, 317 F. Supp. 2d 301, 333-34 (S.D.N.Y. 2003) (dismissing unjust-enrichment claims where the plaintiffs failed to allege any contractual or quasi-contractual relationship with the defendants); see also Redtail Leasing, Inc. v. Bellezza, No. 95 Civ. 5191 (JFK), 1997 WL 603496, at *8 (S.D.N.Y. Sept. 30, 1997) ("[A]n unjust enrichment claim, which is a quasi-contract claim, requires some type of direct dealing or actual, substantive relationship with a defendant."); In re Motel 6 Litig., Nos. 93 Civ. 2183 (JFK) and 93 Civ. 2866 (JFK), 1997 WL 154011, at *7 (S.D.N.Y. Apr. 2, 1997) ("The requirements [of unjust enrichment] clearly contemplate that the defendant and the plaintiff must have had some type of direct dealing, an actual relationship or some greater substantive connection" that is alleged in this case.). Plaintiff has not alleged any prior course of business dealings with Defendants. Because Plaintiff's unjust-enrichment claim must fail, Defendant's motion to dismiss is GRANTED as to Claims Four and Five of Plaintiff's complaint.
G. Plaintiff's Request to Replead
Plaintiff seeks leave to file an amended complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure to cure the deficiencies in the original complaint. Leave to amend under Rule 15(a) — which provides that, after a responsive pleading has been filed, the parties may amend their pleadings only by consent of their adversaries or by leave of the court — "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). Defendant does not allege any reason why the Court should deny Plaintiff's request. To the extent that the deficiencies in Counts Three, Four, and Five of the original complaint (Plaintiff's unfair-competition and unjust-enrichment claims) may be curable, Plaintiff may file an amended complaint.
III. CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss Plaintiff's complaint is GRANTED in part and DENIED in part. Plaintiff is granted 30 days from the date of this Memorandum Order within which to serve and file an amended complaint. The parties shall appear for a pre-trial status conference on Friday, August 5, 2005 at 9:30 AM in Courtroom 14C.
So Ordered.