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Koury v. Xcellence, Inc.

United States District Court, S.D. New York
Jan 13, 2009
649 F. Supp. 2d 127 (S.D.N.Y. 2009)

Opinion

No. 08 Civ. 5409 (SAS).

January 13, 2009.

Seth T. Taube, Esq., Maureen P. Reid, Esq., Baker Botts L.L.P., New York, NY, for Plaintiff.

Michael A. Kalish, Esq., Epstein Becker Green, P.C., New York, NY, for Defendants.



OPINION AND ORDER


I. INTRODUCTION

Joesph Koury brings this action against Xcellence, Inc., d/b/a Xact ("Xact") and two of its officers for events arising out of the sale of Koury's reproduction services business to Xact in May 2006. Specifically, Koury asserts that Xact breached the sale contract and that all defendants breached their fiduciary duties. Defendants now move to dismiss this action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons discussed below, defendants' motion is granted in part and denied in part.

II. BACKGROUND

A. Facts

On May 3, 2006, Koury sold his membership interest in Accurate Repro, LLC to Xact for $1,350,000. Koury resides in New Jersey. Xact is a Missouri corporation with its principal place of business in Kansas. Accurate Repro's principal place of business was in New York City. According to the Purchase Agreement executed by Koury and Xact, the purchase price was to be paid to Koury in monthly installments of $28,023.78, with the first payment to be made on May 3, 2006 and the last payment to be made on April 3, 2011. Under the Purchase Agreement, Koury agreed not to compete with Xact for three years in markets served by Xact or Accurate Repro. Koury further agreed that his rights to monthly payments were subordinate to the rights of "all holders of indebtedness of borrowed money of [Accurate Repro] and/or of Xact" and that he "agree[d] to enter into any further subordination agreement that may be required by any lender of [Accurate Repro] and/or Xact."

See Koury v. Xcellence, Inc., No. 08 Civ. 5409, 2009 WL 94312 (S.D.N.Y. Jan. 13, 2009).

See Defendant's Memorandum of Law in Support of Motion for Reconsideration of January 13, 2009 Order ("Def. Mem.").

See Patterson v. United States, No. 04 Civ. 3140, 2006 WL 2067036, at *1 (S.D.N.Y. July 26, 2006) ("The decision to grant or deny a motion for reconsideration is within the sound discretion of the district court.") (citing McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983).

In re BDC 56 LLC, 330 F.3d 111, 123 (2d Cir. 2003) (quotation omitted).

RST (2005) Inc. v. Research in Motion Ltd., No. 07 Civ. 3737, 2009 WL 274467, at *1 (S.D.N.Y. Feb. 4, 2009) (quoting Virgin Atl. Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)).

Grand Crossing, L.P. v. United States Underwriters Ins. Co., No. 03 Civ. 5429, 2008 WL 4525400, at *3 (S.D.N.Y. Oct. 6, 2008) (quoting S.E.C. v. Ashbury Capital Partners, No. 00 Civ. 7898, 2001 WL 604044, at *1 (S.D.N.Y. May 31, 2001). Accord Commerce Funding Corp. v. Comprehensive Habilitation Servs., Inc., 233 F.R.D. 355, 361 (S.D.N.Y. 2005) ("[A] movant may not raise on a motion for reconsideration any matter that it did not raise previously to the court on the underlying motion sought to be reconsidered.").

United States v. Treacy, No. 08 Cr. 0366, 2009 WL 47496, at *1 (S.D.N.Y. Jan. 8, 2009) (quotation omitted). Accord Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995) (holding that a court will deny the motion when the movant "seeks solely to relitigate an issue already decided.").

In June 2006, Koury executed a Subordination Agreement with one of Xact's lenders, Commerce Bank ("Commerce Bank Subordination Agreement"), pursuant to which Koury agreed to allow Commerce Bank to subordinate his monthly payments from Xact in the event that Xact defaulted on its loan from Commerce Bank. The Subordination Agreement contained the following provision:

Makas v. Orlando, No. 06 Civ. 14305, 2008 WL 2139131, at *1 (S.D.N.Y. May 19, 2008) (quoting In re Houbigant, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y. 1996)).

[Xact] will not make and [Koury] will not accept, at any time while any Superior Indebtedness is owing to [Commerce Bank] . . . any payment upon any subordinated indebtedness . . . [except] regularly scheduled payments of $28,023.78 each month to [Koury] . . . so long as [Xact] is not in default under any agreement between Lender and [Xact]. [Koury] may not accelerate any amounts owed to [him] without [Commerce Bank's] prior written consent.

Associated Press v. United States Dep't of Defense, 395 F. Supp. 2d 17, 19 (S.D.N.Y. 2005)

"Superior Indebtedness" was defined to mean "all present and future indebtedness . . . now or hereafter owing from Borrower or Lender." In a shaded area at the top of the Subordination Agreement, marked "for Lender's use only," the document stated that the loan was to begin on June 14, 2006 and would reach maturity on June 14, 2007. The Subordination Agreement provided that it was "executed at [Xact's] request and not at the request of the lender [Commerce Bank]." The Subordination Agreement also provided that "[Koury] ha[d] established adequate means of obtaining from [Xact] on a continuing basis information regarding [Xact's] financial condition."

See Grand Crossing, L.P. v. United States Underwriters Ins. Co., No. 03 Civ. 5429, 2008 WL 4525400 (S.D.N.Y. Oct. 6, 2008).

See Def. Mem. at 4-5.

See Stevelman v. Alias Research Inc., 174 F.3d 79, 84 (2d Cir. 1999) ("To state a claim with the required particularity [under Rule 9], a complaint must: (1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent." (quotation marks omitted)).

On September 29, 2007, after Xact withheld two monthly payments in response to Koury's alleged breach of the non-compete agreement, the parties entered into an Amended Purchase Agreement, pursuant to which: (1) Koury agreed to reduce the Purchase Price by $190,193.40; (2) Koury waived his right to assert claims relating to the missed monthly payments; and (3) Xact waived its right to claim that Koury breached the non-compete agreement. The Amended Purchase Agreement also informed Koury that Commerce Bank had indicated that it "may take certain actions" to subordinate Koury's payments, pursuant to the Commerce Bank Subordination Agreement. On the date Koury signed the Amended Purchase Agreement, however, Xact's counsel advised Koury that Xact was not aware, as of that date, of any decision by Commerce Bank to subordinate Koury's payments.

See Koury, 2009 WL 94312, at *4 (citing Leno v. DePasquale, 794 N.Y.S.2d 662, 662 (2d Dep't 2005)).

See 5 Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 1286 (3d ed. 2004) ("[A]s the case law makes very clear, the district court is obligated to make a determined effort to understand what the pleader is attempting to set forth and to construe the pleading in his or her favor, whenever the interest of justice so requires.").

For example, defendant argues that the Court misread the Complaint when it stated that "Koury alleges that on [September 29, 2007: the date the Subordination Agreement was signed], Xact's counsel informed Koury that Commerce Bank had not yet decided to subordinate Koury's payments from Xact." Def. Mem. at 4 (quoting Koury, 2009 WL 94312, at *5). Defendant urges that the Complaint alleges only that "Xact's counsel had advised Mr. Koury that he was not aware of any subordination on September 29, 2007." Id. Beyond defendant's failure to consider whether the former proposition can be reasonably inferred from the latter one, defendant neglects to mention the next sentence in the Opinion and Order: "The Amended Purchase Agreement similarly stated that Commerce Bank `may' subordinate Koury's payments, implying that the subordination had not yet occurred." Koury, 2009 WL 94312, at *5. Reading the Complaint as a whole, in conjunction with this attached Amended Purchase Agreement, it is beyond cavil that Koury alleges that Xact falsely informed him, on September 29, 2007, that no subordination had yet occurred.

On October 3, 2007 — a few days after executing the Amended Purchase Agreement — Koury received notice from Commerce Bank in a letter dated before the Amended Purchase Agreement was signed that Xact was in default on its loan agreement with Commerce Bank and, therefore, Commerce Bank was subordinating Koury's monthly payments from Xact. As a result, Koury received no payments from Xact for the next several months.

Hack v. President Fellows of Yale College, 237 F.3d 81, 89 (2d Cir. 2000).

Northrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 46 (2d Cir. 1997) (quoting Albert v. Carovano, 851 F.2d 561, 571 n. 3 (2d Cir. 1988) (en banc).

In December 2007, Xact informed Koury that he would not receive any further payments from Xact unless and until he signed a new subordination agreement with Marshall Ilsley Bank ("M I Bank"), through which Xact sought to refinance its loan with Commerce Bank. The first draft of the M I Bank Subordination Agreement contained a clause, like the clause in the Commerce Bank Subordination Agreement, providing that Koury would have continual access to Xact's financial records. Prior to signing the new subordination agreement, Koury requested permission to review Xact's financial condition. Xact refused and drafted a new subordination agreement that removed the clause guaranteeing Koury's access to Xact's financial records.

Hack, 237 F.3d at 89 (quotation marks omitted).

See id. ¶ 40.

See id.

See id.

In order to resume his receipt of monthly payments, Koury signed the redrafted M I Bank Subordination Agreement in late December 2007, which was made retroactive to December 10, 2007. Xact then resumed payments to Koury, making one payment in December 2007 and one payment in January 2008.

See id. ¶ 41. Except for the differences discussed above, the M I Subordination Agreement contained materially identical terms to the Commerce Bank Subordination Agreement, adjusted for the amounts then due to Koury. See M I Bank Subordination Agreement ("M I Sub. Ag."), Ex. C to Kalish Aff.

See Am. Compl. ¶ 41.

On January 24, 2008, Xact defaulted on its loan agreement with M I Bank. M I Bank then exercised its right to subordinate Koury's payments that same day. Xact has remained in default to this day and has not made a single payment to Koury since that time. In a letter to the Court, Xact indicated that its Superior Indebtedness to M I Bank is scheduled to last through at least 2012, with the result that Koury may not receive any payments until that time.

See id. ¶ 43.

See id. ¶ 48.

See 12/18/08 Letter from Xact to the Court.

B. The Claims

In May 2008, Koury filed suit against Xact in New York state court. Xact removed the case to federal court based on diversity of citizenship. In his complaint, Koury makes three claims. First, Koury asserts that Xact breached the original and amended Purchase Agreements by Xact's "continued failure to pay [Koury] the proceeds of the business [Koury] sold Defendants, including those payments missed during the first subordination period." Specifically, Koury claims that Xact's refusal to disclose its financial records to Koury prior to the M I Subordination Agreement coupled with Xact's default on the M I loan less than six weeks after it was issued indicates that Xact foresaw the likelihood of its default on the M I Bank loan. Further, based partly on these suspicious circumstances, Koury alleges on information and belief that Xact manipulated its financial reporting to M I Bank either to fraudulently obtain the loan in the first instance or to feign default on the loan in order to induce the subordination of Koury's monthly payments. Koury requests discovery "to evaluate Xact's financial position with M I Bank and determine whether the subordination, in fact, is justified." Koury also alleges that Xact knew, but denied and failed to disclose, that Commerce Bank had determined to subordinate Koury's payments prior to the time when Koury signed the amended Purchase Agreement with Xact. Finally, Koury argues that Xact fraudulently induced Koury to sign the Amended Purchase Agreement by falsely representing that Commerce Bank had not yet decided to subordinate Koury's payments.

See Notice of Removal at 1.

Am. Compl. ¶ 57.

See id.

See id.

Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss ("Pl. Mem.") at 9.

See Am. Compl. ¶ 35.

Second, Koury seeks a declaration that because Xact has made no payments to Koury for a year, Koury is no longer restrained from competing with Xact or Accurate Repro under the Amended Purchase Agreement. Third, Koury claims that Xact and two of its officers, Robert Polus and Barbara Amos, breached their fiduciary duties. He claims that "Xact was apparently insolvent beginning at least December 2007." This insolvency, Koury asserts, triggered certain fiduciary duties to him as one of Xact's creditors — namely, a duty "to take whatever steps are necessary to pay him by liquidating its assets or selling its business."

See id. ¶ 60.

Polus is the Chairman and Chief Executive Officer of Xact, see id. ¶ 8, and according to Koury he visited New York "on numerous occasions in connection with the transaction at issue." Id. ¶ 12. Amos is an officer of Xact who Koury asserts visited New York "as part of the due diligence process in connection with the transaction at issue." Id. ¶ 13. While Koury's amended complaint includes Polus and Amos in the breach of contract and declaratory judgment claims, see id. ¶¶ 57, 60, Koury now withdraws those claims against Polus and Amos. See Pl. Mem. at 6 n. 2.

See Am. Compl. ¶ 63.

Id. ¶ 45.

Id. ¶ 46.

III. APPLICABLE LAW

A. Motion to Dismiss Standard

In reviewing a motion to dismiss pursuant to Rule 12(b)(6), a court "`must accept as true all of the factual allegations contained in the complaint'" and "draw all reasonable inferences in the plaintiff's favor." In light of the Supreme Court's decision in Twombly, a complaint must provide "the grounds upon which [the plaintiff's] claim rests through factual allegations sufficient `to raise a right to relief above the speculative level'" in order to survive a motion to dismiss. In short, a pleader must "amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible."

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1975 (2007) (quoting Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, n. 1 (2002)).

Ofori-Tenkorang v. American Int'l Group, Inc., 460 F.3d 296, 298 (2d Cir. 2006) (citation omitted).

ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 127 S. Ct. at 1965). Accord Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (per curiam) (noting that plaintiffs must "`give the defendant fair notice of what the . . . claim is and the grounds upon which it rests'") (quoting Twombly, 127 S. Ct. at 1964); Law Offices of Curtis V. Trinko, L.L.P. v. Bell Atlantic Corp., 309 F.3d 71, 74 (2d Cir. 2002) ("[B]ald assertions and conclusions of law will not suffice.") (citation omitted).

Iqbal v. Hasty, 490 F.3d 143, 158 (2d Cir. 2007).

In deciding a motion to dismiss, the court is not limited to the face of the complaint. The court "may [also] consider any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference . . . and documents possessed by or known to the plaintiff and upon which it relied in bringing the suit."

ATSI Commc'ns, 493 F.3d at 98.

"One of the most important objectives of the federal rules is that lawsuits should be determined on their merits and according to the dictates of justice, rather than in terms of whether or not the averments in the paper pleadings have been artfully drawn." "`So long as [the plaintiff has] alleged facts sufficient to support a meritorious legal claim,'" a 12(b)(6) motion to dismiss may not be granted simply "because [the plaintiff] proceeded under the wrong theory." Rather, on a motion to dismiss, "`[f]actual allegations alone are what matter[].'" The Court, moreover, is required to read the factual allegations in a complaint "as a whole."

B. Breach of Contract

5 Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 1286 (3d ed. 2004).

Hack v. President Fellows of Yale College, 237 F.3d 81, 89 (2d Cir. 2000) (quoting Northrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 46 (2d Cir. 1997)).

Northrop, 134 F.3d at 46 (quoting Albert v. Carovano, 851 F.2d 561, 571 n. 3 (2d Cir. 1988) (en banc)).

Shapiro v. Cantor, 123 F.3d 717, 719 (2d Cir. 1997).

Under New York law, a claim for breach of contract requires (1) the existence of a contract; (2) adequate performance of the contract by the plaintiff; (3) breach of the contract by the defendant; and (4) damage to the plaintiff as a result of the defendant's breach. Subordination agreements are generally upheld under New York law.

See Grand Heritage Mgmt., LLC v. Murphy, No. 06 Civ. 5977, 2007 WL 3355380, at *4 (S.D.N.Y. Nov. 7, 2007) (citing Harsco Corp. v. Segui, 91 F.3d 337, 348 (2d Cir. 1996)).

See AM Cosmetics, Inc. v. Solomon, 67 F. Supp. 2d 312, 323 (S.D.N.Y. 1999) (citation omitted).

Whether a contract clause is ambiguous is a question of law. "Ambiguity exists when a material contract term or clause is susceptible of `more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.'" Where there is no ambiguity and "`the intent of the parties can be determined from the face of the agreement, interpretation is a matter of law,' and a claim turning on that interpretation may be resolved on a motion to dismiss."

See Collins v. Harrison-Bode, 303 F.3d 429, 433 (2d Cir. 2002).

Grand Heritage Mgmt., 2007 WL 3355380, at *4 (quoting World Trade Ctr. Props., L.L.C. v. Hartford Fire Ins. Co., 345 F.3d 154, 184 (2d Cir. 2003)).

Id. (quoting Paine Webber Inc. v. Bybyk, 81 F.3d 1193, 1199 (2d Cir. 1996)).

1. Fraud in the Inducement

Under New York law, in order to assert a claim for fraud in the inducement of a contract, a plaintiff must establish "(1) that the defendant made material representations that were false, (2) that the defendant knew the representations were false and made them with the intent to deceive the plaintiff, (3) that the plaintiff justifiably relied on the defendant's representations, and (4) that the plaintiff was injured as a result of the defendant's representations." The party to whom the false statement has been made may not rely thereon if the truth of that statement can be verified through the exercise of ordinary intelligence or reasonable diligence.

Leno v. DePasquale, 794 N.Y.S.2d 662, 662 (2d Dep't 2005).

See Huron Street Realty Corp. v. Lorenzo, 798 N.Y.S.2d 438 (2d Dep't 2005).

2. Anticipatory Breach

If a "party repudiates contractual duties prior to the time designated for performance and before all of the consideration has been fulfilled, the repudiation entitles the nonrepudiating party to claim damages for total breach." To constitute an anticipatory breach based on a request for a modification of terms, the request must be coupled with an absolute refusal to perform unless the request is granted. Although the non-breaching party learning of an alleged anticipatory breach must elect either to treat the contract as terminated or continue to treat the contract as valid (but not both), there is no set time to make this election; rather, how much time is reasonable depends upon the facts and circumstances of each case, in particular "the nature of the performance to be rendered under the contract."

Norcon Power Partners, L.P. v. Niagara Mohawk Power Corp. 92 N.Y.2d 458, 462-63 (1998).

See O'Connor v. Sleasman, 788 N.Y.S.2d 518, 520 (3d Dep't 2005).

Bigda v. Fischbach Corp., 898 F. Supp. 1004, 1012-13 (S.D.N.Y. 1995).

3. Implied Good Faith Terms

"Under New York law, a covenant of good faith and fair dealing is implied in all contracts." "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." "The action presumed contrary to the parties' intention must directly violate an obligation that falls within their reasonable expectations, that is to say, the implied promise must be so much a part of a contract as to be essential to effectuate the contract's purposes."

State St. Bank Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 169 (2d Cir. 2004) (citations omitted); see N.Y.U.C.C. §§ 1-201(19), 1-203 (defining "good faith" as "honesty in fact in the conduct or transaction concerned").

Id.

Bank of China v. Chan, 937 F.2d 780, 789 (2d Cir. 1991).

C. Breach of Fiduciary Duty

1. Choice of Law

Pursuant to the Purchase Agreement, New York law governs Koury's breach of contract claims. The Purchase Agreement is silent, however, as to the governing law on the fiduciary duty claim. A choice of law analysis is thus required for the fiduciary duty claim.

See Purchase Agreement, Ex. A to Am. Compl., at ¶ 11.

In a diversity action, New York choice of law rules govern. In New York, claims for breach of fiduciary duty are analyzed "under choice of law principles applicable to torts." In New York, "the first step is to determine whether there is a substantive conflict between the laws of the relevant choices. In the absence of substantive difference . . . a New York court will dispense with choice of law analysis; and if New York law is among the relevant choices, New York courts are free to apply it."

See Cantor-Fitzgerald Inc. v. Lutnick, 313 F.3d 704, 710 (2d Cir. 2002) ("To determine which state's law applies, a federal court sitting in diversity must apply the conflict-of-laws rules of the state in which the federal court sits.") (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)).

Caudle v. Towers, Perrin, Forster Crosby, Inc., No. 07 Civ. 2480, 2008 WL 4104035, at *6 n. 1 (S.D.N.Y. Aug. 28, 2008).

Pension Comm. of the Univ. of Montreal Pension Plan v. Bank of Am. Sec., LLC, 446 F. Supp. 2d 163, 191 (S.D.N.Y. 2006) (internal quotation and citations omitted).

New York choice of law rules recognize the so-called internal affairs doctrine, which asserts that "the state of incorporation has an interest superior to that of other states in regulating the directors' conduct of the internal affairs of its own corporations." Yet the New York Court of Appeals has rejected "`any automatic application'" of the internal affairs doctrine. Rather, New York uses an "`interest analysis' generally applying the law of the jurisdiction with the greatest interest in the specific issue under consideration."

BSS Norwalk One, Inc. v. Raccolta, Inc., 60 F. Supp. 2d 123, 129 (S.D.N.Y. 1999).

Stephens v. National Distillers Chem. Corp., No. 91 Civ. 2901, 91 Civ. 2902, 1996 WL 271789, at *4 (S.D.N.Y. May 21, 1996) (quoting Greenspun v. Lindley, 369 N.Y.S.2d 123, 126 (1975)).

Caudle, 2008 WL 4104035, at *6 (citation omitted). Accord University of Montreal Pension Plan, 446 F. Supp. 2d at 192 (noting that New York applies an interest analysis in order "to identify the jurisdiction that has the greatest interest in the litigation based on the occurrences within each jurisdiction, or contacts of the parties with each jurisdiction, that relate to the purpose of the particular law in conflict." (internal quotation and citation omitted)).

2. Fiduciary Duty Claim: Missouri Law

As discussed below, Missouri substantive law applies to the fiduciary duty claim. Under Missouri law, "absent statutory authority, or an intentional or fraudulent act, the relationship between a creditor and a corporation is that of contract, not one of trust." Missouri "has rejected the concept that corporate directors are fiduciaries for creditors, even in the event of insolvency." Missouri does, however, recognize an exception to this rule when a corporation's acts with regard to a creditor are fraudulent. Missouri law also recognizes an exception for defunct or nearly-defunct corporations. "Early Missouri cases do recognize directors' liability to creditors in the limited situation where the corporation is not a going concern, but rather clearly going out of business or incapable of doing business, and that it is conclusively established that it is insolvent." Under these cases, a corporation incapable of doing business was viewed as "de facto dissolved, placing the directors and officers in a trustee-like position for the equal benefit of all creditors."

Drummond Co. v. St. Louis Coke Foundry Supply Co., 181 S.W.3d 99, 103 (Mo.Ct.App. 2005) (citation omitted).

Id. at 104.

See Union Nat. Bank v. Hill, 49 S.W. 1012, 1016 (Mo. 1899).

Drummond, 181 S.W.3d at 104 (citing Banta v. Hubbell, 150 S.W. 1089, 1091-92 (Mo.Ct.App. 1912); Warren v. Mayer, 143 S.W. 861, 863-64 (Mo.Ct.App. 1912); Williams v. Jackson County Patrons of Husbandry, 23 Mo. App. 132 (1886)).

Drummond, 181 S.W.3d at 104.

IV. DISCUSSION

A. Breach of Contract Claim

Koury agreed to sell his business to Xact, and to forego employment in his field of expertise for three years, in exchange for sixty consecutive monthly payments totaling over one million dollars. Koury also agreed to enter into any subordination agreements required by any of Xact's lenders. As a result of successive subordinations, Koury has not received any payments for one year and has been prevented from obtaining employment in his field of expertise, leaving him destitute. Reading the factual allegations in the Complaint as a whole, Koury's Complaint adequately pleads facts in support of three theories of breach.

1. Fraud in the Inducement

The Complaint adequately pleads facts in support of a claim for fraud in the inducement of the Amended Purchase Agreement. Koury signed the Amended Purchase Agreement on September 29, 2007. Koury alleges that on that date, Xact's counsel informed Koury that Commerce Bank had not yet decided to subordinate Koury's payments from Xact. The Amended Purchase Agreement similarly stated that Commerce Bank "may" subordinate Koury's payments, implying that the subordination had not yet occurred. Koury was informed on October 3, 2007, however, in a letter dated September 26, 2007, that Commerce Bank had subordinated his payments. Because a default by Xact on its loan from Commerce Bank automatically led to subordination under the Commerce Bank Subordination Agreement, and because Xact would have known whether it was in default on its loan with Commerce Bank, Koury has adequately pled that Xact knew, but failed to disclose and had represented otherwise, that Commerce Bank had subordinated Koury's payments prior to Koury's signing the Amended Purchase Agreement. Because there is, at the very least, a factual question regarding whether this alleged misrepresentation was material, Koury's claim for fraud in the inducement on the Amended Purchase Agreement may proceed.

2. Anticipatory Breach

The Complaint also adequately pleads facts in support of a claim for anticipatory breach of the Amended Purchase Agreement. Some time after December 11, 2007, Xact informed Koury that it would not pay Koury his monthly installments unless and until he signed a new Subordination Agreement with M I Bank. It appears that Xact's Superior Indebtedness to Commerce Bank ended on December 10, 2008, when the refinancing with M I Bank was completed. Thus, during the post-December 11 negotiations leading to the signing of the M I Bank Subordination Agreement, Xact was not restricted in any way from paying Koury the amounts he was owed.

See Am. Compl. ¶¶ 39-41.

See, e.g., M I Sub. Ag. at 1 (indicating that loan date was 12/10/07). If, to the contrary, the Commerce Bank loan and Commerce Bank Subordination Agreement were still effective on December 11, 2007, then Koury's allegations support a claim for breach relating to the Commerce Bank Subordination Agreement: Koury asked for Xact's financial records on December 11, 2007, which Xact refused to provide; by the terms of the Commerce Bank Subordination Agreement, however, Koury was entitled to have access to Xact's financial records "on a continuing basis." See Com. Bank Sub. Ag. at 2.

Xact argues, nevertheless, that its refusal to pay Koury during this period unless and until Koury signed the M I Bank Subordination Agreement was not an anticipatory breach because the Purchase Agreement placed Koury under a pre-existing legal duty to sign the M I Bank Subordination Agreement. Xact's argument fails, however, because Koury was under no legal obligation to sign the M I Bank Subordination Agreement: the Purchase Agreement provided that "Koury agrees to enter into any further subordination agreement that may be required by any lender of [Accurate Repro] and/or Xact." The M I Bank Subordination Agreement was not "required by any lender"; rather, by its express terms, the M I Subordination Agreement was "executed at [Xact's] request and not at the request of Lender." Thus, Koury was under no pre-existing duty to sign this Subordination Agreement. As a result, Koury's allegation that Xact threatened to cease performing on the Purchase Agreement unless Koury signed the M I Subordination Agreement states a claim for anticipatory breach.

Am. Compl. ¶ 20 (emphasis added).

M I Sub. Ag. at 2 (emphasis added).

The question of whether Koury's time to claim an anticipatory breach has expired turns on factual issues, including whether Koury had completed performance of his duties under the contract.

3. Good Faith

Both parties to the Purchase Agreement necessarily contemplated that Xact would take all reasonable care not to default on any loans that were subject to a subordination agreement with Koury. Under the good faith doctrine in New York, this contemplated condition is an implied term of the Purchase Agreement. According to the complaint, Xact violated this implied term by (1) manipulating its financial data to obtain a loan for which it was not qualified; (2) agreeing to a loan with default conditions that it was likely to violate; or (3) manipulating its financial data to create the appearance of default with the intent of triggering a subordination. This allegation is made plausible by the pleaded circumstantial evidence, including: (1) Xact's refusal to disclose its financial records to Koury, even though the Commerce Bank Subordination Agreement and the first draft of the M I Subordination Agreement required such disclosure; (2) Xact's default on the loan six weeks after it was issued; and (3) Xact's threat to cease performance on the Purchase Agreement unless Koury signed the M I Subordination Agreement. To the extent the claim involves an allegation of fraud subject to a higher pleading standard, Koury has met that standard because the allegation relates to facts solely within Xact's knowledge, which Xact has refused to disclose, and Koury has alleged with particularity that Xact manipulated its financial records to create the appearance of default. As a result, Koury is entitled to discovery on Xact's financial condition during the default period.

Cf. ATSI Commc'ns at 102 (because a "claim of manipulation . . . can involve facts solely within the defendant's knowledge . . . at the early stages of litigation, the plaintiff need not plead manipulation to the same degree of specificity as a plain [fraud] claim.").

B. Declaratory Judgment Claim

Koury argues that the Purchase Agreement is silent, and therefore ambiguous, on the effect of a subordination on the non-compete clause. Koury persuasively argues that it was not in the contemplation of the parties that Koury would receive no payments under the Purchase Agreement for two years and yet be precluded from holding a job during that period. Because the Purchase Agreement is silent on this topic, and evidence of industry practice and the parties' intentions may help illuminate the relationship between the subordination clause and the non-compete clause, the motion to dismiss Koury's declaratory judgement claim is denied.

C. Fiduciary Duty Claim

1. Choice of Law

Koury asserts that New York law should apply to his fiduciary duty claim, while Xact, a Missouri corporation, argues that Missouri law should apply under the internal affairs doctrine. The difference between applying New York law and Missouri law in this case would be substantial. Koury alleges that Xact owed a fiduciary duty to him because of insolvency, and New York holds the majority view that directors of an insolvent corporation owe a fiduciary duty to their creditors. Missouri, on the other hand, "apparently is in a minority of states where internal duties of directors do not spread to duties to creditors."

See Pl. Mem. at 13.

See Defendants' Memorandum in Support of Its Motion to Dismiss ("Def. Mem.") at 9-10.

See Mediators, Inc. v. Manney, No. 93 Civ. 2304, 1996 WL 554576, at *2-3 (S.D.N.Y. Sept. 30, 1996).

Premier Bank v. Tierney, 114 F. Supp. 2d 877, 887 (W.D. Mo. 2000) (citation omitted).

Koury argues that New York law should be applied due to its overriding interest in his fiduciary duty claim, yet the cases he offers in support of this argument are readily distinguishable. In University of Montreal Pension Plan, for example, this Court declined to follow the internal affairs doctrine and applied New York law to the directors and officers of hedge funds based in the British Virgin Islands. One reason for applying New York law was that the funds' directors and officers allegedly allowed New York-based fund managers to perpetrate a substantial fraud on the funds' owners. In addition, the funds were defunct at the time of the litigation. As the defendant directors were no longer serving as directors, the internal affairs doctrine was no longer applicable, as its purpose is "to prevent a corporation and its current directors from being faced with conflicting demands." Here, by contrast, no alleged breach of fiduciary duty was planned or executed in New York, and Xact is not defunct, which means that the traditional purpose of the internal affairs doctrine continues to apply.

See id. at 193-94.

See id. at 194.

Id. (internal quotation and citation omitted).

Koury also cites to Stevens v. National Distillers Chemical Corporation. Notably, the defendant in that case was an insurance company incorporated in Kentucky. "As a foreign insurer doing business in New York, [it was] subject to various provisions of the New York Insurance Law," including certain fiduciary duty standards as codified in the New York Business Corporations Law." No such regulation exists here.

1996 WL 271789 (S.D.N.Y. May 21, 1996).

Id. at *5.

Id.

Ultimately, Koury's effort to establish that New York has an overriding interest in this matter is unconvincing. The focus of this case is Koury's right to continue receiving payments under the Purchase Agreement in New Jersey, where he resides. Moreover, applying New York law would put Xact in a very difficult position if it is insolvent. Under New York law, the officers of Xact would be required to manage the company for the benefit of creditors. Yet Missouri law, which would continue to apply to the company's shareholders, would require Xact's directors to manage the company in the shareholder' best interest, over the interests of creditors. The internal affairs doctrine exists precisely to prevent such a conflict. Accordingly, Missouri law should govern Koury's fiduciary duty claim.

2. Missouri Substantive Law

Under Missouri law, Koury's fiduciary duty claim cannot survive unless Koury adequately alleges that Xact engaged in fraudulent acts or that Xact was insolvent. Koury argues first that his fiduciary duty claim is viable under Missouri law because Xact committed a fraudulent act. Koury alleges that "[d]efendants failed to provide M I with accurate financial statements in procuring Xact's loan" and that Xact refinanced its debt "based upon misinformation and by hiding its true financial condition." These allegations, even if true, do not describe a fraud directed at Koury. They are therefore insufficient to permit Koury to invoke the "fraudulent act" exception to the rule of Drummond Company.

Am. Compl. ¶ 44.

Id. ¶ 45.

Again relying on Drummond, Koury suggests in the alternative that Xact owes a fiduciary duty to him under the exception for companies that are "clearly going out of business or incapable of doing business." Koury has failed, however, to allege that Xact is incapable of doing business. He simply asserts that Xact is "struggling." This characterization brings this case squarely within the ambit of Drummond. The court wrote that "there was no evidence that St. Louis Coke was clearly going out of business, incapable of doing business, or not a going concern. . . . Instead, there was evidence that despite its financial difficulties, St. Louis Coke continued to sell coke" during the relevant period. Because Koury alleges neither that Xact committed a fraudulent act directed at him nor that Xact is incapable of doing business, his fiduciary duty claim is dismissed with leave to amend.

Drummond, 181 S.W.3d at 104.

Am. Compl. ¶ 50.

Drummond, 181 S.W.3d at 104. Beyond its characterization of Xact as struggling, the Complaint gives no indication that Xact is incapable of doing business.

V. CONCLUSION

For the reasons stated above, defendants' motion to dismiss is granted in part and denied in part. A conference is scheduled for February 3, 2009 at 4.30 P.M.

SO ORDERED:

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

On January 13, 2009, this Court granted in part and denied in part the motion of defendant Xcellence, Inc., d/b/a Xact ("Xact") to dismiss the Complaint. As part of the Opinion and Order, the Court denied defendant's motion to dismiss plaintiff's claims for fraudulent inducement, anticipatory breach, breach of good faith, and declaratory judgment. Defendant now seeks reconsideration of this decision.

See Amended Complaint ("Am. Compl.") ¶¶ 16, 18.

See id. ¶ 6.

II. LEGAL STANDARD

Motions for reconsideration are governed by Local Rule 6.3 and are committed to the sound discretion of the district court. A motion for reconsideration is appropriate where "`the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.'" A motion for reconsideration may also be granted to "`correct a clear error or prevent manifest injustice.'"

See id. ¶ 7.

See id. ¶ 15 ("With the exception of one small office in Florida, all of Accurate Repro, LLC's activities were out of the New York, New York office.").

See id. ¶ 19.

The purpose of Local Rule 6.3 is to "`ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters.'" Local Rule 6.3 must be "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court." Courts have repeatedly been forced to warn counsel that such motions should not be made reflexively, to reargue "`those issues already considered when a party does not like the way the original motion was resolved.'" A motion for reconsideration is not an "opportunity for making new arguments that could have been previously advanced," nor is it a substitute for appeal.

See id. ¶ 22.

Id. ¶ 20.

See id. ¶ 21.

Commerce Bank Subordination Agreement ("Com. Bank Sub. Ag."), Ex. B to Affirmation of Michael A. Kalish ("Defendants' counsel") in Support of Motion to Dismiss ("Kalish Aff."), at 1.

Id.

III. DISCUSSION

Defendant's motion for reconsideration cites only one decision: Meyercord v. Curry, 832 N.Y.S.2d 29, 30 (1st Dep't 2007). Defendant asserts that Meyercord is a controlling decision, overlooked by this Court, that explains what must be pled under the heightened pleading standards of Federal Rule of Civil Procedure 9. The decision is neither controlling for the issue defendant raises nor was it overlooked by this Court. First, because Rule 9 sets forth a uniform federal standard for pleading fraud, the decision in Meyercord is not a controlling decision governing what must be pled under Rule 9. Second, the only relevant holding in Meyercord is its statement of the elements of fraudulent inducement, but this Court cited to another New York decision reciting the same elements.

Id. at 2.

Com. Bank Sub. Ag. at 2.

See id.

The balance of defendant's memorandum challenges this Court's interpretation of the factual allegations in the Complaint and this Court's framing of the legal theories under which the action may proceed. Regarding the factual allegations, the Opinion and Order drew all reasonable inferences in favor of the plaintiff and read the Complaint as a whole in trying to understand what the plaintiff meant to set forth. Defendant cites no controlling decision this Court overlooked or any clear error in its interpretation of the Complaint.

Id.

See Am. Compl. ¶ 35.

Regarding the Court's framing of the legal issues, as this Court explained, a 12(b)(6) motion to dismiss may not be granted simply "because [the plaintiff] proceeded under the wrong theory." Rather, on a motion to dismiss, "`[f]actual allegations alone are what matter []'" and a claim may not be dismissed "`[s]o long as [the plaintiff has] alleged facts sufficient to support a meritorious legal claim.'" Thus, although the Court analyzed some of the factual allegations under legal theories not explicitly advanced by the plaintiff, this is entirely proper in evaluating a motion to dismiss. Defendant cites no case to the contrary.

See id. The letter was dated September 26, 2007; the Amended Purchase Agreement was signed on September 29, 2007; Koury received the letter on October 3, 2007. See 9/26/07 Letter from Commerce Bank from Koury, Ex. 4 to Kalish Aff.

See Am. Compl. ¶ 36.

See id. ¶ 37.

III. CONCLUSION

For the reasons stated above, defendant's motion for reconsideration is denied. The Clerk of Court is directed to close this motion [docket no. 37]. A conference is scheduled for March 12, 2009 at 4.30 P.M.

SO ORDERED.


Summaries of

Koury v. Xcellence, Inc.

United States District Court, S.D. New York
Jan 13, 2009
649 F. Supp. 2d 127 (S.D.N.Y. 2009)
Case details for

Koury v. Xcellence, Inc.

Case Details

Full title:Joseph KOURY, Plaintiff, v. XCELLENCE, INC., d/b/a/Xact, Robert Polus, and…

Court:United States District Court, S.D. New York

Date published: Jan 13, 2009

Citations

649 F. Supp. 2d 127 (S.D.N.Y. 2009)

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