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VAN BRUNT v. RAUSCHENBERG

July 6, 1992

WILLIAM EDWIN VAN BRUNT, III Plaintiff against ROBERT RAUSCHENBERG, Defendant.

Martin, Jr.


The opinion of the court was delivered by: JOHN S. MARTIN, JR.

JOHN S. MARTIN, JR., District Judge

 Plaintiff William Edwin Van Brunt, III ("Van Brunt") commenced this action against Defendant Robert Rauschenberg ("Rauschenberg"), a world renown artist, alleging, inter alia, breach of contract and conversion and replevin. Previously, this Court dismissed the complaint with leave to replead. Defendant Rauschenberg now moves, for the second time, for a dismissal pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted.

 Van Brunt met Rauschenberg in New York City in 1968 and the two maintained in a continuous personal and business relationship until July 1990. The two spent substantial amounts of time together for purposes of business and pleasure. Van Brunt alleges that throughout their twenty-two year relationship, he assisted Rauschenberg in creating sculptures, photographs, drawings, paintings, print editions, mock-ups for posters, advertisements, magazine covers, catalogues, and books.

 In his amended complaint, Van Brunt alleges that Rauschenberg repeatedly promised to provide him with various examples of each of the production phases of work created. Additionally, Rauschenberg allegedly promised Van Brunt that he would (1) pay his living expenses; (2) reimburse his business expenses; (3) pay Van Brunt's income taxes.

 Before the Court is Van Brunt's amended complaint, alleging actions in contract, unjust enrichment, promissory estoppel, constructive trust, conversion and replevin. Once again, Rauschenberg moves to dismiss the complaint for failure to state a claim.

 DISCUSSION

 A dismissal under 12(b)(6) for failure to state a claim should be granted only in certain limited circumstances. As the Second Circuit has stated:

 To dismiss a complaint for failure to state a claim upon which relief can be granted, a court must accept plaintiff's allegations at face value, . . . must construe the allegations in the complaint in plaintiff's favor, . . . and must dismiss the complaint only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

 Rapf v. Suffolk County of New York, 755 F.2d 282, 290 (2d Cir. 1985) (citations omitted). See also Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Allen v. Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991); LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Schmid, Inc. v. Zucker's Gifts, 766 F. Supp. 118, 121 (S.D.N.Y. 1991).

 1. The Breach of Contract Claim

 The essential elements to pleading a breach of contract under New York law are the making of an agreement, due performance by the plaintiff, breach by the defendant, and damage suffered by the plaintiff. See Stratton Group, Ltd. v. Sprayregen, 458 F. Supp. 1216, 1217 (S.D.N.Y. 1978). Under Fed. R. Civ. P. 8(a)(2), the elements of a claim for a breach of contract need not be separately pleaded. All that is necessary is a concise and plain statement of the claim showing that the pleader is entitled to relief. Nordic Bank, PLC v. Trend Group, Ltd., 619 F. Supp. 542, 561 (S.D.N.Y. 1985).

 Despite Van Brunt's ostensible compliance with pleading requirements, Rauschenberg argues that dismissal is nevertheless proper. First, Rauschenberg argues that dismissal is proper in that implied contracts arising out of personal relationships are not recognized in New York. Second, Rauschenberg contends that the alleged express promises are not sufficiently certain or specific to be enforceable. Third, Rauschenberg argues that parts of the contract claim ...


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