appears to this court that the facts in Liberty Imports are distinguishable from the instant case. The facts, as outlined in Liberty Imports, do not state the substance of the oral agreement between plaintiff and BSN, i.e., whether plaintiff was acting only as BSN's agent in the United States or whether plaintiff was an independent wholesaler. In stating that BSN designated a different agent "for organizing and controlling the distribution of [its crackers] in the United States," it appears to this court that the arrangement between the parties was more of a principal-agent relationship rather than a commercial contract between two independent companies. A principal-agent relationship would certainly be more analogous to a type of employment contract, such as the contracts described in Haines, than to the business relationship between the Italian & French Wine Company, the instant Plaintiff and Negociants.
Further, in analyzing this claim, the court notes that it is only required to determine whether Plaintiff has sufficiently stated a cause of action. Whether or not Plaintiff can be successful on the claim, either on summary judgment or after trial, is not at issue here. Based on this standard, the court finds that Plaintiff has sufficiently pled a cause of action against Lauber for tortious interference with a contract. Pursuant to the court's discussion in Section 1 of this Report and Recommendation, it appears that a valid oral distribution agreement existed between Plaintiff and Negociants. At the time that Lauber engaged in the allegedly improper actions which are alleged in the complaint, the court concludes that Lauber knew of the agreement between Plaintiff and Negociants by virtue of the fact that Lauber complained bitterly to Negociants about Plaintiff's alleged entry into Lauber's territory. As to the fourth element of a viable tortious interference claim, Plaintiff has stated a claim for damages based on lost profits as a result of losing the Negociants distributorship.
Less clear is whether Lauber intentionally procured the breach in the agreement between Plaintiff and Negociants. Lauber states that its actions in reporting to Negociants Plaintiff's alleged misconduct in selling Negociants wine outside of its own territory was proper, and not done for the purpose of procuring a breach in order to take over Plaintiff's territories. The facts which relate to this element of the claim have yet to be discovered and analyzed based on the above mentioned balancing test. However, for purposes of this motion to dismiss, the court is required to take the facts pled by Plaintiff as true. Those facts outline the actions of Lauber which, if true, infer that Lauber intentionally attempted, by improper means, to take over the entire New York State region for the sale of Negociants wine at Plaintiff's expense. Whether there is sufficient evidence to uphold such a claim will not be clear until discovery is concluded. Therefore, Lauber's motion to dismiss the claim for tortious interference with a contract should be DENIED.
(b) Tortious interference with contractual relations
The tort of interfering with prospective contractual relations has more demanding requirements for establishing liability than those required for existing contractual relationships. Perry v. International Transport Workers' Federation, 750 F. Supp. 1189, 1207 (S.D.N.Y. 1990). In order to prevail on a claim of tortious interference with prospective contractual relations a plaintiff must establish that the defendant interfered with "business relations existing between plaintiff and a third party, either with the sole purpose of harming the plaintiff or by means that are dishonest, unfair or in any other way improper. PPX Enterprises v. Audio Fidelity Enterprises, 818 F.2d 266, 269 (2d Cir. 1987); Schmid, supra, at 122. If the defendant's interference is intended, "at least in part, to advance its own competing interests, the claim will fail unless the means employed include criminal or fraudulent conduct." PPX Enterprises, supra, at 269; Schmid, supra, at 122. The claim for tortious interference must be permitted to stand, even if a defendant's interference was intended to advance its own interests, if the means employed by the defendant were wrongful such as "physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure; they do not, however, include persuasion alone . . .." Technology Consortium v. Digital Communications Associates, Inc., 757 F. Supp. 197, 200 (E.D.N.Y. 1991).
In this case, Plaintiff has alleged that Lauber, as the sole distributor of Negociants wines in the New York region, interfered in the business relationship between Plaintiff and Negociants in exerting its economic power over Negociants by threatening to terminate its own relationship with Negociants. Plaintiff claims that Lauber had a strong influence over Negociants as the New York region, in which Lauber distributed the Negociants wine, "typically outsells the rest of the state." See, Amended Complaint, P 44. Plaintiff further contends that Lauber's actions were intentional and made "in utter disregard of the rights of Plaintiff or done with actual malice." See, Amended Complaint, P 48.
After reviewing the amended complaint in this action, the court concludes that, if the facts as alleged in the complaint are true, Lauber's conduct may be found to have constituted "some degree of economic pressure." Technology Consortium, supra, at 200. See also, Perry, supra, at 1201 ("if the interferer acts with a business (competitive) motive as well as with a malicious one, the conduct may be actionable when there is an existing contract"). As the court has previously found, for the purposes of this motion, that a contract did exist between Plaintiff and Negociants, the court finds that the complaint, as pled, alleges sufficient facts to withstand a motion to dismiss the claim for tortious interference with prospective contractual relations. Accordingly, Lauber's motion to dismiss should be DENIED.
(c) Unjust Enrichment
Alternatively, Plaintiff asserts a cause of action against Lauber for unjust enrichment. Under New York law, the doctrine of unjust enrichment allows a plaintiff to recover money when it has been wrongfully acquired by a defendant and it is, under the circumstances, against good conscience to allow the defendant to keep the money. Schmid, supra, at 122. In order to state a claim for unjust enrichment, a plaintiff must show that (1) defendant was enriched, (2) that such enrichment was at the expense of the plaintiff, and (3) that the circumstances were such that in equity and good conscience the defendant should make restitution. Strapex Corp. v. Metaverpa N.V., 607 F. Supp. 1047, 1051 (S.D.N.Y. 1985).
Plaintiff alleges in its amended complaint that Lauber conspired with Negociants to breach the contract between Negociants and Plaintiff in order to obtain Plaintiff's New York territories. Plaintiff contends that, as a result of Lauber's acts in wrongfully interfering with Plaintiff's contractual relations with Negociants, Lauber was unjustly enriched by virtue of the profits accruing to Lauber which, but for Lauber's activities, would have accrued to Plaintiff. Based on the facts as pled, for example, it is possible that Plaintiff may have developed a strong retail base in the disputed territories, only to have Lauber take over the fruits of its labors and receive the benefits to which Plaintiff would have been entitled. Lauber, however, argues that it never received any of Plaintiff's benefits, rather, it took over the distributorship only when Plaintiff, through its own actions, lost its contract with Negociants for the sale of Negociants products. However, Lauber's defenses to Plaintiff's claims are not sufficient to defeat Plaintiff's claim on a motion to dismiss. As Plaintiff has properly alleged all of the elements of a claim of unjust enrichment, Lauber's motion must fail. Accordingly, Lauber's motion to dismiss the claim for unjust enrichment should be DENIED.
3. Punitive Damages
Punitive damages are recoverable for an intentional tort. International Minerals and Resources v. Pappas, 761 F. Supp. 1068, 1079 (S.D.N.Y. 1991). Under New York law, punitive damages may also be obtained where there is proof of "actual malice or ill will" or a "wrongful act done willfully, wantonly, or maliciously." International Minerals and Resources, supra, at 1079. As the court has denied Lauber's motion to dismiss the claim of tortious interference with a contract, the court concludes that Plaintiff's punitive damage request should not be stricken. Therefore, Lauber's motion to dismiss the punitive damages claim should be DENIED.
Based on the foregoing discussion, I recommend that Defendant Negociants' and Defendant Lauber's motions to dismiss the amended complaint be DENIED.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: July 13, 1993
Buffalo, New York
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 30(a).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys for Plaintiff and Defendants.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: July 13, 1993
Buffalo, New York