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CAMPO v. 1ST NATIONWIDE BANK

June 30, 1994

JACK CAMPO, Plaintiff,
v.
1ST NATIONWIDE BANK, FN PROJECTS, INC., FN DEVELOPMENT COMPANY, BRAVO, 1ST NATIONWIDE NETWORK MORTGAGE COMPANY, and UNITED CITIZENS MORTGAGE COMPANY, Defendants.



The opinion of the court was delivered by: JOHN R. BARTELS

 Bartels, U.S. District Judge.

 Plaintiff Jack Campo brings this action for breach of contract, breach of fiduciary duty, and tortious interference against defendant First Nationwide Bank and several of its subsidiaries or agents. Defendants have moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure ["Rule"] 12(b)(6) for failure to state a claim upon which relief may be granted. In response, plaintiff has moved to amend the complaint pursuant to Rule 15(a). For reasons more fully explained herein, the motion to amend the complaint is granted, and the motion to dismiss is granted in part and denied in part.

 FACTS1

 Plaintiff Campo is a builder and developer of subdivisions consisting of single-family residences. Campo entered into fourteen separate "Development Management Agreements" with various defendants for the purpose of acquiring and developing residential properties. Pursuant to these agreements, defendants were to provide financing to purchase the property and fund various construction projects, while plaintiff was to develop and construct the housing.

 Defendant First Nationwide National Bank ["First Nationwide"] did not sign any of these agreements; however, plaintiff alleges that First Nationwide owned, operated and controlled each of the other defendant corporations, including United Citizens Mortgage Company, First Nationwide Network Mortgage Company, First Nationwide Network and FN Projects. Ten of the Development Management Agreements have been completed. Plaintiff alleges that defendants breached the remaining four agreements while the projects were still under construction.

 The Hallock Meadow Agreement

 In 1989 plaintiff completed construction on a profitable project called Hallock Meadow. He subsequently commenced an action in this court, Campo v. 1st Nationwide Bank, 91 CV 1076 (JRB), claiming that First Nationwide and FN Projects wrongly withheld $ 232,240.92 in profits that were due to plaintiff upon completion. That action was settled by a Stipulation of Settlement, so-ordered by the court on September 1, 1991, pursuant to which defendants agreed to pay plaintiff $ 60,000 and promised to pay the balance of the funds upon completion of all projects still under construction.

 The Tinker Bluff and Port Jefferson Woods Agreements

 Between August 1985 and December 1987, plaintiff entered into three Development Management Agreements with defendants First Nationwide Network and FN Projects for the acquisition and development of a parcel of land in Poquott, New York ["the Tinker Bluff" project]. One or more of these agreements were assigned to defendant FN Development in 1992.

 In 1986 and 1987, plaintiff entered into four Development Management Agreements with defendant First Nationwide Network for the development of projects in Port Jefferson Station, New York ["the Port Jefferson Woods" project]. First Nationwide Network subsequently changed its name to FN Projects and then assigned its interest in these agreements to FN Development.

 Plaintiff alleges that he completed all of his obligations under the Tinker Bluff and Port Jefferson Woods Agreements, but that First Nationwide, FN Development and FN Projects breached these agreements by failing to pay contractors for work that was completed and by failing to reimburse plaintiff for general and administrative costs and other obligations.

 In addition, the complaint alleges that defendants breached the Tinker Bluff Agreements by selling several of the lots that were part of the Tinker Bluff property to another builder on October 1, 1992 without prior notice to plaintiff. Plaintiff was damaged by this breach because he lost revenues and profits to which he was entitled for those lots. In addition, plaintiff suffered damages because the other builder was selling homes at a substantially lower price in the middle of the subdivision that plaintiff was developing and attempting to market. Plaintiff also alleges that First Nationwide and FN Development contacted individuals who had contracted with him for the construction and purchase of homes and advised them that another builder would be selling the lots.

 According to the complaint, defendants further breached the Tinker Bluff and Port Jefferson Woods Agreements by ordering him to stop work on the projects on November 13, 1992 without complying with the contracts' specified termination procedures. Although First Nationwide admitted it was in breach and allowed plaintiff to resume construction the following week, plaintiff was unable to do so due to the unavailability and unwillingness of subcontractors. On December 7, 1992, First Nationwide instructed plaintiff to vacate the premises and deliver his files to another builder.

 On December 23, 1992, FN Projects and FN Development enacted the termination provisions of the Port Jefferson Woods and Tinker Bluff Agreements. According to the complaint,' plaintiff subsequently acquired the right to purchase from defendants the undeveloped lots covered by those agreements. However, plaintiff alleges that FN Development and First Nationwide have wrongfully prevented the transfer of title to this property.

 The Complaint

 Plaintiff's Proposed Amended Complaint contains nine causes of action. Counts 1 and 2 allege breach of contract and breach of fiduciary duty by First Nationwide Network, FN Projects and FN Development in connection with the Tinker Bluff Agreements. Counts 3, 4, 6 and 7 allege breach of contract and breach of fiduciary duty by First Nationwide Network, FN Projects and FN Development in connection with the Port Jefferson Woods Agreements. Count 5 alleges breach of contract by First Nationwide Network in connection with the Hal lock Meadow Agreement and breach of the September 4, 1991 Stipulation of Settlement. Count 8 alleges tortious interference with business and contract relationships ...


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