230 A.2d 769, 777 (1967) (right to assert majority control); see also In re Radiology Assocs., Inc., 1990 Del. Ch. LEXIS 58, Civ. A. No. 9001, 1990 WL 67839, at *14 (Del. Ch. May 16, 1990) (right to receive dividends). In such cases, courts permit the injured shareholder to bring an individual suit because deprivation of his rights as a shareholder causes an injury that "relief to the corporation would not cure . . . ." In re Ionosphere Clubs, 17 F.3d at 606.
In contrast to loss by a shareholder of the right to vote, plaintiff's injury results entirely from the injury suffered by the corporation. Indeed, PPIE's ability to recover in an action against defendants would provide direct relief for the injury about which plaintiff complains, i.e., the reduction of "the amount potentially recoverable" on his judgment against PPIE. (Compl. P 46) Contrary to the import of plaintiff's argument, the fact that his claim sounds in contract rather than tort does not make his injury "special" under the second branch of the special injury test. Plaintiff's position is no different from that of other creditors or shareholders of PPIE whose rights are also based on a contract with PPIE and who also may have been injured as a result of defendants' alleged misconduct.
Because plaintiff's allegations do not support his special injury argument, he has failed to establish that his breach of fiduciary duty claims reflect a particularized, as opposed to general, injury. As plaintiff does not justify bringing an individual action under any other legal theory, these claims properly belong to PPIE's bankruptcy estate, see In re Ionosphere Clubs, 17 F.3d at 604, and the only party with standing to assert them is PPIE's trustee in bankruptcy. See Kalb, Voorhis & Co., 8 F.3d at 132. Although a district court has the power to allow a plaintiff to amend or supplement his pleadings in order to establish standing, see Thompson, 15 F.3d at 249, in this case, plaintiff's lack of standing is the product of the nature of his claims, not an uncertainty in the record. Moreover, he has already amended his complaint once. Accordingly, no further submissions are warranted, and plaintiff's breach of fiduciary claims are dismissed.
B. Aiding and Abetting
Plaintiff claims next that PPIE, as an insolvent company, itself owed duties of care and loyalty to him (Compl. P 60), and that the administrators aided and abetted PPIE's breach of these duties by causing the corporation to squander its assets and incur massive debt. (Id. P 63; Pl. Mem. at 25) Relying heavily on the Second Circuit's recent decision in In re Mediators, 105 F.3d 822, plaintiff argues that, as an injured creditor, he can maintain an individual action against the administrators for aiding and abetting. (Pl. Mem. at 23-25) Defendants contend that In re Mediators applies only in cases in which the alleged aider and abettor is a third party. (Def. Reply Mem. at 18) They argue that the administrators cannot be considered third parties and therefore that this claim fails as matter of law. (Id. at 18-19, 21) Again, I agree.
Defendants' argument should be read as a motion to dismiss for failure to state a claim on which relief can be granted. See Fed. R. Civ. P. 12(b)(6). Dismissal is appropriate under Rule 12(b)(6) 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." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The court must take the facts alleged in the complaint as true and draw all reasonable inferences in the favor of the plaintiff. See Jackson Nat'l Life Ins. Co. v. Merrill Lynch & Co., Inc., 32 F.3d 697, 699-700 (2d Cir. 1994).
As noted, plaintiff bases his aiding and abetting claim on In re Mediators. In that case, a committee of creditors, standing in the shoes of a bankrupt corporation, sued a bank and a law firm that had allegedly aided and abetted the corporation's sole shareholder and manager in stripping corporate assets. In re Mediators, 105 F.3d at 824-25. The Court dismissed the suit on the ground that the corporation, through its sole shareholder, effectively had initiated the asset stripping scheme and that therefore only the individual creditors, and not the creditor committee, had standing to sue the third parties for aiding and abetting that scheme. Id. at 826. The Court held that where third parties aid and abet a corporation's breach of duty to its creditors, the cause of action against those third parties belongs to the creditors "in their own right." Id. at 825; see also Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114, 120 (2d Cir. 1991) ("A claim against a third party for defrauding a corporation with the cooperation of management accrues to the creditors . . . ."). The Court distinguished this situation from one in which the claim was against a corporation's fiduciary, when the action should be brought by the corporation's trustee in bankruptcy. In re Mediators, 105 F.3d at 826-27.
Thus, although In re Mediators permits a creditor to maintain an individual action for aiding and abetting, a third-party relationship between the alleged aider and abettor and the corporation is a necessary element in any such action. See id., 105 F.3d at 825, 827 (aiders and abettors were bank and attorneys); see also Hirsch, 72 F.3d at 1094 (aider and abettor was accounting firm); Wagoner, 944 F.2d at 120 (aider and abettor was investment banking firm). That sort of relationship does not exist in this case. The factual underpinning of the complaint is that the administrators exercised control over PPIE by virtue of their authority over its parent company. (Id. P 19-47) What is apparent from these factual allegations is that the administrators were part of PPIE's corporate structure, a position qualitatively different from that of the law firms, accounting firms, and banks that the Second Circuit has recognized as third parties for purposes of an aiding and abetting claim.
Plaintiff's conclusory statement that the administrators were "acting as third parties independent of PPIE" does not remedy the defect in this claim. (Id. P 1) Although I must draw all reasonable inferences in plaintiff's favor, see Jackson Nat'l Life Ins. Co., 32 F.3d at 699-700, I am not required to draw unreasonable inferences or to credit legal conclusions at odds with plaintiff's own factual allegations. See De Jesus v. Sears, Roebuck & Co., Inc., 87 F.3d 65, 70 (2d Cir.), cert. denied, 117 S. Ct. 509, 136 L. Ed. 2d 399 (1996); see also Hirsch, 72 F.3d at 1092 ("conclusory allegations need not be credited . . . when they are belied by more specific allegations in the complaint"). Accepting as true the facts alleged in the complaint, no reasonable fact-finder could conclude that the administrators were third parties in relation to PPIE. Accordingly, plaintiff's claim against the administrators for aiding and abetting is dismissed.
C. Tortious Interference With Contract
Plaintiff's final claim is that the administrators tortiously interfered with the lease contract "by inducing and causing PPIE to breach and not perform its obligations thereunder." (Compl. P 68) Defendants argue that this claim should be dismissed on two grounds: (1) that the administrators cannot be considered third parties to the contract between PPIE and plaintiff; and (2) that, in any event, the claim is barred by the applicable statute of limitations. (Def. Reply Mem. at 23-26) Mindful of the standards for dismissal addressed in the previous section, see part III B, supra, I find both arguments persuasive.
To establish tortious interference under New York law, a plaintiff must allege, among other things, that the defendant intentionally induced a third party to breach a contract. See M.J. & K. Co. v. Matthew Bender & Co., Inc., 220 A.D.2d 488, 489, 631 N.Y.S.2d 938, 940 (2d Dep't 1995). A corporation's officer or director generally cannot be held liable under a theory of tortious interference for causing the corporation to breach a contract. See Murtha v. Yonkers Child Care Assn. Inc., 45 N.Y.2d 913, 915, 411 N.Y.S.2d 219, 220, 383 N.E.2d 865 (1978). Nor can an agent be held liable for inducing his principal to breach a contract so long as he is acting within the scope of his authority. See Nu-Life Constr. Corp. v. Bd. of Educ. of the City of New York, 204 A.D.2d 106, 107, 611 N.Y.S.2d 529, 530 (1st Dep't 1994). These rules are consistent with the principle that a defendant cannot tortiously interfere with a contract if he is not a "third party unrelated to the contract." Burdett Radiology Consultants, P.C. v. Samaritan Hosp., 158 A.D.2d 132, 136, 557 N.Y.S.2d 988, 991 (3rd Dep't 1990).
The administrators are not third parties unrelated to PPIE's contract with plaintiff. As discussed above, the premise of the complaint is that the administrators were corporate insiders who had authority over PPIE through their control over Polly Peck. To the extent that the administrators caused PPIE to breach the contract with plaintiff, they did so in the exercise of this authority. Moreover, there are no allegations that the administrators acted with malice or committed independent tortious acts in causing the breach of contract. See Murtha, 45 N.Y.2d at 915, 411 N.Y.S.2d at 220 (setting forth limited exception to general immunity of directors and officers). Thus, whether considered agents or de facto directors of PPIE, see compl. P 51, the administrators are immune from liability under a theory of tortious interference.
Apart from its facial insufficiency, the tortious interference claim is also time-barred. "The appropriate period of limitations for causes of action alleging a tortious interference with contractual relations is three years." Vanderminden v. Vanderminden, 226 A.D.2d 1037, 1043, 641 N.Y.S.2d 732, 738 (3rd Dep't 1996), citing N.Y. C.P.L.R. § 214(4) (McKinney 1990); see also Rosemeier v. Schenker Int'l, Inc., 895 F. Supp. 65, 66 (S.D.N.Y. 1995). In this case, plaintiff filed the original complaint in September 1996, five years after PPIE breached its contract with plaintiff (Compl. P 5) and two years after the statute of limitations had run. Plaintiff contends that he did not discover that the administrators had induced the breach until August 1996 and that, prior to that time, the administrators had fraudulently concealed their actions. ( Id. P 69) Although the statute of limitations may be tolled while a defendant fraudulently conceals facts that would have alerted the plaintiff to his cause of action, see, e.g., Keating v. Carey, 706 F.2d 377, 382 (2d Cir. 1983), allegations of fraudulent concealment are governed by the pleading requirements of Fed. R. Civ. P. 9(b). See, e.g., Armstrong v. McAlpin, 699 F.2d 79, 88 (2d Cir. 1983); Butala v. Agashiwala, 916 F. Supp. 314, 320 (S.D.N.Y. 1996). Plaintiff's naked assertion that "the Administrator Defendants fraudulently concealed their actions" (compl. P 69) does not approach the level of detail necessary to satisfy Rule 9(b). See Armstrong, 699 F.2d at 88 ("Appellants' generalized and conclusory allegations of fraudulent concealment do not satisfy the requirements of Fed.R.Civ.P. 9(b)."). Accordingly, because plaintiff has failed to allege facts sufficient to justify tolling the limitations period, and because that period expired well before he filed this action, the claim for tortious interference is time-barred. See N.Y. C.P.L.R. § 214(4).
* * *
For the above reasons, defendants' motion is granted, and the complaint is dismissed.
Dated: New York, New York
January 29, 1998
Michael B. Mukasey,
U.S. District Judge