156. Therefore, with respect to the Tenth Claim, Coastal's motion to dismiss is denied.
However, ESI's allegation of conspiracy to tortiously interfere with the DELASA-ESI Assignment simply duplicates the underlying tortious interference claim. Cf. Artco, 1989 U.S. Dist. LEXIS 13548, 1989 WL 140284, at *7. Accordingly, Coastal's motion to dismiss is granted with respect to ESI's Eleventh Claim.
5. Claim Fourteen: Prima Facie Tort. In the Fourteenth Claim, for prima facie tort, alleges that defendants intentionally inflicted harm on ESI. Under New York law, there are four elements to a prima facie business tort claim: (1) an intentional infliction of harm, (2) without excuse or justification and motivated solely by malice, (3) resulting in special damages, (4) by acts that would otherwise be lawful. United States v. Merritt Meridian Constr. Corp., 95 F.3d 153, 161 (2nd Cir. 1996) (citing Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 464 N.Y.S.2d 712, 720, 451 N.E.2d 459, 467 (1983)). Prima facie tort is not a "'catch-all' alternative for every cause of action which cannot stand on its legs." Lindner, 464 N.Y.S.2d at 720, 451 N.E.2d at 467 (citation omitted).
The Amended Complaint fails to state a cognizable claim for prima facie tort. To begin with, "there is no recovery in prima facie tort unless malevolence is the sole motive for defendant's otherwise lawful act . . . ." 464 N.Y.S.2d at 721, 451 N.E.2d at 468; see also IBM Credit Financing Corp. v. Mazda Motor Mfg. (USA) Corp., 542 N.Y.S.2d 649, 651, 152 A.D.2d 451, 453 (1st Dep't 1989). Although ESI alleges that defendants' conduct was intentional and without excuse or justification, it does not allege that they were motivated solely by malevolence. See id. ("Here the prima facie tort causes of action cannot stand because, although they allege intentional and malicious action, they do not allege that defendants' sole motivation was 'disinterested malevolence.'").
In addition, although ESI has alleged "special damages in an amount to be established at trial," (Am. Compl. P 163), this conclusory allegation is insufficient to sustain a prima facie tort claim. To survive a motion to dismiss, a prima facie tort claim must allege special damages with specificity. See Merritt Meridian, 95 F.3d at 161; see also World Wide Communications, Inc. v. Rozar, 1997 U.S. Dist. LEXIS 20596, No. 96-1056, 1997 WL 795750, at *10 (S.D.N.Y. Dec. 30, 1997) (collecting cases). Pleading special damages requires "a particularized statement of the reasonable, identifiable and measurable" loss. Gray v. Grove Mfg. Co., 971 F. Supp. 78, 81 (E.D.N.Y. 1997) (quoting Nu-Life Constr. Corp. v. Board of Educ. of New York City, 611 N.Y.S.2d 529, 531, 204 A.D.2d 106, 108 (1st Dep't 1994)). Even "round figures with no itemization do not satisfy" the pleading requirement. Id.; see also Merritt Meridian, 95 F.3d at 161. Here, ESI has done no more than flatly assert special damages, without any attempt to identify the nature or amount of those damages.
Indeed, the special damages claimed are nothing more than the general contract damages sought elsewhere in the Amended Complaint. ESI's prima facie tort claim relates solely to defendants' alleged contractual breaches, and must be dismissed. See id. at 162 ("We do not think that the restrictions upon damages for breach of contract claims can be avoided merely by recasting the breach as a [prima facie] tort. . . . Here the [prima facie] tort claim relates solely to breach of a bargain, egregious though it may have been. Simply put, this is one of those contract cases which cannot be converted into a business tort . . . ."); see also World Wide Communications, 1997 U.S. Dist. LEXIS 20596, 1997 WL 795750, at *10; Shifa Servs., Inc. v. Port Auth. of New York and New Jersey, 1997 U.S. Dist. LEXIS 255, No. 96-1361, 1997 WL 16062, at *9 (S.D.N.Y. Jan. 15, 1997).
D. Remaining Claims
Coastal seeks dismissal of the two remaining claims against it -- the Twelfth Claim for a constructive trust and the Thirteenth Claim for unjust enrichment -- on the ground that they too are contract-based claims masked as tort claims. However, neither unjust enrichment nor constructive trust sound in tort. Unjust enrichment is a quasi-contractual doctrine, see In re Chateaugay, 10 F.3d at 958; Clark-Fitzgerald, 521 N.Y.S.2d at 656, 516 N.E.2d at 193, while constructive trust is an equitable remedy, see Oneida Indian Nation of New York v. State of New York, 691 F.2d 1070, 1096 (2nd Cir. 1982); Simonds v. Simonds, 45 N.Y.2d 233, 408 N.Y.S.2d 359, 363, 380 N.E.2d 189, 193 (1978). Regardless, the Amended Complaint states cognizable claims for both unjust enrichment and constructive trust.
1. Thirteenth Claim: Unjust Enrichment.
ESI alleges that by receiving all of the Plant's income and profits, defendants are being unjustly enriched. To state a cause of action for unjust enrichment, a plaintiff must allege facts demonstrating that a defendant has been enriched at plaintiff's expense, and that retention of the benefit would be unjust. Hutton v. Klabal, 726 F. Supp. 67, 72 (S.D.N.Y. 1989); Mayer v. Bishop, 551 N.Y.S.2d 673, 675, 158 A.D.2d 878, 880 (3rd Dep't 1990). The doctrine of unjust enrichment does not require wrongful conduct by the one enriched. Chemical Bank v. Equity Holding Corp., 644 N.Y.S.2d 709, 710, 228 A.D.2d 338, 339 (1st Dep't 1996) (citing Simonds, 408 N.Y.S.2d at 364, 380 N.E.2d at 194). ESI has adequately plead the elements of this cause of action.
However, unjust enrichment is a quasi-contractual doctrine that applies only in the absence of a valid and enforceable contract. In re Chateaugay, 10 F.3d at 958; Clark-Fitzpatrick, 521 N.Y.S.2d at 656, 516 N.E.2d at 193. Although ESI asserts that its ownership interest in the Project springs from two written contracts -- the Three-Party Agreement and the DELASA-ESI assignment agreement -- Coastal disputes the validity and enforceability of these contracts. Should a jury decide that these contracts did not grant ESI enforceable rights against the defendants, ESI could still seek recovery on the alternative, quasi-contract theory of unjust enrichment. See Fed. R. Civ. P. 8(e)(2) (permitting alternative, and even inconsistent, pleading); Riverwoods Chappaqua Corp. v. Marine Midland Bank, N.A., 30 F.3d 339, 343 (2nd Cir. 1994) (discussing Rule 8(e)(2)). Coastal's motion to dismiss is accordingly denied with respect to the Thirteenth Claim.
2. Twelfth Claim: Constructive Trust.
ESI also seeks an accounting of the Plant's income and expenses and ESI's proportionate share of the net income, and the imposition of a constructive trust on that income. ESI's constructive trust claim is essentially an alternative, equitable remedy to contract damages. Even if a jury were to find that the Three-Party Agreement did not create any vested ownership rights, and therefore that Coastal did not breach that contract, ESI might nevertheless be able to recover based on the equitable remedy of constructive trust. As noted above, the Federal Rules of Civil Procedure permit such alternative pleading. See Fed. R. Civ. P. 8(e)(2); Riverwoods, 30 F.3d at 343.
A "constructive" trust is an equitable remedy, not a legal relationship. Oneida Indian Nation, 691 F.2d at 1096; Simonds, 408 N.Y.S.2d at 363, 380 N.E.2d at 193. It has been described as "the formula through which conscience of equity finds expression." Republic of Philippines v. Marcos, 806 F.2d 344, 355 (2nd Cir. 1986) (quoting Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 386, 122 N.E. 378, 380 (1919) (Cardozo, J.)). As such, "when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee." Id. (quoting Beatty, 225 N.Y. at 386, 122 N.E. at 380). In short, "[a] constructive trust will be erected whenever necessary to satisfy the demands of justice." Id. (quoting Simonds, 408 N.Y.S.2d at 363, 380 N.E.2d at 194).
More specifically, New York law generally requires that a party establish four elements before a constructive trust may be imposed: (1) a confidential or fiduciary relationship; (2) an express or implied promise; (3) a transfer made in reliance on that promise; (4) and unjust enrichment. Brand v. Brand, 811 F.2d 74, 77 (2nd Cir. 1987); Sharp v. Kosmalski, 40 N.Y.2d 119, 386 N.Y.S.2d 72, 75, 351 N.E.2d 721, 723 (1976). Similarly, the right to an accounting is premised upon the breach of a confidential or fiduciary relationship with respect to property in which the plaintiff has an interest. See Adam v. Cutner & Rathkopf, 656 N.Y.S.2d 753, 759, 238 A.D.2d 234 (1st Dep't 1997). These elements, however, are not talismanic; a court may impose a constructive trust in the absence of some of the factors. United States v. Coluccio, 51 F.3d 337, 340 (2nd Cir. 1995); In re Koreag, Controle et Revision S.A., 961 F.2d 341, 352-53 (2nd Cir. 1992); Simonds, 408 N.Y.S.2d at 363, 365, 380 N.E.2d at 194, 195.
ESI adequately alleges the elements of a constructive trust claim, with the possible exception of the third element -- a transfer made in reliance on a promise. ESI alleges that "in detrimental reliance on the defendants' express and implied promises, ESI's rights and interest in the Project and its proportionate share of the Plant's income were wrongfully and unlawfully transferred to" the defendants. (Am. Compl. P 146.) Despite this allegation, ESI has alleged no facts demonstrating any actual transfer. Nevertheless, the absence of this factor is not fatal to ESI's claim. As noted above, "although the factors are useful in many cases, constructive trust doctrine is not rigidly limited . . . . What is required, generally, is that a party hold property 'under such circumstances that in equity and good conscience [it] ought not to retain it.'" Simonds, 408 N.Y.S.2d at 364, 380 N.E.2d at 194 (citation omitted). Therefore, with respect to the Twelfth Claim for an accounting and constructive trust, Coastal's motion to dismiss is denied.
For the reasons stated above, Coastal's motion to dismiss is granted in part and denied in part as follows. With respect to the grounds of improper venue and forum non conveniens, the motion is denied. With respect to the Rule 12(b)(6) grounds, the motion is granted as to the Second, Fourth, Fifth, Seventh, Eighth, Eleventh, and Fourteenth Claims, and denied as to the First, Sixth, Tenth, Twelfth, and Thirteenth Claims. The Third Claim -- which was not included in Coastal's motion to dismiss -- and the Ninth Claim -- which is asserted against DELASA only -- also remain.
Dated: March 2, 1998
White Plains, NY
William C. Conner
Senior United States District Judge