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TONKEN v. LOVING & WEINTRAUB INC.

September 8, 1998

AARON TONKEN and AARON TONKEN & ASSOCIATES, LLC, Plaintiffs, against LOVING & WEINTRAUB INC., MARY LOVING, HARRIET WEINTRAUB, JILL EISENSTADT and ETRO U.S.A. INC., Defendants.


The opinion of the court was delivered by: SCHEINDLIN

OPINION AND ORDER

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 This case involves a fairly straightforward commercial dispute. Defendant ETRO U.S.A. Inc. ("ETRO") has moved to dismiss plaintiffs' claims for breach of contract, promissory estoppel, quantum meruit, unjust enrichment and fraud pursuant to Fed. R. Civ. P. 12(b)(6). For the following reasons, ETRO's motion to dismiss the Complaint as to ETRO is granted.

 I. Factual Background

 ETRO is a retail clothing and accessories business with stores throughout the world specializing in the sale of high-end fashion and designer clothing. See Complaint ("Cmplt.") at P 13. Plaintiffs Aaron Tonken ("Tonken") and Aaron Tonken & Associates, LLC ("ATA") are in the business of promotions and celebrity bookings. See id. at P 10.

 In early October 1996, defendant Jill Eisenstadt ("Eisenstadt"), an officer of defendant Loving & Weintraub Inc. ("L&W"), a public relations and publicity firm, contacted plaintiffs and represented that her firm had been engaged by ETRO to provide public relations services for an event to be held on October 25, 1996, celebrating the opening of the ETRO retail store on Madison Avenue in New York City. See id. at PP 11-12, 14-15. At the request of L&W, plaintiffs agreed to arrange -- and subsequently did arrange -- for various celebrities to attend this event. See id. at PP 18, 21. In exchange, defendants agreed to provide plaintiffs with certificates entitling them to $ 75,000 in ETRO merchandise -- $ 25,000 for plaintiffs and $ 5,000 for each of the ten male and female celebrities who would attend the event -- plus reimbursement for the celebrities' travel and hotel expenses. See id. at PP 19-20.

 ETRO claims that on or around January and February 1997, Tonken visited ETRO's store in New York City and purchased various items of men's and women's clothing and accessories. See Affidavit of Lee H. Goldberg, attorney for plaintiffs, Exh. E ("State Complaint") at PP 7-8. *fn1" Plaintiffs later sent ETRO a check for the merchandise, which was subsequently returned for lack of funds. See id. at PP 10-11. Plaintiffs, notified of the situation, sent a second check to ETRO to cover the cost of the merchandise, accompanied by a letter apologizing for the delay in payment. See id. at P 13. The second check was also returned for lack of sufficient funds, with a notation that the bank account had been closed. See id. at P 14.

 ETRO brought an action against Tonken and ATA in New York Supreme Court seeking the cost of the merchandise. See id. Plaintiffs, residents of California, failed to appear in the action, and on February 5, 1998, the court entered a default judgment in favor of ETRO for an account stated in the amount of $ 77,469.17. See ETRO U.S.A., Inc. v. Tonken, No. 602965/97 (Sup. Ct. N.Y. March 6, 1998). *fn2"

 On April 24, 1998, plaintiffs brought the present action seeking to recover the money they claim is owed as a result of their arranging for celebrities to appear at the October 25 store opening celebration.

 II. Standard of Review Under Rule 12(b)(6)

 Dismissal of a complaint pursuant to Rule 12(b)(6) is proper "only where it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him to relief." Scotto v. Almenas, 143 F.3d 105, 109-10 (2d Cir. 1998) (quoting Branham v. Meachum, 77 F.3d 626, 628 (2d Cir. 1996)) (internal quotations omitted). "The task of the court in ruling on a Rule 12(b)(6) motion 'is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (quoting Ryder Energy Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984)). Thus, in deciding such a motion, the court must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the nonmovant's favor. See Thomas v. City of New York, 143 F.3d 31, 36 (2d Cir. 1998).

 III. Summary of Arguments

 ETRO makes three arguments in support of its motion. First, ETRO argues that because the state action and this action arise from the same series of transactions, plaintiffs' claims in this action are barred by principles of res judicata. Second, it argues that plaintiffs fail to allege fundamental elements of their claims for breach of contract, promissory estoppel, quantum meruit and unjust enrichment. Third, ETRO argues that plaintiffs have failed to plead fraud with sufficient particularity. Because this motion can be decided on ...


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