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United States District Court, Southern District of New York

January 29, 2003


The opinion of the court was delivered by: Kevin Nathaniel Fox, United States District Judge.




Before the Court is a motion made by defendants that the amended complaint in this action be dismissed, pursuant to Fed.R.Civ.P. 12(b)(6) and 12(b)(3), because the plaintiff has failed to state a claim upon which relief may be granted and because venue does not lie in this judicial district. Alternatively, the defendants have requested, pursuant to Fed.R.Civ.P. 12(e), that the plaintiff be directed to provide the defendants with a more definite statement of the claim set forth in his amended complaint.

Plaintiff opposes the motion. He contends that his amended complaint comports with Fed.R.Civ.P. 8(e) in that a "simple, concise and obvious" statement of his claim is set forth in that pleading. However, plaintiff has indicated a willingness to provide the defendants with a more definite statement of his claim. The motion made by the defendants is addressed below.


In December 2001, Barry I. Bloom ("Bloom") filed a complaint with the Clerk of Court against defendant Al Gore ("AG"). Through the complaint, Bloom sought payment of $18 million dollars and interest "at the rate of 1% above prime compounded quarterly from the third week of January 1992." Bloom also sought to obtain the proceeds of certain unidentified fund raising activities and all of the income derived by s family until such time as the $18 million dollars allegedly owed to him was paid.

Attached to the complaint was a letter dated July 24, 1998, addressed to AG in his capacity as Vice President of the United States. The subject of the letter is identified as the "CAMPAIGN OF 1992 FOR THE PRESIDENCY AND VICE PRESIDENCY OF THE UNITED STATES." The July 24, 1998 letter purports to be a bill for a campaign slogan, Let's Take America Back, and the text for two campaign themes, one involving healthcare and the other the transformation of a welfare system into a workfare program. In the letter, Bloom demands that 36 cashier's checks in the amount of $500,000 each be made payable to him as a fee. Furthermore, the letter informs that the fee is due within 30 days of AG's receipt of the July 24, 1998 letter.

Also attached to the complaint are numerous copies of the July 24, 1998 letter; the copies contain handwritten notations reminding AG that Bloom's fee of $18 million dollars remains unpaid and, in each instance, requesting that the fee be remitted to him. The handwritten notations are dated beginning September 1998. It appears that copies of the July 24, 1998 letter, with the above-noted handwritten notations, were issued to AG monthly through October 2001. The complaint also has as an attachment copies of United States Postal Service forms evidencing the mailing of the various copies of the July 24, 1998 letter to AG and their receipt at either the White House Mail Room or at a post office box associated with AG.

Absent from Bloom's complaint were any factual allegations which purport to establish that AG entered into an agreement with Bloom concerning either: (a) the campaign slogan; or (b) the text of the campaign themes that are recorded in the July 24, 1998 letter. Also absent from Bloom's complaint are any factual allegations from which one might ascertain when or where any agreement between AG and Bloom respecting the slogan or the text of the campaign themes was created.

In April 2002, Bloom filed an amended complaint. In his amended pleading, Bloom added as party defendants Tipper Gore ("TG") and the Democratic National Committee. The text of the amended complaint is identical to that of the original complaint. However, the amended complaint does not have any of the attachments which accompanied Bloom's original pleading. In response to the amended complaint, defendants AG and TG filed the instant motion. Thereafter, the defendant Democratic National Committee advised the Court that it joined the application made by the other defendants, that the amended complaint be dismissed or, alternatively, that the plaintiff be directed to provide the defendants with a more definite statement of his claim.

The main thrust of the defendants' motion is that Bloom's amended complaint is devoid of factual allegations from which they can determine the nature of the claim being asserted against them. The defendants maintain that the only fact alleged by Bloom is that he sent monthly dunning letters to AG concerning the $18 million dollars referenced in his amended complaint. The defendants contend that, since the amended complaint fails to allege that any agreement existed between Bloom and the defendants that would make them liable to him upon a breach of the agreement and, thereby, support his claim for $18 million dollars, Fed.R.Civ.P. 12(b)(6) requires that the amended complaint be dismissed.

The defendants also maintain that, although plaintiff purports to invoke the jurisdiction of this court based on the diversity of citizenship which exists among the parties, he has not established, as contemplated by 28 U.S.C. § 1391(a), that venue for the instant action lies in this judicial district. Accordingly, the defendants assert that this, too, warrants the dismissal of Bloom's amended complaint.

For his part, Bloom urges the court to deny the defendants the relief they seek pursuant to Fed.R.Civ.P. 12(b)(6) because, he contends, it is obvious from a reading of the amended complaint that an oral contract was breached by them. Therefore, he maintains he is entitled to recover payment ($18 million dollars) for the services he rendered to the defendants. Equally obvious, plaintiff asserts, is the diversity of citizenship which exists among the parties. That fact, without more, Bloom contends, makes venue proper in this judicial district. Consequently, Bloom requests that the court also deny this branch of the defendants' motion.


Failure to State a Claim

A court may dismiss an action pursuant to Fed.R.Civ.P. 12(b)(6) only if "it appears beyond doubt that [a] plaintiff can prove no set of facts in support of his claim which will entitle him to relief." Woodford v. Community Action Agency of Greene County, Inc., 239 F.3d 517, 526 (2d Cir. 2001)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 [1957]). In considering the motion, the court must take "as true the facts alleged in the complaint and draw [] all reasonable inferences in the plaintiff's favor." Jackson Nat'l Life Ins. v. Merrill Lynch & Co., 32 F.3d 697, 700 (2d Cir. 1994). The court may consider all papers and exhibits appended to the complaint as well as any matters of which judicial notice may be taken. See Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995); Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993). "A complaint should not be dismissed simply because a plaintiff is unlikely to succeed on the merits." Baker v. Cuomo, 58 F.3d 814, 818 (2d Cir. 1995).

Fed.R.Civ.P. 8(a) requires that a pleading, whether an original claim, counterclaim, cross-claim or third party claim, contain "a short and plain statement of the grounds upon which the court's jurisdiction depends. . . and a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(e) advises, among other things, that every averment in a pleading must be simple, concise and direct. Where, as here, a litigant appears before a court pro se, that litigant's complaint must be read liberally. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292 (1976)(quoting Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594 [1972]). Furthermore, the pro se litigant's submissions should be interpreted so as "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999).

Read liberally, Bloom's amended complaint appears to be asserting a breach of contract claim against the defendants, although the amended complaint never states this definitively. Under New York law, upon which the Court will rely in addressing the motion, the essential elements to pleading a breach of contract claim are the following: 1) the making of an agreement; 2) due performance by the plaintiff 3) breach of the agreement by the defendant; and 4) damage suffered by the plaintiff. See Van Brunt v. Rauschenberg, 799 F. Supp. 1467, 1470 (S.D.N.Y. 1992). "[T]he elements of a claim for a breach of contract need not be separately pleaded. All that is necessary is a concise and plain statement of the claim showing that the pleader is entitled to relief." Van Brunt, at 1470; see also, Nordic Bank PLC v. Trend Group. Ltd., 619 F. Supp. 542, 561 (S.D.N.Y. 1985).

Nowhere in the amended complaint does Bloom set forth facts that establish the elements of a breach of contract claim. While it is true that Bloom asserts, in the memorandum of law he submitted in opposition to the instant motion, that an oral agreement was made, he failed to state with whom he made the oral agreement, when he made the oral agreement and what the terms and conditions of that oral agreement were. All of these facts should have been pleaded by Bloom in his amended complaint. See Americorp Financial, Inc. v. St. Joseph's Hospital Health Center, 180 F. Supp.2d 387, 390 (N.D.N.Y. 2001). Contrary to Bloom's contention, the amended complaint does not state, concisely and plainly, facts that would give the defendants fair notice of the basis for Bloom's claim; therefore, the Court finds that plaintiff's amended complaint fails to meet the standards set forth in Fed.R.Civ.P. 8. As a result, the Court finds Bloom's amended complaint, to the extent that it might be construed as one alleging breach of contract, wanting.

The Court also finds that, to the extent that the amended complaint could be read liberally as a claim for damages upon an account stated, it is equally deficient. The New York Court of Appeals has explained that "the very meaning of an account stated is that the parties have come together and agreed upon the balance of indebtedness, insimul computassent, so that an action to recover the balance as upon an implied promise of payment may thenceforth be maintained." Newburger-Morris Co. v. Talcott, 219 N.Y. 505, 512 (1916).

In the case at bar, plaintiff's amended complaint contains no facts indicating that the parties ever came together and agreed that any amount of indebtedness was owed by the defendants to the plaintiff. While it is true that in an action upon an account stated a plaintiff generally does not have to prove the details of the original debt and need only show that a defendant received the account and kept it for a reasonable time without objection, see Bank of New York — Delaware v. Santarelli, 128 Misc.2d 1003, 1004, 491 N.Y.S.2d 980, 981 (Cty. Ct. Greene Cty. 1985), "an account stated cannot be made an instrument to create liability when none otherwise exists." Bauman Assocs., Inc. v. H&M Int'l Transp., Inc., 171 A.D.2d 479, 485, 567 N.Y.S.2d 404, 408-409 (App. Div. 1st Dep't 1991). Therefore, where the existence of a contract is disputed or, as here, not pleaded in the complaint, a claim for an account stated is not a proper vehicle through which to attempt to collect a debt alleged to be owed. See GSGSB, Inc. v. New York Yankees, 862 F. Supp. 1160, 1176 (S.D.N.Y. 1994).

Under the circumstances, even when the amended complaint is viewed under the liberal standards applicable to a motion made pursuant to Fed.R.Civ.P. 12(b)(6), dismissal of Bloom's amended complaint is warranted. See DeJesus v. Sears, Roebuck & Co., Inc., 87 F.3d 65, 70 (2d Cir. 1996).

Having determined that defendants are entitled to obtain the relief they seek through that branch of their motion which relies upon Fed.R.Civ.P. 12(b)(6), it is unnecessary for the Court to reach the defendants' claim for relief under Fed.R.Civ.P. 12(b)(3) or their alternative request, that the plaintiff be directed to provide a more definite statement of his claim.


For the reasons set forth above, it is recommended that the defendants' motion to dismiss, made pursuant to Fed.R.Civ.P. 12(b)(6), be granted.


Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Wood. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Reynoso, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

Respectfully submitted,


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