contacts, is sufficient to support the exercise of jurisdiction over defendants with respect to his claim for breach of the loan contract. Defendants do not argue otherwise.
Defendants contend that the principles of due process preclude this Court from asserting jurisdiction over any of these claims. Because Seagal's contacts with New York at the time of these events were not "random or unintentional actions," basing personal jurisdiction on them would not offend "traditional notions of fair play and substantial justice" under International Shoe v. Washington, 326 U.S. 310, 316 (1945) and its progeny. PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1111 (2d Cir. 1997). Indeed, in residing in New York and in "purposefully direct[ing]" his business activities at other New York residents, Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985), Seagal "availed himself of the privileges of conducting business [there] so as to reasonably expect to be subject to suit here." PDK Labs, Inc., 103 F.3d at 1111. Accordingly, I deny defendants' motion to dismiss for lack of personal jurisdiction the claims for breach of contract, breach of fiduciary duty, and unjust enrichment.
Nasso does not contend that defendants' seizures of Productions' corporate opportunities arise out of meetings that took place in New York. Rather, he contends that the torts themselves were committed in New York because "Ticker" and "Exit Wounds" were filmed and negotiated while Seagal resided in New York, worked under the auspices of Productions, and benefited from Nasso's help. The fact that Seagal, Productions, and Nasso were domiciliaries of New York, however, does not establish that the tort itself was committed there. Nasso does not even allege that the remaining torts — the conversions and the misrepresentation — took place in New York. Accordingly, Section 302(a)(2) does not provide a basis for the exercise of personal jurisdiction with respect to these claims.
Nasso argues that this Court can exercise jurisdiction pursuant to Section 302(a)(3).*fn29 Specifically, he argues in his brief that the financial losses that resulted from these torts took place in New York "not only because the plaintiff resided here but also because the torts involved a New York corporation and are related to the engagement of both plaintiffs and defendants in business transacted in New York." (Pl.'s Mem. at 48.) Nasso does not elaborate on, or offer any evidentiary support for, his statement that these torts relate to business transactions conducted in New York. Under settled law, the fact that Nasso and Productions are New York domiciliaries is insufficient, without more, to demonstrate that an injury took place there. See, e.g., Fantis Foods, Inc. v. Standard Importing Co., Inc., 402 N.E.2d 122, 126 (N.Y. 1980) ("It has . . . long been held that the residence or domicile of the injured party within a State is not a sufficient predicate for jurisdiction, which must be based upon a more direct injury within the State and a closer expectation of consequences within the State than the indirect financial loss resulting from the fact that the injured person resides or is domiciled there."); Andrew Greenberg, Inc. v. Sir-Tech Software, Inc., 746 N.Y.S.2d 736, 739 (App. Div. 2002) ("[I]t is apparent that plaintiff is unable to establish the kind of direct injury within New York that the statute requires, for any injury sustained by plaintiff is sustained in this State solely because plaintiff has its corporate presence here."); Cooperstein v, Pan-Oceanic Marine, Inc., 507 N.Y.S.2d 893, 895 (App. Div. 1986).*fn30 Accordingly, I dismiss for lack of personal jurisdiction the claims of seizure of a corporate opportunity, conversion, and misrepresentation.*fn31
Failure to State a Claim
Defendants also move to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.*fn32 In considering a motion to dismiss under Rule 12(b)(6), a "court must accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor." Patel v. Contemporary Classics of Beverly Hills, 259 F.2d 123, 126 (2001). A court will not dismiss a claim under Rule 12(b)(6) "unless it is satisfied that the complaint cannot state any set of facts that would entitle [plaintiff] to relief." Id.
In order to state a claim for breach of contract under New York law, a plaintiff must allege (1) the existence of a contract, (2) performance of the contract by the plaintiff, (3) breach of the contract by the defendant, and (4) damages. See Rexnord Holdings v. Bidermann, 21 F.3d 522, 525 (2d Cir. 1994); Worldcom, Inc. v. Sandoval, 701 N.Y.S.2d 834, 836 (Sup.Ct. 1999). Nasso alleges that defendants breached contracts in which Seagal promised to star in the four films. Defendants do not dispute that Nasso has satisfied the last three elements with respect to these claims. Rather, they argue that he has failed to allege the existence of a contract concerning the four films because the complaint does not state (1) that a plaintiff was a party to the contract or the name of the corporate representative with whom Seagal formed the contract, (2) that Productions' directors or shareholders established the fairness of the transaction, (3) the material terms of the contract, or (4) that the contract was made in writing.
Paragraph 87, 89, 91, and 93 of the amended complaint state that Seagal owed "his contractual obligations [to star in the four films] to Plaintiffs." Defendants present no authority for the proposition that a plaintiff who alleges that a corporation formed a contract must identify the representative who acted on the corporation's behalf and state that the directors or shareholders approved any transaction with a controlling shareholder. The complaint alleges that. Nasso agreed to develop, produce, and distribute the films in exchange for a $250,000 production fee, that Seagal agreed to star in them in exchange for the market value of his services, and that Productions would own them. Because it specifies the services to be performed and the consideration to be paid, the complaint adequately states the material terms of the contract. Cf. Tower Int'l v. Caledonian Airways, No. CV-93-1122, 1996 U.S. Dist. LEXIS 20311, at *20 (E.D.N.Y. Feb. 7, 1994) ("Consideration is a required material term for a valid services contract in New York."); Cooper Square Realty, Inc. v. A.R.S. Management Ltd., 581 N.Y. So.2d 50, 51 (App. Div. 1992) ("As price is an essential ingredient of every contract for the rendering of services, an agreement must be definite as to compensation"). A contract that "by its terms is not to be performed within one year from the making thereof" is void unless made in writing. N.Y. Gen. Oblig. Law § 5-701(a)(1). This provision applies "to those contracts only which by their very terms have absolutely no possibility in fact and law of full performance within one year." D & N Boening, Inc. v. Kirsch Beverages, Inc., 472 N.E.2d 992, 993 (N.Y. 1984); see also Kestenbaum v. Suroff, 704 N.Y.S.2d 260, 261 (App. Div. 1999). While defendants may be correct that "it would defy common sense to contend that four feature films would be produced and released within one year," (Defs.' Mem. in Supp. at 40), the fact that the contract is "susceptible of fulfillment within that time, in whatever manner and however impractical," is sufficient to shield the contract from this provision of the Statute of Frauds. D & N Boening, Inc., 472 N.E.2d at 993 Accordingly, I deny defendants' motion to dismiss these claims for breach of contract for failure to state a claim.*fn33
Nasso asserts claims in quantum meruit because he rendered services with the expectation of compensation and defendants accepted those services without paying the reasonable value of those services. "In order to make out a claim in quantum meruit, a claimant must establish (1) the performance of the services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services." Geraldi v. Melamid, 622 N.Y.S.2d 742, 743 (Apt. Div. 1995). Defendants argue that Nasso has failed to state a claim because he does not allege that they derived any benefit or enrichment from Nasso's activities. See, e.g., Landcom, Inc. v. Galen-Lyons Joint Landfill Comm'n, 687 N.Y.S.2d 841, 843 (App. Div. 1999). Because Nasso and Seagal agreed that Nasso would receive a. producer's fee for his contribution to the joint venture, however, Nasso may prove that Seagal. was enriched by his failure to provide that fee. Accordingly, I deny defendants' motion to dismiss the claims in quantum meruit for failure to state a claim.
Nasso alleges that defendants breached their fiduciary duties to act in good faith and deal fairly with him and with Productions when Seagal failed to star in the four films. "Under New York law, the elements of a claim for breach of fiduciary duty are (1) existence of fiduciary relationship and (2) breach of a fiduciary duty." Official Comm. of Asbestos Claimants of G-I Holding, Inc. v. Heyman, 277 B.R. 20, 37 (S.D.N.Y. 2002).
Nasso has satisfied the first element. Defendants do not dispute that they had a fiduciary relationship with Productions.*fn34 They contend, however, that they had no such relationship with Nasso because Nasso had not placed his trust and confidence in Seagal and had not "reasonably relie[d] on the [Seagal's] superior expertise or knowledge." WIT Holding Corp. v. Klein, 724 N.Y.S.2d 66, 68 (App. Div. 2001). Because Nasso and Seagal had worked together closely for over a decade, Nasso may be able to prove he reasonably relied on Seagal's superior expertise or knowledge.
Nasso has also fulfilled the second requirement. Defendants argue that Seagal breached no fiduciary duty to Productions because Seagal was not "undertaking [a] corporate action" when he failed to appear in the films. Alpert v. 28 Williams St. Corp., 473 N.E.2d 19, 25 (N.Y. 1984). Because Productions was organized for the purpose of developing and producing films, Nasso may prove that Seagal failed to act in good faith and to deal fairly in its relations with the corporation when he refused to star in the films. They also argue that Nasso does not allege direct injuries that are independent of any harm to Productions. Nasso, however, alleges injury to his reputation in the film industry as a direct result of the breach. Cf. Hoheb v. Pathology Assocs. of Albany, P.C., 536 N.Y.S.2d 894, 897 (App. Div. 1989) ("[P]laintiff has failed to demonstrate the breach of any duty independent of the contract and flowing directly to him, rather than the corporation.").
Accordingly, I deny defendants' motion to dismiss the claims for breach of fiduciary duty for failure to state a claim.
Nasso also alleges that defendants breached his partnership agreement with Seagal. Defendants contend that Nasso has failed to state a claim for breach because he alleges in paragraph 131 that he and Seagal agreed "to develop, produce, market and distribute television and film projects and collect the foreign license fee advances" and alleges in paragraphs 15 and 33 that the Nasso-Seagal Entities were organized to perform the same activities. "[T]he rule is well settled" in New York "that a joint venture may not be carried on by individuals through a corporate form." Weisman v. Awnair Corp. of Am., 144 N.E.2d 415, 418 (N.Y. 1957). Indeed, when parties form a corporation to carry out the business of the partnership, they cease to be partners. Id. ("When parties adopt the corporate form, with the corporate shield extended over them to protect them against personal liability, they cease to be partners and have only the rights, duties, and obligations of stockholders. They cannot be partners inter sese and a corporation as to the rest of the world.") (internal quotation marks omitted); Berke v. Hamby, 719 N.Y.S.2d 280, 281 (App. Div. 2001) ("[A]s a general rule, a partnership may not exist where the business is conducted in a corporate form. . . . Parties may not be partners between themselves while using the corporate shield to protect themselves against personal liability.") (internal citations and quotation marks omitted); Notar-Francesco v. Furci, 539 N.Y.S.2d 800, 801 (App. Div. 1989) ("Once the [parties] formed a . . . corporation, the partnership was no longer in existence, and the partnership agreement was a nullity. . . . Once they adopted the corporate form, they ceased to be partners, and had only the rights, duties and obligations of stockholders.") (internal citations omitted).
Nasso urges this Court to carve out from this general rule an exception for close corporations. He cites the dissenting opinion of Judge Fuld in Kruger v. Gerth, 210 N.E.2d 355 (N.Y. 1965), which stated that "there is no inherent reason why a court "of equity cannot treat the participants in a genuine close corporation, insofar as their relationship inter sese is concerned, as they regard themselves — as partners or joint venturers." Id. at 357. As Judge Fuld himself "recognize[d]," however, "this view runs counter to [the] decisions" of New York's highest court. Id. n. 1. Years earlier, the Court of Appeals had rejected the same argument over a similar dissent. See Weisman, 144 N.E.2d at 415-19. In light of this precedent, Nasso's argument must fail under New York law. Accordingly, I grant defendants' motion to dismiss Nasso's claim for breach of a partnership contract for failure to state a claim.*fn35
For the reasons set forth above, defendants' motion to dismiss is granted with respect the claims of misrepresentation, conversion, seizure of corporate opportunities, and breach of a partnership contract and denied in all other respects. Plaintiff's motion for remand is denied without prejudice to renewal.