The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge
David Bradley, appearing pro se, filed this diversity action against
Roger Staubach, The Staubach Company (TSC), and Mark Wakeland alleging
breach of contract, fraud, usury, breach of fiduciary duties, and
professional negligence in connection with a real estate transaction in
Ottawa, Canada. This Court previously dismissed the suit against Staubach
and Wakeland for lack of personal jurisdiction, and dismissed each cause
of action, except for breach of contract, for failure to state a claim.
Plaintiff was granted leave to amend his complaint, which he has since
done. The Amended Complaint added new jurisdictional allegations but is
otherwise identical to the original complaint. Staubach and Wakeland have
again moved to dismiss for lack of personal jurisdiction, and all defendants again move to dismiss for failure
to state a claim.
For the reasons stated below, the motion to dismiss for lack of
personal jurisdiction is granted with respect to Staubach and denied with
respect to Wakeland. The motion to dismiss for failure to state a claim
is granted in part and denied in part.
On May 27, 1999, David Bradley ("Bradley") obtained the right, title,
and interest to an "Agreement of Purchase and Sale" ("Purchase
Agreement"), pursuant to which Bradley agreed to purchase real property
(the "property") located in Ottawa, Canada, from John Bradley ("Seller").
See Plaintiffs Amended Complaint ("Complaint") ¶¶ 1-4; Net
Proceeds Agreement ("Proceeds Agreement"), Ex. 4 to Plaintiffs Opposition
to Defendants' Motion to Dismiss ("PI. Opp."), at 8. In February 2000,
Bradley entered into an oral agreement with the defendants (the "February
2000 Agreement"), whereby TSC agreed to reimburse all of Bradley's costs
and expenses relating to the purchase of the property from Seller, and
grant Bradley a loan in the amount of $50,000 Canadian Dollars. See Complaint ¶¶ 1-13. As consideration,
Bradley agreed to share his profits from the sale of the property with
non-party WEC 2000 Ottawa Land A Company ("WEC").*fn2 See
Proceeds Agreement, at 8-13. This agreement was formed under New
York Law. See Complaint at 10.*fn3
On April 7, 2000, Bradley and WEC executed the Net Proceeds Agreement.
See Proceeds Agreement at 8. The agreement provided that "all
proceeds from the Sale of the Property are and shall be solely and
exclusively owned by [WEC]," provided that, "[WEC] pay [Bradley] the Net
Proceeds Payment in cash at closing." Id. at 10. The agreement
defined "Net Proceeds Payment," and further provided that at the closing
of the purchase of the property, Bradley would "transfer and assign all
of [his] right, title and interest in and to the Purchase Agreement to
[WEC]." Id. at 8-10. WEC agreed to "consummate the closing of
the acquisition of the property from the Seller," and "reimburse
[Bradley] . . . pre-closing expenses. . . ." Id. at 10.
WEC purchased the property from Seller on April 10, 2000, and sold it
on May 13, 2003. See Complaint ¶ 1; Pl. Opp. at 5. Under the
terms of the Net Proceeds Agreement, Bradley was not entitled to any of the proceeds
from the sale. See Proceeds Agreement, at 8-10.
Bradley alleges five causes of action against the defendants. Claims I
and II allege that defendants "committed fraud and breach of contract" by
"deliberately failing to reimburse [Bradley] for his deposits on the
property, and . . . to honor the `loan.'" Complaint ¶¶ 14-15,
20-21, 34. Claims III and IV allege that as a result of the defendants'
negligence and breaches of fiduciary duty, plaintiff suffered injury in
the form of "lost business opportunity for the property." Id.
¶¶ 21-33. Finally, Claim V alleges that defendants violated New York
usury law by charging plaintiff 50% interest per annum on the $50,000
(Canadian) loan made under the terms of the February 2000 Agreement.
See id. ¶¶ 1-3, 19.
Roger Staubach is founder, Chief Executive Officer, and Chairman of the
Board of Directors of TSC. See id. at 9. Staubach has resided in
Dallas, Texas, since 1969. See id. ¶ 3; Declaration of Roger
Staubach ("Staubach Dec.") ¶ 2. Staubach has never met or spoken with
Bradley. See id. ¶ 3.
Mark Wakeland was a senior executive with the financial services division of TSC.*fn4 See Complaint at 11-12; Declaration
of Mark Wakeland ("Wakeland Dec.") ¶ 3. Wakeland is a resident of
Texas. See Complaint ¶ 2; Wakeland Dec. ¶ 2. He has only
been present in New York once, while changing aircraft at a New York
airport. See id. ¶ 5. Wakeland concedes knowing Bradley from
his employment at TSC. See id. ¶ 3.
TSC is a Texas corporation with its principal place of business in
Texas. See Complaint ¶ 3; Staubach Dec. ¶ 3. Bradley
alleges that he had dealings with the New York office of TSC, and that