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BRADLEY v. STAUBACH

April 12, 2004.

DAVID BRADLEY, Plaintiff, -against- ROGER STAUBACH, THE STAUBACH COMPANY MARK WAKELAND, Defendants


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

OPINION AND ORDER

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.

 I. FACTS

  A. Background*fn1

  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.

  B. Complaint

  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.

  C. Moving Defendants

  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 this ...


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