The opinion of the court was delivered by: THOMAS PLATT, District Judge
MEMORANDUM OPINION and ORDER
Defendants In House Attorney Services, Inc. ("In House") and
Mr. Craig Osbourne ("Osbourne") (collectively "Defendants") move
to dismiss Plaintiff ADP Investor Communication Services, Inc.'s
("ADP") Amended Complaint pursuant to Federal Rule of Civil
Procedure ("Rule") 12(b)(2). In the alternative, Defendants move
this Court to dismiss counts two and three of the Amended
Complaint pursuant to Rule 12(b)(6).
ADP brings three claims: i) breach of contract against In
House; ii) unjust enrichment against In House; and iii)
conversion against both Defendants.
For the following reasons, Defendants' motions are DENIED.
Factual Summary ADP is a Delaware corporation with its principal place of
business in Edgewood, New York. (Am. Compl. ¶ 4.) In House is a
California corporation and has its principal place of business in
Los Angeles, California. (Id. ¶ 5.) Osbourne is the president and
founder of In House and is a resident of the State of California.
(Id. ¶ 6.)
In early 2003, In House submitted and won a bid to print proxy
materials and prepare the same for mailing on behalf of the
debtors of Peregrine Systems, Inc. ("Peregrine"), a corporation
that had filed for bankruptcy in the U.S. Bankruptcy Court in the
District of Delaware. (Id. ¶¶ 10, 11.)
At some point during the Spring of 2003, In House telephoned
Mr. Aleck Masouas, an employee at ADP's Edgewood, New York
facility, to inquire as to whether ADP was interested in handling
the task of mailing the proxy materials to the Peregrine
shareholders. (Id. ¶ 11.) The Defendants' version as to who
initiated the contract differs. According to Osbourne, after In
House was awarded the contract to produce the proxy materials,
Peregrine's counsel communicated with Osbourne to inform him that
ADP had been chosen to mail the Peregrine materials. (Osbourne
Aff. ¶ 10.)
In any event, before the Parties reached an agreement, In House
and ADP's representatives located at ADP's Edgewood, New York
headquarters exchanged several phone conversations and emails. (Am. Compl. ¶
12.) ADP anticipated that the cost to mail the Peregrine
materials would be high. (Id. ¶ 13.) Therefore, as ADP was aware
that Peregrine was in financial straits, ADP requested
pre-payment. (Id.) In House wired the sum of $835,070 to ADP as
pre-payment. (Id.) ADP agreed to reimburse In House the
difference between the pre-payment and the actual cost of the
mailings after they completed the project. (Id.)
In House prepared the Peregrine materials and then shipped them
to ADP's Edgewood, New York headquarters in June, 2003. (Am.
Compl. ¶¶ 15-16.) ADP in turn processed and mailed these
materials to the Peregrine shareholders. (Id. ¶ 16.) ADP also
mailed reminder letters to the Peregrine shareholders. (Id.)
After completing the Peregrine project, ADP calculated that In
House incurred charges totaling $570,407.20. (Am. Compl. ¶ 17.)
Keeping with their agreement, ADP wired to In House a refund of
$277,699.89 on or about September 11, 2003. (Id. ¶ 18.) According
to ADP, this amount was incorrect as they later calculated that
the actual amount due to In House was only $264,662.80. (Id.) ADP
then wired a second refund check for the "correct" amount to In
House on or about January 14, 2004. (Id.)
Osbourne acknowledged in a telephone call that In House
received two checks. (Id. ¶ 19; Osbourne Aff. ¶ 19.) Osbourne
also acknowledged that during a phone conversation with a member
of ADP's Finance Department in May, 2004, he stated that he thought the refund amount was larger
than expected. (Am. Compl. ¶ 19.) Osbourne and In House, however,
did not return the first payment to ADP, despite repeated
requests to do so. (Id. ¶¶ 19-21.)
Osbourne contends that it is his understanding that the two
payments were installment payments and that together they equaled
the accurate amount of monies owed to In House. (Osbourne Aff. ¶
ADP alleges that this Court has personal jurisdiction over the
Defendants under New York's long arm statute, N.Y. Civ. Prac. L.
& R. ("CPLR") § 302(a)(1), in that the Defendants have transacted
business in New York and ADP's claims arise out of Defendants'
purposeful business activity in New York. (Am. Compl. ¶ 9.) In
addition, on its claim for conversion, ADP argues that this Court
has personal jurisdiction over Defendants under both CPLR §§
302(a)(1) and 302(a)(3). (Id.)
On a motion to dismiss for lack of personal jurisdiction
pursuant to Rule 12(b)(2), the plaintiff bears the burden to
establish jurisdiction. See In re Magnetic Audiotape Antitrust
Litig., 334 F.3d 204, 206 (2d Cir. 2003); Freeplay Music, Inc.
v. Cox Radio, Inc., No. 04-5238, 2005 U.S. Dist. LEXIS 12397, *5
(S.D.N.Y. June 23, 2005). "A plaintiff must establish the court's
jurisdiction with respect to each claim asserted." Sunward Elecs., Inc. v.
McDonald, 362 F.3d 17, 24 (2d Cir. 2004). Where no
jurisdictional discovery has been conducted as is the case here
the plaintiff need only establish a prima facie case, and
allegations of jurisdictional fact must be construed in a light
most favorable to the plaintiff. See CutCo Indus. Inc. v.
Naughton, 806 F.2d 361, 365 (2d Cir. 1986). The motion may be
denied if those allegations suffice as a matter of law. Magnetic
Audiotape, 334 F.3d at 206.
In order to prevail under Rule 12(b)(6), a defendant must show
that the plaintiff can prove no set of facts in support of its
claim which would entitle plaintiff to relief. Alnwick v.
European Micro Holdings Inc., 281 F. Supp. 2d 629, 637 (E.D.N.Y.
2003). Courts must accept as true all of the factual allegations
set out in the complaint, and draw inferences from those
allegations in the light most favorable to the plaintiff. Id.
"Under Rule 12(b)(6), a court `must confine its consideration to
facts stated on the face of the complaint, in documents appended
to the complaint or incorporated in the complaint by reference,
and to matters of which judicial notice may be taken.'" Id.
(quoting Tarshis ...