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WEISBERG v. SMITH

November 17, 2005.

TAMMY MICHAELS WEISBERG, Plaintiff,
v.
GREGORY JOHN SMITH a/k/a DAVID ROBERTS and JOSEPH REGAL, Defendants.



The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

MEMORANDUM OPINION

This contract dispute is before the Court on the motion of defendant Joseph Regal to dismiss the complaint for failure to join an indispensable party and failure to state a claim upon which relief may be granted. Facts

  The Amended Complaint

  According to the amended complaint, the allegations of which are accepted as true for purposes of this motion, plaintiff represented defendant Gregory John Smith ("Roberts") in seeking a movie deal for his novel, Shantaram. The relationship came to an end, at which time the parties entered into a contract pursuant to which Roberts agreed to pay plaintiff 15 percent of all monies he might receive relating to any movie deal for the novel, a lump sum payment of $65,000 within seven days of his receipt of "front end" funds from such a movie deal, and the "paid bill" value of out-of-pocket expenses incurred by plaintiff on his behalf. Roberts then hired Regal to act as his literary agent.

  In September 2004, Regal sent plaintiff an e-mail confirming that the terms of her contract with Roberts provided that plaintiff was to receive 15 percent of the gross receipts from a movie deal. It added, "I shall of course abide by all the other terms of the agreement in regard to monies you need to recoup before Greg (Defendant Roberts) is paid, including the $65,000.

  On or about August 1, 2005, Regal came into possession of approximately $1 million that had been paid by Warner Bros. to Roberts for the movie rights to Shantaram. Notwithstanding plaintiff's contract with Roberts and Regal's September 2003 e-mail, the complaint asserts, Regal sent "the bulk of the funds" to Roberts in Australia and did not retain sufficient funds to pay plaintiff. The pleading, which is dated September 7, 2005, alleges that plaintiff is owed a total of $317,854.19 — the $150,000 commission, the $65,000 lump sum payment, and out-of-pocket expenses of $102,854.19.

  Plaintiff asserts three claims for relief. The first charges Roberts and Regal with breach of the contract between plaintiff and Roberts. The second seeks recovery of the same amount from Regal on the theory of unjust enrichment. The third is for conversion against both Roberts and Regal. She seeks also a declaration with respect to future payments by Warner Bros.

  Plaintiff's Subsequent Admission

  Regal's motion papers — contrary to the allegations of the amended complaint — assert that he wired $27,475 on August 22, 2005 and $187,475 on August 30, 2005 to plaintiff's designated representative. Thus, he contends, he had paid the entire $150,000 commission plus the $65,000 lump sum payment, less $50 in wire transfer fees, a full week before plaintiff filed an amended complaint asserting that those monies had not been paid. Plaintiff's memorandum of law admits these payments and acknowledges that nothing remains in dispute but the $102,854.19 in alleged expenses.*fn1 No explanation is offered for the fact that the allegations in the amended complaint concerning the alleged non-payment of the commission and lump sum payment concededly were false.

  Discussion

  The Contract Claim

  Regal was not a party to the contract between plaintiff and Roberts. Plaintiff's claim thus hinges upon Regal's statement that he would abide by the terms of the contract between plaintiff and Roberts. The Court assumes for present purposes, without deciding, that a failure by Regal to fulfill that promise would constitute a breach of contract by him.

  Regal argues that the amended complaint nowhere alleges that the plaintiff-Roberts contract obligated Roberts to reimburse her expenses. While the pleading leaves much to be desired, it does allege that plaintiff unsuccessfully sought to phone Regal "to obtain the payments due under the Contract, including her expenses."*fn2 This is sufficient to give defendants notice that plaintiff claims that Roberts is contractually obligated to reimburse her expenses. But that does not get plaintiff all the way home.

  If Regal was so obliged, there was no duty on Regal's part to make plaintiff whole for her expenses out of his own funds. The obligation to pay was conditioned upon (a) plaintiff incurring reimbursable expenses and (b) funds for the account of Roberts being in or coming into Regal's hands. Moreover, Regal would have had no way of ...


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