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Leepson v. Allan Riley Co.

July 31, 2006


The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge


Plaintiff Peter L. Leepson, P.C. ("Plaintiff7 or "Leepson") brings this breach of contract action against defendants The Allan Riley Company, Inc. ("Defendant" or "ARC"); Rodut Associates (NY) L.P. ("Rodut"), KRR Realty LLC ("KRR), TSNY Realty Corp. ("TSNY"), and Apt. E. 57 Corp. ("57 Corp.") (collectively, the "Additional Defendants"). Plaintiffs Amended Complaint ("Complaint") asserts six causes of action against Defendants. Five claims are asserted against ARC only, which include (1) breach of contract, (2) account stated, (3) promissory estoppel, (4) implied contract, and (5) quantum meruit. (Compl. ¶¶ 16-41.) The Sixth Cause of Action is asserted against the Additional Defendants, and includes claims for breach of express and implied contract, promissory estoppel, quantum meruit, and unjust enrichment. (Id. ¶¶ 44-45.) Plaintiff seeks damages of at least $144,000.00, in addition to interest and costs. (Id. ¶ 46.) This Court has jurisdiction of the instant action pursuant to 28 U.S.C. 5 1332. ARC now moves to dismiss the Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief may be granted, or in the alternative, seeks an order pursuant to Federal Rule of Civil Procedure 12(e) requiring Plaintiff to file a more definite statement. For the following reasons, Defendant's motion is denied in its entirety.*fn1


The underlying facts of this case as alleged in the Complaint are taken as true for purposes of Defendant's motion to dismiss. As explained below, the Court has also reviewed a copy of a retention letter that is quoted in the Complaint. Plaintiff entered into a contract with Defendant to act as legal counsel for various real estate transactions for Defendant and its affiliates, including the Additional Defendants, in accordance with the terms of an April 19, 2000 letter ("Retention Letter"). (Id. ¶ 9.) The Retention Letter details Leepson's flat fees and hourly billing rates, as well as the timeline for payment of those fees, for legal services in connection with the real estate transactions for which ARC had retained Leepson. (Id. ¶ 10.) "ARC did not object to, or otherwise dispute, the terms of that letter at any time." (Id.) Leepson performed services for ARC in connection with numerous transactions in accordance with the terms of the Retention Letter. (Id. ¶ 11.) Further, although the Retention Letter was for services performed in connection with the Additional Defendants, "[alt all times, however, Leepson's retention relationship was with ARC." (Id. at 9.) The Retention Letter is signed by Leepson, but not by any representative of ARC. (See Retention Letter, Allan J. Riley Aff. Ex. B.)

ARC President, Allan J. Riley ("Riley"), signed a letter dated July 10,2003, on ARC letterhead "affirmatively stating that 'Leepson was retained by ARC to represent its interests in a variety of real estate transactions."' (Compl. ¶ 12.) In that letter, ARC acknowledges that it "was billed by Leepson for its services, and that many of the transactions Leepson worked on for ARC involved 'ARC affiliate[s]. "' (Id. (alteration in original).)

Leepson has rendered bills to ARC for the legal services Leepson claims were provided to ARC and the Additional Defendants at ARC'S request. (Id. ¶ 13.) "At no time did ARC object to the substance of any of those bills." (u)De fendant, however, has not paid Leepson for its legal services, and Leepson claims to be owed $144,000.00 plus interest due to this failure. (Id. ¶ 14-15.)


Motion to Dismiss

In deciding ARC'S Rule 12(b)(6) motion to dismiss the Complaint, the Court must take as true the facts alleged in the Complaint and draw all reasonable inferences in Leepson's favor. Leatherman v. Tarrant Countv Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); Hernandez v. Couqhlin, 18 F.3d 133, 136 (2d Cir. 1994). "The fundamental issue at the dismissal stage 'is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims."' Phelps v. Kapnolas, 308 F.3d 180, 184-85 (2d Cir. 2002) (quoting Chance v. Armstronq, 143 F.3d 698, 701 (2d Cir. 1998)). Although "it may appear on the face of the pleading that a recovery is very remote and unlikely[,] . . . that is not the test." Scheuer v. Rhodes, 416 U.S. 232,236 (1974), abrogated on other wounds by Harlow v. Fitzgerald, 457 U.S. 800 (1 982). Rather, the Court must not dismiss the Complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief." Conley v. Gibson, 355 U.S. 41,45-46 (1957).

Relevant Documents

Defendant argues that the Court should, in deciding ARC'S motion to dismiss, consider the following documents in addition to the Complaint: (1) the Retention Letter fiom Peter L. Leepson to Riley, (2) "legal bills issued by plaintiff to various entities," and (3) "evidence of payment of those [legal] bills." (Def.'s Reply Mem. at 4.) Plaintiff disagrees, arguing that ARC'S materials are evidentiary in nature and were "improperly submitted." (Pl.'s Br. in Opp'n to Def.'s Mot. to Dismiss andor for More Definite Statement ("Pl.'s Opp'n") at 4.)

In determining a motion to dismiss, the Court may consider, in addition to the complaint, "any written instrument attached to [the complaint] as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are 'integral' to the complaint." Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (citations omitted). The Court may also consider "matters of which judicial notice may be taken, or . . . documents either in plaintiffl's] possession or of which plaintiff):] had knowledge and relied on in bringing suit." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quoting Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993)). However, "a plaintiffs reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough." Id. Furthermore, "[llimited quotation from or reference to documents that may constitute relevant evidence in a case is not enough to incorporate those documents, wholesale, into the complaint." w, 380 F.3d at 67 (citation omitted).

The Court has considered the Retention Letter, which is quoted extensively in the Complaint, in determining the Defendant's motion to dismiss. (See Compl. ΒΆ 10.) The Court will not consider the proffered invoices and billing documents in deciding ARC'S motion to dismiss because Leepson did not specifically identify these invoices as those for which it seeks ...

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