The opinion of the court was delivered by: Pitman, United States Magistrate Judge
This is an action for breach of contract arising out of recruitment services that pro se plaintiff Leslie Blake allegedly performed for defendant Fiit International, Inc. ("Fiit") and defendant Jordi Parera. Blake moves for an Order pursuant to Fed.R.Civ.P. 56, granting summary judgment. Parera cross-moves for an Order granting summary judgment dismissing Blake's claim against him personally. The parties have consented to my exercising plenary jurisdiction pursuant to 28 U.S.C. § 636(c).
For the reasons set forth below, Blake's motion is denied, and Parera's cross-motion is granted.
This action arises from services allegedly performed by Blake, a recruiter and placement agent, for defendants, starting on or about June 1, 2004. Parera is the Chief Executive Officer, President and majority owner of Fiit, a Delaware corporation with its principal place of business in New York that, at all times relevant to the dispute, sought to sell interactive dual-screen LCD monitors in the United States (Declaration of Jordi Parera, dated September 12, 2006 ("Parera Decl."), ¶¶ 2, 5, 14).
In the Spring of 2004, Parera's wife saw a newspaper ad for Blake's placement agency and contacted Blake to obtain an aid for Parera's father (Reply of Leslie Blake to Declaration of Jordi Parera, dated October 26, 2006 ("Blake Reply"), ¶¶ 6-7). After finding an aid for Parera's father and subsequently finding an assistant for a trade show presentation, Blake met with Parera to discuss Blake's finding additional personnel for defendants. Blake asserts that she advised Parera at that time of her fees for any future work and he agreed to them; Blake's papers, however, do not disclose any specifics of her discussion with Parera concerning her fees (Blake Reply ¶ 8).
Subsequently, Blake sent several candidates to Parera to interview for the position of administrative assistant; Parera hired one of these candidates, Gale Grant (Blake Reply ¶ 8). On July 5, 2004, Blake sent an invoice to Parera for $4,282.50 for her services in connection with locating an administrative assistant (Affidavit of Leslie Blake in Support of Motion for Summary Judgment, dated June 19, 2006 ("Blake Aff."), ¶ 4 & Ex. A).
According to Parera, when Blake sent Fiit the invoice for $4,282.50 "without obtaining Fiit's agreement" (Parera Decl. ¶ 25), Parera immediately contacted Blake and ordered her to stop any work for Fiit until the parties could agree on a compensation scheme (Parera Decl. ¶ 27). Parera claims that despite the lack of a compensation agreement between Blake and Fiit, Blake continued to perform services for Fiit, and that during this time, he and Blake attempted to negotiate a compensation agreement for services already performed, as well as future services (Parera Decl. ¶ 28).
At some point in the Summer of 2004, Parera proposed that the parties enter into a consultancy agreement. Under the proposed agreement, Blake and Fiit would agree that, as of June 1, 2004, the value of Fiit was $8,000,000, and that Blake would earn $80,000 in equity "by working diligently for Fiit for 780 hours of one (1) year [fifteen hours per week] from the date of signing the agreement" (Lee Blake's Response to Defendants' Preliminary Statement, dated October 26, 2006 ("Blake Resp. to Prelim. Statement"), Ex. H). Furthermore, the agreement would provide that if Blake was terminated less than one year from the date of the agreement, the value of [her] then existing equity will be determined by an independent third party, or through arbitration. For instance, assuming that the current value of Fiit of $8,000,000 increases to $80,000,000 as of the date of termination, then, the difference of $72,000,000 is Fiit's increase in value. The product of $72,000,000 and 1% or $720,000 will be payable to consultant. (Blake Resp. to Prelim. Statement, Ex. H). This agreement was not signed by either party.
After further negotiation, Blake e-mailed Parera on October 9, 2004 and set forth what she believed to be the agreement among Fiit, Parera and Blake: (1) Fiit would pay Blake 20% of sales commissions up to $20,000 or the open invoice of $4,282, at Blake's option, (2) in exchange for a Fiit stock option valued at $80,000, Blake would work in her office for fifteen hours a week for one year, and (3) Blake would work an additional ten hours per week at the Fiit office at a rate of $75 per hour (Parera Decl., Ex. D). Blake also stated that despite this "original agreement" she was working at Fiit more than seven hours a day for four to five days a week and, therefore, she needed to receive current income to compensate her for this additional time. She requested that Parera "give some thought to the solution to this issue" and stated that the parties needed to have a signed agreement (Parera Decl., Ex. D). Parera responded by stating "Yes let's  talk about it but remember Fiit still show[s] a big [zero] in the sales rapport scores. Of course I will sign our agreement, and you are a very important link in the Fiit chain" (Parera Decl., Ex. D).
On October 14, Blake emailed Parera and reiterated her understanding of the terms of the agreement. Parera replied with his comments the same day (Parera Decl., Ex. E). He agreed to having the choice of receiving 20% of sales commissions up to $20,000 or the $4,282 open invoice, but stipulated that the option could not be exercised until the end of the year (Parera Decl., Ex. E). He also agreed to the $80,000 stock option in exchange for Blake working for Fiit for fifteen hours per week for one year, but insisted that all work would be done in Fiit's office. However, Parera did not accept the provision that Blake would work for ten hours per week at the Fiit office for $75 per hour (Parera Decl., Ex. E). Blake had previously stated that she agreed to delay compensation until the first sales were made, to which Parera responded that "there is not a cash compensation" (Parera Decl., Ex. E).
Parera e-mailed Blake again that same day*fn1 setting forth their agreement: (1) at the end of the year, she could choose to either receive payment of the unpaid invoice of $4,282 or, if she agreed to wait until earnings were generated, then receive 20% of commissions up to $20,000 per year, and (2) a stock option worth $80,000, which Blake would receive by working "one year 3 hours per day, or a total of 780 hours in a year (with a nice hourly rate of $102 per hour), with complete flexibility, in how many hours per day, per week, per month . . . ." (Blake Aff., Ex. D). Blake claims that defendants never decreased her hours to three hours a day (Blake Aff., Ex. C).
On October 22, Blake sent Parera a letter that set forth her understanding of the terms of their agreement: (1) at the end of the year, she could choose between receiving 20% of the total paid commission to the Fiit sales force up to $20,000 or payment of the $4,282 invoice, (2) $80,000 in stock option which would be earned by working one year for three hours a day or a total of 780 hours in a year with complete flexibility concerning how many hours per day she decided to work, and (3) an exit clause that provided that she would receive a proportional amount of the $80,000 stock option (Parera Aff., Ex. F). Blake also informed him that she had calculated that she had worked 575 hours to date for Fiit and that she was "eager to contact [his] attorney in order to finalize a signed, written agreement" so that she could continue to move toward her commitment of working 780 hours (Parera Aff., Ex. F). A week later, Blake set up a meeting with defendants' attorney, Tsutomu Yasuda, Esq., to finalize the contract (Parera Aff., Ex. G) but Blake then cancelled the appointment (Parera Decl. ¶ 35).
Parera did not hear from Blake again until he received a November 10, 2004 letter in which she claimed she was owed $161,783.50 (Parera Decl. ¶ 36). Blake calculated the fees owed to her as follows: Category A: seven salespersons hired at $1,000 per salespersons hired = $7,000.00 Category B: four managers hired at a fee of 30% of the annual salary of each manager hired = $105,000.00*fn2
Category C: interviewing twenty-two candidates who were not hired for 65 hours at $40 per hour = $2,600.00 Additional Recruiting: 178 hours of "additional recruiting" at $40 per hour = $7,120.00 Hours Spent Working for Fiit and Jordi Parera at Fiit Office: 347 hours at $103 per hour = $35,781.00 Outstanding Invoice: = $4,282.50 Blake's Claim of Total Monies Owed = $161,783.50
On December 3, 2004, Parera responded to Blake's November 10 letter. With respect to the claims Blake asserted under Categories A, B and C, and the fees sought for "additional recruiting," Parera asserted that Blake and Fiit "did not make any formal or informal agreement regarding the compensation formula provided in [the] letter" (Parera Decl., Ex. I). Parera also stated that Blake remained free to choose between either the outstanding invoice valued at $4,282.50 or 20% of the commissions paid to Fiit's salespersons, with a ceiling set at $20,000 (Parera Decl., Ex. I). In addition, Parera stated that because he and Blake were still in the process of negotiating the terms of the $80,000 stock option before she sent him her November 10 letter, her demand of $35,781 was "arbitrary" in both the hours she claimed she worked and the rate of her compensation (Parera Decl., Ex. I). The parties do not allege any further relevant communications. Blake commenced this action on July 1, 2005.
Blake now moves summary judgment for the monies due under the alleged contract among her and defendants in the amount of $161,783.50. According to Blake, defendants owe Blake for her work between June 1, 2004 until November 10, 2004, during which time she performed four different categories of agreed-upon services for Fiit and Parera: (1) recruiting and hiring sales persons in exchange for $1,000 commission per person hired, (2) recruiting, interviewing and training management personnel in exchange for thirty percent of their first year salary, (3) recruiting all other employees at a rate of $40 per hour, and (4) performing office work for defendants at a rate of $103 per hour (Amended Complaint (Docket Item 12), ¶ 5).
Parera cross-moves for summary judgment dismissing the claim against him personally on the grounds that Blake has not alleged any facts that demonstrate that Parera was transacting business on his own behalf (Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Defendant Parera's Cross-Motion for Summary Judgment, dated September 15, 2006 ("Def. Mem."), at 10-11). Parera claims that in all his dealings with Blake, he was acting in his capacity as Fiit's ...