The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge.
Plaintiff Fernbach, LLC brought this action to recover $106,035.78 that it paid to defendant Capital & Guarantee Inc. in an attempt to expedite the issuance of a payment and performance bond to Fernbach's general contractor, Calleo Construction Corporation, as required by the terms of the loan that Fernbach obtained to finance construction on its property located at 26 East 81st Street in New York, NY. Defendants-Capital & Guarantee, Inc. ("C&G") and its principal, Peter J. Murphy-have moved to dismiss the amended complaint and Fernbach has cross-moved for summary judgment in its favor. On July 8, 2009, the Court issued an order notifying the parties that it was converting defendants' motion to dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b)(6) and 12(b)(7) into one for summary judgment pursuant to Fed. R. Civ. P. 56 and affording all parties the opportunity to file supplemental briefing and evidence, which they did. Accordingly, the Court now addresses the parties' cross-motions for summary judgment.
The following facts are either undisputed or the Court has drawn all factual inferences in the non-movant's favor.
In January 2007, Fernbach hired Calleo Construction Corporation ("Calleo") to serve as the general contractor for the improvement of a building owned by Fernbach. (Pl.'s Local Civil Rule 56.1 Statement of Undisputed Facts*fn1 ("Pl.'s 56.1") ¶¶ 1, 3; Defs.' Local Civil Rule 56.1 Statement of Undisputed Facts ("Defs.' 56.1") ¶¶ 1, 3.) The loan that Fernbach obtained to finance its improvements required that the general contractor for the project obtain a payment and performance bond before Fernbach could close on the loan. Accordingly, Fernbach's contract with Calleo required that Calleo obtain such a bond for the full $4.2 million value of the underlying construction contract. (Pl.'s 56.1 ¶¶ 2-3, 7; Defs.' 56.1 ¶¶ 2-3, 7.)
To this end, Calleo entered into a contract with C&G pursuant to which C&G agreed to find a surety that would issue a payment and performance bond to Calleo. (Agreement for Consulting Services, Ex. 2 to Affidavit of Peter J. Murphy dated March 9, 2009 ("Murphy Aff.").) When C&G billed Calleo for the bond premium, Calleo represented to Fernbach that it did not have the funds to pay that premium. As a result, Fernbach paid the bond premium directly to C&G to expedite issuance of the bond to Calleo and thus the release of the construction loan to Fernbach. In doing so, Fernbach's manager signed a letter stating that "Fernbach LLC hereby waives any claim that it is in privity with C&G and Fernbach does not and will not claim that it is a client of C&G." (Pl.'s 56.1 ¶¶ 6-12; Defs.' 56.1 ¶¶ 6-12; Letter from Anita Younes, Manager, to Peter Murphy dated Feb. 27, 2007, Ex. 5 to Murphy Aff.)
Shortly after Fernbach paid the premium to C&G, the State of Massachusetts dissolved C&G for allegedly unrelated reasons. (Pl.'s 56.1 ¶ 19; Defs.' 56.1 ¶ 19.)
Calleo subsequently failed to meet the surety's conditions for issuing the bond; as a result, the bond never issued. (Pl.'s 56.1 ¶ 22; Defs.' 56.1 ¶ 22.). On October 16, 2007, Fernbach terminated its contract with Calleo due to Calleo's continuing failure to furnish the performance and payment bond. That same day, Fernbach's counsel made a written demand that C&G return the funds paid to C&G by Fernbach. Fernbach made an additional demand the next week and then brought this litigation four months later. (Pl.'s 56.1 ¶¶ 14-18; Defs.' 56.1 ¶¶ 14-18.)
Fernbach's amended complaint states claims for unjust enrichment, money had and received, and fraud, alleging not only that C&G improperly retained Fernbach's payment, but also that C&G's sole principal, defendant Peter Murphy, committed fraud by intentionally hiding the fact that Massachusetts had dissolved C&G. (Am. Compl. ¶¶ 33, 55, 57, 64.) Fernbach brings its claims against both C&G and Murphy, alleging that Murphy controls the corporation and abused its corporate form to commit fraud. (Id. ¶¶ 53-57.) As noted above, the parties have submitted cross-motions for summary judgment.
Summary judgment is appropriate only if the evidence shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining whether a genuine issue of material fact exists, the Court "is to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004). Nonetheless, the party opposing summary judgment "may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence" in support of its factual assertions. D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). The same standard applies where the parties file cross-motions for summary judgment-"each party's motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration." Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001).
Fernbach brings claims for unjust enrichment, money had and received, and fraud pursuant to New York state law. Defendants contend that Fernbach fails to state a claim on which relief can be granted and assert the additional defense pursuant to Fed. R. Civ. P. 12(b)(7) that this Court should dismiss the complaint for failure to join an indispensable party, Calleo. Because the Court finds that, even drawing all inferences in its favor, Fernbach's claims fail as a matter of law, it grants summary ...