The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
Plaintiff IMPX, Inc. alleges that the defendant, Green Tech Finance Inc., breached the contract between the parties. Plaintiff is a consulting and technology services firm, organized under the laws of Delaware, with its principal place of business in Williamsville, NY. Defendant is a Canadian corporation that provides financial consulting services for project developers. In this diversity action, Plaintiff seeks $80,190 in compensatory damages, plus interest and costs of this action.
Presently before this Court is Defendant's Motion to Dismiss Plaintiff's complaint for lack of subject-matter jurisdiction, pursuant to Rules 12(b)(1) and 12(h)(3) of the Federal Rules of Civil Procedure. For the following reasons, Defendant's motion is denied.
In adjudicating Defendant's Motion to Dismiss, this Court assumes the truth of the factual allegations contained in Plaintiff's complaint. See Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740, 96 S.Ct. 1848, 1850, 48 L.Ed. 2d 338 (1976); see also Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton Coll., 128 F.3d 59, 63 (2d Cir. 1997). All well-pleaded factual allegations contained in the complaint are assumed true and construed in favor of the non-moving party. See Still v. DeBuono, 101 F.3d 888, 891 (2d Cir. 1996).
The parties signed a 12-month contract for consulting services on June 7, 2008 (Compl. ¶ 7; Consulting Agreement ¶ 7). According to the terms of the Consulting Agreement, Plaintiff is entitled to a monthly fee of $5,000 for part-time activity or $10,000 for full-time activity, each "payable monthly in arrears within ten (10) business days from receipt of invoice" (Compl. ¶¶ 10, 21; Consulting Agreement ¶ 2). Defendant last paid Plaintiff for the month of September 2008 (Comp. ¶ 22).
On October 6, 2008, Defendant "suspended" the consulting agreement via email, "until markets recover" (Compl., Ex. 2). The Consulting Agreement does not address the possibility of suspension by either party. Defendant later resumed operations without notifying Plaintiff and hired new consultants to fulfill Plaintiff's previous role (Compl. ¶¶17, 18).
Plaintiff seeks payment for full-time activity for the remaining eight months of the contract, from October 2008 through May 2009, although it did not submit monthly invoices to Defendant during this time period (Compl. ¶¶6, 24).
Plaintiff submitted an invoice dated January 29, 2009, for $10,000 for the month of October 2008 (Compl. ¶ 25, Ex. 3). This invoice was for "October 2008 30-day final full time monthly fee pursuant to Consultant Memorandum Agreement dated June 7th, 2008." Id. Additionally, this invoice included $190.95 for "Post Suspension Notice incurred" business expenses. Id.
The Consulting Agreement provides two methods by which it can be terminated by either party (Compl. ¶ 13; Consulting Agreement ¶ 7). The first is for cause and the second is upon breach of any material provision of the agreement. Id. Both methods require 30 days prior written notice to the other party. Id.
Plaintiff commenced this action on August 6, 2009, by filing a complaint in the United States District Court for the Western District of New York. Defendant filed the instant Motion to Dismiss on January 15, 2010. After full briefing, this Court took the motion under advisement without oral argument.
A. Rules 12(b)(1) and ...