The opinion of the court was delivered by: John Gleeson, United States District Judge:
Plaintiff Jean T. DiMaria ("DiMaria") is the widow of Gary DiMaria ("Mr. DiMaria"). Mr. DiMaria and defendant Martin Goor ("Goor") were business partners who jointly owned a number of corporate entities, collectively referred to as the "CFT Entities."*fn1 Mr. DiMaria died in 2006, and his shares in the CFT Entities passed to DiMaria. In her Second Amended Complaint, DiMaria alleges that, after Mr. DiMaria's death, Goor breached an agreement to buy out her shares in one of the CFT Entities, Contract Furniture Transport, Inc. ("CFT, Inc."); that Goor stripped the CFT Entities of their assets, in violation of Goor's fiduciary duties to the CFT Entitites, by unlawfully transferring those assets to a new corporation called CFT-IOS, Inc. ("CFT-IOS"); that Goor's son Ryan Goor ("Ryan") conspired with his father and aided and abetted in that unlawful transfer; and that Goor and the CFT entities were unjustly enriched by a loan of approximately $284,000 that DiMaria made to the CFT Entities in 2007. The Second Amended Complaint asserts claims against Goor, Ryan, CFT-IOS, and the CFT Entities. Goor, Ryan, and CFT-IOS have moved to dismiss certain of DiMaria's claims pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim.*fn2 For the reasons stated below, the defendants' motions are granted in their entirety. As a result, Ryan and CFT-IOS are dismissed from the case, DiMaria's derivative claims are dismissed in their entirety, and DiMaria's claim for unjust enrichment is dismissed as against Goor.*fn3
The facts of this case are set forth in a memorandum and order dated September 30, 2010, DiMaria v. Goor, No. 09-CV-1011(JG)(RML), 2010 WL 3923227 (Sept. 30, 2010), and familiarity with them is assumed. I recite in this memorandum and order only those facts necessary to a disposition of the present motions. This case involves three distinct sets of facts, all related to ownership and operation of the CFT Entities. First at issue is a 1992 Shareholder Agreement signed by Goor and Mr. DiMaria in their capacities as sole shareholders of CFT, Inc. under which each was obligated to buy out the other's interest if the other died. In her first cause of action, DiMaria seeks to enforce Goor's performance of that promise. The parties dispute only the purchase price, not Goor's liability.
Second, DiMaria alleges that, since her husband's death, Goor, working in concert with his son, has wrongfully stripped the CFT Entities of their assets and has unlawfully transferred those assets to a new corporation called CFT-IOS, of which Ryan is president. DiMaria alleges that the CFT Entities were inextricably intertwined at the time of Mr. DiMaria's death. Three years after he died, on November 17, 2009, two of the CFT Entities, CFT, Inc. and Contract Furniture Transport Associates, Inc. ("CFT Associates"), entered into an assignment for the benefit of creditors, or "ABC proceeding," under New Jersey law. Pursuant to those proceedings, the assets of CFT, Inc. and CFT Associates were transferred to CFT-IOS. DiMaria's breach of fiduciary duty claim seems largely based on this transfer. She alleges that "[t]he assignment of CFT, Inc. and CFT Associates took the assets of the CFT Entities and did so without providing the CFT Entities any consideration, and simply gave them to CFT-IOS." Second Am. Compl. ¶ 54. DiMaria also claims that Goor misappropriated assets for his private use and deprived the CFT Entities of their value by using CFT-IOS to perform work previously handled by the CFT Entities. These allegations form the basis of DiMaria's second, fourth and fifth causes of action, which are derivative claims on behalf of the CFT Entities against, respectively, Goor for breach of fiduciary duty; Goor and Ryan for conspiracy to breach Goor's fiduciary duty; and Goor and CFT-IOS for aiding and abetting Goor's breach of fiduciary duty.
Finally, this case concerns a $284,000 loan that DiMaria allegedly made to the CFT Entities prior to her husband's death. DiMaria concedes that "this payment was not made to Goor directly nor did he enter into a written guaranty of such loan." Second Am. Compl. ¶ 57. Nonetheless, in her third cause of action, DiMaria seeks to hold Goor, as well as the CFT Entities, liable under a theory of unjust enrichment.
This action was commenced in the Supreme Court of Richmond County, New York, on February 6, 2009, when DiMaria filed a complaint on her own behalf, as administratrix of her husband's estate, and derivatively on behalf of CFT, Inc. and a company named L&D Installers, Inc. ("L&D"), which is not among the CFT Entities, and which is no longer a party to this case. In her original complaint, DiMaria asserted claims against Goor, CFT, Inc., and two other defendants, which she later voluntarily dismissed from the action. DiMaria asserted ten causes of action in her original complaint, including claims for breach of contract, breach of fiduciary duties, and unjust enrichment.
On March 11, 2009, the defendants removed the action to this court on the basis of diversity jurisdiction. In response to a motion for summary judgment filed by Goor on December 4, 2009, DiMaria moved to amend her complaint. The First Amended Complaint was deemed filed as of December 15, 2009. In her complex First Amended Complaint, DiMaria asserted nine claims on behalf of herself, on behalf of her husband's estate, and derivatively on behalf of the CFT Entities, against Goor, CFT-IOS, Ryan, the CFT Entities, and Steven Mitnick, who had been appointed receiver of CFT, Inc. and CFT Associates pursuant to the ABC proceeding.
In December 2009 and January 2010, the defendants named in the First Amended Complaint filed motions to dismiss, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), and for summary judgment, pursuant to Fed. R. Civ. P. 56. By memorandum and order dated September 30, 2010, I granted a number of defendants' motions, greatly simplifying the action. First, I dismissed with prejudice all claims against Mitnick. Second, I held that the 1992 Shareholder Agreement obligated Goor to purchase Mr. DiMaria's shares in CFT, Inc., but not in the other CFT Entities, and I declined Goor's motion for a declaration that the purchase price is zero. Third, I dismissed all claims raised by DiMaria personally and on behalf of her husband's estate against Goor for breach of fiduciary duty. I reasoned that those claims alleged harms to the CFT Entities, rather than to DiMaria and her husband individually. Third, I dismissed all of DiMaria's derivative claims asserted on behalf of the CFT Entities against Goor, Ryan and CFTIOS. I held that the proper place to raise any derivative claims on behalf of CFT, Inc. and CFT Associates was in the New Jersey ABC proceeding, and I therefore dismissed all such claims with prejudice. I also dismissed the derivative claims on behalf of the remaining CFT Entities because the First Amended Complaint failed to specify how these Entities were harmed by the defendants' conduct. Specifically, I noted that DiMaria's allegations did not distinguish among the CFT Entities and, in particular, that they did not distinguish between CFT, Inc. and CFT Associates on the one hand and the remaining CFT Entities on the other. Accordingly, I dismissed the derivative claims on behalf of Contract Furniture Warehouse Corp., Contract Furniture Painting, LLC, Contract Furniture Installations, LLC, Dependable Moving And Storage, Inc., Dependable Moving And Storage Corp., Service East, Inc., and Contract Furniture Transportation, LLC, but I granted DiMaria leave to replead those claims with specific allegations as to the harms allegedly suffered by each of these entities. Finally, with respect to the loan allegations, I declined to dismiss DiMaria's claim for repayment as against the CFT Entities, but I held that the First Amended Complaint contained no basis for holding Goor personally liable on the loan. I therefore dismissed the loan claim as against Goor, but I granted DiMaria an opportunity to replead the claim with specific facts, if any, that would make Goor personally answerable.
On November 29, 2010, DiMaria filed her Second Amended Complaint. As mentioned above, DiMaria now asserts five causes of action: (1) breach of contract against Goor on behalf of herself and her husband's estate; (2) breach of fiduciary duty against Goor derivatively on behalf of the CFT Entities; (3) unjust enrichment against Goor and the CFT Entities on behalf of herself; (4) conspiracy against Goor and Ryan derivatively on behalf of the CFT Entities; and (5) aiding and abetting breach of fiduciary duty against Ryan and CFTIOS derivatively on behalf of the CFT Entities. Now before me are Goor's motion to dismiss claims two, three and four, and Ryan and CFT-IOS's motion to dismiss claims four and five.*fn4
Oral argument was held on July 8, 2011. For the reasons stated below, the motions are granted ...