The opinion of the court was delivered by: Hurley, Senior District Judge:
Plaintiffs bring this diversity action seeking damages arising from the alleged breach of a settlement agreement. Presently before the Court is plaintiffs' motion for summary judgment pursuant to FED. R. CIV. P. 56. For the reasons discussed below, plaintiffs' motion is denied without prejudice.
In March 2009, plaintiffs entered into a business relationship with defendants involving the purchase of Collateralized Mortgage Obligation ("CMO") bonds. (Compl. ¶¶ 10-11.) Consistent with an understanding between the two parties, plaintiffs transferred $400,000 to defendants to fund the purchase of certain CMOs. (Compl. ¶¶ 11.) For reasons that are not entirely clear from the record, nor particularly relevant to this action, the deal between the parties did not work out as anticipated. (Compl. ¶¶ 13-17.) As a result, plaintiffs presented defendants with a "demand letter" dated May 24, 2010 seeking compensation "regarding CMO Bond: JP Morgan Chase Commercial Mortgage CUSIP NUMBER 44628FAK7." (Settlement Agreement and Release, at preamble, attached to the Casolaro Affidavit as Exhibit A; see compl. ¶ 18.)
To resolve the matter, the parties entered into a settlement agreement ("Agreement") on June 11, 2010. (Compl. ¶ 19.) That Agreement contemplated a payment to plaintiffs in the amount of $420,000 by June 30, 2010 in exchange for the transfer to defendants of all "right, title, and interest" in the CMO referred to in the demand letter, as well as a release from all liability arising from the original CMO transaction.*fn1 (Agreement §§ 1.1, 1.3, 1.5, 3.0.) A subsequent amendment to that Agreement extended the due date for defendants' payment to July 5, 2010.*fn2 (First Amendment to the Settlement Agreement and Release §§ 1-2, attached to the Casolaro Affidavit as Exhibit A.) There is no dispute that defendants have failed to make payment under the Agreement. (Defendants' Statement Pursuant to Local Rule 56.1 ¶ 2.)
Plaintiffs assert five causes of action in their complaint arising from defendants' failure to tender payment: breach of contract, breach of covenant of good faith and fair dealing, unjust enrichment, conversion, and breach of fiduciary duty. (Id. ¶¶ 25-48.) The present motion, however, only moves for summary judgment on the breach of contract claim.
Although defendants acknowledge their non-payment, they nonetheless assert that various issues of fact preclude the disposition of the case by summary judgment. (Defs.' Mem. Opp'n. Summ. J. ("Ds' Opp").) First, defendants argue that the "settlement between the parties was contingent on Mr. Armstrong completing 'another transaction with a third party.'" (Id. at 1; Affidavit of Scott Armstrong ("Armstrong Aff.") ¶ 13.) Second, they argue that the Agreement was the product of coercion and duress, and therefore unenforceable. (Ds' Opp. at 2; Armstrong Aff. ¶¶ 15-16.) Finally, they argue that "since defendants have not yet paid . . . , title to those financial instruments still rests with plaintiffs," and therefore plaintiffs have not yet been damaged. (Ds'Opp. at 2.)
Summary judgment should be granted where the pleadings and admissible evidence offered to the Court demonstrate "no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." FED. R. CIV. P. 56; Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). An issue of fact is genuine if the "evidence is such that a reasonable jury could return a judgment for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008). Further, the relevant governing law determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Accordingly, where the undisputed facts demonstrate the union of all the required elements of a cause of action and no reasonable juror could find otherwise, the plaintiff is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) ("Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existent of an element essential to that party's case.").
A party may defeat a motion for summary judgment only "by coming
forward with evidence that would be sufficient, if all reasonable
inferences were drawn in [its] favor, to establish the existence of
[an] element at trial." Roe,542 F.3d at 36 (quoting Grain Traders,
v. Citibank, N.A., 160 F.3d 97, 100 (2d Cir. 1998)). The non-movant
must advance "more than a scintilla of evidence," Anderson, 477 U.S.
at 252, and demonstrate more than "some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Affidavits submitted in opposition to
summary judgment must be based on personal knowledge, must "set forth
such facts as would be admissible in evidence," and must show that the
affiant is "competent to testify to the matters stated therein."
Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004)
(citing FED.R.CIV.P. 56(e)).*fn3
Conclusory statements in affidavits or allegations in the
pleadings are therefore insufficient to defeat a motion for summary
judgment. Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir.
As an initial matter, defendants' answer asserts as an affirmative defense the lack of personal jurisdiction due to insufficient service of process. (Answer, Second Affirmative Defense.) Defendant Scott Armstrong's ("Armstrong") affidavit in opposition to plaintiffs' motion also states the following:
I was never personally served with the legal papers in this action, and I was certainly was not served on or before October 4, 2010 as required by the Court's order of September 20, 2010. Rather, I noticed on October 13, 2010 that the papers ...