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Landmark Ventures, Inc v. Wave Systems Corp.

September 4, 2012


The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:


Plaintiff Landmark Ventures, Inc. ("Landmark") seeks damages arising from an agreement to provide consulting services to Defendant Safend, Inc. ("Safend"). On October 20, 2011, Landmark filed its Complaint in Supreme Court, New York County, alleging breach of contract. Defendants Wave Systems and Safend (collectively "Defendants") removed this action by notice of removal, filed on November 18, 2011, asserting diversity jurisdiction under 28 U.S.C. § 1332(a). On January 4, 2012, the Court granted Landmark leave to amend its Complaint, and an Amended Complaint was filed on January 17, 2012. Defendants now move, under Fed.R.Civ.P. 12(b)(6), to dismiss the Amended Complaint for failure to state a claim. For the reasons discussed below, Defendants' motion is granted.


Landmark provides strategic and financial consulting services to growth oriented technology companies, and is based in New York, New York. (Am. Compl. at 3 ¶ 8.) Safend markets endpoint data encryption products to customers worldwide and is located in Philadelphia, Pennsylvania. (Id. at 2 ¶¶ 3, 5.) Landmark alleges that Safend is "a wholly-owned subsidiary, agent or corporate division" of Safend, Ltd., a foreign corporation based in Tel-Aviv Israel. (Id. at 2 ¶ 4, 3 ¶ 5.)

Landmark alleges that on or about December 20, 2007, it entered into a consulting agreement (the "Agreement") with Safend. (Id. at 3 ¶ 9.) Under the terms of the Agreement, Landmark agreed to provide Safend with various "strategic and operational consulting services" to help Safend increase its sales.*fn2 (Id.; Am. Compl., Ex. A ("Agreement") ¶ 1.) In return for Landmark's services, Safend agreed to pay Landmark certain fees and commissions. (Am. Compl. at 4 ¶ 11; Agreement ¶¶ 11-12, 15.) Landmark also agreed to invoice its consulting fees and travel expenses to Safend on a monthly basis. (Agreement ¶ 14.) The Agreement required Safend to make payment within 15 days of the invoice date. (Id.)

For Landmark's benefit, the Agreement also included an "anti-poaching" provision, which states in relevant part: "Client [Safend] furthermore agrees not to hire or offer any type of employment opportunities to Landmark Partners and Employees during the period of engagement plus an additional two (2) years, unless an express waiver is agreed upon in writing." (Id. ¶ 4.) The Agreement was executed by Gil Sever, President and CEO of Safend, whom Landmark alleges was also CEO and founder of Safend, Ltd. (Id. at 7; Am. Compl. 3 ¶ 9.)

Landmark also alleges that from February 1, 2007 to June 2, 2011, it employed Louis Robert Gallucci ("Gallucci") as an executive in charge of sales, marketing, business development, and financing strategies. (Am. Compl. at 4 ¶ 16.) Since Gallucci had access to Landmark trade secrets and other confidential company information, Landmark required Gallucci to enter into an employment agreement on February 1, 2007. (Id. at 5 ¶¶ 20-21.) Under his employment agreement, Gallucci agreed to devote his professional time and effort to Landmark's business and "refrain from professional practice" outside of Landmark's interests. (Id. at 6 ¶ 21.) Gallucci further agreed that during the term of his employment agreement, he would not directly or indirectly "engage in any other business, either as an employee, employer . . . or in any other capacity, either with or without compensation," without Landmark's prior written consent. (Id. at 6 ¶ 22.) The employment agreement also provided that "[w]hile employed with Landmark, and for one year after resignation or termination," Gallucci would not "solicit, accept employment or provide consulting services to any Landmark client . . . ." (Id. at 6 ¶ 23.) In addition, Gallucci entered into a Confidentiality and Intellectual Property Agreement with Landmark.*fn3 (Id. at ¶ 25.)

On approximately June 2, 2011, Gallucci terminated his employment with Landmark. (Id. at 5 ¶ 17.) Landmark alleges that Safend "had meetings, conversations, and/or other communications with Gallucci regarding business matters," and that these communications were prohibited by the anti-poaching clause of the parties' Agreement as well as Gallucci's own agreements with Landmark. (Id. at 5 ¶ 15.) Landmark does not allege when these communications took place, or what specific matters were discussed.

In its first cause of action, Landmark alleges that it performed its obligations under the Agreement, but that "additional amounts are owed." (Am. Compl. at 4 ¶¶ 11-12.) According to the Amended Complaint, "[Safend] owe[s] Landmark certain sums of money," despite Landmark's demands for payment. (Id. at 4 ¶ 13.) Landmark does not specify any damages sought on this count. In its second cause of action, Landmark alleges that Safend breached the anti-poaching provision of the Agreement. Landmark alleges that Defendants advised Landmark "that Safend had worked with Gallucci, a former employee of Landmark, after the time that Mr. Gallucci's employment at Landmark had terminated." (Id. at 7 ¶ 16.) Landmark seeks damages of not less than $5,000,000 for its second cause of action.


A. Standard of Review

In considering a Fed.R.Civ.P. 12(b)(6) motion to dismiss, a court accepts the complaint's factual allegations as true and draws all reasonable inferences in the plaintiff's favor. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). A court need not accept as true, however, "[l]egal conclusions, deductions or opinions couched as factual allegations." In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Although a complaint need not contain detailed factual allegations, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678.

In determining the sufficiency of a complaint, the Court may consider "the factual allegations in [the] . . . complaint, . . . documents attached to the complaint as an exhibit or incorporated in it by reference, . . . matters of which judicial notice may be taken, [and] documents either in plaintiffs' possession or of which the plaintiffs had knowledge and ...

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