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Mgr Meats, Inc., Edward Fischer, Robert Raneri and Richard Raneri v. Paul Schweid

December 21, 2012

MGR MEATS, INC., EDWARD FISCHER, ROBERT RANERI AND RICHARD RANERI, PLAINTIFFS,
v.
PAUL SCHWEID, DEFENDANT.



The opinion of the court was delivered by: Margo K. Brodie, United States District Judge:

MEMORANDUM & ORDER

Plaintiffs Mgr Meats, Inc., Edward Fischer, Robert Raneri and Richard Raneri filed the above-captioned action against several defendants including Renaissance Provisions Corp., Dominic DiPalma and Paul Schweid. Plaintiffs subsequently amended the Complaint twice to, among other things, add Cimitile Provisions, Inc. and Antonio Piccolo as defendants. The only remaining defendant is Paul Schweid ("Defendant"). In the Second Amended Complaint (referred to hereafter as "Complaint"), Plaintiffs assert New York state law claims against Defendant for tortious interference with a contract and unjust enrichment. Defendant has moved to dismiss both claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In addition, Plaintiffs have moved to amend the Complaint to add a breach of contract claim against Defendant. The Court heard argument on November 16, 2012. For the reasons set forth below, the motion to dismiss is denied. Plaintiffs' motion to amend the Complaint is granted. *fn1

I.Background

The facts alleged in the Complaint are assumed to be true for the purposes of this motion. Plaintiff MGR Meats, Inc. ("MGR Meats") was a family owned wholesale distributor of meat, including products of Boar's Head Inc. ("Boar's Head").*fn2 (Compl. ¶ 2.) Plaintiffs Edward Fischer, Robert Raneri, and Richard Raneri were the principals of MGR Meats. (Id.) MGR Meats owned special Boar's Head refrigerated trucks and other assets, including equipment, inventory, fixtures, customer accounts and goodwill. (Id.)

On March 22, 2002, Plaintiffs sold the Boar's Head part of their distributorship business to Renaissance Provisions Corp. ("Renaissance") *fn3 and Dominic DiPalma ("DiPalma") for $975,000. (Id. at ¶ 5.) DiPalma and Renaissance paid MGR Meats $425,000 in cash and signed a promissory note in the amount of $550,000, which was payable in 120 installments over 10 years at an eight percent interest rate. (Id.; Pls.' Opp'n 3.) The sale included refrigerated trucks and other assets, such as equipment, inventory, fixtures, customer accounts and goodwill. (Compl. at ¶ 5.) These items were secured by "a security interest and Financing Statement (UCC-1) on all of the goods, equipment, inventory, fixtures, accounts receivables, accounts and commercial vehicles of the business, including after-acquired items." (Id. at ¶ 25.) In addition, DiPalma and Renaissance agreed to file a "Notice of Lien (MV-900) on the [two] commercial trucks and all after acquired vehicles" and "pay for a life insurance policy on [DiPalma's] life naming the plaintiffs" as sole beneficiaries. (Id. at 25--26.)

Plaintiffs allege that Defendant knew of the agreements between Plaintiffs, Renaissance and DiPalma and intentionally induced DiPalma and Renaissance to breach the agreements by advising them not to pay Plaintiffs and "by purchasing, transferring or otherwise brokering the transfer of all the customer accounts and assets subject to the Agreement," (id. at ¶ 34.), causing damage to Plaintiffs. (Id. at ¶ 35.) By March 2009, all of the customer accounts had been transferred to Defendant and others, and the assets that were to secure the loan from MGR Meats to Renaissance and DiPalma had been dissipated. (Id.) Defendant and others continue to use the assets that secured the loan, have profited from those assets, and have refused to pay Plaintiffs although Plaintiffs have demanded payment. (Id. at ¶¶ 37, 39.).

Defendant now moves to dismiss the Complaint in its entirety. Defendant argues that Plaintiffs failed to state a claim for tortious interference with a contract because Plaintiffs did not plead "but for causation." (Def. Mot. to Dismiss 6--7.) Defendant further argues that Plaintiffs failed to state a claim for unjust enrichment because (1) there is a contract that governs the subject matter at issue, thus, Plaintiffs' only remedy is pursuant to that contract, and (2) there was no privity between Defendant and Plaintiffs. (Def. Mot to Dismiss 10--12.) In their response to the motion, Plaintiffs seek to amend the Complaint to add a claim for third party beneficiary to a contract between Defendant, DiPalma, and Renaissance and to add Defendant's company as a defendant. (Pls.' Opp'n 5--7.) Defendant argues that Plaintiffs cannot sustain a third party beneficiary claim because there never was a contract between Defendant, his company, DiPalma and Renaissance. (Def. Reply 5.)

II.Discussion

a.Standard of Review

In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must "accept as true all allegations in the complaint and draw all reasonable inferences in favor of the non-moving party." Matson v. Bd. of Educ. of City Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 320 (2d Cir. 2009)). A complaint must, however, "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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Matson, 631 F.3d at 63 (quoting Iqbal, 556 U.S. at 678). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (quotingFed. R. Civ. P. 8(a)(2)).*fn4

b.Tortious Interference Claim

Plaintiffs have alleged sufficient facts to state a claim against Defendant for tortious interference with a contract. "Under New York law, the elements of a tortious interference claim are: (a) that a valid contract exists; (b) that a 'third party' had knowledge of the contract; (c) that the third party intentionally and improperly procured the breach of the contract; and (d) that the breach resulted in damage to the plaintiff." Finley v. Giacobbe, 79 F.3d 1285, 1294 (2d Cir. 1996) (citations omitted); see also Kirch v. Liberty Media Corp., 449 F.3d 388, 401 (2d Cir. 2006) (citing the same test). "[T]o be actionable, the interference must be intentional and not incidental to some other lawful purpose." Dell's Maraschino Cherries Co., Inc. v. Shoreline Fruit Growers, Inc., No. 10-CV-3789, 2012 WL 3537009, at *18 (E.D.N.Y. Aug. 14, 2012) (quoting Heath--Chem Corp. v. Baker, 915 F.2d 805, 809 (2d Cir. 1990)). "Plaintiff must also allege that the breach would not have occurred 'but for' the conduct of the defendants." Friedman v. Wahrsager, 848 F. Supp. 2d 278, 297 (E.D.N.Y. 2012) (citing Sharma v. Skaarup Ship Mgmt. Corp., 916 F.2d 820, 828 (2d Cir. 1990)).

Accepting the allegations in the Complaint as true and drawing all reasonable inferences in favor of Plaintiffs, as the Court is required to do, the Court finds that Plaintiffs have stated a claim for tortious interference with a contract. Plaintiffs allege that: (1) there was a contract, i.e., the promissory note between Plaintiffs and Renaissance and DiPalma (Compl. ¶ 34); (2) Defendant had knowledge of the contract (id.); (3) Defendant "intentionally and without cause or justification" induced DiPalma and Renaissance to breach the contract between Plaintiffs and Renaissance and DiPalma by advising them not to pay Plaintiffs and "by purchasing, transferring or otherwise brokering the transfer of all the customer accounts and assets subject to the Agreement" (id.); and (4) Plaintiffs were damaged as a result of Defendant's action. (Id. at ¶ 35.)

Defendant argues that Plaintiffs have failed to plead "but for causation." However, the fact that Plaintiffs have pled that Defendant intentionally induced the breach of the contract is sufficient to satisfy the "but for causation" pleading requirement. Bertuglia v. City of New York, 839 F. Supp. 2d 703, 729 (S.D.N.Y. 2012) (pleading "intentional inducement" meets the "but for causation" requirement at the motion to dismiss stage); St. John's Univ., N.Y. v. Bolton, 757 F. Supp. 2d 144, 173 (E.D.N.Y. 2010) (same); see also Planet Payment, Inc. v. Nova Info. Sys., Inc., No. 07-CV-2520, 2011 WL 1636921, at *10 (E.D.N.Y. Mar. 31, 2011) ("The procurement portion of a claim of tortious interference with contract requires that 'but for' the conduct of the defendant, there would not have been a breach" which requires the plaintiff to plead that the defendant "'induc[ed] or otherwise caus[ed]' the third-party not to perform the contract" (alteration in the original) (quoting White Plains Coat & Apron Co. v. Cintas Corp., 8 N.Y.3d 422, 426 (2007)). "The inducement causing the breach 'may be any conduct conveying to the third person the ...


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