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Northern Shipping Funds I, L.L.C v. Icon Capital Corp.

April 12, 2013

NORTHERN SHIPPING FUNDS I, L.L.C.,
PLAINTIFF,
v.
ICON CAPITAL CORP., BOA SUB C AS, BOA DEEP C AS, BOA HOLDING AS, BOA OFFSHORE AS, AND TAUBATKOMPANIET AS,
DEFENDANTS.
TAUBATKOMPANIET AS, BOA HOLDING AS,: BOA SUB C AS, BOA OFFSHORE AS, AND BOA DEEP C AS, COUNTER CLAIMANTS,
ICON CAPITAL CORP.,
COUNTER DEFENDANT.
ICON CAPITAL CORP.,
THIRD-PARTY PLAINTIFF,
v.
SEAN DURKIN AND JOHN HARTIGAN, THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge

MEMORANDUM AND ORDER

Plaintiff Northern Shipping Funds I, L.L.C. ("Northern") brings this action against defendants Icon Capital Corporation ("Icon") and Boa Sub C AS, Boa Deep C AS, Boa Holding AS, Boa Offshore AS, and Taubakompaniet AS (collectively, "Boa"), alleging breach of contract, unjust enrichment, and money had and received.*fn1

Icon asserts counterclaims against Northern and third-party claims against agents of Northern, Sean Durkin and John Hartigan (the "third-party defendants"), as well as cross-claims against Boa. Northern, the third-party defendants, and Boa now move to dismiss the counterclaims, third-party claims, and cross-claims, respectively, under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The parties have consented to my jurisdiction for all purposes, in accordance with 28 U.S.C. § 636(c). For the reasons set forth below, Northern and the third-party defendants' motion is granted, and Boa's motion is granted in part and denied in part. Background

The factual background of this dispute is set forth in my January 24, 2013, Memorandum and Order and will only be summarized briefly and supplemented as necessary here. Northern Shipping Funds I, LLC, F. Supp. 2d , 2013 WL 440632. In accordance with the standard for assessing a motion to dismiss, the allegations in the counterclaims, third-party claims, and cross-claims are taken as true, and all reasonable inferences are drawn in the non-movant's favor. See Gilman v. Spitzer, F. Supp. 2d , , 2012 WL 4510681, at *1 n.1 (S.D.N.Y. 2012). In addition, I have considered documents incorporated in or integral to the pleadings. Id.

On September 17, 2010, Northern and Boa entered into a binding contract (the "Commitment Letter") under which Northern and Icon would provide Boa with a $70,000,000 loan (the "transaction"). (Counterclaims and Third Party Claims ("Countercl.,"), attached to Icon's Answer to Complaint, Third Party Claims, Counter-Claim[,] and Cross-Claims ("Ans."), ¶¶ 4-5; Cross-Claims ("Cross-Cl."), attached to Ans., ¶¶ 1-2 ; Letter of C. Tobias Backer and John Hartigan dated Sept. 16, 2010 (the "Commitment Letter"), attached as Exh. A to Complaint ("Compl.")). Northern participated in drafting the terms and conditions of the Commitment Letter. (Countercl., ¶ 5; Cross-Cl., ¶ 2). The letter was signed by C. Tobias Back, Senior Director of Icon, and was to be signed by John Hartigan, Senior Investment Manager of Northern. (Countercl., ¶ 5; Cross-Cl., ¶ 2; Commitment Letter at 20).*fn2

Boa unilaterally withdrew from the transaction on December 15, 2010. (Countercl., ¶ 6; Cross-Cl., ¶ 3). Icon determined that it would pursue legal action against Boa to enforce its right to liquidated damages under the terms and conditions of the Commitment Letter. (Countercl., ¶ 7; Cross-Cl., ¶ 4). On January 6, 2011, and several times thereafter, Icon invited Northern to join the litigation, but Northern declined. (Countercl., ¶ 8). On February 8, 2011, Mr. Hartigan advised Icon by e-mail that he was recommending Northern not to join Icon's lawsuit because of the reputational risk and the expense of litigation. (Countercl., ¶ 9).

On March 14, 2011, Icon initiated a lawsuit against Boa (the "Prior Action"). (Countercl., ¶ 10; Cross-Cl., ¶ 5; Complaint, Icon Capital Corp. v. Boa Sub C AS, No. 11 Civ. 1746 (S.D.N.Y. March 14, 2011)). On January 1, 2012, Icon and Boa entered into a written confidential agreement (the "Settlement Agreement") settling the Prior Action. (Countercl., ¶ 11; Cross-Cl., ¶ 6).

Mr. Hartigan and Sean Durkin, President of Northern, learned about the Settlement Agreement and contacted Boa to inquire about the amount for which the Previous Action settled. (Countercl., ¶ 12). Icon alleges that Boa informed Northern of the settlement amount and made certain disparaging remarks about Icon's agents. (Countercl., ¶ 13).

On May 7, 2012, Northern initiated the instant action against Icon and Boa, alleging that Icon did not own the exclusive rights to settle the case against Boa in the Prior Action and that Northern also owned those claims. (Compl., ¶ 2).

Icon has asserted counterclaims against Northern and third-party claims against Mr. Durkin and Mr. Hartigan, alleging tortious interference of contract and conspiracy to interfere with contract. Icon has also brought cross-claims against Boa, asserting breach of the confidentiality, non-disparagement, and good faith and fair dealing provisions of the Settlement Agreement in the Prior Action. Discussion

A. Legal Standard A motion to dismiss a counterclaim, third-party claim, and cross-claim is evaluated under the same standard as a motion to dismiss a complaint. See Renovate Manufacturing, LLC v. Acer America Corp., No. 12 Civ. 6017, 2013 WL 342922, at *2 (S.D.N.Y. Jan. 18, 2013) ("A motion to dismiss a counterclaim is evaluated under the same standard as a motion to dismiss a complaint." (internal quotation marks omitted)); Cohen v. Stephen Wise Free Synagogue, No. 95 Civ. 1659, 1996 WL 159096, at *1 (S.D.N.Y. April 4, 1996) ("Because Rule 12(b) applies equally to claims, counterclaims, cross-claims and third-party claims, plaintiff's motion to dismiss . . . will be evaluated under [] same standards [as a motion to dismiss the complaint]." (internal citation omitted)). Thus, to survive a motion to dismiss under Rule 12(b)(6), the pleading "must contain sufficient factual matter . . . 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, 556 (2007)). While "'detailed factual allegations,'" are not necessary, the pleading must be supported by more than mere "'labels and conclusions' or '[] formulaic recitation[s] of the elements of a cause of action.'" Id. (quoting Twombly, 550 U.S. at 555). "'[N]aked assertions' devoid of 'further factual enhancement'" is insufficient. Id. (quoting Twombly, 550 U.S. at 557). Further, where the factual allegations permit the court to infer only a possible, but not a plausible, claim for relief, it fails to meet the minimum standard. Id. at 679. In ruling on a motion to dismiss, the court's task "'is merely to assess the legal feasibility of the [claim], not to assay the weight of the evidence which might be offered in support thereof.'" GVA Market Neutral Master Ltd. v. Veras Capital Partners Offshore Fund, Ltd., 580 F. Supp. 2d 321, 327 (S.D.N.Y. 2008) (quoting Eternity Global Master Fund Ltd. v. Morgan Guaranty Trust Co. of New York, 375 F.3d 168, 176 (2d Cir. 2004)).

As noted above, in assessing a motion to dismiss, a court must take as true the allegations in the pleadings and draw all reasonable inferences in the non-movant's favor. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam); DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 110--11 (2d Cir. 2010). However, this is inapplicable to legal conclusion and a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

On a motion to dismiss, the court is generally limited to reviewing the allegations in the pleadings and documents attached to it or incorporated by reference. Ferrara v. Leticia, Inc., No. 09 CV 3032, 2012 WL 4344164, at *2 (E.D.N.Y. Sept. 21, 2012); see Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007); Gryl ex rel. Shire Pharmaceuticals Group PLC v. Shire Pharmaceuticals Group PLC, 298 F.3d 136, 140 (2d Cir. 2002). "'To be incorporated by reference, the [pleading] must make a clear, definite and substantial reference to the documents . . . [and] [t]o be integral to the [pleading], the [claimant] must have (1) actual notice of the extraneous information and (2) relied upon the documents in framing the [pleading].'" Bill Diodato Photography LLC v. Avon Products, Inc., No. 12 Civ. 847, 2012 WL 4335164, at *3 (S.D.N.Y. Sept. 21, 2012) (second and ...


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