United States District Court, S.D. New York
OPINION & ORDER
KATHERINE B. FORREST, District Judge.
Before the Court is a motion filed by defendants INTL FCStone and INTL Commodities (collectively, "INTL") to dismiss plaintiffs complaint or for summary judgment on the grounds, inter alia, that an exhibit to the contract in question was a condition precedent to performance under the contract and that plaintiffs complaint is time-barred. (ECF No. 23.) For the following reasons, defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART.
A. Factual Background
The following facts are undisputed, unless stated otherwise.
This case arises from a June 3, 2009 agreement ("the Agreement") between two executives of defendant INTL (Jim Mammone and Steven Lee) and the president of plaintiff Comm Trade (Bryan Rosenstrauch). (See Am. Compl. Ex. A ("Agreement"), ECF No. 13; Dels.' Local Civil Rule 56.1 Statement ("Defs.' 56.1") ¶¶ 1-2, 4-7, ECF No. 28; Pl.'s Opp, to Defs.' Rule 56.1 Statement ("Pl.'s 56.1") ¶¶ 1-2, 4-7, ECF No, 35.) Prior to that date, defendants had sometimes paid plaintiff different rates of commissions for transactions that resulted from plaintiffs introductions. (Rosenstrauch Decl. ¶ 60, ECF No. 49.)
The Agreement sets forth a process for plaintiff to be designated as defendants' commission agent for a third party. (Agreement ¶¶ 3-4.) It provides that plaintiff "will receive a commission on all introductions based on $10 per ton unless otherwise mutually agreed upon and entered into Exhibit II." (Id. ¶ 3.) The Agreement further states that, in the event of a dispute, "no action shall be entertained... if filed more than one (1) year subsequent to the date the cause(s) of action actually occurred, regardless of whether damages were otherwise as of said time calculable." (Id. ¶ 7.) The Agreement provides that "the terms and conditions thereof may not be further modified except by a writing signed by both Parties." (Id. ¶ 8.) Finally, Exhibit I to the Agreement states, "By signing and dating next to an introduction below, INTL agrees CT may act as their agent to that entity of the purchase or sale of various materials." (Id. Ex. I.)
After both parties had executed the Agreement but at the same meeting, Rosenstrauch and Mammone prepared a handwritten list of "introductions." (Defs.' 56.1 ¶ 10; Pl.'s 56.1 ¶ 10.) According to plaintiff, this list included "introductions" that defendants had already made to plaintiff during the months leading up to the Agreement and that would qualify for commissions. (See Pl.'s 56.1 ¶¶ 10, 13.) According to defendants, this was a "list of third parties for which Comm Trade wanted to be INTL Commodities' agent, " (Defs' Mem. of L. in Supp. of Their Mot. to Dismiss ("Defs' Mot.") 11, ECF No. 24.) Plaintiff claims that this list was entrusted to defendants to type up and send to plaintiff. (Am, Compl. ¶ 52, ) According to defendants, the list may have been lost during an office move; neither party has produced the list. (Lee Decl, ¶¶ 13-14, 17, ECF No. 25; Mammone Decl. ¶¶ 11-12, ECF No. 26; Defs' 56.1 ¶ 12.) The parties did not sign a list of the 64 entities in Exhibit B to the amended complaint ("List of Introductions by Co mm Trade to INTL"), or sign any other document agreeing that plaintiff had introduced defendants to those entities. (Defs.' 56.1 ¶¶ 11, 15, 16; Pl.'s 56.1 ¶¶ 11, 15, 16.) No list of any kind was ever signed or incorporated into the Agreement. (Lee Decl. ¶ 16; Mammone Decl. ¶ 13.)
Later in 2009, Rosenstrauch became displeased that the list of "introductions" had never been formalized. (Lee Decl. ¶ 15; Mammone Decl. ¶¶ 11-12.) In August 2009, Mammone told Rosenstrauch in an email that plaintiff's "prices don't work, " and suggested that Rosenstrauch "get on a plane and find new customers that INTL can supply." (Rosenstrauch Decl. ¶ 66.) This development, together with Mammone's statements that counterparties introduced by plaintiff were no longer suitable for defendants' scrap metal trading operation, led Rosenstrauch to believe that defendants' business with counterparties that had been introduced by plaintiff was ending. (Id. ¶ 67.)
Rosenstrauch nevertheless continued to request trading information and attempt a resolution with Mammone until July 2012. (Id. ¶ 68.) On December 22, 2009, Rosenstrauch requested the list of entities from Mammone. (Mammone Decl. Ex. A.) Mammone told Rosenstrauch that defendants would not agree to the handwritten list from the June 3, 2009 meeting, but he invited Rosenstrauch to send a list to him. (Id.) Specifically, he wrote, "Don't hold your breath as I've asked Steven [Lee] for it many times. If you feel you need it, please send your own." (Id.)
On December 30, 2010, defendants agreed to raise plaintiffs commission to $20 per metric ton for every ton that defendants traded with parties whom plaintiff had introduced to defendant. (Pl.'s 56.1 ¶ 5.)
According to plaintiff, defendants have failed to provide the information to plaintiff that plaintiff needs in order to bill defendants for payment, and defendants are far behind in their obligations under the Agreement. (Am. Compl. ¶¶ 80-83, 105.) Plaintiff also claims that defendants consistently assured plaintiff that they would make good on its obligations. In a February 11, 2012 email to Rosenstrauch, Mammone wrote, "Have got zero cooperation from my side but gonna find a way. Best if it can be done thru new business but will do all I can to include a cash component if you insist, so do you insist and what's your idea on both minimum cash and new business." (Id. ¶ 111.) After four more months of discussion, Mammone told Rosenstrauch in July 2012, "You have to get over it and move on." (Id. ¶ 112.)
Defendants requested certain invoices from plaintiff and paid plaintiff certain commissions after the Agreement was signed. (See Pl.'s Surreply on Mot. to Dismiss ("Pl.'s Surreply") Ex. 12(b) (Lee Deposition), at 82, 94-96, 146, ECF No. 48; Pena Decl. ¶¶ 4, 5, 6, Exs. A, B, C, ECF No. 50.)
In January 2013, Lee informed Rosenstrauch that defendants had done extensive business with a number of individuals and organizations that plaintiff claims to have introduced to defendant. (Rosenstrauch Decl. ¶ 69; id. Ex. B ("List of Introductions by Comm Trade to INTL").)
According to Rosenstrauch, during the period at issue in the complaint, defendant lacked an Administration of Quality Supervision, Inspection and Quarantine ("AQSIQ") license that it needed to ship into China. (Rosenstrauch Decl. ¶ 71.) Defendant began to use plaintiffs AQSIQ license to ship into China in early 2009 and agreed to compensate plaintiff for its use. (Id. ¶ 73.) Plaintiff and defendant verbally entered into this agreement in 2009 and committed the agreement to writing in 2010. (Id.)
B. Procedural History
On June 11, 2013, plaintiff filed the complaint in this action. (ECF No. 1.) The complaint alleges that defendants breached the Agreement by failing to provide information to enable plaintiff to identify the volume of defendants' trade based on introductions that plaintiff had made, and by failing to pay money that is due to plaintiff from those introductions. (Am. Compl. ¶ 117.) The complaint also alleges unjust enrichment and promissory estoppel, (Id. ¶ 124.) On August 13, 2013, plaintiff filed an amended complaint. (ECF No. 13.)
On September 16, 2013, defendants filed a motion to dismiss or, in the alternative, a motion for summary judgment, (ECF No. 23.) On October 18, 2013, the Court heard oral argument on several issues related to the motion. (See ECF Nos. 38, 39.) On November 9, 2013, plaintiff filed a surreply to defendants' motion. (ECF No. 48.) The motion became fully briefed on November 22, 2013. (ECF No. 56.)
II. STANDARD OF REVIEW
Summary judgment may not be granted unless a movant shows, based on admissible evidence in the record, "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). On summary judgment, the Court must "construe all evidence in the light most favorable to the nonmoving ...